To gift or not to gift, that’s the question of the season. Attorney Sandra Schilling offers some ethical guidelines for the holiday season.
‘Tis the season for gift giving and receiving, and it’s not unusual for the Bar Association Ethics Line to get calls asking if it’s OK to give or receive gifts from clients. Questions can range from wanting to buy some furniture for a client in dire financial circumstances to wanting to send some bottles of cheer to clients to celebrate the holiday season.
Lawyers can give their clients gifts, subject to some qualifications:
- Except for expenses of litigation, a lawyer shall not “advance or guarantee financial assistance to a client” if there is contemplated or pending litigation. RPC 1.8(e). The reason for this is that making loans to clients could give lawyers too much of a financial stake in the litigation. Lawyers can’t make loans to their clients if there is possible litigation, but they are free to make “a bona fide gift with true donative intent.” See Washington Advisory Opinions 1959 and 1523.
- Keep in mind that gifts cannot be given in payment for a client referral. A lawyer shall not give anything of value to a person for recommending the lawyer’s services. RPC 7.2(b). See, for example, Washington Advisory Opinion 1535 in which a lawyer wanted to give $25 restaurant certificates to real estate agents after they had referred real estate closings to him. The opinion stated that the attorney could give gifts to the buyer or seller as long as the lawyer was certain they were not being passed on to the real estate agent as thanks for the referral. Giving the certificates as thanks for designating him the closing officer would violate RPC 7.2.
Receiving a gift from a client is also allowed, but a lawyer should not solicit a “substantial” gift from a client. RPC 1.8 (c). Comment 6 clarifies that within the general standards of fairness, “a simple gift such as a present given at a holiday or as a token of appreciation is permitted.”
So you can give a client a gift — and receive one, too. Happy holidays!