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Legally Speaking

 

Issue: April, 2005
Author: John M. Burman

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Ethically Speaking - Committee Recommends Changes to the Wyoming Rules of Professional Conduct

By Order dated March 14, 2003 (‘the Order”), the Wyoming Supreme Court created the Select Committee to Review the Rules of Professional Conduct (“the Committee”). The Committee was charged with examining the ABA Model Rules of Professional Conduct, the Wyoming Rules of Professional Conduct for Attorneys at Law (“the Wyoming Rules”), which were adopted nearly twenty years ago, and other related matters, to evaluate whether it would be appropriate to recommend changes in the Wyoming Rules.

The Order directed the Committee to deliver its final report to the Wyoming State Bar Board of Commissioners (“the Commissioners”), which will be presented to the Wyoming Supreme Court after review and comment by the Commissioners and the Board of Professional Responsibility. The Committee delivered its final report to the Bar Commissioners in early March.

The final report contains the Committee’s proposed revisions to the Wyoming Rules. The Commissioners considered the Final Report at their regular meeting on April 8, 2005. The Commissioners plan to post the proposed changes on the State Bar’s web-site and solicit comments from members of the Bar. The Commissioners will then consider the comments before submitting a recommendation to the Wyoming Supreme Court regarding changes to the Wyoming Rules.


Membership of the Committee

The Committee consisted of 14 voting members, two ex-officio members, and a chair (who voted only in case of a tie):

Voting Members
The Honorable Randall R. Arp
Vicci M. Colgan
Richard E. Day
The Honorable Jeffrey A Donnell
Jon R. Forwood
Jamie Jost (Patrick)
The Honorable Marilyn Kite
Kenneth M. Koski
Michael J. Krampner
Warren Lauer
George E. Lemich
Terry W. Mackey
Melinda McCorkle (who was originally the Committee’s law student intern)
Cheryl Ranck Schwartz

Ex-Officio Members
Mary B. Guthrie
Rebecca L. Lewis

Chair
John M. Burman


Process

Beginning in April of 2003, the Committee met every two weeks, except during July and August of 2003, and August of 2004, by telephone conference (over forty times). The Committee also held two all-day meetings at the College of Law in Laramie. The Committee began with the Preamble and Scope to the Wyoming Rules and worked through the rules (and their comments) in numerical order. Several issues arose which the Committee referred to ad hoc subcommittees to consider and report back to the Committee.

First, Rule 1.15 governs lawyer trust accounts. The Committee asked Bar Counsel Rebecca Lewis to draft changes to address recurring enforcement issues. Second, the ABA Model Rules contain a rule regulating the sale of law practices (ABA Model Rule 1.17). Wyoming currently does not have a rule that addresses that issue. The Committee asked Warren Lauer to take an informal survey of members of the Albany County Bar to determine if there is a need for such a rule. Third, Rule 4.2 restricts lawyers from contacting a person who is represented by another attorney. The rule is difficult to apply to government lawyers, either those who represent agencies or those who prosecute. The Committee asked Vicci Colgan to solicit comments from the Attorney General and the United States Attorney. Fourth, Rules 7.1 through 7.4 apply to lawyers’ communications, in general, and advertising and solicitation of prospective clients, in particular. The Committee appointed a subcommittee to consider advertising and solicitation. The subcommittee consisted of John Burman, Richard Day, Mary Guthrie, Michael Krampner, George Lemich, Rebecca Lewis. and Melinda McCorkle. Finally, Rule 8.4(g) of the current rules prohibits a lawyer from hiring a disbarred or suspended lawyer. The Committee asked Rebecca Lewis and Warren Lauer to collect rules from other jurisdictions.

Each time a subcommittee was appointed, it gathered appropriate materials, held meetings as necessary, and ultimately reported back to the Committee with a recommendation. The subcommittees’ recommendations were then considered and modified by the Committee.

From its inception, the Committee had the assistance of a third-year law student. Anna Reeves was followed by Melinda McCorkle. They took minutes and conducted research as requested by the Committee (Melinda McCorkle, for example, researched and reported to the Committee about the empirical data on lawyer advertising). Both Anna and Melinda did excellent work. Anna graduated in May of 2003, but stayed on with the Committee until the fall of that year. Melinda graduated in May of 2004, but stayed with the Committee until it finished its work in March of this year. Melinda’s employer, Judge Brimmer, generously allowed her to continue to participate on the Committee. After she passed the Colorado bar, the Committee asked Melinda to become a voting member. After each meeting, and before the next one, Anna and then Melinda would distribute minutes of that meeting to the Committee, so there is a complete record of the Committee’s deliberations. Their assistance was critical to the Committee being able to do its job.


Summary of Changes

Describing every change would be both difficult and result in a document that would be too long to be useful, and individual changes are shown in the proposed rules. The Committee is recommending important changes in several areas, and those changes are discussed in general terms below. The references below are to the Committee’s proposed changes, which will be posted on the State Bar’s web-site.


Preamble

The Preamble contains numerous proposed changes. Only one of them represents a significant departure from the current language. Paragraph [3] recognizes that a lawyer may “serve as a third-party neutral [which encompasses a mediator or arbitrator],” which is a “nonrepresentational role” that is very different from the representational roles discussed in paragraph [2]. Rule 2.4, discussed below, establishes ethical standards for lawyers functioning as third-party neutrals.


Rule 1.0. Terminology

Several definitions have been added or amended. The most important deletion is “consult.” Three new definitions, “confirmed in writing,” “confidential information,” and “informed decisions” are worthy of particular note.

The ABA recommended, and the Committee agreed, that many client decisions should be in writing, including, for example, decisions to waive conflicts of interest. Accordingly, the term “confirmed in writing” is now defined to guide lawyers in obtaining written consent.

Current rule 1.6(a) says that “a lawyer shall not reveal information relating to the representation of a client.” That broad definition has been narrowed by adopting a definition of “confidential information,” so that Rule 1.6(a) now says that “a lawyer shall not reveal confidential information . . .” The key is the definition of “confidential information.” That term means “information provided by the client or relating to the client not generally known to the public.” The Committee’s rationale was that a lawyer should be able to reveal information that is generally known, such as that the lawyer represents a client in a high-profile case.

The ABA suggested that states require “informed consent” before a client may waive conflicts of interest, etc. The Committee recommended replacing that term with “informed decision.” The Committee’s reasoning was that “informed consent” is generally associated with the medical profession, and, more importantly, “informed consent” has come to mean the perfunctory signing of consent forms, when the question of whether to consent should be a much more considered matter. The term “informed decision” is therefore used throughout the proposed rules to emphasize a lawyer’s duty to explain matters to clients, and client’s right to make decisions based on adequate information provided by their lawyers.

Finally, the commentary section to the rule is all new. Significant parts of it currently exist in other places in the Wyoming Rules (Comment [2], for example, is largely taken from current Comment [1] to Rule 1.10). Generally, the Committee believed that the commentary helps to explain and illustrate the terminology.


Rule 1.4: Communication

Rule 1.4(a) has been substantially reorganized. The reorganization clarifies a lawyer’s obligations to (1) have the client make an informed decision about certain matters; (2) consult with the lawyer about the means to be used to attempt to achieve the client’s objectives; (3) keep the client informed; (4) comply with requests for information; and (5) consult with the client about relevant limitations on the lawyer’s behavior. The first four concepts are implicit in current Rule 1.4(a). The fifth is currently in Rule 1.2(e).


Rule 1.5: Fees

The Committee adopted the ABA’s recommendation that the rule of reasonableness applies expressly to costs, as well as to fees. The change is consistent with a Formal Ethics opinion issued by the ABA’s Standing Committee on Ethics and Professional Responsibility regarding old Rule 1.5.


Rule 1.6: Confidentiality of Information

As noted earlier when discussing the new definition of “confidential information,” the Committee recommended a significant change to the current rule and the ABA’s recommendation. The change is to make a lawyer’s duty of confidentiality apply to “confidential information,” rather than all information “relating to the representation.” The definition of “confidential information” defines the scope of the duty. If adopted, the revised Rule 1.6 would say that a lawyer may not disclose information that is “not generally known to the public.”

The Committee also recommended the addition of subparagraphs (b)(2) and (b)(4). Paragraph (b)(2) permits a lawyer to reveal information “to secure legal advice about the lawyer’s compliance with these Rules.” Paragraph (b)(4) allows the disclosure of information to “comply with other law or a court order.” That paragraph should be read in conjunction with Comment [16], which explains a lawyer’s obligation to report child abuse and abuse of a vulnerable adult. The Comment references the Wyoming statutes that create that obligation.

Comments [21] & [22] are new and clarify a lawyer’s ethical obligation to “act competently to safeguard confidential information.”

The ABA recommended the addition of two more paragraphs that allowed disclosure to protect the financial interests of third parties under certain circumstances. The Committee was of the opinion that current Rule 1.6(b)(1), which should be retained, already covers such situations by allowing a lawyer to disclose information to “prevent the client from committing a criminal act.” That provision has been in effect for nearly twenty years, and it appears to have worked well.


Rule 1.7: Conflict of Interest: Current Clients

The conflict of interest rules, Rules 1.7 through 1.12, have been reorganized to clarify their applicability and lawyers’ obligations. Although Rule 1.7 is significantly reorganized, it generally retains the standards of the current rule. The most important change is the requirement in 1.7(b)(4) that a client’s waiver of a conflict must be the result of “an informed decision to waive the conflict, in writing signed by the client.” Requiring written waivers will protect both clients and lawyers.


Rule 1.8: Conflict of Interests: Current Clients: Specific Prohibited Transactions

While this rule remains generally the same, paragraphs (j) and (k) deserve mention. The current rules do not contain a per se prohibition on a lawyer having a sexual relationship with a client even though rules in several states do. The Committee adopted the ABA’s recommendation that such a prohibition be included, and (j) contains that prohibition. The prohibition brings the legal profession into line with virtually every other profession, such as the medical profession, that prohibit such relationships. Paragraph (k) imputes all disqualifications under Rule 1.8 to the lawyer’s firm, except the personal disqualification that results from a lawyer having a sexual relationship with a client.


Rule 1.9: Duties to Former Clients

Both paragraphs 1.9(a) and 1.9(b)(2) adopt the requirement that a decision to waive a conflict must be the result of “an informed decision . . . confirmed in writing signed by the client.” Once again, the Committee’s intention was to protect both clients and lawyers.


Rule 1.10 Imputed Conflicts of Interest: General Rule

The principle of imputing the disqualifications of one lawyer to all the lawyers in that lawyer’s firm remains the same. The important addition to (a) is to clarify that disqualifications “based on a personal interest” of the disqualified lawyer, such as strong political or philosophical beliefs about a client or a case, are not imputed to the firm.


Rule 1.12: Former Judge Arbitrator, Mediator or Other Third-Party Neutral

The important change to this rule is to add mediators and other third-party neutrals, and thereby generally prohibit them from representing a client who was involved in the mediation. The Committee’s rationale was that a mediator or other third-party neutral had access to information which he or she would not have had but for the mediation.


Rule 1.13 Organization as Client

The Committee has recommended that this rule remain as is. The reason for bringing it to the Bar’s attention is that the ABA recommended substantial changes. Those changes, largely a product of fall-out from the Enron case, allow lawyers to disclose information in certain circumstances. The Committee felt that Wyoming’s Rule 1.6(b)(1), which permits the disclosure of information to prevent a client from committing a criminal act, adequately addresses the issue.


Rule 1.14: Client With Diminished Capacity

The Committee recommended substantially revising paragraph (b) and inserting a paragraph (c) to provide more guidance and authority to lawyers who represent a person with diminished capacity. Revised paragraph (b) clarifies when a lawyer may take “protective action” on behalf of a client, and gives two examples of the kind of action a lawyer might take. First, the lawyer may consult “with individuals or entities that have the ability to take action to protect the client . . .” As new Comment [3] explains, this may include family members. Second, a lawyer may, in appropriate circumstances, seek “the appointment of a guardian ad litem, conservator or guardian.”

New paragraph (c) acknowledges that taking protective action will likely result in the disclosure of confidential information, which the lawyer is generally not permitted to do because of Rule 1.6(a). The new rule authorizes such disclosure, noting that such disclosure falls under Rule 1.6(a), which allows disclosure when a lawyer is “impliedly authorized” to disclose information to carry out the representation. Disclosing information to take protective action is, thus, impliedly authorized.


Rule 1.15 Safekeeping Property

The Committee asked Rebecca Lewis to propose amendments to address recurring enforcement issues. The addition to paragraph (b) and new paragraph (d) are the result. They should help lawyers to understand what is required of them and eliminate ambiguities.


Rule 1.17 Sale of Law Practice

While Wyoming has never had a rule on selling law practices, the ABA has recommended such a rule for many years. The Committee asked Warren Lauer to look into whether such a rule would be useful in Wyoming. After hearing from him and others that the issue is a recurring one, that Committee modified the ABA’s proposal to make it better fit Wyoming. The Committee’s general rationale is that since sales of practices are taking place, clients deserve protection. Hence, the heart of the rule is that notice must be given to clients to let them make a choice of how to proceed.


Rule 1.18: Duties to Prospective Clients

This is a new rule, recommended by the ABA. Under the current rules, most duties arise only after the formation of a lawyer-client relationship, but paragraph [3] of the Scope says that “there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established.” The ABA has also issued a Formal Ethics Opinion which says that a lawyer owes a duty of confidentiality to prospective clients who never become clients. Rule 1.18 clarifies the extent of the duty of confidentiality owed to prospective clients and establishes conflict of interest standards.

The key to defining a lawyer’s duties to a prospective client is in Comment [1]: “[P]rospective clients should receive some but not all of the protection afforded clients.” Accordingly, after defining “prospective client” in paragraph (a) of the Rule, paragraph (b) defines a lawyer’s duty of confidentiality, paragraph (c) explains when a conflict of interest may exist even though a lawyer never represented a prospective client, and paragraph (d) permits representation notwithstanding a conflict of interest. Generally, the information received from a prospective client must be treated in the same manner as information received from a client, and it may be disclosed only as information about a former client (pursuant to Rule 1.9). Paragraph (c) disqualifies a lawyer, and lawyers in association with that lawyer, from representing a client with interests that are adverse to the former prospective client in certain circumstances. Most importantly, the lawyer is not disqualified unless he or she received information that could be “significantly harmful” to the former prospective client. The “significantly harmful” standard is very different from the standard that applies to former clients. Accordingly, while there are circumstances under which a lawyer may be disqualified from representing a client because of having met with a former prospective client, those circumstances are significantly more limited than those under which a lawyer will be disqualified because of having represented a former client. The rule appears to protect former prospective clients when appropriate, while leaving lawyers more free to represent adverse parties.


Rule 2.2: Intermediary

The Committee adopted the ABA’s recommendation that this rule be deleted as it is seldom, if ever, used. The reason is that lawyers simply don’t act as an intermediary between clients. Rather, they may act as a mediator, etc., which the rule does not address, and which is addressed in proposed Rule 2.4.


Rule 2.4: Lawyer Serving as Arbitrator, Mediator, or Third-Party Neutral

For the first time, the ABA has recommended a rule that both acknowledges that lawyers may play a non-representational role, and establishes standards when they do. Paragraph (a) defines a third-party neutral, and paragraph (b) requires a lawyer acting in such a role to make certain that the other persons involved understand the lawyer’s role, and that the lawyer does not represent either of the parties. Rule 1.12 now limits the subsequent, representational activities of a third-party neutral.


Rule 3.6 Trial Publicity

Several years ago the United States Supreme Court considered the constitutionality of Nevada’s rule 3.6, which was identical to Wyoming’s current rule. The Court held that the rule was unconstitutional as applied, but upheld the substantive standard of the rule. After the decision, the ABA adopted changes to its Model Rules and recommended that states follow suit. Many did. Wyoming did not. The changes the Committee is now recommending would bring the Wyoming rule into compliance with the Supreme Court’s holding.

The biggest change is to paragraph (a). The current rule applies to all lawyers, regardless of whether they are or have been involved in a case. The recommended change restricts the rule’s applicability to a lawyer “who is participating or has participated in the investigation or litigation of a matter.” Paragraph (b) creates a new “safe harbor” by specifying those things about which a lawyer may comment. Paragraph (d) allows a lawyer to make a statement “to protect a client from the substantial undue prejudicial effect of recent publicity.”


Rule 3.8 Special Responsibilities of a Prosecutor

The only significant change to this rule is a proposed revision to paragraph (d), which provides additional clarification of a prosecutor’s duties regarding trial publicity. In particular, the paragraph imposes on prosecutors a duty to “exercise reasonable care” to prevent employees from making statements that might violate Rule 3.6.


Rule 4.2 Communication With Person Represented by Counsel

The rule remains largely unchanged. The significant additions are in the comments. Comments [4] through [9] are all new. Comment [5] addresses communications “authorized by law.” Such communications may include constitutional or other legal rights to contact the government (the First Amendment includes the right to petition the government for redress of grievances, and courts have consistently held that the right may be exercised through an attorney). Such communications also include investigative activities, during which an attorney or someone acting on behalf of an attorney, such as an investigator, may have contact with a person who has an attorney. Many courts, including the Tenth Circuit, have allowed such contacts, finding that to hold otherwise would unfairly hamper law-enforcement activities. Such opinions, and this Comment, have been very controversial. U.S. Attorney Matt Mead suggested significant additions to this comment, which the Committee rejected in favor of more general language, believing that too much detail could be counter-productive.

Comment [7] addresses communications with an organization that is represented by counsel. The Committee believed that the Comment reflects the holding of the Wyoming Supreme Court in Strawser v. Exon, both regarding current and former employees of the organization.


Rule 4.3 Dealing With Unrepresented Persons

The ABA suggested, and the Committee is recommending, that language limiting the advice a lawyer may give an unrepresented person be moved from the current comment and included in the rule. As proposed, the rule now clarifies that the only advice a lawyer may give to an unrepresented person is the advice to get an attorney.


Rule 4.4 Respect for Rights of Third Persons

The ABA recommended, and the Committee agreed, that a new paragraph (b) be added. That paragraph addresses a lawyer’s responsibilities when he or she receives a document that the lawyer knows, or “reasonably should know . . . was inadvertently sent . . .” to the lawyer. The current Wyoming and ABA Rules do not address the issue. Several years ago, the ABA issued a Formal Ethics Opinion, saying that in such circumstances a lawyer should promptly notify the sender of the document. The proposed language adopts that standard.

The Committee is recommending that (c), currently (b), be retained, despite its omission from the ABA rules. That paragraph prohibits a lawyer from using the threat of criminal charges “solely to obtain an advantage in a civil matter.”


Rule 5.5 Unauthorized Practice of Law

This rule is substantially revised, though many of the ABA’s recommendations were rejected. Paragraph (b) clarifies when a lawyer who is not admitted in Wyoming may practice in this jurisdiction; the Committee believes it restates existing restrictions. Paragraphs (c) and (d) are new. Paragraph (c) addresses when a lawyer may provide temporary legal services in Wyoming. Subparagraph (1) allows a non-Wyoming lawyer to associate with a Wyoming lawyer, and (2) allows appearances pro hac vice. The Committee’s recommendations regarding this paragraph represent a significant narrowing of the ABA’s recommendations. The ABA’s proposals encourage multi-jurisdictional practice by allowing lawyers to provide temporary services in a wide variety of situations. The Committee found the ABA’s approach unduly broad. The changes recommended by the Committee represent, instead, two types of temporary practice that have long been permitted. That is, a non-Wyoming lawyer may associate with a Wyoming lawyer in a matter that is not pending in court. When a matter is pending, the non-Wyoming lawyer may apply for admission pro hac vice.

Paragraph (d) addresses two other situations when a lawyer not admitted in Wyoming may furnish legal services. First, subparagraph (d)(1) allows a non-Wyoming lawyer to furnish services to an organizational employer, e.g., the lawyer is acting as an in-house counsel for a corporation. Subparagraph (d)(2) allows a non-Wyoming lawyer to practice as authorized by federal or tribal law, such as a patent attorney or a tribal advocate on the Wind River Reservation. Once again, the Committee believed the paragraph is consistent with existing practice and law.


Rule 5.7: Responsibilities Regarding Law-Related Services

This rule is new to Wyoming, though it was adopted by the ABA several years ago. The idea is to protect clients when a lawyer is involved in providing law-related services. (Comment [9] gives examples of such services, including financial planning, lobbying, tax preparation, and environmental consulting.) The concern is that a client generally will not know that the law-related services are not legal services and that he or she is not, therefore, entitled to all the protections of the lawyer-client relationship, such as confidentiality, avoiding conflicts of interest, etc. Unless the lawyer furnishing the law-related services makes it clear that he or she is not acting as a lawyer, (a) makes the lawyer “subject to the Rules of Professional Conduct.” Comment [7] makes it clear that the burden will be on the lawyer to show that the lawyer “has taken reasonable measures . . . to communicate” to the client that the lawyer is not acting as a lawyer, and that the client is not entitled to the protections of the lawyer-client relationship.


Rule 5.8: Employment of a Lawyer Who has been Disbarred,
Suspended, or Placed on Disability Inactive Status


This rule is new. It replaces current Rule 8.4(g). That rule prohibits a lawyer from employing a lawyer who has been disbarred, suspended, or placed on disability inactive status. The Committee is recommending the repeal of Rule 8.4(g) and its replacement with this rule. The new rule is based, in part, on a Minnesota rule (Warren Lauer and Becky Lewis collected rules from around the country and furnished them to the Committee). The major change is that Rule 5.8 allows a lawyer to employ a disbarred or suspended lawyer, or a lawyer who is on disability inactive status, for narrowly limited purposes.

Paragraph (b) establishes prohibitions on what such an employee may do. He or she may not, inter alia, “render legal consultation,” “appear on behalf of or with” a client before a tribunal or at a deposition, or have any involvement with clients’ funds.

Paragraph (c) says such an employee may only “perform legal work of a preparatory nature . . . such as legal research, the gathering of information, investigation of the case, interviewing witnesses, drafting of pleadings, briefs, and other similar documents.”

Paragraphs (d) and (e) require that the employing lawyer notify Bar Counsel when the individual begins work, as well as when he or she terminates employment.

This was one of the most difficult issues the Committee addressed. On the one hand, the Committee believed that one does not get disbarred or suspended without having committed a serious ethical violation, and punishment of that lawyer and protection of the public are paramount concerns. On the other hand, the Committee wanted to allow lawyers to hire someone who has training in performing legal services, such as conducting legal research and writing briefs. Also, the Committee was aware that completely precluding a disbarred or suspended lawyer from performing the tasks he or she was trained to perform may well eliminate any employment opportunities for that individual. The Committee believed the proposed rule balances those concerns, while still protecting the public from a lawyer who has committed a serious ethical violation.


Rule 6.1 Pro Bono Public Service

The rule is not changed. The Committee is recommending significant revisions to the comments. The revisions are largely the comments recommended by the ABA, which the Committee thought more accurately explained the rule.


Information About Legal Services

Part 7 of the Wyoming Rules addresses communications with clients and the public, in general, and lawyer advertising and solicitation, in particular. The Committee appointed a Subcommittee to review this part and recommend changes. The Subcommittee consisted of John Burman, Dick Day, Mary Guthrie, Mike Krampner, George Lemich, Becky Lewis, and Melinda McCorkle. In addition to meeting several times, the Subcommittee considered the research that Ms. McCorkle performed about the empirical effects of lawyer advertising on non-lawyers’ perception of lawyers. Remarkably, the only empirical study available suggests that lawyer advertising enhances the public’s perception of lawyers. The reason appears to be that advertising makes lawyers seem more available to the public and availability enhances their reputations. The subcommittee adopted two general principles. First, Wyoming should retain a generally restrictive approach to lawyer advertising, while taking heed of the decisions of the United States Supreme Court which permit certain types of advertising. Second, the public will be better served by allowing lawyers to advertise the areas of law in which they practice, and that in some circumstances, lawyers should be allowed to say that they have been certified as specialists.


Rule 7.1 Communications Concerning a Lawyer’s Services

This rule applies to all communications with the public or with clients. The Committee recommends that the general prohibition on false or misleading communications remain in place (the United States Supreme Court has held that states could not constitutionally prohibit advertisements which are not false or misleading).


Rule 7.2 Advertising

While retaining the generally restrictive approach of this rule, the Committee is recommending changes that appear to be more matters of taste or judgment than ethics (for example, current paragraph (f) requires advertisements to be “articulated by a voice, with no background sound or other instrumental music”). So long as the advertisements are not false or misleading, lawyers have a Constitutional right to make them, regardless of how tacky or tasteless they may be.

Paragraph (g) retains the requirement that advertisements contain a disclaimer, except as permitted by new Rule 7.4, which regulates advertising of specialties.

Paragraphs (h), (i) and (j) are either substantially simplified or eliminated. Again, the intent is to eliminate unenforceable restrictions, such as the restrictions in (i) on illustrations. The Bar has never attempted to enforce such restrictions, and they are likely not enforceable.

Paragraph (k) is recommended for elimination as it merely repeats the prohibition in Rule 7.1(a)


Rule 7.3 Direct Contact With Prospective Clients

The general prohibition on direct in-person solicitation has been retained (the United States Supreme Court has expressly allowed states to prohibit in-person solicitation of clients). The ABA has recommended, and the Committee agreed, that the prohibition should be extended to live telephone or real-time computer contact. Paragraph (c) retains the prohibition on direct mail solicitation for thirty days after an occurrence that gives rise to a need for legal services (the United States Supreme Court has upheld a state’s ban on plaintiffs’ lawyers contacting victims within thirty days of their accidents). After that time, only written contact is permissible.

The revisions to the rule are not intended to allow any contact which is now prohibited. Rather, the changes are intended only to clarify the existing rule. Most of the recommended changes to the Comments are based on the ABA’s model comments.


Rule 7.4 Communication of Fields of Practice

This is a new rule. Although Wyoming currently has a Rule 7.4, that rule becomes Rule 7.5. The proposed rule is a substantially modified version of ABA Model Rule 7.4.

The Subcommittee and the Committee focused their discussions on two issues. First, is the public better served by having more information about lawyers’ fields of practice? And second, will lawyers be better served by communicating limitations and/or specializations about their practice. Ultimately, the answer to both questions was yes.

Paragraph (a) allows a lawyer to communicate “the fact that the lawyer does or does not practice in particular fields of law.” Accordingly, a lawyer may advertise that he or she does or does not practice in a certain field of law. The disclaimer required by Rule 7.2(g) will, of course, still be required.

Paragraphs (b) and (c) reflect the tradition that patent and admiralty lawyers may advertise their unique credentials.

Paragraph (d) allows Wyoming lawyers, for the first time, to advertise that they are “certified” in a particular area of law, but only if the certifying body has been approved by the Wyoming State Bar and the name of that body appears in the communication. The Committee’s position is that some certifications mean something, such as certification as a civil or criminal trial specialist by the National Board of Trial Advocacy (The United States Supreme Court has held that a lawyer has a constitutional right to advertise that he is certified by the NBTA as a civil trial specialist). Others are meaningless, requiring only the payment of money to become a member. The former information should be communicated to the public, while the latter should not. The ultimate safeguard is the State Bar. The Committee was aware that no approval mechanism currently exists, but if one is created, the Committee was confident that it would approve only reputable organizations. This rule, in short, is designed to allow lawyers to say what they are constitutionally permitted to say–that they are certified).


Rule 8.4: Misconduct

The Committee is recommending the deletion of paragraph (g), which prohibits a lawyer from employing a disbarred or suspended lawyer. As discussed above with respect to Rule 5.8, paragraph (g) should be replaced by that rule to allow limited employment.


Rule 8.5: Disciplinary Authority: Choice of Law

This rule is substantially revised and expanded. The reason is that current Wyoming Rule 8.5 does not address the choice of law issue that arises whenever a lawyer is a member of the bar in more than one jurisdiction. The suggested rule is based on ABA Model Rule 8.5. The ABA’s Model Rule was adopted several years ago, and is now in effect in many states.
Conclusion

Although the process took longer than originally hoped, the Committee is pleased with the final product. The proposed changes are the result of the first comprehensive review of the Wyoming Rules of Professional Conduct in almost twenty years. The Committee believes the proposed changes would be a significant improvement over the current rules.

Please watch for the proposed rules’ appearance on the State Bar’s web-site and submit comments.


John M. Burman teaches professional responsibility at the University of Wyoming College of Law. If there are issues you would like to see addressed in this column, Professor Burman may be reached by e-mail at jmburman@uwyo.edu. The views and opinions expressed and included in "Ethically Speaking" are those of the author only and do not constitute an opinion, finding or viewpoint, official or unofficial, of the Wyoming State Bar or the Board of Professional Responsibility.


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