Draft Guidelines for Sponsorship
Here are some draft guidelines for us to consider as we intensify our
sponsorship activities in the years to come. Before writing them, I
reviewed the ABA policy and such materials as we have from the office of
the ABA Director of Sponsorship. I haven’t repeated the ABA policy
below because it’s reasonably clear and binding anyway, and because I
wanted to isolate the concerns that are particular to our Section. I
have written this draft more as an issues discussion than as a proposed
rule, hoping to incite discussion and perhaps even permit agreement
before any technical wording becomes the focus of attention. Please add
your thoughts and we can get all of this to the Council for the Spring
meeting.
DRAFT GUIDELINES FOR SPONSORSHIP RELATIONSHIPS SECTION OF ADMINISTRATIVE
LAW AND REGULATORY PRACTICE
Preamble. Guidelines for sponsorship relationships with our section
must focus on the nature of our membership. We have many state and
federal regulators and state and federal administrative law judges among
our members. All of these individuals must be alert to any appearance
of impropriety in their extracurricular activities. Private attorneys
who appear before agencies may sometimes find that a particular sponsor
relationship poses a potential conflict of interest for themselves or
their firms. Nevertheless, by the very nature and purpose of our
section, we must affirm that the gathering of administrative lawyers
from many backgrounds and responsibilities to trade ideas and advance
public policy is a constructive contribution to the public interest. It
is, then, special circumstances that cause concern. The receipt of
money from sponsors is always sensitive enough that guidelines should be
adopted and followed to assure consistency and systematic attention to
pertinent issues.
Kinds of Sponsorship Relationships. These guidelines are supplementary
to the ABA’s Sponsorship Policies and Procedures, which define and
delimit sponsorship activities and require ABA approval of most
relationships. The ABA guidelines contain various technical provisions,
such as use of the logo, which our section’s review entity will need to
consider as particular proposals are processed. There are also some
overall principles, such as the need for each section to maintain
control over the content of its proceedings rather than cede them to any
sponsor, which are sensible and unlikely to constrain relationships that
the section finds appropriate.
“Continuing Sponsorships” as defined by the ABA tie the sponsor’s
identity to that of the section generally and over time. “Event
sponsorships” are for quarterly meetings, parts of them, or occasional
gatherings. A major project such as our European APA initiative could
contain elements of both. Continuing sponsorships usually have more
potential for revenue generation, and for heightened sensitivities as
well because the section and the sponsor are more firmly linked than
they can be at a single reception or meeting. In other words, the
stakes are higher.
Principles for all sponsorships. Some kinds of sponsors usually
present few problems; others are usually unacceptable. Corporations
that provide services to attorneys, such as Lexis, are generally
interested in all members of the section more or less equally, and
approach us in our common role as attorney/customer. At times, of
course, such a company may be deeply embroiled in litigation with state
or federal governments. (Of course, all corporations have relationships
with many government agencies all the time; it should take something
more to raise sensitivities.) The existence of a long-term continuing
relationship with the section on the part of a company that comes into
an acute conflict with government would provide some assurance that a
relationship was not sought to obtain improper influence. Still, the
section must be aware that some will see such a continuing relationship
as old-fashioned capture of the regulators. In general, though,
corporations that tend to see us as customers present fewer problems
than corporations having no obvious interest in our members apart from
our roles as regulators or judges. Even for corporations that do have
the latter kind of interest in us, a generalized concern for the quality
of regulation on the part of a regulated entity should be regarded as
legitimate. If review of particular sponsorships by our section is
sensitive to these concerns, and if we remain willing to reconsider
continuing relationships in light of developments, corporate sponsorship
should not be per se improper.
Private foundations often present fewer sponsorship sensitivities than
do corporations. Those foundations having a charitable purpose that is
not obviously politically ideological, such as the Ford Foundation, are
usually not problematic. Thus, as successful companies such as Ford or
Hewlett-Packard spin off charitable foundations, they create a layer of
insulation from the companies’ operations that should usually suffice to
permit sponsorship relationships. If a foundation does appear to be
relatively closely linked to a particular ideology (e.g., a Chamber of
Commerce entity), we could pair its sponsorship to that of its opposite
counterpart (e.g., Consumers Union) with notice to both sponsors.
Our section has sometimes received event sponsorship from prominent law
firms, for example at our receptions. These firms may have offices in
many cities and may represent clients before many state and federal
agencies. At some point it is difficult to distinguish such sponsorship
cleanly from the mere presence of multiple firm members as section
members. Moreover, event sponsorship at relatively low levels or
continuing sponsorship of a lesser sort, for example a continuing
advertisement in our newsletter, is inherently less sensitive than a
very prominent continuing relationship. Hence, the Tax Section would
probably allow H & R Block to sponsor a reception, but would be unlikely
to restyle itself the H & R Block Tax Section. Event sponsorship also
allows section members who have special personal sensitivities to avoid
particular events. (For example, if a firm that is currently appearing
before an administrative law judge sponsors a dinner, the judge might
dine elsewhere).
Section approval of sponsorship relationships. We need a regular
entity to review and approve sponsorships for us. Although the ABA
policies are not themselves unduly complex, they are overlain by some
particular requisites that need to be assessed systematically, such as
the advertising regulations. The Sponsorship Committee could be charged
with this task, with ratification by the Chair or the executive group.
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