Can a Michigan lawyer advertise free will drafting for clients who want to leave a bequest to a particular organization the lawyer is connected to?

Plain-English summary

A volunteer attorney for the Civil Air Patrol (the U.S. Air Force Auxiliary) wished to advertise in the organization's monthly magazine that the lawyer would prepare a will and bequest at no charge for a Michigan client wishing to leave a testamentary bequest to the Civil Air Patrol. The Committee applied MRPC 7.1 (advertising), MRPC 7.2(c)(i) (paying reasonable advertising costs), MRPC 5.4(a) (no fee sharing with nonlawyers), and MRPC 7.2(c) (no giving value for a recommendation), again identifying preservation of independent professional judgment as the purpose of MRPC 5.4(a) (RI-104).

Because the facts did not say whether the free service would be offered from the lawyer's private practice or as part of the lawyer's volunteer duties, the Committee gave both paths. If offered in connection with the volunteer duties, RI-147 controlled: the organization could recommend the lawyer only if it had a prior professional relationship enabling it to know the lawyer's work, the lawyer reviewed the advertisement for compliance, and nothing of value beyond reasonable advertising cost was given. If offered from the private practice independent of the organization, RI-163 controlled: a lawyer may advertise a fee donation where the organization is not involved in communicating the offer. The Committee directed that, unless every will would be free no matter how complex, the advertisement should distinguish what services are free, and if the offer is connected to the volunteer duties that should be clear.

The Committee also addressed conflicts. Because the lawyer offering the free service also worked for the beneficiary, MRPC 1.7(b) required the lawyer to evaluate possible conflicts case by case; the facts were too general for the Committee to resolve the conflicts question, and the lawyer could represent a will client only without an impermissible conflict. Under MRPC 1.4(b), the Committee concluded the lawyer's relationship to the Civil Air Patrol was a significant fact that should be communicated to clients seeking the free service that benefits the organization.

Currency note

This opinion was issued in 1993 and interprets the Michigan Rules of Professional Conduct as they then stood. The MRPC have since been amended, and 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: Can a lawyer offer to draft wills for free if the client leaves a bequest to a particular charity?

A: Per the opinion, yes. The Committee concluded a lawyer may advertise free will and bequest preparation for clients leaving a testamentary bequest to a particular organization, subject to the advertising and conflicts rules it discussed.

Q: Must the lawyer disclose a connection to the charity that benefits from the bequest?

A: The opinion concluded that under MRPC 1.4(b) the lawyer's relationship to the beneficiary organization is a significant fact that should be communicated to clients who seek the free service benefiting that organization.

Q: Does the lawyer's connection to the charity create a conflict of interest?

A: The opinion concluded MRPC 1.7(b) requires the lawyer to evaluate conflicts case by case; the facts were too general to resolve the question, and the lawyer may represent the will client only where there is no impermissible conflict.

Q: How specific must the advertisement be about what is free?

A: The opinion concluded that, unless the lawyer will provide any will at no charge no matter how complex, care should be taken in the advertisement to distinguish which services are provided without charge, under MRPC 7.1.

Background and rules framework

The opinion interprets MRPC 7.1 and 7.2(c) (advertising and paying for recommendations; Model Rules 7.1 and 7.2), MRPC 5.4(a) (fee sharing with nonlawyers; Model Rule 5.4), MRPC 1.7(b) (conflicts where representation may be materially limited by the lawyer's responsibilities to a third person or the lawyer's own interests; Model Rule 1.7), and MRPC 1.4(b) (explaining a matter so the client can make informed decisions; Model Rule 1.4). It applies the framework of RI-104, RI-147, and RI-163.

Citations and references

Rules of Professional Conduct:

• MR 1.4 / MRPC 1.4(b) (explaining a matter for informed decisions)
• MR 1.7 / MRPC 1.7(b) (conflicts; material limitation)
• MR 5.4 / MRPC 5.4(a) (sharing legal fees with a nonlawyer)
• MR 7.1 / MRPC 7.1 (communications concerning a lawyer's services)
• MR 7.2 / MRPC 7.2(c) (paying for recommendations; advertising-cost exception)

Other opinions cited:

• Michigan RI-104: rationale of MRPC 5.4(a) is preserving independent professional judgment
• Michigan RI-147: organization may recommend a lawyer only on stated conditions
• Michigan RI-163: advertising a fee donation where the organization is not involved in the offer

See also

• Mich Ethics Op. RI-163: Donating Part of a Fee to Charity
• Mich Ethics Op. RI-229: Church List of Bequest Lawyers
• Mich Ethics Op. RI-200: Affiliated Law Firms

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1034&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-164

May 7, 1993

SYLLABUS

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.

TEXT

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.