I give you sprinkles today in hopes you will help me make it rain tomorrow?

About three months ago, I wrote about a New York ethics opinion that blessed a marketing effort that I stressed would likely be unethical in Tennessee.  That situation involved a lawyer giving client’s a rebate if they agreed to post a review of the lawyer’s work at an online site.

In a fairly decent sign about how competitive the market for legal services continues to be these days (and how risk averse lawyers can be when it comes to pursuing marketing concepts that other businesses don’t think twice about), South Carolina has issued a more recent opinion weighing in on the appropriateness of another marketing gimmick.  Karen Rubin over at her law firm’s blog offers a good treatment of the South Carolina opinion blessing the proposed “Donut Fridays,” (which also included koozies, marketing materials, a fee rate sheet, and a $50 off coupon for consultations) an effort to curry favor with those in a position to refer work to the law firm, that you can go read here.  The right conclusion was reached both that this was not an improper, in-person solicitation in violation of RPC 7.3 and that, as long as the law firm gives the donuts without regard to their effectiveness in generating referrals (i.e. irrespective of whether this approach produces a good return on investment), then there is no violation of RPC 7.2.

In the end, I certainly don’t disagree with the conclusion reached by the South Carolina opinion and think, unlike the New York rebate-for-a-good-Avvo-review scheme, the same conclusion would be reached in Tennessee.  There would be no inherent violation of Tennessee’s RPC 7.2(c) for a similar “Donut Friday” or, for you fans of The Lego Movie, a “Taco Tuesday.”

I do want to say though that it is really pretty remarkable that any ink had to be spilled on an opinion to address this situation at all.  There is a lot of cognitive dissonance out there among lawyers when it comes to ethics and business development efforts.  For example, the same kinds of lawyers who might think “Donut Fridays” requires close scrutiny likely would not give a second thought to sending a bottle of wine or other thank you gift to another lawyer who referred them a revenue-generating case.  The thank you gift which, fairly obviously, only gets sent because of the prior referral is arguably much more difficult to justify in any jurisdiction with the kind of rule S.C. and Tennessee have.  (And, please understand, I am not saying those are unethical.  I’m just saying … it’s a lot harder to explain than Donut Fridays.)

Beyond that, the only other point I’d like to make — and would have like to see given further treatment in the S.C. opinion — is that the aspect of the arrangement can actually be thorny is the coupon.  With respect to the South Carolina law firm making the inquiry, the inclusion of a fee rate sheet in the box with the donuts and the coupon was very helpful because it provides something tangible that would show that the coupon is in no way deceptive or misleading in terms of being ephemeral in value.  In the absence of the rate sheet though, the issue can be much more complex as can be seen in the wave of ethics opinions that were issued examining whether lawyers could participate in “Deal of the Day” website-style promotional campaigns, including this one issued by the ABA back in 2013.



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