Can a lawyer donate routine legal services to a nonprofit to be used as a door prize or auction item?

Plain-English summary

The committee considered whether an attorney may donate routine legal services to a nonprofit organization to be given away as door prizes or auctioned off. It answered no.

The committee began by acknowledging that lawyers may give away or discount legal services. It noted the tradition of pro bono work and professional courtesy, observed that EC 2-17 speaks to adequate compensation without a corresponding disciplinary rule, and said there is nothing unethical about reducing a fee for personal reasons or giving discounts to groups like police or firefighters. The problem here is different. A lawyer cannot solicit cases or clients (citing Ohralik v. Ohio State Bar Assn). The committee did not consider the arrangement an advertisement within SCR 3.135, in part because the promotion may be self-laudatory or misleading, and it thought the rule could well be violated by another person at the auction or drawing. It also reasoned that the rationale of Bates v. State Bar of Arizona was to allow commercial free speech that informs the public so it can make an intelligent choice of attorney, whereas this arrangement does not inform a choice but merely steers a particular winner to a particular lawyer. The committee added that it had difficulty with the notion of "routine," since what is routine to lawyers may not be routine to the public.

Currency note

This opinion was issued in 1981 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer donate legal services as a nonprofit door prize or auction item?

A: No. The opinion concluded the arrangement is not protected informative advertising and merely steers a particular winner to a particular lawyer.

Q: Does this mean lawyers cannot give away or discount services at all?

A: No. The committee said lawyers may give away services and reduce fees, including discounts to groups, and praised pro bono work; the door-prize or auction format was the problem.

Q: Why did the committee say Bates does not protect this?

A: It read Bates as protecting advertising that informs the public so it can make an intelligent choice of lawyer; a door prize or auction does not inform a choice and risks self-laudatory or misleading promotion.

Background and rules framework

The opinion applies the Code's advertising and solicitation limits (DR 2-101(A) and the solicitation principle of Ohralik), Kentucky's advertising rule SCR 3.135, and the commercial-speech framework of Bates v. State Bar of Arizona, In re Primus, and Ohralik. The modern analogs are Model Rule 7.1 (communications about a lawyer's services must not be false or misleading) and Model Rule 7.3 (solicitation of clients). The committee distinguished permissible fee reductions and pro bono service from a promotional giveaway that directs a specific person to a specific lawyer.

Citations and references

Rules of Professional Conduct:

• DR 2-101(A) (advertising), EC 2-17 and 2-18; SCR 3.135 (Kentucky advertising rule); modern analogs Model Rules 7.1 and 7.3

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), commercial-speech protection for informative lawyer advertising
• Ohralik v. Ohio State Bar Assn, 436 U.S. 447 (1978), in-person solicitation for profit may be prohibited
• In re Primus, 436 U.S. 412 (1978), protected solicitation distinguished
• Kentucky Bar Assn v. Stuart, 568 S.W.2d 933 (1978), Kentucky on changing restrictions

Other opinions cited:

• ABA Informal Opinions 687 and 1298

See also

• KBA Ethics Op. E-263: Lawyer's Photo in Advertising
• KBA Ethics Op. E-231: Legal Services Plan Membership Decal
• KBA Ethics Op. E-260: Out-of-State Lawyer Advertising

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-239.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-239
Issued: March 1981

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), especially Rules 7.01-7.50 and the Attorneys' Advertising Commission Regulations, before relying on this opinion.

Question:

May an attorney make a gift of routine legal services to a nonprofit organization to be used as door prizes or auctioned off?

Answer:

No.

References:

DR 2-101(A), EC 2-17, 2-18; ABA Informal Opinion 687, 1298; SCR 3.135; Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Ohralik v. Ohio State Bar Assn, 436 U.S. 447 (1978); In re Primus, 436 U.S. 412 (1978); Kentucky Bar Assn v. Stuart, 568 S.W.2d 933 (1978)

OPINION

As a matter of professional courtesy, lawyers have given special consideration to members of the bar and their immediate families in fixing prices. For years lawyers have traditionally performed pro bono work and should be commended for this.
Although EC 2-17 indicates that adequate compensation is necessary in order to enable a lawyer to serve his client effectively and to preserve the integrity and independence of the profession there is interestingly no corresponding disciplinary rule. There can be no doubt though that a lawyer is free to give away legal services under certain situations.
There also can be no doubt that a lawyer from time to time may choose to reduce a fee based upon the lawyer's personal feelings (lawyers will frequently reduce the contingency fee when there is a large recovery, lawyers may choose to give policemen, firemen, or other groups a discount from the normal fee charged). There is nothing unethical or unprofessional about this.
It is laudable that lawyers become involved in non profit activities and perform valuable work for these groups. However, a lawyer cannot solicit cases and/or clients. See Ohralik v. Ohio State Bar Assn, 436 U.S. 447 (1978).
It is the feeling of the Ethics Committee that this fact situation is not with exception of Kentucky Bar Assn v. Stuart, 568 S.W.2d 933 (1978).

The Committee does not feel that this is an advertisement within SCR 3.135. Perhaps the major reason for not fitting within the Rule is that the advertisement may be self-laudatory or misleading. It is our feeling that at the time of the auction or the drawing it is a possibility (and perhaps a high probability) that this section would be violated by another person.
It also seems to the Committee that this is not an "advertisement by radio, television or in writing" as provided in SCR 3.135.
It is the feeling of the Committee that the reason for Bates was to allow commercial free speech, so as to adequately inform the lay public of legal services so that they could make an intelligent decision as to attorneys. The fact situation presented here does not provide for that informed decision but merely forces a particular person(s) to go to a particular lawyer.
The Committee also has problems with the concept of "routine" in this context. What may be routine to the legal profession may very well not be routine to the public!

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.