Looking for marketing ideas to help you or your firm stand out from the crowd? If you’re tired of branding tee shirts and mugs with your logo, how about donating your legal services to be auctioned off by a charity? As you might suspect, there are ethics issues — and Maryland’s state bar association recently weighed in on them.
In its opinion issued last month, the state bar’s ethics committee considered whether a lawyer’s services could permissibly be auctioned off on behalf of a charity, and if so, what the relevant constraints would be.
Banging down the gavel
Nearly forty years earlier, in 1980, the same ethics committee had turned thumbs down, saying that despite the charitable intent of such an auction, the donation of valuable attorney time violated the prohibition against giving anything of value to a person or organization in return for the referral of a client. Obtaining a client through an auction bid at a charitable fundraising event came within the proscription, the committee held.
Times changed, however, and a growing number of jurisdictions rejected blanket prohibitions against participating in charitable auctions, or revisited and reversed their previous rejections. The New York State Bar Association, for instance, changed course in 2013, and gave the green light to lawyers who wished to donate their services to be auctioned off for charity, with some limitations designed to avoid the ethics concerns.
As the New York ethics committee said, the evolution of judicial attitudes toward lawyer advertising now places the focus on “effectuat[ing] the [ethics] rules’ language and purpose consistently with the public interest in access to information about lawyers’ services, and lawyers’ legitimate interest in marketing their services.”
Sold! to the highest bidder
In line with that approach, the new Maryland opinion provides six guidelines for lawyers who want to help raise funds for a charitable organization by donating their legal services:
- Specify the services you are donating, and only donate legal services that you can competently provide. (Model Rule 1.1, “Competence.”)
- Make your offer of services to the winning bidder conditional on there being no conflicts in providing the services, and on the prospective client being satisfied with the prospect of accepting the services. (Model Rule 1.7, 1.9, on conflicts with current or former clients.)
- Agree with the charitable organization that if for any reason you cannot accept the representation, the organization will refund the winner’s bid amount.
- If you are offering a limited-scope package of services (such as a set number of hours of estate-planning advice), the limitation must be reasonable under the circumstances — that is, not too limited to be useful to the client. If you are going to donate a set number of hours, but would intend to offer additional services for a fee, the auction materials should indicate that. (See Model Rule 1.2(c), on limited scope representations.)
- Avoid situations where you have an on-going professional relationship with the charitable organization or related entities that could signal that your donation is giving the organization something of value in exchange for recommending you to the client. (Model Rule 7.2(b), on recommendations.)
- Review in advance any description of your services that the charity intends to publish in any promotional material, and retain the right to edit it. (Model Rule 7.1, “Communications Concerning a Lawyer’s Services.”)
All sales final
The new Maryland ethics opinion is part of a trend toward reconsidering some marketing rules in line with the evolving realities of legal practice. But not all jurisdictions are going with the flow. My own Buckeye State, for instance, remains in the anti-auction camp, under a 2002 opinion issued under the former Code of Professional Responsibility. You should carefully check the auction opinions in your own bailiwick and proceed with caution in donating your legal services for a charitable auction.