Please, resist the urge to give me the newest, shiniest, most expensive sports car available on the car lot!

Seriously, how much is too much when it comes to deciding whether one should accept or reject a gift? On the face of it, this appears to be a pretty easy question to answer, but is it really? The appropriateness of a gift will, of course, vary according to the circumstance and the context. The wise men gave baby Jesus gifts of gold, frankincense and myrrh, which, understandably, were quite appropriate under the circumstances. It is without a doubt that the giving and receiving of gifts is of great importance in building healthy relationships, as it tends to foster a ‘feel good’ effect.

This ‘feel good’ effect is of no less value in the corporate world, where the giving of gifts further supports good working relationships between individuals and organisations. A meal out with a client can help build a relationship; a cardholder with your organisation’s name on it can remind a customer of you when they need a product or service. However, in a corporate context, the acceptance of gifts, which may also be in the form of services and hospitality, may be related to the issue of conflict of interest and can result in individuals or organisations becoming vulnerable to accusations of being biased or involved in corruption.

When is a gift not just a gift?

One issue to be considered when assessing whether offering or accepting a gift is inappropriate, is whether the business relationship will be altered, or if there is an expectation that it will be influenced in some way. For example, will bias be expected when bidding for a contract? If so, this appears to be a bribe, rather than a gift. If the aim of giving the gift is to create an expectation of a “favourable” act in return, then it probably isn’t a gift.

It is clear that the value of the gift is to be factored in when assessing whether or not a gift is appropriate. A token or trivial gift to show appreciation is oftentimes seen as appropriate in some contexts, whereas a non-trivial or expensive gift is oftentimes seen as inappropriate in some contexts. However, circumstances vary, and the reverse may be true. Some organisations assist workers by placing a monetary limit on the value of gifts that can be offered or accepted, with those above a certain value considered as inappropriate. It is true that the value of a gift can be difficult to determine at times. For example, the value of a trip paid for by a client to see cricket at Kensington Oval in Barbados may be hard to calculate, especially when there is a business element to the trip.

A principle sometimes applied to determine what is an appropriate level of gift-giving is that of reciprocity, that is, if I accept an offer, am I able to offer the equivalent in value in return? For example, if my client or business associate offers me tickets to the Jazz and Blues Festival, would I be able to reciprocate to offer the equivalent value in return? If the answer is “no”, then it may be seen as an attempt to buy favour and it is advisable not to accept.

Gifts from clients to attorneys-at-law

Attorneys-at-law in Jamaica are governed by the Canons of Professional Ethics under the Legal Profession Act. These rules basically render attorneys-at-law almost incapable of receiving a gift from a client in addition to his/her remuneration. The courts have, however, made a distinction between what is known as a trifling gift, for example, a box of chocolates, from a gift which is of material value, for example a BMW motorcar. That restriction also extends to family members of the attorney.

In the case, Wright v Carter, it was held that a gift by a client to his solicitor raises the presumption that it was unduly influenced by the fiduciary relationship subsisting between them, thus the onus is on the solicitor to prove that the gift was not influenced by that relationship. The presumption is, however, not irrebuttable, but it is not sufficiently rebutted by the mere fact of the client having employed a separate and independent solicitor to advise him in the matter of the gift to his solicitor; for the presumption will continue so long as the relation of solicitor and client continues for other purposes outside the gift, or at all events until it can be clearly inferred that the influence arising from the relation no longer exists.

On the other hand, there is no objection to a sale by a client to his solicitor, provided the solicitor can prove:

(1) that the client was fully informed;

(2) that the client had competent advice; and

(3) that the price given was a fair one.

Remember, it is a wonderful thing to give to others, but please ensure that the motive behind the gift is pure.

Keron Morris is an associate at Myers, Fletcher & Gordon attorneys-at-law and is a member of the firm’s Litigation Department. Keron may be contacted at keron.morris@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.