The Pay-to-Play Problem

Pay-to-Play Political Contributions

The Pay-to-Play Problem

Model Rule 7.6 sets two legitimate interests against each other: the lawyer's right to take part in politics, and the public's expectation that government legal work goes to the lawyers best qualified to do it. Comment [1] protects the first. Lawyers may participate fully in the political process, and that participation includes making and soliciting political contributions to candidates for judicial and other public office.¹ The same comment then names what the second interest stands to lose. When lawyers make or solicit contributions in order to obtain an engagement awarded by a government agency, or an appointment made by a judge, the public may legitimately question whether the lawyers who got the work were chosen for competence and merit, and the integrity of the profession is undermined.²

The doubt is legitimate because of who controls the work. A government legal engagement is any engagement to provide legal services that a public official has the direct or indirect power to award. An appointment by a judge covers positions such as referee, commissioner, special master, receiver, and guardian.³ In each case one person decides who gets the job. A lawyer who has funded that person's campaign and then receives the job looks, to an outsider, like a lawyer who bought it. The outsider cannot see the lawyer's motive. She sees only a contribution followed by an engagement, and that sequence is enough to raise the doubt the comment describes.

Rule 7.6 answers the problem by tying the prohibition to purpose, not to the bare fact of a contribution. A lawyer or firm may not accept this work when it makes or solicits contributions for the purpose of obtaining, or being considered for, the engagement or appointment.⁴ Comment [5] gives that purpose a working definition. Contributions are made for the forbidden purpose if, but for the desire to be considered for the engagement or appointment, the lawyer or firm would not have made or solicited them, and the purpose may be determined by examining the circumstances.⁵ Later sections develop that test, define the rule's key terms, and set out the exceptions.

Purpose is therefore what separates a violation from ordinary political life, and the common misreading skips it. A lawyer who contributes to a successful campaign and afterward obtains government legal work has not, by that sequence alone, violated the rule. The question is why the lawyer gave.⁶

Neither scene turns on the contribution itself. The first lawyer gave freely and kept the work. The second firm was also free to take part in politics, but it may not accept the engagement that its money was meant to win. That is the rule's structure: it restricts who may accept certain government work after a purposeful contribution, and it leaves ordinary political giving alone.

Rule 7.6 sits among the Model Rules that govern how lawyers find clients. Those rules permit lawyers to advertise legal services through written, mailed, recorded, electronic, broadcast, or internet communications, and to communicate about fields of practice and specialization, so long as the communications are not false or misleading.⁷ Direct solicitation is different. Even as advertising rules have liberalized over several decades, the prohibition on personal solicitation of prospective clients remains nearly absolute.⁸ Rule 7.6 adds a further restraint, aimed at the lawyer who would reach a government engagement or a judicial appointment through the person who controls it: a lawyer may not use political contributions to obtain that work.⁹