This is a really generous gift. Can I accept it?

Now that the Thanksgiving turkey or Tofurkey or frozen pizza has been consumed and the leftovers put away, attention turns to Christmas, Hanukkah, and other winter gift-giving occasions. This also means that fruit baskets and bottles of wine and those giant tins of popcorn begin showing up on doorsteps and on breakroom tables, gifts from vendors, or occasionally, from clients. (Well, in normal years. I’m not sure how this will play out this year. But let’s assume it will.)

There’s no ethical problem in accepting token gifts like this for a job well done, or for that matter, just because. But what happens when a thank-you bottle of wine is accompanied by two airline vouchers and a weekend stay at a B&B near the vineyard? Can lawyers ethically accept extravagant gifts from clients?

Wisconsin SCR 20:1.8(c) (and its Model Rule counterpart, 1.8(c)) does not prohibit such gifts outright. The Rule does, however, prohibit lawyers from soliciting such gifts or preparing an instrument (such as a will) that confers such gifts upon the lawyer, unless it’s a family matter:

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, nor prepare an instrument giving the lawyer or a person related to the lawyer any substantial gift from a client, including a testamentary gift, except where (1) the client is related to the donee, (2) the donee is a natural object of the bounty of the client, (3) there is no reasonable ground to anticipate a contest, or a claim of undue influence or for the public to lose confidence in the integrity of the bar, and (4) the amount of the gift or bequest is reasonable and natural under the circumstances.

So, you can’t ask your client for anything substantial (and you probably shouldn’t ask your client for much of anything more substantial than a cup of coffee or similar), but if your client is particularly generous there is no specific bar.

What is “substantial?” That doesn’t seem to be defined anywhere, though Comment 6 to the Rule draws a distinction between “a simple gift such as a present given at a holiday or as a token of appreciation” (which is permitted), and a “more substantial gift” (which is not prohibited, but the comment warns that the gift “may be voidable by the client under the doctrine of undue influence”).

That’s not super-clear, I know, but I think looking at the gift in context may be helpful here. A six-pack of craft beer or a cheese and sausage tray (or whatever your local equivalent may be outside of Wisconsin) shouldn’t raise too many eyebrows regardless of the means of the client or the nature of the relationship. Higher-end gifts from corporate clients or well-off individuals may also pose no problem, but an expensive gifts from a client who you understood to be of limited means may give you pause (especially if that client is vulnerable to outside influence or of diminished capacity). I note that while there may not be a bright-line rule here, there is also no ethical prohibition against turning down a gift.

Finally, there may be other rules at play here—some firms prohibit gifts outright or consider gifts you receive from clients in connection with your work to be firm, rather than personal, property (which may border on absurd when the gift is monogrammed, but anyway). Government lawyers have different restrictions entirely. So, be careful even if there is no ethical prohibition to accepting a gift; there may be a work prohibition instead.