Many business deals begin with a handshake or a quiet conversation. Corporate America is filled with side deals and compromise and promises. Often, these arrangements are perfectly acceptable. But, the intersection between business and politics is a different animal; there are strict regulations regarding governmental contracts and bids and proposals. Transparency is key. Attorneys engaged by governmental contractors must be careful. The recent indictment of a Pennsylvania mayor and an outside attorney in what is being alleged as a pay-to-play scheme is a reminder of the fine line attorneys must walk. In addition to the target-attorney being named, the indictment is littered with references to other attorneys allegedly involved in the scheme. This involvement spans from contributions to the mayor’s various campaigns to presence at meetings to discuss city contracts. While many clients may battle for the throne, attorneys must steer clear of even the appearance of impropriety.
Attorneys must be constantly aware of what could be perceived as surreptitious activity. A sizable donation close in time to a pitch for a contract will likely arouse suspicions. Discussions between a contractor and government employee about an RFP can easily slip from general talks to inside information. While the standard for proving a quid pro quo is high, the witness stand is the last place any attorney wants to be explaining his innocent intentions.
It is therefore vital that attorneys in this arena be sure to comply with all campaign finance laws. Transparency is key and attempting to use creative lawyering to get around them is a job done for a client, not counsel. Furthermore, an extremely careful approach must be taken at all meetings with government officials. Regardless of any existing friendship, the substance of those conversations must be viewed from an outsider’s perspective. While those in the private sector may be more flexible about exchanging “favors” or talking “off the record,” clients must be reminded that a different set of rules applies in the public sector. Preparation beforehand as well as a heightened alertness for potentially gray topics is therefore necessary or an attorney can find himself in the center of his client’s legal troubles, as well as his own.