Unpaid Legal Services to a Candidate Committee

Update: July 27, 2012 (see below)
According to an article in yesterday's Philadelphia Inquirer, 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.

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.

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.

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?

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.

Update: July 27, 2012
I learned today that soon after this situation arose, Philadelphia passed legislation enabling the creation of Litigation Fund Committees (click here to see a PDF of the campaign finance regulations, 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.

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.

Here are some more blog posts on the free provision of professional services, and some on legal defense funds, as well:
Gifts of Professional Services (and followup)
Gift of Legal Services to Superior
Pro Bono Services to Chicago Ethics Task Force

Local Government Legal Defense Funds
The Favoritism of Legal Defense Funds

Robert Wechsler
Director of Research-Retired, City Ethics

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