Key Definitions

Rule 7.6 bars a lawyer or law firm from accepting a government legal engagement or an appointment by a judge when the lawyer or firm made or solicited political contributions for the purpose of obtaining, or being considered for, that type of work.¹ Comments [2] through [4] define the nouns that carry that sentence: the money (political contribution), the work (government legal engagement and appointment by a judge), and the actor (lawyer or law firm).²

Each definition works as a gate. If the payment is not a political contribution, if the work is neither a government legal engagement nor an appointment by a judge, or if the giving cannot be attributed to the lawyer or firm, the analysis ends before anyone asks why the lawyer gave. Only when all three gates open does the purpose test, taken up in the next section, decide the case. On an exam, test the facts against each definition first.

The word “solicits” deserves one warning. In Rule 7.6 it means asking others for political contributions. Asking prospective clients for work is a different subject, governed by Rule 7.3(a), which bars in-person, live telephone, or real-time electronic solicitation of professional employment when a significant motive is the lawyer’s pecuniary gain.³

Political Contribution: The Money

Comment [2] defines a political contribution as 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.⁴ The definition lists the forms value can take and the recipients who can receive it, and it drafts both lists broadly. A rule that reached only a check handed to a candidate would be easy to avoid, because the lawyer could change the form of the payment or the name of the payee.

The forms of value extend well past cash. A loan or an advance puts money in a committee’s hands, so it counts even though the lawyer may be repaid. The phrase “anything of value” is not limited to money at all. And directly or indirectly reaches a payment passed through a relative, a friend, or any other intermediary.

The list of recipients is just as broad. A candidate is the obvious payee, but the definition also names an incumbent, a political party, and a campaign committee.⁵ The incumbent belongs on the list because an official who already holds office and seeks retention is the person likely to hold power over legal assignments. Party and committee belong because campaign money is pooled and spent through them: a gift to the committee supporting an official’s reelection gives the campaign what a direct check would. The definition follows the money to wherever it supports an election or a retention.

Two purposes appear in this analysis, and they must be kept apart. The purpose written into the definition belongs to the money, which must be given to influence or financially support election to or retention in office. The purpose that triggers the rule belongs to the lawyer, who must aim at obtaining or being considered for legal work, and a later section addresses it. A payment can satisfy the first without the second. Meeting the definition therefore settles only what counts as a contribution.

Comment [2] carves two things out of the definition even though value may move. The first is contributions in initiative and referendum elections.⁶ A ballot measure puts a question to the voters. It is not an election to or retention in office, so money given for it is not given to influence or support anyone’s election or retention.

The second exclusion is uncompensated services, which the comment says are not a political contribution.⁷ A volunteer’s unpaid hours therefore fall outside the definition. The exclusion covers the services themselves, however, and it does not reach money that pays for the same work.

Exam stems hide the problem in either direction. A student who assumes that only cash to a named candidate counts will miss the loan, the gift to a party, and the payment routed through a friend. A student who sees anything political will miss the ballot-measure committee and the volunteer’s free time. Check the form of the value, the recipient, and the kind of election before asking why the lawyer gave.

Government Legal Engagement and Appointment by a Judge: The Work

Comment [3] defines the two kinds of work the rule protects, and each definition ties the work to whoever hands it out.⁹ 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 is an appointment to a position such as referee, commissioner, special master, receiver, guardian, or other similar position that is made by a judge.¹⁰ The comment subjects both definitions to three exclusions: substantially uncompensated services, work awarded through a merit-based process free from influence based on political contributions, and assignments made on a rotational basis from a list compiled without regard to contributions.¹¹ Those exclusions have their own section. This one fixes the baseline.

In both definitions, someone with public power decides who gets the job. A contribution can buy work only from the person who controls it, so the rule reaches those assignments and no others. Comment [1] explains the stakes. When lawyers make or solicit contributions to obtain government work or a judicial appointment, the public may legitimately question whether the lawyers were selected for competence and merit, and the integrity of the profession is undermined.¹²

The words direct or indirect extend the first definition beyond the official who signs the engagement letter. An official who leaves the choice to a subordinate or a committee, or who ratifies someone else’s recommendation, may still hold indirect power over who gets the work. Reading the definition to reach only direct awards would let an official stay a step removed from the decision while still determining its outcome.

The second definition covers work assigned from the bench. The comment’s list (referee, commissioner, special master, receiver, guardian) names positions to which a judge selects the person who will serve, and “other similar position” shows that the list illustrates the category.¹³ The test is who makes the appointment. A judge holds the same kind of power over these assignments that an agency head holds over outside-counsel contracts.

Does the rule reach a lawyer who gave to a judge’s campaign and later takes on a private client? It does not, because the rule asks who awarded the work. A manufacturer that hires a lawyer to handle its contract dispute chooses its own counsel. No public official or judge awarded the engagement, so it is neither a government legal engagement nor an appointment by a judge, and Rule 7.6 is not implicated, even if the lawyer had donated to a local judge’s campaign the year before. Other limits on money given to judicial campaigns come up in a later section. If the same lawyer had given to the judge in order to be named receiver in one of the judge’s cases, the work would fall inside the rule, because the judge would be the one choosing.

Lawyer or Law Firm: Whose Giving Counts

Comment [4] settles whose giving counts. The term “lawyer or law firm” includes a political action committee or other entity owned or controlled by a lawyer or law firm.¹⁵ A political action committee, or PAC, pools money for political giving. Because the comment folds such an entity into the phrase “lawyer or law firm,” every place the rule speaks of what the lawyer or firm makes or solicits also covers what an owned or controlled entity makes or solicits. The entity’s giving therefore counts against the firm exactly as the firm’s own giving would.

Without that extension, the rule would be easy to evade. The purpose test asks why the lawyer or firm gave, so it works only if the giving can be traced to the person who holds the purpose. A firm that wanted to be considered for county work could form a committee, fund it, and let the committee write the checks to the county executive’s campaign. The firm’s own hands would never touch a candidate, and the firm could say that a separate organization made the contributions. Attributing the entity’s acts to the firm closes that route, because an owned or controlled entity gives at the direction of the people behind it. The same concern explains why comment [2] reaches value given directly or indirectly: the rule is aimed at the purpose behind the money, not at the name on the check.¹⁶

Two features of the wording set the limits of that attribution. The test is ownership or control, joined by or, so an entity qualifies if the lawyer or firm owns it, controls it, or both. The comment also names a political action committee as its leading example and then adds any “other entity” the lawyer or firm owns or controls, so a firm cannot avoid attribution by choosing a different legal form for the conduit.¹⁷ The comment does not define “control,” so on the facts ask who funds the entity, who runs it, and who chooses its recipients. The test looks to the firm’s relationship with the entity.

Does every committee that attracts a lawyer’s sympathy belong to the lawyer for purposes of the rule? It does not.

The result follows from the reason for the extension. A PAC’s giving expresses the aims of the people who control it, so attributing that giving to a firm makes sense only when the firm is among those people. A separate question remains: whether the firm’s own money, sent through an outside committee to reach a candidate, is an indirect contribution by the firm. The directly or indirectly wording of the contribution definition speaks to that question.¹⁸ A committee with a friendly name, or a lawyer who merely donates to it, does not make that committee’s giving the firm’s. Look for ownership or control.