David Bookstaver, Director
Mai Yee, Assistant Director
Date: March 6, 2000
|New York State Court System Releases Statement on "Pay to Play"|
|NEW YORK - Chief Judge Judith S. Kaye, on behalf of the Unified
Court System and the Administrative Board of the Courts, today released
the following statement regarding "pay to play" in New York. The Administrative
Board is composed of Chief Judge Kaye and the Presiding Justices of the
four Appellate Divisions, Joseph P. Sullivan, Guy J. Mangano, Anthony V.
Cardona and Eugene F. Pigott, Jr.
STATEMENT OF THE UNIFIED COURT SYSTEM ON "PAY TO PLAY"
The Unified Court System, as represented by the four Appellate Divisions of the Supreme Court in consultation with the Administrative Board of the Courts, has carefully examined "pay to play" - a practice where lawyers and law firms may make or solicit contributions to a public official or to a political party for the purpose of obtaining or being considered eligible to obtain a government legal engagement. It has reviewed major proposals of the American Bar Association, the New York State Bar Association, and the Association of the Bar of the City of New York. It has considered extensive public comments received from other bar associations and lawyers throughout the state. And it has studied the growing body of literature and commentary nationwide addressing this serious issue.
"Pay to play" is wrong. The practice should not go on. The existing Disciplinary Rules of the Code of Professional Responsibility, promulgated by the four Appellate Divisions, already prohibit "pay to play": "A lawyer shall not compensate or give anything of value to a person or organization to... obtain employment by a client..." (Section 1200.8[b]). However, this rule, by itself, does not specifically address the nuances of campaign contributions and other donations in the political arena.
The New York State Bar Association earlier this year promulgated two new Ethical Considerations governing lawyer conduct that expressly address "pay to play" in the political context. The Ethical Considerations are interpretative guidelines in applying the Disciplinary Rules. Ethical Consideration 2-37 provides: "Campaign contributions by lawyers to government officials or candidates for public office who are, or may be, in a position to influence the award of a legal engagement may threaten governmental integrity by subjecting the recipient to a conflict of interest. Correspondingly, when a lawyer makes a significant contribution to a public official or an election campaign for a candidate for public office and is later engaged by the official to perform legal services for the official's agency, it may appear that the official has been improperly influenced in selecting the lawyer, whether or not this is so. This appearance of influence reflects poorly on the integrity of the legal profession and government as a whole. For these reasons, just as the Code prohibits a lawyer from compensating or giving anything of value to a person or organization to recommend or obtain employment by a client, the Code prohibits a lawyer from making or soliciting a political contribution to any candidate for government office, government official, political campaign committee or political party, if a disinterested person would conclude that the contribution is being made or solicited for the purpose of obtaining or being considered eligible to obtain a government legal engagement. This would be true even in the absence of an understanding between the lawyer and any government official or candidate that special consideration will be given in return for the political contribution or solicitation." Ethical Consideration 2-38 provides: "In determining whether a disinterested person would conclude that a contribution to a candidate for government office, government official, political campaign committee or political party is or has been made for the purpose of obtaining or being considered eligible to obtain a government legal engagement, the factors to be considered include (a) whether legal work awarded to the contributor or solicitor, if any, was awarded pursuant to a process that was insulated from political influence, such as a "Request for Proposal" process, (b) the amount of the contribution or the contributions resulting from a solicitation, (c) whether the contributor or any law firm with which the lawyer is associated has sought or plans to seek government legal work from the official or candidate, (d) whether the contribution or solicitation was made because of an existing personal, family or non-client professional relationship with the government official or candidate, (e) whether prior to the contribution or solicitation in question, the contributor or solicitor had made comparable contributions or had engaged in comparable solicitations on behalf of governmental officials or candidates for public office for which the lawyer or any law firm with which the lawyer is associated did not perform or seek to perform legal work, (f) whether the contributor has made a contribution to the government official's or candidate's opponent(s) during the same campaign period and, if so, the amounts thereof and (g) whether the contributor is eligible to vote in the jurisdiction of the governmental official or candidate, and if not, whether other factors indicate that the contribution or solicitation was nonetheless made to further a genuinely held political, social or economic belief or interest rather than to obtain a legal engagement." The existing section 1200.8(b) of the Code of Professional Responsibility, together with new Ethical Considerations 2-37 and 2-38, provide the necessary legal framework to prohibit "pay to play." Section 1200.8(e) of the Code then closes the circle by prohibiting the actual acceptance of a legal engagement in violation of section 1200.8(b): A lawyer shall not accept employment when the lawyer knows or it is obvious that the person who seeks services does so as a result of conduct prohibited under this Disciplinary Rule. Apart from the Code of Professional Responsibility, the existing disclosure requirements in sections 14-102, 14-l04 and 14-110 of the Election Law mandate that the recipient of political contributions of $100 or more file public statements listing the name and address of each contributor and the amount of the contribution. As confirmed by disclosures in the press of lawyer contributors to political campaigns, and the precise dollar amounts of their contributions, these contributions are matters of readily available public information.
The Unified Court System has been urged to go even beyond these existing constraints by specifying a particular dollar amount beyond which a contribution would serve as an absolute bar to the acceptance of a legal engagement, regardless of appearances or intent. At this time, however, we have concluded that imposing such a ban would raise broad-based campaign finance reform issues and constitutional questions that in the first instance are more appropriately considered by the Legislature.
The existing proscriptions of the Disciplinary Rules, together with the newly promulgated Ethical Considerations of the New York State Bar Association, and the Rules Governing Judicial Conduct, provide the legal framework to prohibit "pay to play." These proscriptions should provide valuable assistance in curbing this practice.
All of the appointments are effective immediately for a term ending December 31, 2002.