Can a law firm donate court-awarded fees from pro bono cases back to the non-profit organization that referred those cases?
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This page answers the general question as of 1997. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A non-profit organization that did not meet the disciplinary rules' definition of a "qualified legal assistance organization" referred a series of cases to a law firm, which handled them pro bono. The courts awarded fees to the firm, and the firm asked whether it could donate those fees back to the referring non-profit.
The committee identified two disciplinary rules on point: DR 2-103(E), which barred a lawyer from paying any person or organization to solicit professional employment (with an exception for cooperating with a qualified legal assistance organization), and DR 3-102(A), which barred sharing legal fees with a non-lawyer. It concluded the donation fell within both prohibitions. The committee acknowledged that ABA Formal Opinion 93-374 had reached the opposite result, reasoning that a donation involved no quid pro quo and posed no threat to a lawyer's independence, but it declined to follow that view as applied to the Massachusetts rules.
The committee gave its reasons. It read the structure of Massachusetts DR 2-103, and the SJC committee's own statement, to show that the Court had deliberately subjected non-profit referral arrangements to the general anti-solicitation-payment prohibitions even for not-for-fee work. It found the policy concern behind the fee-sharing bar, the threat to a lawyer's independence from too close an association with a referrer, was not trivial: a non-profit might steer cases to a lawyer who would donate fees as a "loss leader," and budget pressures could influence even a non-profit's referral decisions. The committee declined to carve out exceptions through a "common law process of chipping away" at the rules, holding that any change should come from the SJC's rule-making. It expressly did not address donations unrelated to fees, and closed by flagging that the rules gave unclear guidance on sharing fees with qualified legal assistance organizations, a matter it hoped the SJC and its advertising-rules committee would clarify.
Currency note
This opinion was issued in 1997, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Could the firm donate its court-awarded pro bono fees to the referring non-profit?
A: The committee concluded it could not, where the non-profit was not a qualified legal assistance organization, because the donation came within DR 2-103(E) (payment for solicitation) and DR 3-102(A) (fee-sharing with a non-lawyer).
Q: Why did the committee decline to follow ABA Opinion 93-374?
A: The committee disagreed that a fee donation involved no payment and no threat to independence. It reasoned a non-profit could induce donations or steer referrals to a lawyer who donates fees as a "loss leader," so the policy behind the rules still applied.
Q: Did the opinion resolve donations to qualified legal assistance organizations?
A: No. The committee expressly limited its conclusion to non-qualified non-profits and noted that the rules gave unclear guidance on sharing fees with qualified legal assistance organizations, leaving that for the SJC.
Background and rules framework
The opinion applied the predecessor disciplinary rules DR 2-103(E) (no payment to a person or organization to solicit professional employment) and DR 3-102(A) (no sharing of legal fees with a non-lawyer), which correspond to Model Rules 7.2/7.3 (referral payments and solicitation) and 5.4 (professional independence; fee-sharing with non-lawyers). The committee noted these prohibitions were carried into the then-proposed Massachusetts Rules 7.3(e) and 5.4(a). It contrasted ABA Formal Opinion 93-374 and a Texas opinion (Texas Professional Ethics Committee Opinion 503).
Citations and references
Rules of Professional Conduct:
- Model Rule 5.4 / DR 3-102(A) (fee-sharing with non-lawyers; professional independence)
- Model Rules 7.2 and 7.3 / DR 2-103(E) (payment for solicitation; referral arrangements)
Other opinions cited:
- ABA Formal Opinion 93-374 (1993) (reaching the contrary conclusion on fee donations)
- Texas Professional Ethics Committee Opinion 503 (cited as also contrary)
- MBA discussion of the SJC Committee on DR 2-103
See also
- MA Bar Ethics Op. 08-01: Referral networking clubs
- MA Bar Ethics Op. 98-2: Bar web directories and lawyer web sites
Source
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