BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1997-11

(Inquiry No. )

Topics:
Donating legal services for charitable fund-raising purposes.
Digest:
A lawyer may not donate the legal service of making a valid will to a charitable fund-raising program. However, lawyer may cooperate with a fund-raising organization to present and advertise a program in which the lawyer explains about wills and why it is important to have one, as long as the program and the advertising comply with the Code of Professional Responsibility.
Code Provisions:
EC 2-1 EC 2-5 EC 6-1 DR 2-101(C) and (D) DR 2-103(A) and (B) DR 2-104(C) and (E) DR 2-105(A) and (B) DR 2-107(A)(1) DR 4-101 DR 5-107(B) DR 6-101(A)(1)
Facts Presented:
The inquiring attorney wants to offer a fund-raising program for various organizations (e.g., school Parent/Teacher Associations, religious organizations, charities, etc.) in which the attorney would provide participants with a valid Will. The fee for participation in this fund-raising program would be paid directly to the organization and each organization would set its own registration fees. The attorney’s office may charge a nominal fee to covers its expenses (to be paid directly by the organization). The program is intended to be conducted on the organization’s premises and the attorney expects the organization will likely advertise the program to its membership.

This “Make a Will” program will be presented in two sessions. In the first session, participants complete a questionnaire that helps identify their individual needs and wishes, and the process of preparing a will is explained. The second session would be devoted exclusively to the preparation of a valid, customized will. An attorney would supervise the execution of the will, including a Notary and witnesses, to ensure compliance with statutory requirements.
Inquiry:
May a lawyer donate legal services to a charitable fund-raising program intended to create valid wills for organization members, where fees are paid directly to a particular organization running the fund-raising program?
Determination:
The determination varies depending on the component of the proposed “Make a Will” program. There are three parts to the “Make a Will” program, and this opinion separately evaluates each part of the program:

(1) a program designed to give an organization’s members information about wills and the importance of having a will — this part is ethically permissible;

(2) advertising this fund-raising program about making a Will — this part is likewise ethically permissible; and

(3) drawing a valid will — this part is not ethically permissible.
Analysis:
(1) A Program Explaining Wills is Ethically Permissible

The lawyer may present a program to an organization’s members explaining wills and their importance as part of a fund-raising program. This type of educational program is supported by Ethical Considerations EC 2-1 and EC 2-5. Furthermore, under DR 2-104(C) and (E), the lawyer may ethically obtain business as a result of that speech, provided there is no in-person solicitation or individual advice given.

Under DR 2-104(C):

A lawyer may accept employment which results from participation in activities designed to educate the public to recognize legal problems, to make intelligent selection of counsel or to utilize available legal services. However, the lawyer must be careful that there is no direct or open in-person solicitation at such event. For example, the lawyer “should not say, `Call me at my office’ or `Please make an appointment to see me individually.'” Simon’s New York Code 90 (1995-1996). The problem with these remarks is that they will likely be construed as in-person solicitation. Id. In-person solicitation violates Judiciary Law § 479 and DR 2-103(A).

Yet there are ethical ways the lawyer may gain new clients from those who attend an informational program on wills: “The correct way to give a strong hint is to make sure that the program materials include the lawyer’s business card, biography, and other marketing information permitted by DR 2-101.” Id. at 91. In response to audience questions, “[t]he lawyer may probably also say, “I would have to know much more about the situation to answer your exact question,” or “I cannot answer that question in public.” Id. These responses may clue the questioner in that the lawyer could answer the question in private, given more time and information.

Moreover, giving out individual advice is prohibited by DR 2-104(E), which states: “Withoutaffecting the right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as the lawyer does not undertake to give individual advice.” DR 2-104(E), essentially a more specific version of DR 2-104(C), is designed partly to guard against malpractice and partly to preserve the attorney-client privilege. The problem is that the lawyer may need more details to give competent legal advice, yet if those details are given in a public forum, such as a group presentation on making a will, the communication is not privileged. To avoid such a situation, a lawyer should say: “I can’t address your specific question without knowing more facts, but generally speaking the law on that subject is thus and so.” Id. at 91. But should a participant seek the lawyer out after the program for a private chat, the lawyer must be careful about responding to specific questions. The lawyer’s answers may create an attorney-client relationship and subject the lawyer to malpractice if the answers are wrong.

(2) Advertising a Program Explaining Wills is Permissible

An organization may advertise that the lawyer will present a fund-raising program explaining wills and their importance. The lawyer must make sure that the advertisement does not violate DR 2-101, which prohibits false or misleading advertising (DR 2-101(A)), and puffery and self-laudation (DR 2-101(B)). As to what information may be properly set forth in the advertisement, the lawyer should look to DR 2-101(C) and (D). Additionally, the lawyer must take care that the organization’s ads do not violate DR 2-105. Under DR 2-105(A), the organization may advertise the lawyer as having a wills practice, but may not call the lawyer an “expert” in the area; DR 2-105(B) prohibits the lawyer from holding himself or herself out to be a “specialist” in the wills area.

These guidelines on advertising must also be followed during the introduction of the lawyer at the wills program.

We acknowledge that the lawyer wants to send a letter to various organizations to solicit their participation in the “Make a Will” program. The letter raises the issue of DR 2-103(C), which states, in part: “A lawyer shall not request a person or organization to recommend or promote the use of the lawyer’s services…”

Nevertheless, this Committee, in Opinion 93-29, approved of placement of an attorney’s name on a parade banner by a not-for-profit organization for which the attorney had performed pro bono work. In part, we based our decision on our Opinion 91-10, in which we determined that a lawyer’s failure or refusal to request that a third party not distribute advertising or publicity materials about the lawyer constitutes a request by the lawyer for such advertising. However, the advertising must comply with DR 2-101.

This Committee also approved of advertising legal services through a directory of attorneys and other professionals and retailers, prepared by a non-profit organization and distributed to members of the organization. (Opinion 96-4). But in the same opinion, the Committee determined that it was impermissible for the attorneys listed in the directory to donate to the organization a set percentage of any fees received in connection with legal services provided to its members. The fee donation violated DR 3-102, which prohibits splitting legal fees with non-lawyers, except in certain narrowly defined situations. Id.

(3) Impermissible to Draw a Will as Part of Group “Make a Will” Program

A lawyer may not draw a valid will for an organization’s members as part of a “Make A Will” program. Both the New York State Bar Association and the American Bar Association have issued opinions on similar topics; both have opined that donating a legal service for charitable fund-raising is ethically impermissible. The following topics are at issue and are discussed below: (1) improper solicitation; (2) a lawyer’s discretion and judgment as to selection of clients; (3) the competence of the lawyer to handle the needs of all participants attending a “Make a Will” program; (4) whether donating legal services to charity violates the Code provision that a lawyer may not receive anything of value from a third person in exchange for recommending the lawyer’s employment; (5) intelligent selection of counsel by a client; (6) confidentiality; and (7)conflicts of interest.

N.Y. State Op. 524 (1980) addressed whether it was improper for a lawyer to donate legal services to a charitable organization for auction as a fund-raising device. In that opinion, the State Bar first discussed whether auctioning legal services was soliciting legal employment in violation of § 479 of the Judiciary Law. As this is a question of law, the State Bar declined comment; however, it noted that if auctioning legal services was considered improper solicitation of legal business, it would violate DR 2-103(A). DR 2-103(A) concerns a lawyer seeking professional employment from a person who has not sought advice regarding hiring him in violation of “any statute or court rule.” This rule essentially incorporates Judiciary Law § 479, governing solicitation of legal business.

Here, there is a question as to whether the “Make a Will” program can be distinguished from the concern of improper solicitation under § 479, because participants in the “Make a Will” program may be considered to have sought advice regarding employment of the lawyer by deciding to sign up for and attend the program. Despite the possibility of removing this inquiry from § 479, other aspects of drawing a valid will as part of a “Make a Will” fund-raising program are problematic enough to make it ethically impermissible.

The auctioning of legal services also circumvents a lawyer’s ability to “exercise the professional judgment and discretion that must be brought to bear in deciding to accept a client.” N.Y. State Op. 524. The Code specifies several factors a lawyer must consider before deciding to represent a client. In particular, EC 6-1 states that a lawyer “should accept employment only in matters which he is or intends to become competent to handle.” In the proposed “Make a Will” program, however, the lawyer has agreed to represent the participant without knowing whether the will he will be required to make is beyond his competence.

But this problem can be overcome through the lawyer’s diligence. DR 6-101(A)(1) provides that a lawyer can accept a matter beyond his competence “if in good faith the lawyer expects to become qualified through study and investigation, as long as such preparation would not result in unreasonable delay or expense to the client.” The lawyer may also associate with a more experienced lawyer; however, if that more experienced lawyer is not within the lawyer’s own firm, it brings up the issue of whether the lawyer can find another lawyer willing to donate his fee to the “Make a Will” program. Under DR 2-107(A)(1), the lawyer would also have to receive consent from the client/participant after full disclosure about the division of “fees.”

The New York Bar also objected to donating legal services to charity through an auction for fund-raising because it may be “deemed improper under DR 2-103(B), which prohibits the lawyer from giving anything of value to a third party for recommending the lawyer’s employment.” N.Y. State Op. 524 (1990). In support of this position, the State Bar relied on ABA Inf. Op. 1288 (1974), which is directly on point for the present inquiry. In ABA Inf. 1288, a lawyer offered to prepare wills for church members, who would pay the lawyer’s standard fee directly to the church as a donation. Despite the charitable intent, the ABA opined that the arrangement was improper under DR 2-103(B), because the lawyer was giving a “thing of value” to the organization in exchange for employment. ABA Inf. 1288 (1974).

In this inquiry, the lawyer is directing payment of his fees from the “Make a Will” program to an organization in return for obtaining employment by the organization’s members who participate in the program. Following the ABA’s opinion, this is improper under DR 2-103(B).

But whether the lawyer is actually receiving a “thing of value” is subject to interpretation. As the fee for the lawyer’s services goes to the charity and not the law firm, the value may be seen as accruing to the charity and not the law firm (See Fl. Eth. Op. 86-9 (1987), discussed below.) Another view is that, while the law firm does not take the fee, it gets value from the pool of potential new clients and name recognition from the “Make a Will” program.

The New York Bar reasoned that offering legal services as a fund-raising device is an inappropriate means of publicity, citing DR 2-101(C) and (D). “Such devices, we believe, tend to confuse the process of intelligent selection of counsel with the objectives of the fund-raising organization.” N.Y. State Op. 524 (1980).

The organization’s advertising will no doubt highlight the fund-raising aspect of the program: that is its draw. Consequently, it is easy to imagine members of an organization deciding to have a will drawn under the “Make a Will” program solely, or in large part, because of the benefit it will provide to the organization to which they belong, and not because of their confidence in the lawyer’s competence and ability to serve their needs. What is more, they have committed to pay a “fee” to the organization without knowing whether they can be provided with the type of will they require. N.Y. State Op. 524 (1990). This scenario runs counter to DR 2- 101(D) which provides in part that: “Advertising and publicity shall be designed to educate the public to an awareness of legal needs and to provide information relevant to the selection of the most appropriate counsel.”

Perhaps an even more harmful situation arising from the client and the lawyer both “flying blind” with regard to the selection process, is a potential for bait-and-switch. If after consulting with the lawyer, a significant number of “Make a Will”participants find that they need legal services beyond the fee for the simple will, this would create the problem of misleading advertising, a violation of DR 2-101.

To this list of ethical prohibitions, we add the problems of confidentiality covered by DR 4-101 and conflicts of interest covered by Canon 5. Within a large group setting, such as may occur within the “Make a Will” program, the lawyer may be hard-pressed to ensure the confidences and secrets of each participant. Bits of conversation may be overheard, or responses written in questionnaires may be seen by other participants or members of the organization. These acts would break the attorney-client privilege and violate DR 4-101, Preservation of Confidences and Secrets of a Client.

Furthermore, it is possible that under one or more of the Disciplinary Rules in Canon 5 (A Lawyer Should Exercise Independent Professional Judgment On Behalf Of A Client), the lawyer may face a conflicts of interest situation; the lawyer may be prevented from exercising his or her best judgment on behalf of each participant. This situation presents the problem of the lawyer having to find adequate replacement counsel, who (1) is willing to divide fees with the lawyer and donate them to the organization and (2) is approved of by the particular “Make a Will” participant with whom the lawyer has a conflict.

The ABA also raised issues arising under DR 5-107(B) (“Avoiding Influence by Others Than the Client”). In ABA Inf. Op. 1288 (1974), there was a precondition of a gift to the church in the will the lawyer was to draw for church members. The “Make a Will” program does not have such a precondition; nevertheless, the lawyer in the “Make a Will” program might be reluctant to seem disloyal to the fund-raising organization by recommending against a gift to the organization, even if advising against such a gift would be in the best interest of the testator.

Other States Opine that Donating Legal Services to Charitable Groups is Ethically Permissible

The inquirer noted that the “Make a Will” program has been successful outside the state of New York. We note that both Florida and South Carolina, for example, have issued opinions which find it ethically permissible for a lawyer to donate legal services for fund-raising, provided it is within certain ethical bounds.

Although Florida is a Model Rules state, Florida Eth. Op. 86-9 (1987) covered many of the same issues as the ABA and New York State Bar in their opinions, albeit with a different result. The Florida Bar deemed that donating a will or other legal service for auction (or use as a door prize) by a charitable organization, was a good way to fulfill an obligation for pro bono services to a lawyer’s community, as long as certain ethical provisions were considered.

Florida’s Rule 4-7.2(C) parallels New York’s DR 2-103(B), in that both forbid a lawyer to give anything of value to a person for recommending a lawyer’s services. While the New York Bar determined that auctioning legal services for a charitable donation violates DR 2-103(A), the Florida Bar reasoned that the value of the lawyer’s services in a fund-raising auction is being given directly to the organization; therefore, the lawyer is not receiving anything of value for his legal services in exchange for employment. Additionally, Florida concluded that an auction of legal services is not a recommendation of services itself; however, a lawyer should “instruct the organization not to recommend or urge, in publicizing or conducting the auction, that its patrons take their legal business to the lawyer.” Florida Ethics Op. 86-9 (1987).

The Florida opinion also specified ways a lawyer could comply with the ethical rules prohibiting false or misleading advertising, such as avoiding advertising “likely to create an unjustified explanation about results the lawyer can achieve.” Id.

Moreover, Florida addressed a variety of conflict of interest problems that might arise. Its solution was to have the lawyer obtain a guarantee from the charitable organization that the auction winner’s donation would be “refunded on request if the lawyer is prevented by any of the conflict rules from performing the auctioned service for that person.” Id. However, the lawyer may arrange with another competent attorney with whom he is not associated to provide the legal service at no charge, provided the client approves of the substitution. Id. Florida’s opinion also noted that the lawyer “must not permit the charitable organization to dictate or interfere with the lawyer’s performance.” But Florida prefaced that remark by stating that “there is no reason to believe such a problem would materialize.” Id.

The South Carolina Bar Ethics Advisory Committee also advised that it is not a violation of its Rules of Professional Conduct for a lawyer to donate legal services for auction at a fund- raiser for charity or other “good cause” organization. SC Adv. Op. 91-35 (1992). The South Carolina Committee’s concern was to avoid misleading the recipient of the legal services as to what services he or she would receive from the donating lawyer. To overcome this problem, South Carolina said the donating lawyer must offer the services with certain express qualifications, clarifications and reservations, such as: (1) defining the nature and scope of the services with reasonable specificity; (2) a recipient may have need of more elaborate legal services than bid, warranting a higher fee, and; (3) there may be circumstances which would prevent the lawyer from performing the legal service, such as a conflict of interest. Id.

Notwithstanding the reasoned positions of the Florida and South Carolina Bars, this committee aligns itself with the opinions of NYSBA and the ABA, for the reasons stated above, and opines that the preparation of wills for an organization’s members as part of a fund-rasing event is not ethically permissible.

[Approved by the Executive Committee on December 9,1997; Approved by the Full Committee on December 17, 1998.]