3.05.05. Rule 8.4(e): Stating/implying the ability to influence governmental agency/official

Maintaining the integrity of the judicial process is a critical function of the disciplinary process.  If the public believes that justice goes to the highest bidder or to a good friend of a government official, then they will begin to doubt the legitimacy of court orders and ultimately the judicial process itself.  If the legal process is perceived as being “rigged,” then why use it?  Why not just take the situation into your own hands?  We have court processes to discourage people in disputes from engaging in self-help, but if a person believes they are going to lose anyway because the lawyer is bribing the district attorney, not only is the integrity of the system undermined but so is the rule of law.

Notice what the rule defines as misconduct.  First, a lawyer stating that she can influence a government agency or official in a way that violates the ethical rules or other law.  So, if a lawyer tells a client “don’t worry, the District Attorney is a good friend of mine, so I will get the charges dismissed,” it is a clear violation of the rule.  Second, however, even if a lawyer does not explicitly state the ability to influence, implying the ability to influence a government official is also unethical.  Perhaps something like:  “Yes you should hire me to represent you in this case, because I’m really good friends with the District Attorney.”  In this scenario the clear implication of the lawyer saying that she is good friends with the D.A. is to indicate that she can influence the outcome of the charge.

Edward Reines was a good friend of Chief Judge on the Circuit Court before which Reines often appeared.  After oral argument in two cases before panels that did not include the Chief Judge, Reines received an email from the Chief Judge which said the following:

Ed,

On Wednesday, as you know, the judges meet for a strictly social lunch.  We usually discuss politics and pay raises.  Today, in the midst of the general banter, one of my female colleagues interrupted and addressed herself to me.  She said that she was vastly impressed with the advocacy of “my friend, Ed.”  She said that you handled two very complex cases, back to back. …In both cases, you knew the record cold and handled every question with confidence and grace.  She said that she was really impressed with your performance. …

In sum, I was really proud to be your friend today!  You bring great credit on yourself and all associated with you! 

And actually I not only do not mind, but encourage your to let others see this message.

Your friend for life,

Reines sent this email to 35 existing and prospective clients, with statements seeking to solicit work – and stating that these types of comments are “unusual” or “quite unusual” and referenced the Chief Judge’s “stature” within the court.  A complaint was filed that this email was unethical.  Reines argued that the purpose of the email was to let clients/prospective clients know about his skill at oral argument.  Did Reines violate Rule 8.4(e)?

In re Reines, 771 F.3d 1326 (Fed. Cir. 2014)

Yes.  The court cited five reasons that this email implied an ability to improperly influence a judge:  (1)  the email itself noted the special relationship between the lawyer and judge and the judge’s “stature” within the court; (2) recipients of the email indicated that they believed the purpose was to demonstrate the close relationship between Reines and the judge; (3) Reines actually used the email to attempt to gain clients, saying in his email to clients/prospective clients: “as you consider us for your Federal Circuit needs, I thought the … email from Chief Judge Rader might be helpful”; and (4) the implication was that federal judges would look favorably upon clients retaining Reines because in his communication forwarding the email he suggested that clients should “listen[] to … the Federal Circuit judges.”  The court imposed a public reprimand.

Note what is not prohibited here.  A lawyer’s job is to try and influence a public official on behalf of a client.  Perhaps a lawyer appears before a congressional committee arguing that the committee should recommend a tax break that will benefit the lawyer’s client.  In this case, the lawyer is certainly trying to “influence” the public officials.  That (of course) is not prohibited.  The rule is limited to “improperly” influencing.  Thus, mere advocacy is not a violation.