Election lawyers representing nominating
petitioners must keep the petitioners’ best
interests in mind.
I am an attorney who has handled election cases in the past and anticipates this year to have a number of election cases where I am either challenging nominating petitions or defending nominating petitions. Normally, a candidate will ask me to challenge his or her rival petitions. The candidate will provide me with the name of a person or someone on their staff to be the petitioner who is a qualified elector. What are my obligations to the petitioner?
Election law, particularly because of the short time period to challenge petitions and to defend and have hearings, often results in lawyers sometimes being lax in their ethical responsibilities to a client. Although Pennsylvania Rules of Civil Procedure do not apply to election law cases, the Pennsylvania Rules of Professional Conduct do apply.
As in every case, the ethical lawyer has to clearly define who he or she represents. The fact that someone else is paying the bills or the lawyer is doing it for free at the request of someone else does not change who the lawyer represents. In petition challenges, the lawyer who is bringing the challenge represents the petitioner who is the actual named person on the challenge petition. The fact that the lawyer is working with the candidate or officeholder or has been their friend or has been their attorney for years does not change who the lawyer represents.
If the candidate is paying, the lawyer sends the candidate a fee letter, but the fee letter is different, because a separate fee letter has to also be sent to the petitioner. Fee letters are required under Rule of Professional Conduct 1.5(b). Whether or not the lawyer is being paid, this still has to be set forth in the fee letter or a fee agreement. This helps to define the scope of the relationship. Under Rule of Professional Conduct 1.8(f), a lawyer cannot accept compensation for representing a client from someone other than the client unless the client gives informed consent, there is no interference with the independence of the lawyer’s professional judgment or with the attorney-client relationship, and the information given by the client is protected by Rule of Professional Conduct 1.6, which is the confidentiality rule. In other words, what this means is that the petitioner is the true client.
The petitioner has to give the lawyer informed consent, preferably in writing, to represent him or her, even though the candidate is paying the bill. The petitioner has to be advised that everything is confidential unless the petitioner waives the confidentiality, at least as to the third party who is paying. The petitioner must understand the lawyer will represent his or her interests and not the candidate’s interests unless instructed to the contrary. The candidate or political party that is hiring a lawyer also has to be given a fee letter setting forth the fee arrangement. This letter is required not only by Rule 1.8(f), but also under Rule 1.2, which requires a lawyer to set forth the scope of the employment and Rule 1.5(b).
This may come as a shock to many election lawyers, some of whom have never met the petitioner in these petition challenge cases. It is not uncommon that a candidate or officeholder who is doing the challenge will provide all of the information and give the lawyer the information to prepare a petition. At the last minute, a name is submitted with an address, etc. The person obviously has to be registered in the district and registered in the party of which the challenge is being made. But many election lawyers never meet with the petitioner. There is no requirement to bring the petitioner to court. A lawyer at court has to prove that the petitioner is properly registered in the district at the time of the challenge, which can be done through subpoenaing the voter registration records from Voter Services.
But that practice has to stop. There must be fee letters to both the candidate and client with explanations, as required by Rule of Professional Conduct 1.2 and Rule 1.8.
Some agree the petitioner is really just a nominal person. There is no such thing as a nominal client in the practice of law. Clients are real people and one has to look out for their interests. Usually, the interest of the petitioner in election cases is aligned with that of the candidate. Oftentimes, the petitioner is a friend or big supporter of the candidate and that is why the petitioner is allowing their name to be used.
But there can be problems. For instance, if there is an issue as to whether or not the challenge is frivolous or made in bad faith, this might trigger sanctions of both costs and attorney fees. Then the interest of the petitioner may be different from that of the candidate.
The candidate who is not a named party is not going to be sanctioned, but the petitioner might be. The fact that the candidate may or may not desire to pay the sanctions is not the deciding point. Many people don’t want on their record a judicial finding that they acted in bad faith or should be sanctioned. Although under the election law cases, the standard for sanctioning a petitioner has changed in recent years, that still can create a division. The lawyer must talk to the petitioner and also get the petitioner’s consent whether or not the petitioner wants to proceed if the lawyer is trying to develop a new issue or a new theory to knock out signatures. If the theory works, the lawyer will look like a very knowledgeable person. But if the theory doesn’t work, the lawyer and the petitioner may be the subject of sanctions.
Therefore, with regard to any lawyer who is practicing election law, the lawyer’s enthusiasm and support for a candidate or a political party can never cause the lawyer to lose sight of whom the lawyer represents and their obligations to whomever they represent. As noted, these election cases are fast and furious, but that is no excuse for not sending the appropriate fee letters. It is no excuse for not meeting with the petitioner. It is no excuse for not letting the petitioner know the strengths and weaknesses and risks the petitioner takes in doing a favor for their political candidate or political party.
An elected official may not use taxpayers’ money
to conduct business related to a campaign for
re-election or election to another office.
I am representing an elected official who is going to run for another office. I met with the elected official in his government office and he has emailed me from that office. Is there anything wrong with that?
The answer is there is everything wrong with the question. The lawyer must stop the conduct, not only for the lawyer’s sake but, more importantly, for the officeholder. For the last two or three years, it is very clear that the old way of doing business politically by officeholders has changed radically, as seen by a number of former prominent officeholders becoming guests of the state prison system.
But the lesson to be gleaned from this is the understanding that there is a clear distinction between an elected official using public money to do official duties and an elected official using public money to run for re-election or an election to another office. There is a very, very clear bright line that could have serious ethical and criminal consequences if overstepped.
The bright line is that an officeholder cannot use his or her government offices, email, office staff, mailing privileges, telephones, etc., to get re-elected. Government phones, stationery and offices are to be used solely for the use of the public duties the officeholder has been elected to.
Therefore, if a lawyer is going to represent an officeholder, the lawyer should not meet in the officeholder’s government office to discuss campaign activities. The communication with the officeholder should not be by the email of the government office. The communication should be done by campaign email or private email. The communication should be done by personal telephones or privately paid-for cellphones.
Letters typed back and forth should be typed by the campaign office, not the government office. The officeholder’s secretary or clerk should not be sending letters to the political attorney during government office hours.
Otherwise, an officeholder will be subject to criticism and maybe prosecution if somehow it comes out that government emails are being used to communicate and/or government staff is being sued for campaigning activities on government time.
It doesn’t make any difference if the officeholder states the staff, half the day, just sits there and looks out the window because they have nothing to do. That argument doesn’t allow the officeholder to use government resources for his or her private political campaigns.
Lawyers have to be aware of this litigation because a lawyer can’t assist someone engaging in potential criminal conduct. The lawyer must fully advise the officeholder to do the right thing. For a lawyer, Rule of Professional Conduct 8.4(c) prohibits a lawyer from engaging in conduct of dishonesty, fraud, deceit or misrepresentation.
Assisting an officeholder to violate the law would fall into that category. Arguably, Rule 8.4(b), about a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness or fitness, may be implicated. Similarly, Rule 8.4(d) involving conduct contrary to the administration of justice.
A lawyer who understands the illegality of what is going on and operates in that area of illegality is guilty of accomplice or conspiratorial conduct. A lawyer has to be aware of the status. The lawyer has to advise the client to stop the misconduct to protect the client.
Some people might say that this advice is being over officious. But in reality, it is not. Anyone in the modern political game knows that challenging petitions and trying to injure one’s opponent has become a real sport. The days of just running a campaign and letting the voters decide are long gone.
Any way to injure a client or to knock the client off the ballot is considered fair game and done with relish by opponents and other people. The kind of advice given is the best possible advice to protect an officeholder who is being over-enthusiastic as a candidate and not protecting him or herself from the consequences of using, directly or indirectly, government funds on behalf of his or her election campaign. •
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.