May 7, 1993
A lawyer may advertise that if a client wishes to leave a testamentary bequest to a particular organization the lawyer will prepare the will and bequest without charge.
The lawyer should disclose to a prospective client any relationship the lawyer has to the beneficiary organization.
References: MRPC 1.4(b), 1.7(b), 5.4(a), 7.1, 7.2(c); RI-104, RI-147, RI-163.
A volunteer attorney for the United States Air Force Auxiliary Civil Air Patrol wishes to advertise in the Civil Air Patrol monthly magazine that if a Michigan client wishes to leave a testamentary bequest to the Civil Air Patrol the lawyer will prepare the will and bequest without charge. The lawyer asks whether the proposed service violates ethics rules.
Lawyers may advertise their services in the print media, MRPC 7.1, and may also pay for the reasonable cost of advertising, MRPC 7.2(c)(i). A lawyer is prohibited from sharing legal fees with a nonlawyer, MRPC 5.4(a), or giving anything of value to a nonlawyer in return for recommending the lawyer's services, MRPC 7.2(c). The principal rationale behind the prohibition in MRPC 5.4(a) against sharing fees with nonlawyers is to preserve the lawyer's independent professional judgment. RI-104.
The facts provided do not indicate whether the lawyer will offer these services from the lawyer's private law practice, or as a service connected to duties as volunteer attorney for the Civil Air Patrol.
If the service will be offered in connection with the lawyer's duties for the Civil Air Patrol, the standards of RI-147 apply. In RI-147 a Chamber of Commerce was allowed to recommend the lawyer's services, provided that (a) the Chamber of Commerce has had a prior professional relationship with the lawyer to enable the person or organization to be knowledgeable about the lawyer's services, (b) the lawyer reviews the advertisement prior to publication for compliance with ethics rules, and (c) nothing of value beyond the reasonable cost of the advertising is given to the person or organization by the lawyer. The lawyer was allowed to discount fees to members of the Chamber of Commerce, as long as the Chamber of Commerce did not advertise, as an incentive for membership in the Chamber, that the lawyer offers discounts to the Chamber's members.
If the free services are to be offered from the lawyer's private law practice independent of the Civil Air Patrol, the standards of RI-163 apply. In RI-163 a lawyer was allowed to advertise that a portion of the lawyer's fee would be donated to a religious or charitable organization. The Committee reasoned that since the charitable organization was not involved in the communication of the pledge by the lawyer, the organization was not using the lawyer's offer as an incentive, was not endorsing the lawyer's qualifications, and was in no way encouraging the use of the lawyer's services. As long as the lawyer in fact donated the portion of fees to the charitable organization as advertised, the proposed advertisement did not violate MRPC 7.1, nor does the communication constitute "giving of value" for a referral from the organization in violation of MRPC 7.2(c).
Unless the lawyer intends to provide any will at no charge, no matter how complex and no matter how many trusts or bequests, care should be taken in the advertisement to distinguish what services will be provided without charge. MRPC 7.1. If the services are being offered in connection with the lawyer's duties at the Civil Air Patrol, that fact should be clear in the advertisement.
Does the fact that the lawyer offering the free service also works for the beneficiary create any problems? MRPC 1.7(b) states:
"A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
"(1) the lawyer reasonably believes the representation will not be adversely affected; and
"(2) the client consents after consultation . . . ."
The lawyer is responsible for evaluating possible conflicts of interest on a case by case basis. The facts provided do not give a specific instance which would allow the Committee to definitively address the conflicts question. The lawyer may represent the will client only when the lawyer does not have an impermissible conflict.
MRPC 1.4(b) states:
"A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
The lawyer's relationship to the Civil Air Patrol is a significant fact which should be communicated to clients who seek the free service the lawyer is offering which benefits the Civil Air Patrol.