MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1993-25

Propriety of Gift by Counsel to Pro Bono Client

 In your inquiry, you state that you wish to make a gift, in the form of the payment of an overdue bill, to a client for whom you have been performing legal services over the last year and a half.  You have informed us that you began representing your client, an 88 year old female, after you were appointed by the Court in the Spring of 1991 to represent her interests with respect to a petition of temporary guardianship of her person and property.  Because of your efforts, the petition for guardianship was ultimately dismissed and steps were undertaken to adapt her residence to enable her to confine all of her activities to the first floor and to provide her with aid and companionship 24 hours a day.  Because of her limited assets, you neither requested nor filed a petition for a fee with regard to this representation.
Subsequently, your client contacted you on a number of occasions and you provided some assistance to her concerning her cash needs.  In particular, you corresponded with various insurance companies, bankers and mortgage brokers about the state of her assets and the possibility of converting certain of her assets to cash in order to provide funds on which to live.  Ultimately, a local charitable organization which you had contacted about the possibility of providing her assistance sought and obtained, on an ex parte basis, the appointment of guardians over both her property and her person.  You filed a motion in accordance with Rule 2-535 to rescind the order – appointing the guardians and your motion was denied.  From your inquiry, it appears that you are no longer actively involved in representing her interests in any legal matters.
You inquire whether you may provide a gift to your client through the payment of her heating bill incurred during the last winter season.  In connection with your request, you have informed us that all of the services you have provided have been on a pro bono basis and that you expect no fee for any services which you have or may in the future furnish.  Nor does she have any financial interest in the guardianship matter or any other matter in which you might share, and you state that you see no way that the payment could influence her to retain you to institute litigation of any kind in the future.  Rather, you point out that your sole concern is about her welfare and that your motives, in essence, are altruistic.
The Committee accepts at face value the facts described in your inquiry and your representation concerning your motivation.  Based on your inquiry, the Committee believes that the gift to your client does not run afoul of any ethical prohibition contained in the Maryland Rules of Professional Conduct.  We reach this conclusion by an analysis of several provisions of the Rules.

ETHICS DOCKET 93-25                                                                                          

First, Rule 1.8(e) places certain restrictions on a lawyer providing financial assistance to a client in connection with litigation.  That Rule provides as follows:
Rule 1.8  Conflict of Interest:
  Prohibited Transactions
                     
(e) A lawyer shall not provide financial assistance to a client in connection 
            with pending or contemplated litigation, except that:
a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter;  and
a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
This provision on its face, only restricts a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation and, thus, is applicable to the factual scenario posited by you.  We also note that, to the extent your client is properly viewed as a former client (which is unclear from the facts you have provided), the restriction would seem to be inapplicable for this additional reason.

The Rules do place a restriction on a lawyer’s ability to give anything of value to a person for recommending his legal services to a third party.  That prohibition is contained in Rule 7.2(c).  Under the facts that you have presented, however, this restriction is inapplicable since you are not providing anything of value to a third party or otherwise seeking a recommendation of your services.

 The Committee also notes Rule 6.1 relating to pro bono publico service, which provides that a lawyer should render public interest legal service by, among other things, providing professional services at no fee to persons of limited means.  We do not read Rule 6.1, or any other provision of the Maryland Rules of Professional Conduct, as placing any significant restrictions on your ability to make charitable donations to individuals or organizations merely because you have also provided pro bono legal services to them.