Going Once, Going Twice: Legal Services Donations to Charity Auctions and Raffles

My high school alumni association’s social media page alerted me to an online auction and raffle supporting “under-resourced students and families n our community.” I decided to check out the auction items—most of them are the usual restaurant and attraction gift certificates. The raffle included a prime parking spot for a rising senior and several Stanley tumblers. Shockingly, nothing appeared to involve multilevel marketing. (Where I live now and where I grew up are very different places, apparently.)

Anyway, the item that caught my attention was “Legal Advice for Your Grad.” (I am not naming the school or the law firm; neither of those are the point, though neither are in Wisconsin and different rules may apply there.) The winning bidder (or, more likely, the winning bidder’s newly-adult child) would receive a health care power of attorney, HIPPA authorization, power of attorney for property, and FERPA consent.

I will leave the merits of this package to others. But I think most of us who have school-age kids or belong to a religious, fraternal, or social organization have been asked, at least once, to contribute to a silent or online auction, or raffle. Can lawyers donate legal services to be auctioned or raffled off? Doing so may seem like a relatively low-stakes way to give back to your community and get some publicity, but can it be done ethically?

Several states did consider this question decades ago and concluded that lawyers cannot donate services in this fashion, for various reasons, most commonly, because it runs afoul of the spirit, if not the letter, of advertising and/or referral rules (ABA, 1972; New York, 1980; Nebraska, 1992, among others).

Lots of things have changed since then, though, and at least states are beginning to loosen up. In 2011 and 2013, Nebraska and New York, respectively, overruled their prior guidance and concluded that donations of legal services to be auctioned or raffles are doable, so long as it’s set up properly.

Wisconsin does not appear to have weighed in on this, but I think this can be done here, if it’s done right. (Because the older opinions may not have been rescinded in every state, make sure to check where you practice.) The Nebraska and New York opinions, and a Washington State Bar Association article, offer similar guidance:

The services offered must be in the lawyer’s area of competence (no, you can’t offer to do a will if you don’t know how to do a will); clearly identify who you are and what you will provide (either a specific service like the POAs above, or a certain number of hours in your area of competence); and that everything in the description and in what the auctioneer (if there is one) or organization says is true and not misleading.

Also, you should make it clear that merely winning the raffle or auction does not create an attorney-client relationship and that you retain the right to decline—and refund the purchase—for conflicts of interest, veering afar from the original scope, or other reasons (and, ahead of time, discuss with the organization how a refund will be handled).

I would also add, before you contribute to something like this, be sure that the organization you’re contributing to is legitimate, and can legally hold an auction or raffle. The last thing you want is to find your generosity rewarded with is unwitting participation in an illegal scheme.

Now, as with many endeavors, whether you can and whether you should may be different questions. Do you have time to do this (and will you, six months from now when the winner actually calls)? Will you clear conflicts? Will the “simple will” or “basic lease” turn into a huge project (and if so, how will that get paid for)? Do people actually want the services you are capable of providing?

When my son’s school asked me for an auction item a few years back, I did not contribute legal work; I practice in niche areas and very few people in the audience would ever have a need for my services. Instead, I contributed a gift certificate for two dozen custom homemade cupcakes, to be delivered upon one week’s notice. Much, much less likely to come back to haunt me. (I made chocolate, with bright colored buttercream frosting and Transformers toppers, for a six-year-old’s birthday party, in case you were wondering.)