Unwrapping the Ethics of Giving and Receiving Gifts this Season
‘Tis the season for gift giving, but what does this mean for lawyers and clients? During this time of year, your office breakroom may be filled with fruit baskets and tins of cookies – token gifts of appreciation from grateful clients. You may wonder how and if you should reciprocate and what the Model Rules say about gift giving. Let’s unwrap this.
Model Rule of Professional Conduct 1.8 (c) states that “a lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client.” Of course, this doesn’t apply to the annual box of chocolates you may receive. Thankfully, the Comments to this Rule provide some guidance. Specifically, Comment 6 to Rule 1.8 (c) expressly permits a lawyer to accept a gift from a client, including a “simple gift such as a present given at a holiday or as a token of appreciation.” But, if the client contemplates giving a more substantial gift through their will or another formal agreement, your client should seek the legal advice of another attorney before making that gift (unless the client is related to you).
Because the Rule also states that lawyers should not suggest that a substantial gift be made, you should avoid any appearances of such a request. You may know your client has Jingle Ball tickets or a suite for an upcoming game, but it is best not to suggest or hint you’re interested (or show up in a jersey for a client meeting). If the client does offer you a substantial gift, you can still accept it, knowing it may be voidable under the doctrine of undue influence. In other words, keep the receipt!
What about giving a client a gift? Rule 1.8 permits attorneys to advance court costs and litigation expenses on behalf of clients, but financial assistance is prohibited. So although the rule does not specifically address giving gifts to a client, a substantial gift could be construed as financial assistance. Rest assured, unless that gift basket includes a little blue box, feel free to send it.
While the Model Rules do not bar attorneys from giving and receiving token gifts during the holiday season, it is best to establish and follow a firm policy for gift giving. Not only does this establish the proper boundaries for a gift exchange, it allows you and your clients to ethically show your mutual appreciation before tying a bow on the end of the year. Happy Holidays!
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