Proposed changes to the ABA Model Rules of Professional Conduct would require managing partners to keep track of “all financial and other support provided, directly or indirectly to any judge or judicial candidate running for election.” The ABA Standing Committee on Ethics and Professional Responsibility along with the ABA Standing Committee on Professional Discipline were charged by the ABA with investigating the issue of judicial disqualification and proposing changes to the Model Code of Judicial Conduct. The Committees submitted their proposed changes, which are pretty straightforward. Attached to the proposed changes is a proposed addition to the Model Rules of Professional Conduct. Should lawyers be responsible for monitoring their employees’ political contributions, as the rule requires? Could this rule have a dangerous chilling effect for law firm employees?
Creating the Appearance of Impropriety
Under Proposed Model Rule 5.1A, where there is no agency collecting the information, lawyers must inform the judge of the aggregate amount that everyone in the law firm contributed to the judge’s last judicial campaign. Although the drafters did not provide a draft explanatory comment, it’s safe to assume that the purpose of the rule is to avoid the appearance of impropriety. If lawyers have to disclose how much they contributed, then surely that will prevent lawyers who spent a lot of money on a judge’s campaign from holding sway in cases. Right?
I doubt it. If a judge didn’t know about the contribution ahead of time, it would not have impacted her decision. Thus, to make the judge aware of it creates more of a risk that the judge will be influenced by the donor.
Moreover, let’s imagine the scenario where a partner has to announce in open court (or in a filing with the court) the aggregate amount that his law firm donated. To a civilian unaware of the cost of judicial campaigns, these figures might seem enormous. A large firm could contribute thousands of dollars to a campaign. When somebody says fifty thousand dollars, it sounds like a lot of money. But if that was only a small portion of the millions a judicial candidate raised, it probably isn’t a disqualifying issue. Nonetheless, once the amount is announced in court, it will give the impression that the attorneys are contributing a significant amount to the judge. This could, in turn, create the exact appearance the rule aims to prevent: corruption of the judicial system.
Silencing the Minority Donor
Many firms have an associated political action committee. If they don’t, they may still have a “firm—wide” political ideology. Inevitably there will be people working at a conservative law firm that vote Democratic, and vice versa. They’re free to contribute money to whomever they want. This rule doesn’t change that. But imagine if you are the one Republican in a law firm of Democrats. Will you want to report to your boss that you just donated five hundred dollars to the candidate everyone else in the office despises? It seems unlikely.
Further, most states with reporting requirements have a minimum amount that must be reported. The proposed rule would eliminate this protective bubble for small donors. Now the law firm employee who gives fifty dollars to a judicial campaign will have to report the contribution. When you combine the potentially stifling political atmosphere of some firms with the lack of a minimum dollar amount that must be reported, the proposed Model Rule could easily create a chilling effect on political contributions.
The Purpose of the Model Rules
The Model Rules of Professional Conduct are a set of guidelines for lawyers. They are a place to go when there is a sticky ethical situation and you don’t know how to handle it. The rules deal with promoting the professionalism of the bar. That being said, every rule is aimed at practicing attorneys. Not judges. The judiciary has its own set of rules. So that begs the question: what would this proposed rule be doing in the Model Rules of Professional Conduct? In short, it has no place in the Model Rules. This rule aims to deal with judicial disqualification. Thus it belongs in those rules governing the judiciary.
In addition to the substantive issues the proposed rule presents, it is also quite vague. Take for example the “other support provided” which a law firm must track. How can a firm track that? If a partner’s secretary did ten hours of envelope stuffing, how does the firm record the support? Should a billable hour setup be used? Does an hour of a senior associate’s time create more “value” for reporting purposes than her junior colleague?
The proposed rule states that any contribution, whether monetary or “other” must be reported, even if it is an indirect contribution. Does that mean any contributions from spouses have to be reported? What about a spouse’s employer’s PAC if the couple has a shared bank account?
The ABA is having a public hearing on this proposed rule, amongst other things, on February 3, 2012 in New Orleans. Individuals or organizational representatives interested in testifying should contact Senior Research Paralegal Natalia Vera at firstname.lastname@example.org or 312-988-5328, no later than Friday, January 13, 2012.