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U.S. District Court Issues Permanent Injunction Against Department of Labor “Persuader Rule”

Proposed rule violates attorney-client privilege and would have chilling effect on First Amendment

SALT LAKE CITY November 18, 2016 – In an order issued this week, a district court has issued a permanent national injunction against a proposed Department of Labor (DOL) administrative rule. Utah was one of ten states nationwide, in cooperation with legal and business groups, to challenge the rule as an improper infringement on attorney-client communications. Attorney General Sean Reyes applauded the ruling.

“We are pleased that the court has permanently enjoined the Department of Labor’s so-called ‘persuader rule,’ which improperly infringes on attorney-client communications—an area of law historically the province of the states,” said Tyler Green, Utah Solicitor General. “The permanent injunction recognizes a key tenet of our federal system:  There are limits to what federal agencies can do.  Here, the Department of Labor exceeded those limits toward particularly harmful ends—invading and chilling confidential communications between attorneys and their clients.”

Instituted on March 24, the rule—known informally as the “persuader rule”—purported to reinterpret a section of the Labor-Management Reporting and Disclosure Act (LMRDA) that has long exempted from federal oversight communications between lawyers and clients during union-organizing campaigns. The persuader rule would have narrowed that exemption to exclude from it “indirect communications” by management-side consultants and lawyers during union-organizing campaigns—including speeches or scripts provided to supervisors to share with employees and intended to sway employees against unionizing. Besides redefining the statutory exemption to exclude such communications, the rule also required attorneys and consultants to report those communications to DOL, which would compile them and make them publicly available on its website, where they could be used against the employers by third parties.

Management-side attorneys and consultants subject to the rule argued in the request for the injunction that the rule would impose onerous reporting requirements when they act as indirect persuaders for employers that oppose unionization—reporting requirements that could interfere with their confidential relationship with employers. In particular, the rule would have required attorneys to violate attorney-client privilege, would have had a chilling effect on attorneys’ ability to provide advice to clients, and would have infringed on First Amendment speech rights.

This issuance of a permanent injunction of the persuader rule comes after the plaintiffs, state intervenor-plaintiffs, and the Department of Labor sought summary judgment on the injunction, which was initially issued in July.

In his July order issuing the preliminary injunction, Judge Sam Cummings, of the U.S. District Court for the Northern District of Texas Lubbock Division, issued an order preventing the new persuader rule from taking effect. The judge recognized that the rule forces employers to report any “actions, conduct or communications” undertaken to “affect an employee’s decisions regarding his or her representation or collective bargaining rights,” and would have required attorneys advising employers about labor elections to report their activities to the DOL for posting on public websites, effectively breaking the confidentiality of the attorney-client privilege.

Judge Cummings said that these requirements threaten to chill protected speech—and the “chilling of speech protected by the First Amendment is in and of itself an irreparable injury[.]”

A copy of the permanent injunction is attached.

Assistant Solicitor General John Neilsen Named 2016 NAAG Supreme Court Fellow

SALT LAKE CITY May 11, 2016 –The Office of the Attorney General announced today that Assistant Solicitor General John Neilsen has been named as one of six Supreme Court Fellows with the National Association of Attorney Generals for the October 2016 Term of the Supreme Court of the United States.

“Congratulations to John Nielsen for being named a Supreme Court Fellow for the 2016 Supreme Court Term with the National Association of Attorneys General,” said Attorney General Sean Reyes. “As an Assistant Solicitor General in the Office of the Attorney General of Utah since 2011, John has been a great asset to our criminal appeals division, where he has served with distinction. We are confident that his experience as a Supreme Court Fellow will make him a greater asset to our office and the citizens of Utah.”

“We applaud John’s selection as a NAAG Supreme Court Fellow,” said Utah Solicitor General Tyler Green. “The expertise he has developed while representing the people of Utah for many years has prepared him well to represent our State in this uniquely intensive national program focused on furthering the States’ interests before the U.S. Supreme Court.”

“I’m excited for the chance to aid States in cases before the Supreme Court and learn from eminent practitioners from around the country,” said Neilsen.  “The experience will make me a better advocate for the people of Utah in defending criminal convictions and promoting the orderly development of the law.”

The Supreme Court Fellows Program, begun in 1986, is designed to give state lawyers an opportunity to obtain direct and intensive hands-on exposure to Supreme Court practice. The Fellowship is an opportunity for state appellate attorneys to obtain direct experience of Supreme Court advocacy by observing argument at the Court, participating in the Project’s moot courts, and writing a state amicus brief.

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Utah Solicitor General Tyler Green Argues Before U.S Supreme Court in Utah v. Strieff

SALT LAKE CITY Feb. 21, 2016 – In the second case argued before it since the passing of the late Justice Antonin Scalia, the Supreme Court of the United States heard oral argument in Utah v. Strieff, a case that addresses the scope of the Fourth Amendment’s exclusionary rule when an illegal stop leads to the discovery of public information that justifies an arrest. Utah Attorney General Sean Reyes assigned Utah Solicitor General Tyler Green to argue the case on behalf of the State of Utah.

“Both sides argued their case very powerfully,” said Attorney General Reyes. “We congratulate Joan Watt and her team at the Salt Lake Legal Defender Association. The State of Utah and the Attorney General’s office were well represented today by our Solicitor General, Tyler Green. True to his reputation, he was extremely well-prepared, articulate and persuasive in handling challenging questions.

“The absence of Justice Scalia and his funeral this last weekend did not seem to distract the Court from being ready for vigorous questioning.”

The case began when police received an anonymous tip alleging that drugs were sold from a Salt Lake area home. Edward Strieff, Jr. was stopped by a detective surveilling the home. During the stop, the detective discovered an outstanding warrant for Strieff, as well as drug paraphernalia.

Audio of the oral arguments can be found on www.supremecourt.gov when posted in the coming days. Utah’s reply brief outlining the case and arguments can be found here.

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