Ethics Question of the Month - April 2020
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You’ve Got a Friend in Me
Lawyer Eric has a general practice in a small Texas town, mostly handling small matters that generate a modest income. He is approached one day by a potential client with a serious personal injury claim, and he agrees to take the case on a contingency fee basis because of the potential for a large verdict. For two years, Eric devotes substantial time and resources to getting the case ready for trial, to the detriment of the rest of his practice. His efforts pay off when he secures a favorable jury verdict and a judgment well into the eight-figure range.
The solvent and well-insured defendant appeals the judgment to a large metropolitan court of appeals with multiple justices who sit in three-justice panels. Eric is not familiar with the court of appeals because few of his cases are appealed and many of the justices joined the court after his last appeal more than a decade ago.
After the briefing is completed, the court grants oral argument. The notice of oral argument reveals, for the first time, the names of the three justices on the panel that will decide the case. Eric reviews the justices’ online bios and realizes that one of the justices was a law school classmate of his with whom he has not had contact in over 30 years. He did not recognize her previously because she got married and changed her name sometime after law school. She also started using her full first name of “Elizabeth” instead of “Betsy,” as she was known in law school. It was only when he saw her picture and read her bio that he made the connection. He recalls that she was near the top of their class and that she let him copy her outlines on a couple of occasions when he had missed a few classes they had together.
Because Eric fondly remembers how kind she was to him in law school , and he is confident that she is probably an excellent jurist, he decides to make a $4,000 contribution to her re-election campaign before the primary election, which is about a month away.
Which is most accurate?
A. The contribution is unethical because Eric has a case currently pending before Justice Elizabeth
B. The contribution is unethical because of the timing on the donation, just days before oral argument
C. The contribution is unethical because $4,000 exceeds the amount that individuals are permitted to make to judicial campaigns
D. The contribution is permissible under the ethical rules in Texas
The Texas Disciplinary Rules of Professional Conduct provide that “A lawyer shall not seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure.” Rule 3.05. Comment 1 to that Rule provides, “a lawyer should avoid any conduct that is or could reasonably be construed as being intended to corrupt or to unfairly influence the decision-maker.”
The text of the Rule and the Comment seem to articulate different standards. The Rule only prohibits conduct “prohibited by law or applicable rules of practice or procedure.” There do not appear to be any laws or rules of practice or procedure that prohibit campaign contributions to judges or justices before whom the contributor has a case pending.
On the other hand, the Comment urges counsel to “avoid any conduct that . . . could reasonably be construed as being intended to . . . unfairly influence the decision-maker.” Certainly, a substantial contribution to an appellate court justice just days before an oral argument could be construed by an objective observer as intended to influence her.
The only Ethics Opinion addressing this question is Ethics Opinion 328, which was issued under the old Canons of Ethics that governed lawyers until they were replaced by the Texas Disciplinary Rules of Professional Conduct in 1989:
It is the unanimous opinion of the Committee that attorneys may ethically assist judicial candidates in the defrayment of campaign expenses either by direct contributions or by soliciting contributions so long as there is no improper motivation. . . . [T]he amount of the contribution is not controlling.
Canon 2 seems to impose a duty upon lawyers to support suitable candidates for the judiciary, and probably the support most often needed is financial support. Of course such support could be improperly motivated for the purpose of currying favor. If so, there would be a violation of Canon 3. The impropriety, however, would lie in the motive and the mere possibility of such an improper motive is not a sufficient basis for withholding from lawyers generally the right to give financial support to judicial candidates.
Opinion 328 makes it clear that campaign contributions to judges by lawyers are not inappropriate unless they result from an “improper motivation.” Here, Eric could (honestly) argue that his contribution was motivated by his high regard for the justice’s abilities and his warm feelings about her past kindnesses to him. Although the timing of the contribution is suspect, Eric could also plausibly argue that he just now became aware that his onetime friend is serving in an elected office, and everyone knows elected officials require financial support to run for office.
In terms of the amount of the contribution, the Campaign Finance Guide for Judicial Candidates and Officeholders (rev’d October 2019), published by the Texas Ethics Commission, provides:
A judicial candidate may not accept political contributions from a person that exceed the following limits in connection with an election in which the candidate’s name appears on the ballot:
- $5,000 for candidates for courts of appeals, district courts, statutory county courts, or statutory probate courts if the population of the judicial district is more than one million.
Because all of the courts of appeals in the major metropolitan areas of the state are in judicial districts with populations of more than one million, the campaign limit for this contribution is $5,000. Eric’s contribution of $4,000 does not violate this restriction.
Therefore, absent any evidence of an “improper motivation,” Eric’s contribution does not violate the ethics rules.