The But-For Purpose Test

Rule 7.6 reaches only contributions made for the purpose of winning government legal work or a judicial appointment, and Comment [5] defines that purpose with a counterfactual. Contributions have the forbidden purpose if, but for the desire to be considered for the engagement or appointment, the lawyer or law firm would not have made or solicited them.¹ Take the desire for the work out of the story and ask whether the checks would still have been written. If they would, the desire did not cause them and the rule is not triggered. If they would not, the purpose the rule condemns is present.

The test attaches to the contributions, not to the donor's general reputation. A lawyer who sincerely backs a candidate can still fall within the rule when one particular gift, such as an unusually large check delivered just before a selection, exists only because of the hoped-for work.

Two simpler tests would work badly. A test that asked only whether the lawyer knew the official controls legal assignments would reach nearly every politically active lawyer, because lawyers who follow local politics usually know who hands out the work. A test that required the work to be the lawyer's only motive would be easy to defeat, because a donor could attach a political reason to any check. The but-for test asks instead whether the desire for the work was a necessary cause of the giving. That question separates contributions made to buy work from those a lawyer would have made regardless, and it preserves the right that Comment [1] protects: lawyers may participate fully in the political process, including by making and soliciting contributions.²

Elsewhere in the Model Rules, motive is framed differently. Rule 7.3(a) bars live solicitation of prospective clients, whether in person, by live telephone, or by real-time electronic contact, when a significant motive for the lawyer's doing so is pecuniary gain, and a motive can be significant without being necessary.³ Comment [5] asks a different question: whether the desire for the work was necessary to the giving.

Purpose is a mental state, and Comment [5] provides that it may be determined by an examination of the circumstances in which the contributions occur.⁴ That method fits the problem. Lawyers seldom announce a bargain of this kind, so a rule that waited for an admission would rarely find a violation, and the surrounding facts have to carry the proof.

The comment describes a standard pattern. When a lawyer or firm makes contributions to a candidate for an office whose holder can award legal work, the contributions are substantial in relation to other contributions, and the engagement is then awarded to the contributor, an inference may be drawn that the contributions were made to obtain it.⁵ Each fact does its own work. Unusual size shows that the donor stood out from the ordinary run of givers, which makes a political-conviction explanation harder to credit. The following award shows that the payoff the money was meant to buy actually arrived. Together they push the but-for answer toward no: the check would not have been written without the work in view.

The pattern is evidence from which a conclusion may be drawn, and other facts can contradict that conclusion. Comment [5] names two kinds: evidence that the lawyer or firm gave to further a political, social, or economic interest, or because of an existing personal, family, or professional relationship with a candidate.⁶ Each supplies a reason for the giving that has nothing to do with the work. If that reason is true, the counterfactual flips. The lawyer would have given anyway, so the but-for test fails at the point where it asks what caused the money to be sent.

Hypothetical Illustration

A lawyer has given a comparable amount to the same candidate in every election cycle for twenty years, because the two were college roommates. The candidate is now county attorney, and the county sends the lawyer's firm a matter. The lawyer would have given exactly what she gave, in the same year, with no county work anywhere in view, so the but-for test is not met.

Another lawyer is a longtime critic of a state's tax policy and gives to an attorney general candidate who promises to reform it. After the candidate wins, the lawyer's firm receives outside counsel work from the attorney general's office. The lawyer's economic and political convictions account for the gift without any reference to the work, and they contradict the inference that the award would otherwise raise.

A rebuttal explains only as much as the facts let it explain. A friendship or conviction that accounts for the giving but not for a sudden jump in size, or for odd timing just before a selection, leaves part of the inference standing, because the unexplained increase may still be a contribution that would not have been made but for the work. An exam answer should therefore do more than name a friendship or a political view. It should test whether that reason would have produced these particular contributions, and the steps below follow that order.

Exam Analysis Steps

Because the test turns on a counterfactual that must be proved from circumstances, the cleanest way to run it is to build the inference first and then try to take it apart. The steps are these:

Identify every contribution the lawyer or firm made or solicited, together with the government legal engagement or judicial appointment that the lawyer or firm later received or is now seeking.
Compare the contribution or series of contributions with other contributions and ask whether it is substantial in relation to them.
Check whether the award of the work followed, since substantial size together with a following award supports an inference that the money was given to obtain or be considered for the work.
Look for contrary evidence, meaning a political, social, or economic interest the lawyer was advancing or an existing personal, family, or professional relationship with the candidate.
Return to the counterfactual and decide whether, without the desire to be considered for the work, the lawyer or firm would still have made or solicited these contributions, concluding that the purpose is absent if the answer is yes and present if the answer is no.

The fifth step controls the result, and the earlier steps only gather the evidence that answers it. When the facts show a donor who later wins work and nothing more, the sequence alone leaves the purpose undecided. A strong answer then names the facts that would settle it in either direction. A large, unprecedented gift timed to a selection pushes toward purpose, and a long history of identical giving to a friend or an ideological ally pushes away from it.

The But-For Purpose Test

Endnotes7