Unpaid Legal Services to a Candidate Committee
<b>Update:</b> July 27, 2012 (see below)<br>
According to <a href="http://www.philly.com/philly/news/pennsylvania/20120725_Law_firm_loses_…; target="”_blank”">an
article in yesterday's Philadelphia <i>Inquirer</i></a>, the Pennsylvania
Supreme Court approved the Philadelphia ethics board's decision that
a law firm can provide unpaid legal services to a mayoral candidate
only to extent of contribution limits. However, the Supreme Court
left the door open for the law firm to seek a judgment regarding
forgiveness of its "debt" of $450,000, "owed" by the mayoral
campaign committee.<br>
<br>
A common pleas court has now decided that the "debt" cannot be
forgiven without violating the city's campaign finance law. The
court determined that forgiveness would itself constitute a
contribution.<br>
<br>
Unpaid legal services are a frequent government ethics problem. Many firms
don't seem to recognize that, although it is nice to do favors for
people, it is often not appropriate (and sometimes downright
illegal) to do favors for certain people, especially public servants
and candidates for public office. Even doing pro bono legal services for
a government can be seen as a favor to the mayor or agency, either
in return for contract work or help to one or more clients.<br>
<br>
Many firms also don't think of checking with an ethics commission
before providing services to public servants, candidates, or
agencies. Do they feel that, when push comes to shove, they can
shove hard enough to win their case?<br>
<br>
The judge said that there is "a substantial ground for difference of
opinion" regarding the forgiveness issue, so there is likely to be
more shoving, in the form of an appeal. Let's hope this firm of 575
attorneys, whose collective mind should have thought of asking in
advance, will not succeed in making it even less likely that
attorneys will bother checking with ethics commissions in the
future.<br>
<br>
<b>Update:</b> July 27, 2012<br>
I learned today that soon after this situation arose, Philadelphia passed legislation enabling the creation of Litigation Fund Committees (click <a href="http://www.phila.gov/ethicsboard/pdfs/Regulation%201%20-%20Campaign%20F…; target="”_blank”">here to see a PDF of the campaign finance regulations</a>, and scroll down to Subpart H). This allows an alternative that is even more problematic: it effectively doubles the contribution limits, allowing candidates, when they have to litigate any campaign issue, which happens a lot, to pay off attorneys with more large contributions from companies and individuals seeking benefits from the city. Legal defense funds are a favored pay-to-play mechanism.<br>
<br>
Another problem here is that there are situations where a well-heeled candidate, especially one that is an attorney, can make life rough for a candidate, even to the point of keeping her off the ballot. Such a poorly-heeled candidate would benefit greatly from free legal services, and since she is not likely to win, the contribution would not involve pay to play. The solutions to this problem that come to mind include (1) letting an ethics commission decide each situation on its specific merits, so that minor candidates are not treated like powerful incumbents; and (2) having a special fund and a quick, inexpensive, independent process to ensure that no one can force a local candidate to run up big bills. Free legal services are not the only way to protect candidates from putting a wrench in the election process.<br>
<br>
Here are some more blog posts on the free provision of professional
services, and some on legal defense funds, as well:<br>
<a href="http://www.cityethics.org/content/gifts-professional-services" target="”_blank”">Gifts
of Professional Services</a> (and <a href="http://www.cityethics.org/content/problems-reasonable-perception-langua…; target="”_blank”">followup</a>)<br>
<a href="http://www.cityethics.org/content/relations-between-superiors-and-subor…; target="”_blank”">Gift
of Legal Services to Superior</a><br>
<a href="http://www.cityethics.org/content/chicago-goes-task-force-route" target="”_blank”">Pro
Bono Services to Chicago Ethics Task Force</a><br>
<br>
<a href="http://www.cityethics.org/content/local-government-legal-defense-funds&…; target="”_blank”">Local Government Legal Defense Funds</a><br>
<a href="http://www.cityethics.org/content/messages-sent-ethics-related-legal-de…; target="”_blank”">The Favoritism of Legal Defense Funds</a><br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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