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

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

In 1997, the ABA decided to revisit its Model Rules, including those provisions governing client development. The states then went into a holding pattern. Except for a few states that were late in converting from the Model Code to the Model Rules, few regulatory changes occurred over the next five years. Disregarding the tendency of the states to adopt greater restrictions, the ABA adopted changes in 2002 that were more marketing-friendly. The new rules relax the standards of "false and misleading," lessen the administrative burdens and broaden the ability of lawyers to solicit in-person. We are now repeating the cycle where states review the ABA Model Rules, decide whether to amend their rules and, if so, whether to create restrictions beyond those in the Model Rules.

As we come to the end of this cycle, what can law firm marketers take away? First, there is a little bit of good news--just a little. Outside of Florida, where they change the rules as often as other states change seasons, we will now see some degree of stability among the states; not uniformity, but at least stability. Unless a rule is deemed unconstitutional, states are generally unwilling to go through the process of rule review and revision with much frequency. Therefore, states that have recently made changes are not likely to do so again soon. Beyond that, we have a series of challenges.

Greater Burden for Marketers

Firms that are seeking clients in several states, and, therefore, have the obligation to comply with the rules of each of those states, now have a greater burden. We have come to the point where no two states have identical ethics rules governing client development. Sometimes firms conclude that they need to do nothing more than comply with the rules of the most restrictive state, but this "least-common denominator" theory does not work because the rules do not run on a continuum but are merely different from one another.

For example, a disclaimer of one state is merely different from that of another and all of them must be included in the ads. As a result, firms need to be current about the rules of each state in which they are marketing.

Firms also need to be up-to-date on rule changes--not only so that they can avoid the adversities of breaches, but also so that they can safely maximize their marketing efforts.

* For example, several states had rules that prohibited the use of the word "specialize" or its derivatives. A lawyer could "concentrate in," "focus on" or "limit the practice to ..." varies fields of law, but could not specialize or be a specialist in those fields. Several states have now changed the rule to prohibit a lawyer from stating that he or she is a certified specialist, but permit the simple use of "specialist."

* Another example involves the use of disclaimers. Texas had a rule requiring lawyers who were not certified as specialists there to indicate that they were not on all advertisements, including Web sites. Even though the rule was rescinded a few years ago, some firms still include it on their home pages. Those aware of rule changes can use it to a competitive advantage.

Take Care in Relying on Old Ethics Opinions

Finally, rule changes can confound legal research on ethics issues. States issue ethics opinions that apply their rules to factual situations. Usually these opinions are issued after lawyers pose specific questions to an ethics committee. Topics range from email confidentiality to division of fees. The opinions are based on strict applications of the rules to the facts. Therefore, when a rule changes, the result of an ethics opinion may be different. States often update ethics opinions after rule changes, but this can take several months. As a result, marketers and lawyers need to be careful about relying on ethics opinions after the rules upon which they are based change.

It is not likely that the cycle of rule changes involving client development will end any time soon. Knowing where we are within that cycle will help avoid pitfalls and maximize opportunities for better client development with fewer risks of violations.

Interested in learning more about the rules governing client development?

You can link to the rules that address lawyer advertising, solicitation and marketing in each state from a map maintained by the ABA, at www.abanet.org/adrules.

* The ABA also provides updates of current developments and changes in state rules and ethics opinions, at http:// www.abanet.org/cpr/professionalism/lawyerAd.html.

* The book "Marketing and Legal Ethics:The Boundaries of Promoting Legal Services" helps readers understand how the ethics rules apply to various types of client development endeavors. Details about the book are at http://www.abanet.org/abastore/index. cfm?section=Main&fm=Product.AddToCart&pid=511 0432. Watch for a new edition in early 2008.

* For those who need to delve into the issues in some detail, the ABA/BNA Lawyers' Manual on Professional Conduct is the premier resource. This is a loose-leaf format that includes updates to rules, cases and ethics opinions on the full range of professional conduct issues. The manual is found in most law libraries. Details are at http://www.abanet.org/cpr/pubs/manual.html. Some firms engage counsel to review their client development material prior to releasing it. Many lawyers who specialize in legal ethics are members of the Association of Professional Responsibility Lawyers. You can locate APRL members from the association's Web site, www.aprl.net.

Will Hornsby is staff counsel in the ABA Division for Legal Services. You may contact him at [e-mail]. Between 1990 and 2002, he served as staff counsel to the ABA Commission on Advertising. The opinions in this article are solely those of the author. Nothing in this article should be construed as the policies of the ABA or any of its constituent entities.