Allocating Influence

Abstract

Influence peddlers, influence seekers, and government officials have a long and fascinating history. Centuries ago, those in need of government action greatly appreciated the value of 'an audience with the king' and paid handsomely for such access, to the benefit of both the influence peddler and the influence seeker. Twenty-first century influence peddlers offer influence seekers a similar service, but often do so subject to restrictions not faced by their medieval predecessors. Many of these restrictions are intended to make the whole influence exchange more 'ethical', yet public perception indicates that additional reforms are necessary.

When the influence peddler is a lawyer, and the influence seeker is a client, different ethical rules may come into play depending upon the decision maker before whom influence is sought. If the decision maker resides in the legislative branch (e.g., a United States congressman), then the Lobbying Disclosure Act and similar laws impose restrictions intended to increase transparency. If the decision maker resides in the judicial branch (e.g., a state court judge), then the rules of professional conduct prohibit a lawyer from improperly influencing the judicial decision maker. If the decision maker resides in an executive or administrative agency, then 'the rules' — to the extent they apply — are not so clear.

Any attempt to clarify the ethics of administrative agency influencing should start with a core principle underlying modern legal ethics — the avoidance and/or resolution of conflicts of interest. Accordingly, this Article addresses a conflict of interest — the 'allocating influence conflict' — that, to date, has escaped proper identification or analysis. In its simplest form, an allocating influence conflict emerges when: (i) a lawyer properly may, and was retained by the client to, influence an agency decision maker; and (ii) there is a significant risk that allocating influence on behalf of one client is reasonably certain to inhibit substantially the lawyer’s ability to influence the same decision maker on behalf of another client. Essentially, if a lawyer’s exercise of influence over an agency decision maker on behalf of one client could harm another client or the lawyer himself, then that lawyer likely faces an allocating influence conflict.

Although allocating influence conflicts occur frequently in practice (and with particular frequency in administrative law practice), primary legal ethics sources do not explicitly address them. Similarly, although a few scholars have noted individual 'problems' that possibly could qualify as allocating influence conflicts, no scholarship has explained how to identify allocating influence conflicts or, perhaps more importantly, how to address them ethically. This lack of guidance means that many conflicts of interest are occurring without proper identification by the affected lawyer and without effective oversight from lawyers charged with enforcing ethical standards. In turn, the practical harm to clients generally is the same harm associated with all other conflicts of interest — the loss of loyalty, independent judgment, and zealous advocacy from one’s lawyer.

Part I of this Article defines an allocating influence conflict. In addition to providing a basic definition, it describes the circumstances in which these conflicts typically emerge, and distinguishes the allocating influence problem from other comparatively benign resource-allocation conflicts. Part II of this Article demonstrates the pressing need to address allocating influence conflicts given their prevalence and their harmful effects on both clients and the profession. Part III demonstrates that existing ethics sources, though lacking direct recognition of allocating influence conflicts, provide the proper foundation for addressing them. Part IV addresses how to resolve allocating influence conflicts, first by showing how allocating influence conflicts fit within the existing conflict of interest framework and, second, by suggesting specific revisions to the comments to the Model Rules of Professional Conduct.

Keywords: ethics, professional responsibility, administrative law, lobbying, influence, conflict of interest