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State & Local News Vol. 21, No. 1, Fall 1997
Legally SpeakingJohn CopelanJohn Copelan is Broward County Attorney in Fort Lauderdale, Florida, and editor of State & Local Law News. Infringing on the First Amendment or Prohibiting Pay to Play? One of the hotly debated issues at the ABA Annual Meeting was whether the ABA should become involved in prohibiting the practice of public agencies considering as eligible for engagement for professional services those lawyers who make political campaign contributions to or solicit political contributions for the agencies' public officials (a practice known as "Pay to Play"). Securities and Exchange Commission Chair Arthur Levitt has advocated prohibiting Pay to Play and, specifically, an ethical rule proposed by the Association of the Bar of the City of New York. Opponents of the proposal, including the Philadelphia Bar Association, felt the Pay to Play prohibition was ill advised as an infringement upon a lawyer's First Amendment rights under the Constitution. This debate spread onto the floor of the ABA House of Delegates at the Annual Meeting in San Francisco and resulted in an interesting compromise endorsed by the State and Local Government Law Section, the Government and Public Sector Lawyers Division, and the Section Officers Conference, wherein the ABA will study a widespread ethical rule change that will not be limited to bond lawyers and municipal finances but will include lawyer contributions to judicial candidates and to other political campaigns. For the last year or so, the SEC Chair has been promoting ending Pay to Play and has enlisted such notables as Judge William Webster and former Attorney General Elliot Richardson to call attention to the issue. Others feel that current campaign finance laws and the existing Rules of Professional Conduct, such as Model Rule 7.2(c), prohibiting a lawyer from giving "anything of value to a person for recommending the lawyer's services," are adequate without infringing upon the lawyers' First Amendment rights. Opponents of the change believe that such proposals to prohibit political contributions that affect lawyers' employment rather than prohibiting contributions that would influence matters that a lawyer's client may be interested in, such as lobbying activities, are patently unfair. The resolution adopted by the ABA House of Delegates calls for the President of the ABA to appoint a task force to review and study these issues related to political campaign contributions made or solicited by lawyers and to recommend for consideration by the House of Delegates at its meeting in August 1998 any additional professional standards, law, or procedures, if necessary, in the form of amendments to the Model Rules of Professional Conduct, aspirational ethical standards, or other appropriate measures. What is most interesting to note, however, is that the charge to the ABA task force is much broader than municipal finance or Pay to Play. Now the practice of lawyers making significant political campaign contributions to judicial candidates before whom the lawyers appear is within the charter of the task force as is the activity of lawyer/lobbyists. The need for a full study and debate is obvious. At a minimum, the task force should consider issues raised by both sides to decide: first, if there is a problem that needs fixing; and then second, if necessary, what, if any, solution should the ABA be involved with. What are your views on these issues, which will be debated over the next year? We would like to hear from you and perhaps, to this end, we will dedicate our Summer 1998 issue theme to examining "Pay to Play" with a point/counterpoint debate with authorities on each side discussing their respective views of the subject.
A Special Salute for Otto Hetzel Over & Out in Fort Lauderdale
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