Volume 12, no. 2
Ethics and the Gift of Thanks
By David J. Abeshouse
In the “real world,” unrestrained by rules of legal ethics, most businessfolk can—with almost reckless abandon—push the envelope of “payola” and allow one hand to wash the other. We lawyers must be far more restrained in showing our appreciation for business bestowed, as pesky ethics rules (some more rational than others) constrain our conduct.
New York, for Example
The New York Lawyers’ Code of Professional Responsibility Disciplinary Rule 2-103(B) provides that, with few exceptions, a lawyer “shall not compensate or give anything of value” to anyone to encourage them to recommend retention by a client or as a reward for having made such a recommendation. DR 2-107 declares that a lawyer “shall not divide a fee for legal services with another lawyer who is not a partner in or associate of the lawyers’ law firm” unless certain restrictions are met. And DR 3-102(A) prohibits fee splitting with nonlawyers.
NYS Bar Ethics Opinions 741 (2001) and 791 (2006) hold that a lawyer may not even participate in a business networking organization that requires the lawyer to refer clients to other members in exchange for their referral of legal business (the mandate is what is objectionable; the lawyer is deemed to be paying for referrals).
The Thought That Counts
How can you reciprocate? Keep referral sources “top of mind”—stay in touch; periodically provide useful information they may appreciate; mention them in your newsletter; hyperlink their Web sites to your own. If you’ve met referral sources through networking, they’re presumably interested in that arena. Repay the favor of a referral by inviting the source to networking events or groups in which you’re involved. Your referral source may join you in one or more of these, further solidifying your relationship.
Although a New York lawyer can give nothing of value in exchange for referrals, some outright but modest gifts that seem to be in the mainstream yet fly under the radar (although not expressly “blessed” by the ethics overlords) include invitations to dinner or sporting events, hosting a golf foursome, food gift baskets, and lottery tickets.
Perhaps the best way to thank referral sources is to reciprocate in kind with referrals, assuming the colleague is worthy and “referable.” Your ability to refer reciprocally may depend upon whether you have a general practice or a substantively concentrated practice, as well as upon its geographic scope. Become a “resource hub” by developing a broad and deep network of trusted professionals to whom you can give referrals and from whom you can receive referrals.
Less tangible reciprocations best toe the line, avoiding bestowal of things of measurable “value” while conveying a strong message of appreciation, coupled with transfers that referral sources will be glad to receive.