Going. Going. Gone! Or may a lawyer provide legal services as an item in a charitable auction?

By Peter H. Geraghty
Director, ETHICSearch

Your local school holds a charitable auction every year to raise money for the school arts program.  You would like to offer your services to draft a will for the highest bidder as an auction item. 

Can you do so? 

Ethics opinions that address this question typically analyze the issues under their respective state's versions of ABA Model Rules of Professional Conduct 1.1Competence, 1.7 Conflicts of interest: Current Clients, 5.4 Professional Independence of a Lawyer, Rule 7.2 Advertising and Rule 7.3 Direct Contact with Prospective Clients. 

I. State Bar Opinions: Qualified approval

There are several state bar opinions that come to differing conclusions on this question.  Those that permit a lawyer to donate their services in an auction do so on a qualified basis.  See, e.g. Nebraska State Bar Opinion 06-11 (2007) that withdrew an earlier Nebraska Formal Opinion 92-4 (1992).   Nebraska Opinion 06-11 states as follows:

…[A]n attorney may donate legal services to a charitable organization if all of the following requirements are met:

1. Services only in the lawyer's area of competence are donated;

2. The specific service and identity of the lawyer are disclosed;

3. The lawyer retains the right to decline for conflicts of interest or other ethical reasons the representation in which case the lawyer will refund in full the auction price paid by the client; and

4. All communications regarding the auction comply with the above requirements and are not false or misleading. – Nebraska State Bar Opinion 06-11 at page 2.

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Some of the State Bar opinions that do not approve of lawyers making services available as an auction item (see below) argue that it is violative of Rule 7.2's prohibition against giving something of value to a person for recommending a lawyer's services and that purchasers of the auction item may be misled about the qualifications of the lawyer providing the services.  Nebraska Opinion 06-11, discussing an earlier unpublished Nebraska informal opinion that reversed its conclusions in Formal Opinion 92-4 refutes these concerns stating:

…In the informal opinion this committee discussed the reasons for prohibiting donations of legal services, specifically that there was the possibility that a lawyer would be giving something of value to the charity in return for the charity recommending the lawyer's services, and that misleading statement could be made about the attorney, resulting in the selection of an attorney on an uninformed basis.  It determined that the issue of a referral fee seemed to apply more appropriately to a lawyer paying a fee to a third party to recommend that lawyer to a paying client.   Here, the client pays something of value to the charity and the lawyer receives nothing other than the satisfaction of doing a good deed.  It further determined that the possibility of misleading information being communicated to the bidders could be adequately protected against by the attorney in the wording of the auction item that the services would only be in the lawyer's area of competence, that the attorney retains the right to decline the service for conflicts or other ethical problems in which case the price would be refunded by the attorney, and that communications regarding the auction not be false and misleading.  

For other State Bar opinions that provide a similarly qualified approval, See Hawaii Opinion 31 (1992) California State Bar Opinion 1982-65 (1982), Ohio (Cincinnati) Opinion 91-92-04 (undated) and Philadelphia Opinion 80-35 (undated). South Carolina Opinion 91-35 (1991) stated:

It is not unethical for a lawyer to donate legal services under the circumstances set forth above. However, to avoid misleading the recipient of donated services, the donating lawyer must offer the services with certain express qualifications, clarifications, and reservations including:

1. The nature and scope of the services donated should be defined with reasonable specificity.
2. The services donated may not be appropriate for all prospective bidders (e.g., a successful bidder for a "simple" case may have circumstances whereby a more elaborate estate plan would be recommended which would warrant a substantially higher fee).
3. Circumstances may exist that would preclude the lawyer from performing the services for the successful bidder (e.g., a conflict of interest).
See Also  Alabama Opinion 90-51 (1990):

…[A]n attendant consideration is the fact that, having made the donation, the legal service becomes somewhat open ended in that it is impermissible for a lawyer to accept employment on behalf of a client when any limitations are imposed, by the person recommending or paying for that employment (when it is someone other than the client) to restrain or restrict the scope of the representation.  In short, if the purchaser of the Will should need a complex estate plan then you would be required to provide complete legal services in reference thereto.  It would be inappropriate, and ethically impermissible for you to limit the gift to a "simple will" when the purchaser might need something altogether different.  Accordingly, such a gift is fraught with danger for the attorney and we would suggest, as an alternative, that a cash donation of comparable value be made.

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The Alabama Opinion also stated that public policy considerations might have some effect on the types of services that could properly be offered through such an auction:

…The Commission has opined in the past that it is impermissible for an attorney to donate a "free divorce" to a charitable cause due to the general proposition that a lawyer’s first obligation should be to support the sanctity of marriage and not to promote the dissolution of marriage.  Public policy and the appearance of impropriety are important considerations in that regard.

II. State Bar Opinions: Disapproval

Opinions that disapprove of the practice include Ohio Supreme Court Opinion 2002-5 (2002)
(6/14/02) The opinion stated:

A lawyer should not donate legal services to be auctioned or used as a prize drawing at a fund raiser for a charitable organization.  Under DR 2-103(B), a lawyer's donation of legal services to be auctioned or used as a prize drawing at a fund raiser for a charitable organization is a giving of a thing of value which secures employment of the lawyer.  Under DR 5-107(B), a lawyer's agreement with a charitable organization to provide legal services to an unknown silent auction bidder or an unknown winning ticket holder may improperly limit the exercise of the attorney's independent professional judgment as to whom to accept as clients and what services to provide.  Further, under DR 2-101(A)(1), it is misleading for a lawyer to donate legal services that he or she may not be able to provide because of other disciplinary rules, such as 6-101(A)(1), DR 5-101(A)(1), DR 5-105, and DR 2-101(F)(1), governing competence, conflicts of interest, and solicitation.

New Hampshire Opinion 1990-91/2 (1991) (because of the numerous ethical dangers surrounding such donations i.e. competence, conflicts of interest, etc., the lawyer should avoid making such donations even though the rules do not expressly prohibit the lawyer from doing so.)  For other opinions that disapprove of the practice, See, Nassau County Opinion 97-11 (12/17/98) that stated:

A lawyer may not draw a valid will for an organization's members as part of a "Make A Will" program. Both the New York State Bar Association and the American Bar Association have issued opinions on similar topics; both have opined that donating a legal service for charitable fund-raising is ethically impermissible. The following topics are at issue and are discussed below: (1) improper solicitation; (2) a lawyer's discretion and judgment as to selection of clients; (3) the competence of the lawyer to handle the needs of all participants attending a "Make a Will" program; (4) whether donating legal services to charity violates the Code provision that a lawyer may not receive anything of value from a third person in exchange for recommending the lawyer's employment; (5) intelligent selection of counsel by a client; (6) confidentiality; and (7)conflicts of interest.

A lawyer may not prepare wills for the members of a charitable organization as part of a fund-raising "Make a Will" event in which members will pay the organization for the lawyer's donated legal services. The lawyer may, however, co-operate with the charity in presenting and advertising a program in which he will discuss the importance of making a will.

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See Also New York State Bar Opinion 524 (1980), Bar of the City of New York Opinion 81-22 (undated), Monroe County, NY Opinion 1 (undated), Kentucky Opinion E-239 (1981), and Maryland Opinion 80-43 (undated).

ABA Informal Opinion 1250 (1972) stated that a lawyer may not participate in an auction because to do so would violate the applicable advertising and solicitation provisions (DR 2-101 Publicity in General and DR 2-103 Recommendations of Professional Employment) of the ABA Model Code of Professional Responsibility.

Conclusion

State Bar ethics opinions come to differing conclusions on this issue.  As always, it is crucial to check the ethics opinions, rules of professional conduct and case law that have been adopted or issued in the applicable jurisdiction.

ETHICSearch is intended to stimulate awareness of ethical problems and illustrate the varying approaches of different jurisdictions. It is not intended as legal advice. The ABA Model Rules of Professional Conduct and the opinions discussed are advisory only; the ethics rules, laws and court decisions of your jurisdiction may dictate a different result.

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