Related Limits on Contributions

Rule 7.6 disqualifies 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 It regulates the lawyer who wants the work, and its stated worry is public doubt. When lawyers give or raise money to win such work, the public may legitimately question whether the lawyers engaged were chosen for competence and merit, and the integrity of the profession suffers.² The test is counterfactual. The contributions are 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.³

Other bodies of law reach money moving among lawyers, judges, and officials, and each differs from Rule 7.6 on three questions. Who is regulated: the donor lawyer, the official who benefits, the judge who hears the case, or the candidate who asks? What must be shown: a purpose inferred from circumstances, as under Rule 7.6, or a corrupt act, or an objective risk of bias? What follows: loss of the work, a criminal charge, a judge's withdrawal from a case, or a limit on how a candidate may raise money? Two rules that look alike can diverge on all three, so the sections below run the same questions against bribery law, the recusal doctrine for big donors, the rules on gifts to judges, and the ban on personal solicitation by judicial candidates.

None of these rules cancels the baseline. Comment [1] affirms that lawyers may participate fully in politics, including by making and soliciting contributions to candidates for judicial and other public office, so Rule 7.6 leaves ordinary giving alone and acts only on money given or raised to obtain or be considered for covered work.⁴ An exam stem that places a large check beside a favorable official act can raise several of these rules at once. Analyze each on its own elements, and keep its target, its required showing, and its consequence separate.

Bribery Statutes

A single campaign check can raise a disciplinary question and a criminal one. Rule 7.6 bars a firm from accepting covered work when it gave or solicited contributions that, but for the desire to be considered, it would not have made.⁵ Federal bribery law reaches some of the same money from the other side: a campaign payment clearly designed to obtain a government job can support a prosecution under § 666.⁶ The two inquiries demand different proof, and that gap is why the disciplinary rule can apply to a contribution that a prosecutor could not reach.

A § 666 case turns on whether the defendant acted corruptly. Proof usually shows that the person consciously deviated from the duties and responsibilities of the position, or that the offer or solicitation of a thing of value was meant to induce such a deviation.⁷ The Second Circuit has called a breach of some official duty owed to the government or the public a fundamental component of a corrupt act. It has also said that a recipient who knows of the donor's intent to arrange a quid pro quo (something given in exchange for something received) or to seek special consideration may, in certain circumstances, act corruptly by accepting the thing of value.⁸ The Fourth Circuit has observed that “corruptly” can be read to require proof of a quid pro quo agreement, which would limit § 666 to bribes and exclude gratuities, meaning rewards not given under a bargain.⁹

Campaign money can supply the thing of value that a bribe requires. In United States v. Grubb, the Fourth Circuit upheld § 666 convictions because the payment to the campaign was clearly designed to obtain the government job, a form of bribery that came squarely within the literal meaning of the statute.¹⁰ A second case marks the limit. In United States v. Cicco, a mayor and a town councilman denied two special police officers further work because the officers had not supported the party's candidates. The court of appeals held that demanding political support in exchange for a government position was not bribery in the usual sense, because party loyalty is not the typical thing of value in a bribe. The same decision recognized that soliciting campaign contributions as a requirement for a government position can violate the statute as the solicitation of a bribe.¹¹ Money can be the thing of value that loyalty cannot, and that is the point of contact with Rule 7.6.

Rule 7.6 asks a narrower and earlier question. Its trigger is the lawyer's own act and purpose: making or soliciting contributions that the lawyer or firm would not have made but for the wish to be considered for the engagement or appointment.¹² Nothing in that trigger asks what the candidate knew or whether the candidate agreed to anything, and no official's state of mind has to be proved. The consequence is correspondingly limited. The lawyer or firm may not accept that engagement or appointment, and the harm the rule names is the public's reasonable doubt that lawyers were chosen on competence and merit.¹³

The comparison can be run on any fact pattern with the three questions that apply to every neighboring body of law.

Who is regulated: bribery law reaches the person who offers the payment and the official who knowingly takes it,¹⁴ while Rule 7.6 regulates only the lawyer or firm that made or solicited the contribution.
What must be shown: bribery looks for a corrupt act, often a quid pro quo, while Rule 7.6 looks for a but-for purpose inferred from circumstances.
What follows: bribery leads to criminal prosecution, while a violation of Rule 7.6 disqualifies the lawyer or firm from accepting the engagement or appointment.

A stem with a campaign payment near a government award therefore has two separate answers. The bribery answer depends on whether a corrupt exchange could be shown, and a failure of proof there leaves the disciplinary answer untouched. The Rule 7.6 answer depends on the but-for purpose, and the candidate's ignorance of the contribution does not change it.

Judicial Recusal and Big Donors

Rule 7.6 addresses the lawyer who gives or raises political money to win legal work, and its consequence is that the lawyer or firm may not accept the engagement or appointment.¹⁷ A judge who receives campaign money from someone with a stake in a case is governed by different law. In Caperton v. A. T. Massey Coal Co., the Court found a serious risk of actual bias, judged by objective and reasonable perceptions, when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign while the case was pending or imminent.¹⁸ Due process then required the judge's recusal, meaning the judge's withdrawal from deciding the case.¹⁹ The consequence falls on the judge. The remedy removes the judge from the case and is not a sanction on the donor.

The Court relied on an objective test because the alternative asks the judge to examine the judge's own mind. Whether a judge is actually biased is difficult to determine, and due process has not been left to exclusive reliance on that personal inquiry or on appellate review of the judge's own determination. It is implemented through objective standards that do not require proof of actual bias. Those standards ask whether, under a realistic appraisal of psychological tendencies and human weakness, the interest poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.²⁰ The test therefore looks outward at the circumstances that would tempt an average judge, not inward at one judge's conscience.

The facts show how the rule works. Blankenship contributed some $3 million to unseat the incumbent justice and replace him with Benjamin, and his contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300% the amount spent by Benjamin's own campaign committee.²¹ Absent recusal, Justice Benjamin would review a judgment that cost his biggest donor's company $50 million. No one alleged a quid pro quo agreement, yet Blankenship's extraordinary contributions were made at a time when he had a vested stake in the outcome.²²

The inquiry does not treat $3 million as large in the abstract. It centers on the contribution's size relative to the total contributed to the campaign and the total spent in the election, and on the apparent effect the contribution had on the outcome.²³ The election was decided by fewer than 50,000 votes (382,036 to 334,301), and measured against those totals Blankenship's support had a significant and disproportionate influence on the result.²⁴ The same dollar figure can be trivial in one race and decisive in another, because relative size shows how much of a candidate's success can be traced to a single person.

The Court refused to ask whether Blankenship's contributions were a necessary and sufficient cause of Benjamin's victory. Proving what ultimately drives an electorate to choose a candidate is, like proving a judge's actual bias, a difficult endeavor that is not likely to yield a certain conclusion. That is especially so where, as there, no procedure for judicial factfinding exists and the sole trier of fact is the justice accused of bias. Due process asks an objective question instead: whether, under all the circumstances, the contributor's influence on the election would offer a possible temptation to the average judge not to hold the balance nice, clear, and true.²⁵

The standard also ties the donor's influence to the timing of the case. The stakeholder's influence in placing the judge on the case must have been exerted when the case was pending or imminent.²⁶ The Court explained the danger by analogy. No man is allowed to be a judge in his own cause, and similar fears of bias can arise when, without the consent of the other parties, a man chooses the judge in his own cause.²⁷

The Court called the case exceptional and said that not every campaign contribution by a litigant or attorney creates a probability of bias that requires recusal.²⁸ The variables that mark the line are relative size, apparent effect on the election, and timing against a pending or imminent case. A stem that says only that a lawyer gave money to a judge and later appeared before that judge supplies none of them, so more facts are needed before recusal can be concluded.

Hypothetical Illustration

An attorney writes a check for a few hundred dollars to a trial judge's retention campaign, one of several hundred contributions that together fund a conventional race. The attorney raises no other money and plays no role in running the campaign. A year later one of the attorney's clients draws that judge. The gift is tiny next to what the campaign raised and spent and had no apparent effect on the outcome, so the objective risk of bias that triggers recusal is absent.

A developer supplies most of the money behind a judicial candidate's winning campaign. Several years later the developer's company is sued over events that nobody anticipated while the money was being spent, and the case is assigned to that judge. The size of the support satisfies the relative-size comparison, but no case was pending or imminent while the money was being spent, so the standard is not met on these facts.

The first scene lacks size and the second lacks timing, and either gap takes the facts out of the exceptional category. The sequence below builds the risk from the facts.

Exam Analysis Steps

Because the due process question is objective and depends on a handful of comparisons, it is best run as a short sequence. The steps are these:

Identify whether the contributor or fundraiser has a personal stake in a particular case, meaning a case whose outcome affects the contributor's own interests.
Compare the contribution with the total contributed to the campaign and the total spent in the election, and ask what apparent effect it had on the outcome.
Determine whether the case was pending or imminent while the money was being raised or spent.
Conclude that recusal is required when the stake, the disproportionate influence, and the timing together create a serious objective risk of actual bias, and that it is not required when they do not, without asking whether the money caused the victory or whether anyone made an agreement.

The third step is the one most often skipped. A very large gift can look decisive in isolation, yet the donor's influence matters only because a particular case was pending or imminent when the money moved.

Set beside Rule 7.6, the recusal rule operates on the other side of the same transaction. Rule 7.6 asks about the lawyer's own purpose in giving, and Comment [1] preserves the lawyer's right to make and solicit contributions to candidates for judicial and other public office.²⁹ The due process rule asks nothing about why the donor gave. It asks whether the donor's stake, the size of the support, and the timing of a pending case create an objective risk that the judge will not hold the balance true.³⁰ Both can apply to one set of events, because a lawyer who raises money for a judge to win appointments may also be a stakeholder whose own case sits before that judge, but each must be analyzed on its own elements.

Who is regulated: Rule 7.6 regulates the lawyer or firm that made or solicited the contribution, while the due process rule requires the judge to step aside and does not sanction the donor.³¹
What must be shown: Rule 7.6 looks to the lawyer's but-for purpose, inferred from circumstances, while due process looks to an objective risk of bias shown through relative size, apparent effect on the election, and timing, without proof of actual bias or agreement.³²
What follows: a violation of Rule 7.6 costs the lawyer or firm the engagement or appointment, while a due process violation of this kind is cured by the judge's recusal.³³

Key Exam Rule

Due process recusal for big donors

Due process requires a judge's recusal when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case, by raising funds or directing the judge's election campaign, when the case was pending or imminent. The test is objective and needs no proof of actual bias or of a quid pro quo, and it does not ask whether the money caused the election result. It centers on the contribution's size relative to the total contributed and the total spent, its apparent effect on the outcome, and the timing, and not every contribution by a litigant or attorney requires recusal.³⁴ Rule 7.6 separately restricts the donor lawyer by disqualifying that lawyer from accepting the work the money was meant to win.³⁵

Gifts Versus Campaign Contributions

Comment [1] to Rule 7.6 recognizes that lawyers have a right to participate fully in the political process, and it names making and soliciting contributions to candidates for judicial and other public office as part of that right.³⁶ The shape of that protection shows most clearly beside the rules on gifts to judges, where a lawyer's money meets a prohibition. In re Corboy, the Illinois Supreme Court held that four lawyers violated Rule 7-110(a) of the state's Code of Professional Responsibility, which bars a lawyer from giving or lending anything of value to a judge. The court announced that a lawyer who is likely to have matters before a court should not give a gift to any judge of that court, and it preserved an exception for contributions to a judicial candidate's campaign fund.³⁷

The court began from the judge's side of the transaction. Canon 2 of the Code of Judicial Conduct requires a judge to avoid impropriety and the appearance of impropriety, and the public would certainly see an appearance of impropriety if a judge accepted a gift from a lawyer who has matters in the court on which that judge sits. That perception does not depend on which judge hears the lawyer's case. Even if the matter would not be heard by the judge who received the gift, the public would be suspicious, and the suspicion would be heightened by the potential subliminal influence on the favored judge's colleagues. A judge's duty therefore sets the lawyer's duty. If a judge may not accept the gift, then all the more, the court concluded, the lawyer may not give it under Rule 7-110(a).³⁸

The holding is framed around the court in which the lawyer is likely to appear. A lawyer, or one with whom the lawyer is associated in practice, who is likely to have a matter before a circuit, appellate, or supreme court should not give a gift to any judge of that court. Two exceptions apply: a gift that falls within the exceptions the Code of Judicial Conduct allows a judge to receive, and a contribution to a candidate's campaign fund.³⁹ Framing the duty by court follows from the concern about colleagues. If a gift to one judge can shade how the whole bench is perceived, a lawyer cannot cure the problem by choosing a judge who does not sit on the lawyer's case. The rule's text draws the line at the recipient: a lawyer may not give a thing of value to a judge, “except that a lawyer may make a contribution to the campaign fund of a candidate for such office.”⁴⁰ A gift goes to the judge as a person, while a campaign contribution goes to a candidate's campaign fund, which is part of the electoral process in which comment [1] says lawyers may take full part.⁴¹

Permission to contribute is not permission to contribute for any reason. The campaign-fund exception in the Illinois rule says nothing about legal work, and Rule 7.6 supplies the missing limit. When a lawyer makes or solicits contributions in order to obtain an engagement awarded by a government agency or an appointment by a judge, the public may legitimately question whether the lawyers engaged were chosen on competence and merit.⁴² A campaign check that clears the gift rule can therefore still cost the lawyer an engagement or appointment if it was made for the purpose of being considered for that work. The gift rule asks what was handed to the judge, and Rule 7.6 asks why the lawyer gave to the campaign.

The outcome in Corboy needs careful reading. The court held that the four respondents violated Rule 7-110(a), yet it declined to censure any of them. They had acted without the guidance of precedent or settled opinion, and there was apparently considerable belief among members of the bar that they had acted properly.⁴³ A student who sees that no respondent was disciplined might conclude that the gifts were permissible. The court held the opposite: the gifts violated the rule, and the sanction was withheld because the respondents lacked guidance about its limits.

Solicitation by Judicial Candidates

The same worry about public confidence appears in Williams-Yulee v. Florida State Bar, where the Supreme Court upheld a Florida canon that bars judicial candidates from personally soliciting campaign funds.⁴⁵ Rule 7.6 restricts the lawyer who gives or raises money to win work, and the recusal and gift rules act on the judge who decides a donor's case or accepts a donor's gift. The Florida canon regulates a third actor, the candidate who does the asking. The Court accepted as compelling the state's interest in public confidence in judicial integrity.⁴⁶

The harm is one of appearance. The concept of public confidence in judicial integrity does not easily reduce to precise definition and does not lend itself to proof by documentary record, but no one denies that it is genuine and compelling. What prompted the Supreme Court of Florida and most other states to sever the direct link between judicial candidates and campaign contributors was the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity.⁴⁷ As the Supreme Court of Oregon explained, “the spectacle of lawyers or potential litigants directly handing over money to judicial candidates should be avoided if the public is to have faith in the impartiality of its judiciary.”⁴⁸ A state's decision to elect its judges does not require it to tolerate these risks.⁴⁹ The reasoning echoes Rule 7.6, where money tied directly to a decision-maker's power leaves the public doubting that the outcome rests on merit.⁵⁰

The canon draws its line at the personal request and leaves the campaign committee alone. Florida's Canon 7C(1) allows a judge's campaign committee to solicit money, and Florida permits judicial candidates to write thank-you notes to donors, which lets candidates know who has contributed and who has not. Yulee, the candidate who challenged the canon, argued that committee solicitation arguably reduces public confidence in the integrity of the judiciary just as much as a judge's personal solicitation.⁵¹ The Court upheld the canon anyway. The canon tracks the interest the Court identified, which concerns the appearance created when a judge personally asks for money, and a committee's request is not a personal request.

The only variable in those two letters is who does the asking. Williams-Yulee holds that a state may bar the personal ask while letting the committee ask. It does not forbid judicial campaign money, which remains available through committees. An exam answer should also avoid demanding proof that a particular judge was swayed, because the interest concerns what the public may fairly fear.

Rule 7.3(a) also uses the word solicit, but for a different target. It bars a lawyer from soliciting professional employment by in-person, live telephone, or real-time electronic contact when a significant motive for doing so is the lawyer's pecuniary gain, and the prohibition on personal solicitation of prospective clients remains nearly absolute.⁵² That rule concerns asking for clients. The solicitation in Rule 7.6 and in the Florida canon concerns asking for political money.

Set beside Rule 7.6, the canon sits on the other side of the same transaction. Comment [1] preserves the lawyer's right to make and solicit contributions to candidates for judicial and other public office, so nothing in the canon makes a lawyer's contribution to a judicial campaign unlawful.⁵³ The same three questions that sorted bribery, recusal, and gifts from Rule 7.6 sort this one.

Who is regulated: Rule 7.6 regulates the lawyer or firm that made or solicited the contribution, while the Florida canon regulates the judicial candidate who personally asks for it.⁵⁴
What must be shown: Rule 7.6 looks to the but-for purpose of obtaining or being considered for covered work, inferred from circumstances, while the canon rests on the appearance a personal request creates, with no proof that any judge was influenced.⁵⁵
What follows: a Rule 7.6 violation costs the lawyer the engagement or appointment, while the canon limits how a candidate may raise money and leaves the campaign committee free to ask.⁵⁶

Both rules protect public confidence, one by keeping lawyers from buying work and the other by keeping judicial candidates from personally asking for money.