Limited Adoption and Enforcement

Limited Adoption and Enforcement

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 kind of work.¹ Few states have followed the ABA's lead. The ABA added the rule to the Model Rules in 2000, and it has drawn little following since.² A 2017 count found fewer than ten adopting states.³ Read that figure as a snapshot, not a current tally. It matters because a Model Rule disciplines lawyers only in a state that adopts a version of it. Elsewhere this prohibition is missing from the lawyer-discipline rules, and the conduct falls to other bodies of law, taken up below.

The likely reasons for the thin reception are two, and each has its own logic. The first is doubt about need. A state that sees no pay-to-play problem at home has little reason to adopt a rule aimed at one, and adoption carries a cost: the rule operates beside political participation that comment [1] says lawyers have a right to engage in fully, including by making and soliciting contributions.⁴ States have likely asked whether a widespread problem exists in their own jurisdictions.⁵

The second reason is doubt about enforcement, and it comes from the rule's own design. The prohibition turns on the but-for purpose test. Contributions are for the proscribed 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.⁶ Because the test asks what the donor wanted, the enforcer must reconstruct purpose from the circumstances in which the contributions occurred. Comment [5] supplies the typical inference. Contributions that are substantial compared with other lawyers' gifts, made for an official able to influence the award, and followed by the award to the donor support an inference that the donor was buying the work. The same comment names what weighs against that inference: a contribution made to further a political, social, or economic interest, or because of an existing personal, family, or professional relationship with the candidate.⁷ Nearly any donor can claim one of those reasons. A rule keyed to conduct, such as whether a gift was made on a particular date, could be proved from the donor's own records. A rule keyed to motive requires proof of what was in the donor's mind, and that proof is far harder to assemble. Doubt that a rule evaluating motive can be enforced is a plausible reason for the states' hesitation.⁸

Thin adoption does not show that states approve of buying legal work with campaign money. The states' reluctance more likely reflects judgments about whether the problem is widespread locally and whether a motive-based rule can be enforced.⁹ Both judgments concern the design of Rule 7.6, and neither endorses the conduct it targets. The worry in comment [1] still stands: when contributions precede the work, the public may legitimately question whether the lawyers were chosen for competence and merit, and the integrity of the profession suffers.¹⁰ An exam answer that infers permission from the small number of adopting states draws the wrong conclusion from the facts.

Students should also keep two uses of 'solicit' apart. In Rule 7.6 the lawyer solicits political contributions to candidates and committees.¹¹ In Rule 7.3(a) the lawyer solicits professional employment from prospective clients, by in-person, live telephone, or real-time electronic contact, when a significant motive is pecuniary gain. That prohibition remains nearly absolute.¹²