May I Market My Law Practice with Donuts?

donutsThe advice from a recent South Carolina Bar Association opinion: “Eat up.” See S.C. Bar Ethics Adv. Op. 15-02.

That answer came in response to an opinion request from a firm that wanted to host “Donut Friday,” a marketing practice in which “an employee of Law Firm visits the Firm’s existing vendors (e.g., banks, real estate agencies, etc.) and delivers a box of donuts to these vendors. Included with the box of donuts are a dozen koozies bearing the name of Law Firm, as well as a fee sheet, a pamphlet containing information about Law Firm . . . .” See id. At issue was the applicability of Rule 7.2(c), which prohibits giving something of value to a person for “recommending the lawyer’s services.”

The firm’s hope, of course, was that happy, donut-eating bankers and real estate agents would recommend the firm to borrower/buyer clients for future closings. In approving the practice, the committee noted the following:

[A]s long as the weekly donuts and other donut-box contents are delivered regardless of whether the vendor had referred clients to Law Firm that week, and regardless of how many, then the requisite quid pro quo for a Rule 7.2(c) violation does not exist. If the delivery of donuts were contingent on the referral of clients to Law Firm, the practice would violate the rule.

That advice should also apply in Louisiana. Louisiana Rule 7.2(c)(13) likewise prohibits a lawyer from paying someone for recommending the lawyer’s services. In so doing, it prohibits, among other things, a lawyer from paying a “runner” to “hustle” cases from prospective clients. See, e.g., In re Coney, 891 So. 2d 858 (La. 2005) (disbarring lawyer for paying “runners” to solicit personal injury cases); In re Kirchberg, 856 So. 2d 1162 (La. 2003) (disbarring lawyer permanently for criminal convictions and payments to runners); In re Sledge, 859 So. 2d 671, 673-74 (La. 2003) (disbarring lawyer for paying nonlawyers $50 to $100 for case referrals); In re Lockhart, 795 So. 2d 309 (La. 2001); In re Grand, 778 So. 2d 580 (La. 2001); see also In re Cuccia, 752 So. 2d 796 (La. 1999); In re Tolchinsky, 740 So. 2d 109 (La. 1999); In re Brass, 696 So. 2d 967 (La. 1997). But in the absence of a quid pro quo—the giving of something in exchange for a case referral—”Donut Friday” is more akin to entertaining prospective referral sources than it is to case-buying.

Mmmmm donuts.