The Not-So-Baffling Mystery of the Missing Ethics Rule

ABA  Model Rule 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.

That’s pretty clear, is it not? The American Bar Association, in its Model Rules of Professional Conduct, now followed (in various, eccentric forms, to be sure) by 49 states, the District of Columbia and Puerto Rico, emphatically declares that “pay-to-play” arrangements are unethical for lawyers even in states where the sleazy practice might be legal. “Pay-to play” is, after all, classic corruption, older than Mayor Curley, Richard Daley, Boss Tweed and Mister Potter. Lawyers contribute big bucks to the campaign funds of state and local powerbrokers, including Attorneys General and judges, and get big state contracts in return. It is indefensible ethically, although you can find plenty of people who will defend it, their tongues crossed tightly behind their backs all the while.

The practice forces taxpayers to involuntarily pay off lawyers for big campaign contributions, and ensures that rather than getting the most economical and best legal service their money can buy, they get attorneys whose employment was clinched by quid pro quo contribution checks. Meanwhile, attorneys who won’t play the political games (the technical term for such attorneys is “ethical lawyers,” or sometimes “broke lawyers”) get shut out.

Yes, Model Rule 7.6 is clear, and it is necessary. It is also omitted from the majority of state bar association ethics rules, including those of (stop me when you are surprised by one of these) Connecticut, New York, New Jersey, Illinois, D.C., Maryland, Virginia, and, naturally Alaska. (Yes, yes, of course…pay-to-play champ Texas is one of the other states that omit 7.6, but it cleverly substituted its own 7.6 on an unrelated topic.)

This helps make sense out of the recent Wall Street Journal article entitled “Progress on Pay-to-Play,” trumpeting  the fact that increasing numbers of states are passing “sunshine acts” requiring officials to disclose contracts given to private lawyers, especially from elected state Attorney Generals, who are the worst offenders in this racket. Explaining the good reasons for such reforms, the Journal concludes,

“Reforms that limit or expose pay to play are obviously in the interest of taxpayers, but they also promote good governance. There are legitimate reasons for states to hire private lawyers, particularly when an AG’s office is understaffed or in need of specific legal expertise. But when public officials farm out legal work to political contributors, it feeds public skepticism and calls into question the integrity of the office.”

Such laws would be unnecessary, however, if the practice was grounds for bar discipline, as it is, for example, in Delaware and Vermont, among others.  The fact that Rule 7.6 has been omitted from the ethics Rules of more than forty states doesn’t mean pay-to-play, a.k.a “kickbacks,” “bribery,” “dishonest business practice” and “political thievery,” isn’t wrong, or that everyone who participates in it doesn’t know damn well it is wrong. Ethics rules don’t make conduct unethical; unethical conduct creates the necessity for ethics rules. The bar associations who have, quite deliberately, kept Rule 7.6 out claim they have legitimate reasons, prime among them the weak argument that the Rule is unconstitutional.  The real reason, however, is depressingly simple: “pay-to-play” is lucrative for those associations’ most powerful members, and often the judges who ultimately approve each bar’s Rules of Professional Conduct as well.

If you want a good indication of how seriously your local legal community takes its ethics, check to see whether its Rules of Professional Conduct include Rule 7.6. If they don’t, you know there is a limit to how much your state’s lawyers are willing to sacrifice for basic ethical principles like openness, fairness, and integrity.

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