Rabinowitz v. Kennedy
Headline: Court requires attorneys who represent a foreign government in U.S. litigation to register under the Foreign Agents Registration Act, forcing such lawyers to comply with registration rules and potential disclosure requirements.
Holding:
- Requires U.S. lawyers representing foreign governments to register under the Foreign Agents Registration Act.
- Subjects such legal work to registration and potential public disclosure on official forms.
- Leaves specific disclosure questions open to waiver and later review.
Summary
Background
A group of lawyers who say they were hired to represent the Republic of Cuba in legal matters in the United States, including litigation, sued the Attorney General asking a court to declare they did not have to register under the Foreign Agents Registration Act. The lawyers filed a declaratory-judgment suit after the Government demanded registration. The District Court denied an early judgment, the Court of Appeals dismissed the case (one judge dissenting), and the Supreme Court agreed to review the question.
Reasoning
The central question was whether the lawyers’ work fits the Act’s exemption for activity that is “private and nonpolitical” and also “financial or mercantile.” After reviewing the statute’s text and its 1961 amendment clarifying that both kinds of words are required for the exemption, the Court concluded that representing a foreign government in litigation is not “only private and nonpolitical financial or mercantile” activity. Because the lawyers’ work does not meet the exemption, the Court held they must register under the Act. The Court affirmed the dismissal of the complaint but did so for reasons different from those used by the Court of Appeals, and it did not decide broader questions about sovereign immunity or the full scope of the declaratory-judgment remedy.
Real world impact
The decision means lawyers who represent foreign governments in U.S. legal matters cannot avoid FARA registration by calling their work purely commercial. The Court also noted that not all form questions need be answered in every case and said waiver procedures and later challenges remain possible, but the lawyers’ specific challenge to individual disclosure requirements was not ready for decision.
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