Special carve-outs or uniform rules?

• Author: Hornsby, Will
• Position: The Ethical Marketer

Several years ago, researchers from Northwestern University advanced the notion of two hemispheres of the practice of law. One hemisphere involves those law firms that provide services to corporations and institutions. In the other, lawyers provide personal legal services to individuals and families. The hemispheres do not overlap much, and once a lawyer goes down the path of one, he or she rarely crosses over to the other.

In many ways, client development differs in these two hemispheres. Lawyers representing corporate clients literally seek to move in with them, developing close, long-lasting relationships. They tend to recognize that a large percentage of the firm's revenue comes from ongoing engagements. On the other hand, lawyers who provide personal legal services tend to have high volume caseloads with quick turnover. After all, how often does someone get divorced, file a personal bankruptcy or face a foreclosure? These lawyers have an incentive to provide good service because their former clients may be a good source of referrals, but they seldom see their clients for ongoing engagements.

Even though we have these two hemispheres, we have a one-size-fits-all system of state ethics rules. Recently, representatives from some of the largest law firms have encouraged the ABA to reconsider this notion and to have a different set of regulations for "sophisticated clients." Their comments focused on issues such as conflicts of interest, but this raises the question of whether ethics rules governing client development should vary according to the "sophistication" of the client.

In theory, the state ethics rules governing lawyer advertising and solicitation are there to protect the consumer. So do some consumers need more protection than others? No doubt many from the corporate hemisphere would say that their potential clients need less protection than consumers who have never before bought legal services. But a look at the ABA Model Rules of Professional Conduct may find that one-size-call-fits-all.

The cornerstone to the Model Rules is the prohibition against false or misleading communications. While some states expand on this notion and prohibit embellishments, any form of puffery or even information about prior results, the comment to ABA Model Rule 7.1 encourages the use of disclaimers to avoid misleading prospective clients. The use of well-crafted disclaimers would seem to be a modest obstacle for lawyers advertising in either...