Can a law firm advertise that it will donate part of a client's legal fees to charity, for example to children's charities for car-wreck cases?

Plain-English summary

The Committee was asked whether a firm may advertise that, if an injured person hires the firm, part of the legal fees from any recovery will be donated to children's charities. The opinion concludes the advertisement is not permitted.

Applying MRPC 7.1, the opinion concludes the ad fails to help the public make an informed choice and instead implies the firm is more charitable, and therefore better or more honest, than other firms. It treats this as a "comparison" claim that cannot be factually substantiated, comparable to claiming a firm is "the best" or "most experienced."

The opinion also finds the ad implicates MRPC 5.4(a) and 7.2(i). A promise to share legal fees with a charitable organization violates MRPC 5.4(a)'s bar on sharing legal fees with nonlawyers, and the Committee reasons that an organization receiving the benefit of shared fees would be expected to refer clients exclusively to that lawyer, contrary to MRPC 7.2(i)'s prohibition on giving value for recommendations. The opinion notes it does not affect a lawyer's ability to make charitable donations or publicize civic activities outside the context of advertising legal services.

In practice

The opinion holds that, under the Mississippi rules as they stood at the time of the opinion, a lawyer may not advertise that legal fees will be donated to charity, both because the message is a misleading comparison under MRPC 7.1 and because sharing fees with a charitable organization implicates MRPC 5.4(a) and 7.2(i). The opinion states this does not restrict charitable giving or publicizing civic activities outside the advertising of legal services.

Common questions

Q: Can a Mississippi firm advertise that it donates part of its fees to charity?

A: No. The opinion concludes such advertising is prohibited as a misleading comparison ad under MRPC 7.1 and as fee-sharing with a nonlawyer under MRPC 5.4(a).

Q: Why is the charity-donation ad considered misleading?

A: The opinion concludes the ad implies the firm is more charitable, and thus better or more honest, than other firms, which is a comparison that cannot be factually substantiated under MRPC 7.1.

Q: Can the lawyer still donate to charity?

A: Yes. The opinion states it does not affect a lawyer's ability to make charitable donations or to make the public aware of civic activities outside the context of advertising legal services.

Background and rules framework

The opinion interprets MRPC 7.1 (false or misleading communications), MRPC 7.2(i) (giving value for recommendations), and MRPC 5.4(a) (sharing legal fees with nonlawyers), corresponding to Model Rules 7.1, 7.2, and 5.4. It references the ABA Model Rule 7.1 comment on misleading-but-truthful statements.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 7.1 (false or misleading communications) (cf. Model Rule 7.1)
• MRPC 7.2(i) (value for recommendations) (cf. Model Rule 7.2)
• MRPC 5.4(a) (sharing fees with nonlawyers) (cf. Model Rule 5.4)

Other opinions cited:

• Philadelphia Bar Opinion 95-12 (1995) (unverifiable "more caring" firm claim)

See also

• ABA Formal Op. 465: Daily-Deal Marketing
• ABA Formal Op. 464: Fee Division Across Jurisdictions

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/256/
• Original PDF: https://www.msbar.org/media/1487/ethics-opinion-256.pdf

Original opinion text

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

ETHICS OPINION NO. 256

OF THE MISSISSIPPI BAR

RENDERED September 17, 2008

AMENDED April 06, 2013

ATTORNEY ADVERTISING - FEES - Mississippi Rules of Professional Conduct 7.1, 7.2 and 5.4 prohibit a lawyer or law firm from advertising that a client's legal fees will be shared with a charitable organization.

The Ethics Committee of The Mississippi Bar has been asked to render an opinion of the following hypothetical situation.

Whether the Mississippi Rules of Professional Conduct permit an attorney to advertise that if a person who has been injured in a car wreck employs the firm as his/her attorney, part of the legal fees for any recovery will be donated to children's charities.

Mississippi Rule of Professional Conduct 7.1 provides, in pertinent part:

A lawyer shall not make or permit to be made a false, misleading, deceptive or unfair communication about the lawyer or lawyer's services. A communication violates this rule if it: ….

(b) Creates an unjustified, false or misleading expectation about results the lawyer can achieve, ….

or ….

(d) Compares the lawyer's services with other lawyers' services unless the comparison can be factually justified.

Mississippi Rule of Professional Conduct 7.2 provides, in pertinent part:

(i) The lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or a written or recorded communication permitted by these Rules and may pay the usual charges of a lawyer referral service or to other legal service organization.

Mississippi Rule of Professional Conduct 5.4 provides, in pertinent part: (a) A lawyer or law firm shall not share legal fees with a non-lawyer …

The advertising rules contained in the Mississippi Rules of Professional Conduct seek to balance the needs of the public, the lawyer, and our system of justice. See Comment to Miss. R. Prof. Conduct 7.2. Rule 7.2(a) explicitly acknowledges that "[a]n advertisement is an active quest for clients." In pursuing new clients through advertising, lawyers may not communicate information that is false, misleading, deceptive or unfair. Rule 7.1. Even the communication of truthful information can be misleading or unfair if it induces the recipient of the information to reach a conclusion about the lawyer or law firm that lacks a factual basis. Comment 2 to the ABA Model Rule of Professional Conduct notes that "[a] truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation." Model Rule 7.1, cmt [2].

It is the opinion of the Committee that the advertisement in the hypothetical fails to assist the public in making an informed decision about the selection of the attorney. Rather, the implication of the advertisement is that the lawyer or law firm is more charitable than other lawyers or law firms and, thus, better or more honest. It is a type of "comparison ad" which includes information that "cannot be factually substantiated," similar to a communication that a lawyer or law firm "is 'the best,' 'one of the best,' or 'one of the most experienced' in a particular field of law." Comment to Rule 1.7(d). See also Philadelphia Bar Opinion 95-12 (April 1995) (stating there was "no objective way to verify" law firm's implied claim that it was "more friendly and more caring" - and thus, better - than other law firms).

The hypothetical also implicates Rules 5.4(a) and 7.2(i). The purpose of these provisions is to maintain lawyers' independence from outside influences that could affect a client's representation. A promise to share legal fees with a charitable organization runs afoul of Rule 5.4(a), which prohibits lawyers from sharing legal fees with non-lawyers. The Comment to Rule 7.2(i) states that a lawyer "is not permitted to pay or provide other tangible benefits to another person [or organization] for procuring professional work." It is reasonable to assume that if particular organizations receive the tangible benefit of the lawyer's promise to share legal fees, those organizations would refer potential clients exclusively to that lawyer.

This opinion in no way affects the ability of a lawyer or law firm to make donations to charitable organizations or to make the public aware of their civic activities outside the context of an advertisement of services.