The Florida Bar

Ethics Opinion

Opinion 86-9

FLORIDA BAR ETHICS OPINION
OPINION 86-9
May 1, 1987
Advisory ethics opinions are not binding.
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.
RPC:
Opinions:

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
76-23, 80-9 [both withdrawn]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 Accordingly, Opinions 76-23 and 80-9 are withdrawn.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).