Will the circle be unbroken? By and by--not.

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

You may have noticed that a lot of states have revised their rules governing client development in the past year or two. In fact, since 2003, two-thirds of the states have changed their ethics rules and most have specifically addressed lawyer advertising, solicitation and marketing.

Connecticut, Washington, D.C., Florida, Kansas, New York, Ohio and Wisconsin have all made amendments that have or will go into effect this year. Other states, including Illinois and California, have rule changes on the drafting board or pending with their supreme courts. Why are we experiencing this flurry of activity and what does it mean to law firm marketers?

Ethics Rule Cycles

For the past 25 years, the regulation of client development has gone in cycles, usually stimulated by the actions of the American Bar Association. In 1983, the ABA adopted its Model Rules of Professional Conduct. The earlier Model Code provisions pertaining to client development focused on what a lawyer could say, e.g., lawyers were authorized to advertise information about advanced degrees, foreign language capacities and forms of payment. This limited and begrudging acceptance of lawyer advertising allowed the states to keep a tight reign on the promotion of legal services. But the ABA Model Rules, taking its cue from U.S. Supreme Court decisions, made a 180 degree turn and merely prohibited communications that were false or misleading (even though it set a high bar for the definitions of "false or misleading").

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States that adopted this approach to prohibit false or misleading communications were said to open the Pandora's Box of client development. A few states were disgruntled with the new approach and wanted greater restrictions, such as the elimination of client testimonials and dramatizations and controls on the use of illustrations. In 1990, Florida amended its rule, imposing a broad series of limitations. While states were generally not interested in adopting the Florida rules as a whole, in part for fear that they would have to defend a constitutional challenge, Florida's departure did stimulate states to undertake their own re-examination of these rules. As a result, states began going in separate directions, borrowing rules from one another and crafting limitations particular to their own cultures. Ironically, this was taking place at the same time that national and international firms were ramping up their marketing endeavors.

1997 ABA Model Rules

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