7.6 Political Contributions to Obtain Legal Engagements or Appointments by Judges

A lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment.

COMMENT

[1] Lawyers have a right to participate fully in the political process, which includes making and soliciting political contributions to candidates for judicial and other public office. Nevertheless, when lawyers make or solicit political contributions in order to obtain an engagement for legal work awarded by a government agency, or to obtain appointment by a judge, the public may legitimately question whether the lawyers engaged to perform the work are selected on the basis of competence and merit. In such a circumstance, the integrity of the profession is undermined.

[2] The term ?political contribution? denotes any gift, subscription, loan, advance or deposit of anything of value made directly or indirectly to a candidate, incumbent, political party or campaign committee to influence or provide financial support for election to or retention in judicial or other government office. Political contributions in initiative and referendum elections are not included. For purposes of this Rule, the term ?political contribution? does not include uncompensated services.

[3] Subject to the exceptions below, (i) the term ?government legal engagement? denotes any engagement to provide legal services that a public official has the direct or indirect power to award; and (ii) the term ?appointment by a judge? denotes an appointment to a position such as referee, commissioner, special master, receiver, guardian or other similar position that is made by a judge. Those terms do not, however, include (a) substantially uncompensated services; (b) engagements or appointments made on the basis of experience, expertise, professional qualifications and cost following a request for proposal or other process that is free from influence based upon political contributions; and (c) engagements or appointments made on a rotational basis from a list compiled without regard to political contributions.

[4] The term ?lawyer or law firm? includes a political action committee or other entity owned or controlled by a lawyer or law firm.

[5] Political contributions are for the purpose of obtaining or being considered for a government legal engagement or appointment by a judge if, but for the desire to be considered for the legal engagement or appointment, the lawyer or law firm would not have made or solicited the contributions. The purpose may be determined by an examination of the circumstances in which the contributions occur. For example, one or more contributions that in the aggregate are substantial in relation to other contributions by lawyers or law firms, made for the benefit of an official in a position to influence award of a government legal engagement, and followed by an award of the legal engagement to the contributing or soliciting lawyer or the lawyer?s firm would support an inference that the purpose of the contributions was to obtain the engagement, absent other factors that weigh against existence of the proscribed purpose. Those factors may include among others that the contribution or solicitation was made to further a political, social, or economic interest or because of an existing personal, family, or professional relationship with a candidate.

[6] If a lawyer makes or solicits a political contribution under circumstances that constitute bribery or another crime, Rule 8.4(b) is implicated.

REPORTER?S NOTES:

Model Rule 7.6 (2002), prohibiting the acceptance of a government legal engagement or a court appointment where the lawyer or the lawyer?s firm has made a political contribution with the purpose of obtaining or being considered for that type of engagement or appointment, is known as the ?pay-to-play? rule for lawyers. As explained by the ABA Section of Business Law:

The practice commonly known as pay-to-play addressed by the Rule is a system whereby lawyers and law firms are considered for or awarded government legal engagements or appointments by a judge only upon their making or soliciting contributions for the political campaigns of officials who are in a position to ?steer? such business their way. The fundamental harm done by a pay-to-play system is the harm that befalls the public when a government official, motivated by campaign contributions, chooses lawyers or law firms that may not be the best qualified to perform legal services on the public?s behalf.[5]

The closest analog in Maine to Model Rule 7.6 (2002) is M. Bar R. 3.7(h)(1). M. Bar R. 3.7(h)(1) prohibits the giving of gifts to ?a judge, official or employee of a tribunal . . . unless the personal or family relationship between the lawyer and the judge, official or employee is such that gifts are customarily given and exchanged.? This rule is designed to prohibit the influence (or the appearance of influence) of judicial officials. Moreover, 17-A M.R.S. § 605, in prohibiting gifts to public servants (a term defined to include an official of any branch of government) similarly targets behaviors designed to improperly influence public officials. 17-A M.R.S. § 605 provides for criminal sanctions.

Model Rule 7.6 (2002) must be read in concert with Model Rule 3.5 (2002). Pursuant to Rule 3.5, the giving of gifts or loans to a judge, juror, prospective juror or other official is prohibited only if such gift or loan is an attempt to influence such person. Both Model Rules prohibit behaviors designed to improperly influence public officials. As noted in the Comments, the purpose of a gift or contribution may be determined by an examination of the facts and circumstances surrounding the gift or contribution.

Model Rule 7.6 (2002) prohibits election campaign contributions if the purpose is to secure engagements or appointments from elected officials. Because judges in Maine are appointed, rather than elected (except for Probate Judges), this rule only has limited applicability in the context of the judiciary. While M. Bar R. 3.7(h) specifically excepts from its scope, and thus permits, the making of?contributions to the election campaigns of public officers,? contributions for the purpose of influencing public officials are clearly prohibited under Maine law. See 17-A M.R.S. § 605.

The Task Force concluded the Model Rule 7.6 (2002) does not represent a substantive departure from Maine?s practice and rules and thus recommended its adoption.

FOOTNOTE

[5] ABA Section of Business Law, Section of State & Local Gov't, Standing Committee on Ethics and Professional Responsibility, Ass'n of Bar of City of New York, Report No. 110 (Feb. 2000), available at http://www.abanet.org/cpr/pay2playreport.html.