Exceptions to the Prohibition

Comment [3] to Rule 7.6 defines the work the prohibition covers and then carves three categories out of those definitions. The comment introduces them as “exceptions,” but they work as exclusions: a government legal engagement and an appointment by a judge do not 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 free from influence based upon political contributions; or (c) engagements or appointments made on a rotational basis from a list compiled without regard to political contributions.¹

That drafting has a structural consequence. The rule disqualifies a lawyer or firm from accepting work only when contributions were made or solicited for the purpose of obtaining or being considered for “that type of legal engagement or appointment,” which is to say covered work.² Excluded work is not covered, so it never reaches the purpose inquiry, and a firm whose giving would fail the but-for test for covered work may still accept excluded work. The order of analysis follows: decide first what kind of work is on offer, and ask why the lawyer gave only if the work is covered.

The three exclusions share a logic. A contribution can buy legal work only if the work is worth buying and an official is free to award it to the donor because of the donation. Each exclusion removes one of those conditions. Substantially uncompensated work leaves little to buy, and selection by stated criteria or by rotation from a list leaves the official little freedom to favor a donor. The safeguard is the reason for the exclusion, so it is also a condition of it: where the safeguard is missing in fact, the work is not excluded. The sections below follow the order of comment [3].

Substantially Uncompensated Services

Comment 3 excludes substantially uncompensated services from both defined terms.³ A lawyer may therefore accept such work even after making or soliciting contributions in order to be considered for appointments, because the work is not covered and the purpose of the giving is never examined.

The rationale shows in comment [1]. The public doubt it describes is whether lawyers were chosen for government or judicial work on competence and merit instead of campaign money.⁴ That doubt has force when the assignment is valuable, because a donor would pay for a valuable assignment and an official could be suspected of selling one. When the work pays little or nothing, the donor has almost nothing to purchase. Without the exclusion, a lawyer whose past giving met the but-for test would have to turn down even an unpaid appointment.

The text says substantially uncompensated, not wholly uncompensated, and the word tells you where to look. The exclusion asks what the work actually pays, whatever label the judge or agency puts on it. An appointment with no fee fits, and so does one whose pay is slight beside the work involved. An appointment that pays a full fee does not. The comment fixes no percentage or dollar figure, so the line is one of degree, and the useful question is whether enough compensation attaches to the work to leave a meaningful reward that a contribution could have bought.

Pay alone separates the two lawyers. The second lawyer’s reasons for giving never had to be resolved: even if he wrote his check hoping to be considered for appointments of every kind, he may still accept the unpaid one, because the disqualification reaches only the work the definitions include.

The word uncompensated appears twice in the rule and its comments, and the two uses point in opposite directions. Comment [2] concerns what a lawyer gives: uncompensated services rendered to a campaign, such as a volunteer’s unpaid hours, are not a political contribution.⁵ Comment 3 concerns what a lawyer receives: work that pays little or nothing is not a government legal engagement or an appointment by a judge.⁶ A lawyer who volunteers weekends at a judge’s campaign office has made no contribution by volunteering, but that fact says nothing about a later appointment. If the judge names the lawyer receiver at a regular hourly rate, the receivership is covered work, and any cash gift the lawyer made for the purpose of being considered for it still disqualifies the lawyer. An answer that borrows the contribution exclusion to excuse a well-paid appointment mixes up the two sides of the transaction.

Merit-Based Selection Process

Comment 3 excludes an engagement or appointment 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.⁸ A request for proposal, usually shortened to RFP, is an invitation in which the awarding body asks interested firms to submit proposals for described work. Like the first exclusion, this one operates on the definitions. Work that fits it is outside the rule, and a firm that made a purposeful contribution may still accept it.

The exclusion has two parts, and each does separate work. The first describes the basis of selection: experience, expertise, professional qualifications, and cost. Those are the competence and merit on which, according to comment [1], the public is entitled to expect government and judicial work to be awarded.⁹ The second part describes the process: an RFP or other process free from influence based upon political contributions. This part guards the first. A government body can announce that it chose on qualifications and price while actually choosing on something else, and the announcement costs nothing. Requiring the process itself to be free from the influence of contributions ties the stated criteria to the real decision.

The reason the exclusion is safe follows from how a contribution buys work. Money buys an engagement only when the person choosing is free to award it to the donor because of the donation. In a selection that truly turns on experience, expertise, qualifications, and cost, a bidder’s campaign giving is not among the things weighed, so the contribution has no purchasing power. A process that is open only in name produces the opposite result, because the formality lets the same exchange occur under cover of procedure. An exclusion that accepted anything labeled an RFP would give pay-to-play a respectable costume, which is why the exclusion asks about the integrity of the process and not about its title.

Hypothetical Illustration

A city issues an RFP for bond counsel and receives eight proposals. Scoring sheets are completed, but the mayor’s close advisers make the final selection, and they begin by pulling a list of each bidder’s campaign contributors. The firm that raised money for the mayor is chosen over lower-priced bidders with stronger bond records. The process was not free from influence based upon political contributions, so the exclusion fails and the engagement is covered work. If the firm raised that money only because it wanted to be considered, the rule bars it from accepting.

A second city issues an RFP for the same kind of work. A selection panel scores each proposal on experience, expertise, qualifications, and cost, and the panel is screened from any information about campaign donors. A firm that gave to the mayor’s last campaign submits the best-scoring proposal at a competitive price and wins. The selection followed the stated criteria through a process insulated from contributions, so the work is outside the definition of a government legal engagement and the firm may accept it, whatever its reason for giving.

The firm in the second city wins despite its giving because the exclusion asks how the engagement was awarded, not whether the lawyer gave. Giving history matters only under the but-for test, which excluded work never reaches. The same history is dangerous in the first city because the process offered no insulation: the contributions could have mattered to the outcome, and the rule exists to prevent exactly that. The comment also does not demand an RFP in particular. It names an RFP as one example and extends the exclusion to any other process that selects on the listed criteria and is free from influence based upon contributions. A less formal procedure can therefore qualify, and a procedure that fails the second description is not rescued by its title.

Exam Analysis Steps

The integrity of the selection, not the government’s label, decides this exclusion, so examine the process in a fixed order:

Identify who awarded the work and whether the award followed an RFP or some other defined selection process.
Determine what criteria the decision-makers actually applied, and whether they were experience, expertise, professional qualifications, and cost.
Ask whether anyone with influence over the outcome considered political contributions, or whether the process screened the decision from that information.
Compare the result with the stated criteria, since an award that departs from them in favor of a donor suggests that the process was open to influence.
If the process was free from influence based upon contributions, conclude that the work is excluded and the rule does not reach it. If it was not, return to the but-for purpose test.

The third step does the real work, because it asks whether contributions could have affected the decision. Exam answers err in two directions. One stops at the fact that an RFP was issued and treats the exclusion as automatic. The other stops at the fact that the firm gave money and treats the engagement as forbidden, skipping the question of how the work was awarded. The third exclusion applies the same insulation logic to a different method of selection.

Rotational Lists

Comment 3 excludes engagements or appointments made on a rotational basis from a list compiled without regard to political contributions.¹¹ Rotation means that assignments go to the names on a list in turn, so each lawyer waits for a place in the order and the person making the appointment does not choose among them. Like the two exclusions before it, this one operates on the definitions. Work that fits it falls outside the rule, so a lawyer or firm that made or solicited contributions in order to be considered may still accept it.

Rotation is safe for the same reason an open merit process is. Money purchases an assignment only when the person choosing is free to give it to the donor because of the donation. A strict rotation removes that freedom at the point of selection: when the next assignment goes to the next name, nothing the donor does can move the donor up the line. The public doubt that comment [1] describes, whether lawyers received government and judicial work for reasons other than competence and merit, has little to feed on when nobody is choosing among the lawyers at all.¹²

The exclusion has two parts, and the second protects the first. Discretion does not vanish when an official adopts a rotation. It moves upstream, to the point where names are added to the list. An official who decides who gets on the list decides who can be considered for the work at all, so a donor who buys a place on a short list has bought the opportunity as surely as a donor who buys a pick from a long one. Rotation downstream cannot clean a list that contributions filtered upstream. That is why the comment requires a list compiled without regard to political contributions, and why the decisive variable is how the list was built, with the turn-taking itself playing a secondary role.

Hypothetical Illustration

A judge in a busy probate court assigns receiverships in strict order from a list of eligible lawyers. When the list was assembled, however, the judge added only lawyers who had given to the judge’s retention campaign. A lawyer who gave in order to be placed on that list finds that he is next in line. The appointments rotate, but the list was not compiled without regard to contributions, so the exclusion fails and the receivership is covered work. Because he gave to be considered for these appointments, the rule bars him from accepting it.

A family court appoints guardians ad litem in turn from a list of all qualified lawyers who asked to serve, and nothing about donations entered into compiling it. A lawyer who gave to the presiding judge’s campaign hoping to be considered sees her name come up. The appointment is made on a rotational basis from a list compiled without regard to contributions, so it falls outside the definition of an appointment by a judge, and she may accept it whatever her reason for giving.

Both courts rotate, so turn-taking cannot account for the different results. The difference lies in how each list came into being: the first admitted names because of money, and the second admitted names because of qualifications and willingness to serve. The exclusion asks only that contributions play no part in compiling the list, so a list limited by qualifications or by a lawyer’s request to serve is still a list compiled without regard to political contributions, because those screens have nothing to do with campaign money.

The phrase on a rotational basis also describes how the appointment was actually made, and that detail matters in practice. A judge who keeps a clean rotating list but skips ahead to a donor’s name when a lucrative matter arrives has restored the discretion that rotation was meant to remove. An appointment made that way was not made on a rotational basis, and the exclusion does not apply to it. Comment 3 keeps contributions out of an award by tying the choice to stated criteria applied through an insulated process, and comment 3 keeps them out by taking the choice away from the official. Each exclusion depends on its safeguard working in fact, and a fact pattern that defeats the safeguard returns you to the but-for purpose test.¹³

An exam stem that mentions a rotating list invites the shortcut that rotation equals exemption. The better analysis asks two questions in order: how did the names get onto the list, and did this assignment go to the next name in the order? Only when both answers are clean is the work excluded.