(Authors note: This article was first published on SLAW in May 2010. )
Earlier this month, British Columbia residents witnessed political awkwardness at a level unusual even by West Coast standards when a special prosecutor cleared B.C. Solicitor General Kash Heed of wrongdoing in a criminal investigation. Mr. Heed was re-appointed to cabinet later that day, only to re-resign the next morning after the special prosecutor stepped down as a result of his law firm’s $1,000 contribution to the Heed campaign shortly before the last provincial election.
The special prosecutor has stated that he was aware of his law firm’s donation early on. However, he did not consider it an apparent or perceived conflict of interest until too late in the day to avoid the media storm that inevitably followed when he stepped down immediately after exonerating Mr. Heed. The Law Society of British Columbia has launched an investigation, the Premier has called for a review of the process by which special prosecutor appointments occur, and the Vancouver Sun (B.C.’s major daily newspaper of record) has dutifully pulled out a list of other prominent counsel who have acted as special prosecutors subsequent to making political donations to the governing party in B.C.
Let me be clear that I do not have any belief whatsoever that the campaign contribution in the Heed situation had any bearing on the special prosecutor’s decision-making process – a view I’m confident the vast majority of those in the legal profession would share. Despite that, it is equally clear that the very small financial donation in this case has had significant repercussions for each of the Solicitor General, the governing party of British Columbia, the Attorney General’s criminal justice branch, and the special prosecutor and law firm involved.
While unique on its facts, this incident raises the larger question of whether law firms ought to still be in the business of making political donations or campaign contributions. In fact, the law firm at the center of the Heed incident has subsequently announced that it will no longer make such donations. While some may consider this an example of firmly closing the barn door after the horse has bolted, it nevertheless represents a policy rethink that most Canadian law firms have yet to undertake.
As seen through the lens of a law firm’s marketing strategist, what is the risk/reward ratio of a firm making a financial contribution to a political party or an election campaign at any level of government?
In recent years, we have seen many firms move away from active participation by their lawyers on boards of directors, both for liability reasons and to avoid potential conflicts of interest. It strikes me that when it comes to conflicts, the argument for declining to make political contributions is at least equally strong.
Media reports and opinion polls regularly state that public confidence in the institutions of government, including both Parliament and the judicial system, is decreasing over time. Meanwhile, scrutiny of these institutions continues to grow. As such, any whiff of perceived bias or potential conflict of interest is certain to be seized upon, both by political factions seeking to take tactical advantage of an opportunity that has presented itself and also by the general public, who increasingly throw up their hands in disgust at all players involved whenever such stories appear in the media. TheVancouver Sun article referenced earlier about other special prosecutors who have made political donations is a classic example of the guilt-by-association ethos that prevails once public confidence founders.
I would also factor into the equation that in any law firm beyond a handful of lawyers and employees, different political preferences will prevail, even within the firm. There will be those who chafe – loudly or otherwise – at the idea of firm funds being spent in support of a cause, party or politician they don’t favour. The resulting disconnect has a corrosive effect on the culture of the firm.
To my mind, all of the above are reasons why the risk/reward ratio for law firm political donations is frequently too high to make it a prudent part of law firm marketing strategy. Firms interested in pursuing government-related work of any kind need to be both completely transparent and utterly pristine in their dealings with public bodies and political organizations. This will help preserve their opportunity to act in a legal capacity later on. Campaign contributions muddy the waters, and where mud exists, mud-slinging is sure to follow.