The Ohio Supreme Court Task Force on Rules of Professional Conduct has posted proposed rule changes, some of which would substantially change the rules governing client development. The Task Force states, "...many of the existing prohibitions have been removed in deference to constitutional concerns about commercial speech. Further, both the Model Rules and the proposed rules bring Ohio's standards of conduct into step with today's world by providing sufficient flexibility to encompass changes in technology that impact on electronic and recorded communications.
The Court is inviting comments until February 15, 2006.
In 2002, as part of its Ethics 2000 initiative, the ABA amended many of its Model Rules of Professional Conduct, including those provisions that govern client development. The most significant change was a revision of the standard defining "false and misleading" communications. Nothing that a firm says to get business can be false or misleading. That sounds easy enough, but the pre-Ethics 2000 version of Rule 7.1 not only prohibited communications that were materially misleading, but also those that create an "unjustified expectation about the results" and those that include an "unsubstantiated comparison."
State interpretations of limitations have sometimes been very restrictive, disallowing testimonials and the use of superlatives such as "honest," "caring" and "trustworthy." The assumption was that if a lawyer stated he or she was "caring" it meant that other lawyers were not and therefore was an unsubstantiated comparison.
The new ABA rule now fundamentally prohibits material misrepresentations. Yet few states have adopted this change, including those that have undergone an Ethics 2000 review. And some states continue to define "false and misleading" even broader than that done in the pre-Ethics ABA version.
So, what's wrong with the ABA rule? Any data on consumer harm when lawyers say they're trustworthy?
To follow the changes to state rules, check out the Status of State Review of Professional Conduct Rules, posted and frequently updated by the ABA Center for Professional Responsibility.