The Florida Bar
A lawyer may donate a will or other legal service for auction (or use as a door prize) by a charitable organization if the lawyer takes measures to ensure that the donation does not lead to ethical violations. Principally, the lawyer (1) must ensure that the organization, in publicizing or conducting the auction of the donated service, does not violate any of the ethics rules regulating communications about a lawyer or the lawyer's services; and (2) should obtain a guarantee from the organization that the successful bidder's money will be refunded upon request if the lawyer is prevented by the conflict-of-interest rules from performing the donated service for that person.
May 1, 1987
May 1, 1987
RPC: 4-1.1, 4-1.2, 4-1.7, 4-1.9, 4-1.10, 4-1.11, 4-1.12, 4-3.1, 4-5.4, 4-5.5(b), 4-6.1, 4-7.1, 4-7.2, 4-7.4
Opinions: 76-23, 80-9 (both withdrawn)
The Committee has been asked whether it is ethical for a lawyer to donate legal services - specifically, a will - for auction by a charitable organization or for use by the organization as a door prize. The question has been presented to the Committee on prior occasions, and on those prior occasions the Committee concluded that the conduct would be unethical. Opinions 76-23 and 80-9. The Committee now concludes that under the Rules of Professional Conduct, a donation of a will or other specified legal service for such use by a charity can be a permissible way for a lawyer to fulfill the obligation, as stated in Rule 4-6.1, to provide pro bono legal services to his community. Accordingly, Opinions 76-23 and 80-9 are withdrawn. But while such a donation of services is not unethical per se, the Rules of Professional Conduct impose limitations on the manner in which the donation and the auction or offering as a door prize may be undertaken. A lawyer who contemplates making such a donation must take appropriate measures to ensure that his conduct and that of the charitable organization complies with these ethical standards.
Before discussing the potential ethical problems that must be avoided, the Committee notes that it does not perceive the donation of legal services for auction or use as a door prize by a charitable organization as violating Rule 4-5.4(a), which proscribes division of legal fees with nonlawyers, or Rule 4-7.2(c), which forbids a lawyer to give anything of value to a person for recommending the lawyer's services. There is no sharing of fees in violation of Rule 4-7.2(c) because the lawyer, in donating the will or other service for auction, agrees to perform the specified service for no fee. Those who bid on the service recognize and intend that their money will go directly to the organization as a contribution toward the funding of its charitable activities.
Rule 4-7.2(c) likewise is not violated by the donation of a legal service to a charitable organization for auction or use as door prize because the value is not given in return for a recommendation of the lawyer's services. Rather, the value of the service is donated to the organization for the purpose of enabling it to raise funds for its charitable activities. A second purpose of the donation is to provide a double benefit to interested bidders: not only does the successful bidder receive a desired legal service, but the money that would otherwise be expended on a legal fee instead is donated to the charity. Further, the organization's auctioning of a donated service does not by itself constitute a recommendation of the service. However, to avoid any appearance of a violation of Rule 4-7.2(c), the lawyer should instruct the organization not to recommend or urge, in publicizing or conducting the auction, that its patrons take their legal business to the lawyer.
The first of the rules that are applicable to donation of a legal service for auction or use as a door prize is Rule 4-7.1, which regulates the manner in which legal services may be advertised. Rule 4-7.1 forbids a lawyer to make or permit to be made any false or misleading communication about the lawyer's services. Misleading communications include those likely to create an unjustified explanation about results the lawyer can achieve.
Rule 4-7.1 requires the lawyer to ensure that the charitable organization, in publicizing and conducting the auction, does not describe the offered legal service in a false or misleading manner. Similarly, the lawyer must ensure that any description of the offered service or the lawyer's professional background does not violate the restrictions imposed by Rule 4-7.4 on lawyers' stating or implying that they are "specialists." The lawyer can ensure compliance with these rules by supplying the description to be offered of the legal service or of his background and by requiring the organization to submit for his prior approval any statements to be made about the lawyer or the legal service.
Rule 4-7.2 requires a lawyer who advertises his services to keep a copy or recording of the advertisement for three years after its last dissemination along with a record of when and where the advertisement was used. Although it may not be obvious that a charitable organization's efforts to publicize a fund-raising auction constitute an advertisement of the lawyer's services within the meaning of this rule, it would be advisable for the lawyer to err on the side of caution and keep the records required by Rule 4-7.2.
A lawyer also must not allow the auction of his services to place the lawyer in the position of violating any of the conflict-of-interest rules, particularly Rules 4-1.7 (general conflict rule), 4-1.9 (former client), 4-1.10 (general imputed disqualification rule), 4-1.11 (successive government and private employment) and 4-1.12 (former judge or arbitrator). The lawyer should have a guarantee from the charitable organization that the successful bidder's money will be refunded on request if the lawyer is prevented by any of the conflict rules from performing the auctioned service for that person (except that the lawyer may also arrange with another competent attorney with whom he is not associated to have the latter substitute for him to provide the service at no charge in the event of a conflict if the substitution is acceptable to the client).
Potential bidders should be advised that there is some chance that the lawyer's ethical obligations may prevent him from performing the offered service for the particular person who happens to be the winning bidder, and the availability of a refund or a referral should be disclosed.
Although there is no reason to believe such a problem would materialize, it should be noted that the lawyer must not permit the charitable organization to dictate or interfere with the lawyer's performance of the auctioned service or his exercise of professional judgment. Such involvement on the part of the organization is impermissible under Rule 4-1.7(b). See Rule 4-5.4(c); Rule 4-5.5(b).
Finally, this opinion is addressed to the donation of a specified, discrete service such as a will. A donation of a number of hours to be used on whatever matter the successful bidder desires, or a donation of representation in a particular type of controversy or law suit, would present additional potential ethical problems that would have to be anticipated and resolved in the same manner as potential conflict problems. Such potential problems could involve a lawyer's obligation not to accept employment in a matter he is not competent to handle (Rule 4-1.1); the lawyer's obligation not to counsel or assist a client in criminal or fraudulent conduct Rule (4-1.2); and the lawyer's obligation not to participate in frivolous litigation (Rule 4-3.1).