As many of you already know, the N.C. State Bar adopted (and the NC Supreme Court certified in May 2021) amendments to the Rules of Professional Conduct pertaining to attorney advertising. Many changes involved moving rules to comments, moving comments to different rules, and some rewording for clarification. But, there are some significant changes. One of those changes now permits attorneys to give a nominal thank you gift to someone who refers them a client. The new Rule 7.2(b)(4) states:
A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may … give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.
This is a marked change from the prior rule, which strictly prohibited any gift of appreciation for a referral. The new rule acknowledges that a small, thank you gift, expressing appreciation, does not offend the purpose of the rule, which is to prevent attorneys from paying for referrals. Ideally, referrals should be based upon a person’s experience with the firm or knowledge of the firm or the lawyer. They should not be motivated by payment or expected remuneration.
So, what is still not permitted?
Gifts of more than a nominal amount (e.g., more than a holiday or hospitality gift) as an expression of thanks.
A promise of anything of value to the individual in exchange for a recommendation, social media post, or interaction with a social media platform.
A promise of payment to a charity in exchange for a social media post or social media interaction.
A promise of a referral for a referral — no quid pro quo.
Any indication by an attorney, prior to a referral or social media endorsement, that a gift may be forthcoming as a result.
Now, if someone refers a prospective client to you, in addition to a thank you note, it is ethically permissible for you to send that person a $10 or $20 gift card to Target or Starbucks. You can send them your firm’s swag. You can also send flowers. Box seats to a Hurricanes game, however, would be overdoing it a bit. There is no definition of nominal in the Rules; you just need to use your best judgment. When in doubt, contact the State Bar’s hotline or our office for guidance.
Deanna Brocker is a NC licensed attorney and owner in The Brocker Law Firm, P.A. She represents attorneys before the State Bar on grievance matters, and also counsels attorneys on ethics matters. She previously served as Assistant Ethics Counsel to the NC State Bar for over 10 years. View complete profile