It is that time of year again—time for reconnecting with family and friends, for celebrating the end of another year, for holiday parties and gift giving. It is also time for some pesky legal ethics questions to bubble up—what are the rules on gift giving again? We know that time, particularly during this season, is precious. We do not want you to waste it worrying about whether a holiday activity has put you in an ethical dilemma. Here are answers to common holiday-related questions:
Q: Can I send my clients holiday gifts to show my appreciation for their business?
A: Yes, depending on the client.
- Financial Assistance: Gifts from lawyers to clients are allowed if the gift does not constitute financial assistance to the client, which is prohibited under Prof.Cond.R. 1.8(e).
- Public Officials: Ohio Ethics Laws impose strict limits on gifts to public officials, employees, and members of certain governmental commissions. See, R.C. §102.03. Individual government agencies may have policies that are even more stringent. For clients subject to these restrictions, a gift can have the opposite of its intended effect—it can cause headaches for the client and show the lawyer’s ignorance of the law. The Ohio Ethics Commission suggests that “a note of thanks (especially if the letter of appreciation is copied to a supervisor or agency director) is preferrable to an offer of a gift.” See, Ohio Ethics Commission’s Private Sector FAQs.
- Referral Sources: A lawyer shall not give anything of value to a person for recommending the lawyer’s services. See, Prof.Cond.R. 7.2(b). Ohio’s rule, unlike the ABA Model Rule, does not recognize an exception for nominal gifts given as a show of appreciation for referrals. If your clients are also referral sources, a gift could be interpreted as compensation for those referrals.
Q: My client sent me a holiday gift. Can I keep it?
A: Again, yes subject to some limitations.
- Public Officials: If the recipient of the gift is a public official or employee, Ohio Ethics Laws and the policies of any pertinent governmental agencies will apply as discussed above.
- Substantial Gifts: The transaction must also meet general standards for fairness. A simple holiday gift or token of appreciation is allowed. However, a lawyer cannot solicit a substantial gift from a client. See, Prof.Cond.R. 1.8(c). Even if unsolicited, a substantial gift from a client to a lawyer may be voidable by the client under the doctrine of undue influence. See, Prof.Cond.R. 1.8 at Comment 6.
Q: I serve on the board of a nonprofit charity that is holding a fundraising auction at the holiday party. Can I donate my services for basic will drafting as part of the auction?
A: In Opinion 2019-7 the Ohio Board of Professional Conduct concluded that auctioning off legal services is impermissible. The Board explained that, when a lawyer donates legal services for a third-party auction, it raises issues under Prof.Cond.R. 7.2(b) because the lawyer is giving a thing of value and the third party is recommending the lawyer to those bidding. Also, agreeing to supply legal services before knowing the identity of the client limits the lawyer’s exercise of independent professional judgment and is misleading because the lawyer may not be able to provide the services if a conflict arises or the client’s legal needs are beyond what the lawyer can competently and diligently provide.
Q: My client has fallen on tough times and cannot make ends meet. Can I help my client get through the holidays?
A: The prohibition in Prof.Cond.R. 1.8(e) against a lawyer providing financial support to a client includes direct charitable donations. Last year the ABA adopted what has been referred to as the “Humanitarian Amendment” to Model Rule 1.8, which allows a lawyer representing an indigent client pro bono to provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses. Ohio has not yet adopted this amendment. As an alternative to providing direct financial assistance, consider donating to charities within the community. A lawyer can also direct a client to charities that can help meet the client’s needs.
Q: John Grisham could not write a novel with facts as juicy as the facts in the case that I handled this year. Can I tell my story at the holiday party?
A: We all know that lawyers love to tell war stories, but tread carefully. Prof.Cond.R. 1.6 prohibits a lawyer from revealing information relating to the representation of a current client subject to only limited exceptions. The same applies to former clients under Prof.Cond.R. 1.9(c)(2) and prospective clients under Prof.Cond.R. 1.18(b). Entertaining guests at a holiday party is not one of the exceptions. Contrary to common belief, there is also no exception that would allow an attorney to reveal information relating to the representation because the information is already public record or “generally known.” The exception for “generally known” information relates to the use of former client information, not public disclosures. This distinction is discussed in ABA Formal Opinion 479.
This is not to say that all war stories are unethical. Comment 4 to Prof.Cond.R. 1.6 allows a lawyer to use a hypothetical to discuss issues relating to the representation of a client as long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client, or the situation involved. So, adapt those war stories accordingly.
We hope that these answers will help clarify the line between ethical and unethical holiday activities so that you can avoid the distraction of worrying about whether you have crossed it. As with any legal ethics issue, if you practice in multiple jurisdictions, check the rules for the jurisdictions where you practice.
As always, if you have any questions, please reach out. We are here to help!
|Gretchen Mote, Esq.
Director of Loss Prevention
Email: [email protected]
|Monica Waller, Esq.
Senior Loss Prevention Counsel
Email: [email protected]