AUSTIN – Leading a 17-state coalition, Attorney General Ken Paxton on August 11, 2017 urged the U.S. Department of Labor to rescind the Obama-era Persuader Rule, which threatened to increase legal costs for businesses and undermine the long-standing and sacred attorney-client privilege.
Last November, Attorney General Paxton won a permanent, nationwide injunction against the Persuader Rule, when a federal judge ruled that it was unlawful and would have required attorneys to publicly disclose confidential information protected by attorney-client privilege. In December, a Texas-led 10-state coalition won a final judgment in the case.
“The Persuader Rule imperils the attorney-client relationship by compelling attorneys to disclose the identities of their clients, as well as the terms, conditions, and scope of their representations,” Attorney General Paxton wrote in the letter to Labor Secretary Alexander Acosta. “The Rule leaves employers two equally unacceptable options: have their lawyers act as ‘vending machines,’ offering purely technical responses to client inquiries, or have them provide useful legal advice that requires them to breach their duty of confidentiality.”
The Obama administration’s reinterpretation of the Persuader Rule upended five decades of established federal labor policy and would have made it more difficult and expensive for small businesses to obtain legal advice. Attorney General Paxton’s lawsuit kept the Department from enforcing the new rule.
The Department’s proposal to rescind the Persuader Rule requires a 60-day public comment period—which ends on August 11—before the Department can take final action. “Given that the Persuader Rule has the effect of regulating a traditionally state-regulated domain, and that Congress has made no such indication, the Department should rescind the rule,” the 17-state letter concludes.
Joining Attorney General Paxton in the letter are the Governors of Kentucky and Mississippi, as well as the attorneys general from Alabama, Arizona, Arkansas, Indiana, Kansas, Louisiana, Michigan, Missouri, Nevada, Oklahoma, South Carolina, Utah, West Virginia, and Wisconsin.