Concept
Nominal Gifts
Referrals
Nominal Gifts
Rule 7.2(b)(5) lets a lawyer thank a person who recommended the lawyer's services, but only with a gift that is nominal and that is neither intended nor reasonably expected to be a form of compensation for the recommendation.1 The exception looks odd beside the ban it modifies. Each earlier exception let a lawyer pay for something other than an endorsement: publicity, admission to an organized program, a going practice, or a swap of promises. Here the payee is the very person who recommended the lawyer, and the payee receives something of value. The rule tolerates that result on one ground. A token of thanks for a recommendation made freely buys nothing, so everything turns on whether the gift is a thank-you or a price.
The text sets two cumulative requirements. The gift must be nominal, which is a question of size. It must also be neither intended nor reasonably expected as compensation, which is a question of purpose. Intended looks to the lawyer's state of mind when the gift is given. Reasonably expected looks to the recipient and asks what that person has good reason to anticipate from the lawyer's words and past conduct. The Rule sets no dollar figure, so nominal takes its meaning from the exception's purpose: a gift is nominal when it is small enough to read as gratitude and not as payment. Size never settles the question alone. A small gift that the lawyer means as a reward, or that the recipient has learned to count on, fails the second requirement however modest it looks. A gift too large to pass as a gesture fails the first.
The line falls at purpose and expectation, and not at a fixed price, because of what the ban protects. Attorney advertising is the open road to clients. Since Bates v. Arizona State Bar, 433 U.S. 350 (1977), it has been protected commercial speech, even as regulators try to keep a tight leash on it in the name of law as a profession and not a mere business.2 A recommendation is a different thing, because the listener takes it for the speaker's own view. When the speaker made it with no reward in view, the listener is trusting something real, and a thank-you sent afterward cannot change what the speaker did. A recommender who expects a reward each time speaks with a stake in where the listener ends up. That hidden stake is exactly what the ban exists to remove. It also invites pressure, since a recommender paid per client has reason to push prospects. The Supreme Court has described in-person solicitation as "a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud."3
The standard failing example shows the line from the other side. A personal-injury lawyer who gives a chiropractor a pair of basketball tickets for every patient the chiropractor sends over violates the ban. The tickets follow each referral, so the lawyer intends them as compensation and the chiropractor reasonably expects them. They fail the exception's second requirement whatever anyone calls them.4 A reward that follows each referral is a price.
The two boxes of chocolates are identical, and that identity isolates the variable that matters. One follows a spontaneous act of goodwill. The other is linked to referrals as their reward. Once the link exists, the gift stops being gratitude and becomes the price of the recommendation, and a small size cannot rescue it. Two instincts lose points on an exam: treating any small gift as automatically safe, and treating any gift to a referral source as automatically forbidden. Ask instead what the gift was meant to do and what the recipient had reason to expect.
Expectation can arise without any announcement. An examiner may describe an expected reward without ever mentioning a promise, and then ask whether a lawyer who keeps sending small gifts stays inside the exception.
Each gift taken alone might look like a thank-you, yet the series fails the second requirement. The history gives the recipient good reason to expect a gift as the reward for each recommendation. The word reasonably makes the test objective: it asks what a person in the recipient's position would anticipate from the lawyer's conduct, so a lawyer cannot avoid the ban by never saying the words. The first gift in such a series may have been a genuine surprise and a genuine thank-you. The protection ends when the practice hardens into routine, because from that point each gift pays for the next recommendation.