Can a lawyer employed by a nonprofit give free estate-planning consultations to potential donors in exchange for a suggested donation to the nonprofit?

Plain-English summary

The inquiring lawyer was employed by a nonprofit corporation to provide development services, including speaking at churches throughout the state to encourage financial participation. The lawyer proposed offering free consultations in estate planning, trusts, wills, and probate following the speaking engagements, with a suggested donation to the nonprofit (or, as an alternative, a $25 charge for the appointment that the lawyer would then contribute to the nonprofit). The lawyer planned to refer donors to their own lawyers for preparation or review of documents and would not prepare documents making gifts to the organization for persons who would be the lawyer's clients.

The committee decided that the situation as described violates RPC 7.2(c), because it would be impossible for the arrangements to be made without creating the appearance that the nonprofit corporation was recommending the lawyer's services. The committee also concluded the proposed arrangement creates a conflict under RPC 1.7(a) between the lawyer's client, the nonprofit corporation, and any individuals with whom the lawyer consulted as clients about possible donations. It added that a conflict under RPC 1.7(b) may also arise, depending on the extent to which the lawyer's personal interest in supporting the nonprofit's activities could affect the representation of the individual potential donors.

Currency note

This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. Washington's cited rules correspond to ABA Model Rules 1.7 (conflicts of interest) and 7.2 (advertising and payment for recommending a lawyer's services).

Common questions

Q: Can a nonprofit's lawyer offer free estate-planning consultations to donors in exchange for a donation?

A: The committee decided this violates RPC 7.2(c), reasoning the arrangement would create the appearance that the nonprofit recommends the lawyer's services.

Q: What conflict did the committee identify?

A: A conflict under RPC 1.7(a) between the nonprofit (the lawyer's client) and the individuals the lawyer consulted about possible donations, plus a possible RPC 1.7(b) conflict tied to the lawyer's personal interest in the nonprofit's activities.

Q: Did it matter that the lawyer would refer donors to their own lawyers for the documents?

A: The committee still found the consultation-for-donation arrangement violated RPC 7.2(c) and created a conflict under RPC 1.7(a), notwithstanding the planned referral of document work to the donors' own lawyers.

Background and rules framework

The opinion applied RPC 7.2(c) (a lawyer may not give anything of value to a person for recommending the lawyer's services) and RPC 1.7(a) and 1.7(b) (conflicts of interest), corresponding to ABA Model Rules 7.2 and 1.7. The committee tied the appearance-of-recommendation problem to RPC 7.2(c) and the divided-loyalty problem between the nonprofit-client and the individual donors to RPC 1.7(a), with the lawyer's personal stake in the nonprofit raising a possible RPC 1.7(b) issue.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 7.2 (advertising; payment for recommending services); Washington RPC 7.2(c)
• ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7(a), 1.7(b)

See also

• WA Ethics Op. 1762: Lawyer Ad in a Repair-Shop Folder
• WA Ethics Op. 1730: Preferred-Provider Fee Sharing
• WA Ethics Op. 1739: Friendship Limits HOA Representation

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=835

Original opinion text

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

Advisory Opinion: 1771
Year Issued: 1997
RPC(s): RPC 1.7(a); 1.7(b); 7.2(c)
Subject: Lawyer employed by nonprofit corporation providing consultations in charitable trusts with potential donors to nonprofit in exchange for donation

[Your inquiry concerned] your employment by a nonprofit corporation to provide services in the area of development. These services include your speaking at churches throughout the state. Part of the purpose of these speaking engagements is to encourage financial participation by church member, both through an offering that would be taken up and long-term relationships, through monthly or other periodic support. In addition, you may be discussing charitable trusts and other major donations with wealthy donors. You would be referring these donors to their own lawyers for either preparation or review of documents. You would not prepare any documents making gifts to the organization for persons [who] would be your clients. You suggest that you would provide free consultations in the area of estate planning, trusts, wills and probate following your speaking engagements. For this free consultation, a donation to the nonprofit organization which retains you would be suggested. An alternative to the suggested donation could be a $25 charge for the appointment, which you would then contribute to the nonprofit organization.

The RPC Committee decide that the situation as you described is in violation of RPC 7.2(c), as it would be impossible for these arrangements to be made without creating the appearance that the nonprofit corporation was recommending your services. The proposed arrangement would create a conflict under RPC 1.7(a) between your client, the nonprofit corporation, and any individuals with whom you consulted as clients about possible donations. In addition, a conflict under RPC 1.7(b) may be created, depending upon the extent to which your personal interests in supporting the nonprofit corporation's activities may affect your representation of the individual potential donors.