Should Lawyers Accept Holiday Gifts From Clients?
Even amid reports that it's the season of trampling people to get a cheap TV, it's still the season of giving. Sometimes, this involves giving from a client to a vendor, or, in your case, from a client to you.
Hold up there, buddy! Can you accept that gift from a client? What are the ethical rules surrounding accepting gifts from clients? And even if it's ethical, is it a good idea?
Probably Not a Big Deal...
Believe it or not, this is such a big question that the California Bar Journal, the State Bar of Arizona, and the Comment to ABA Model Rule 1.8 all address it (among other bodies to consider the question).
In a 1995 ethics opinion, the State Bar of Arizona (which is a Model Rule state) confirmed that "a simple gift such as a present given at a holiday or as a token of appreciation is permitted." Ditto Comment 6 to the ABA Model Rules. The comment cautions, though, that you're entering the danger zone when the client offers a "substantial gift [that] requires preparing a legal instrument such as a will or conveyance."
So, it seems like that bottle of wine is OK.
California, of course, is the odd person out. Unlike the ABA Model Rules, there's no asterisk in California's Rules of Professional Conduct or the Business and Professions Code exempting "token" gifts. California Rules of Professional Conduct, Rule 4-400, says that lawyers can accept gifts from clients "subject to general standards of fairness and absence of undue influence."
When we're in undue influence country, we're usually talking about gifts of real property or testamentary gifts, which raise the specter of undue influence given the power a lawyer can exercise over a client. So it's hard to see how that bottle of wine gets there.
Is It a Good Idea, Though?
Even if it's ethically sound, is it a good idea to accept gifts from clients? Sure, there's nothing wrong with it, especially around the holidays. But don't imply that you want a gift or the client should give you a gift; that falls into the realm of soliciting a gift, which is expressly prohibited by all the rules.
And one final note: While not necessarily binding, the Restatement (Third) of the Law Governing Lawyers permits, as a factor in gift-giving, a gift that is "insubstantial in amount." So a lawyer might not want to accept an expensive gift from a not-so-well-off client. Otherwise, you can rest assured that simple holiday gestures won't preserve your name for posterity in a state bar ethics opinion.
- The Spirit of Giving: Pitfalls of Gift-giving and Free Advice (Oregon State Bar Bulletin)
- Surprising Ways Cash-Strapped Clients Offer to Pay Their Attorneys (South Florida Sun Sentinel)
- No Room for Non-Compete Provision in Law Employment Agreement (FindLaw's Strategist)
- Why Lawyers Need to Advise Clients to Stay Off Social Media (FindLaw's Strategist)
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