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Legally Speaking

 

Issue: February, 2009
Author: Sleeter C. Dover, Esq.

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An Insider's View

The generational demographics of the Wyoming State Bar indicate that 69% (2,065) of our members were born between 1922 and 1964. Of this group, 80% (1,646) are male and 20% (419) are female. Now I do not profess to be an actuary, but from anecdotal evidence, I am fairly confident that the 80% male population of our Bar born between l922 and 1964 is rapidly approaching, actuarially, a rather precarious stage of our lives. You may be interested to know that nationally, the ABA demographics are fairly representative of our own. For the record, the remaining contingents in the Wyoming State Bar, Generation X’ers, born between 1965 and 1980, come in at a total of 897 and they are followed by the Generation Y group (born between 1981 and 2000) totaling 39 members.

Having set the “demographic table,” so to speak, I now direct your attention to the newly approved and published (effective January 1, 2009) Wyoming Supreme Court Rules, and will attempt to outline some of the reasons and rationales that went into the deliberations of the Officers and Commissioners as they considered these rules changes.


Wyoming State Bar Bylaws - Membership
Article I, Section 3 (status of membership) of the Wyoming State Bar Bylaws have been completely rewritten. These changes were needed for clarification and consistency. The new bylaws make it clear as to each category of membership: the criteria, the license fee, the CLE requirements, how long a member can remain in a particular status, and what one must do to transfer back to active status from each class. In addition, the newly created status of “honorary retired” and “incapacitated” have been added. “Honorary retired” was added because retired members of the judiciary previously did not fit into any other category. The new status of “incapacitated” replaces the prior disciplinary category of “disability inactive” status. (Disciplinary Code, Section 15 is repealed). The intent here is to provide a mechanism for removing from active practice attorneys who, for whatever reason, should not continue to practice, but have not violated any ethical rules which warrant involuntary removal from practice under the previous bylaws. Through this change, the Bar will now be able to provide assistance and an avenue to address circumstances outside of the disciplinary process, where an attorney is not capable of continuing to engage in the active practice of law for as long as such circumstance exists. Again, in reviewing the demographics of our membership and from actual cases encountered over the past few years, this change in both process and philosophy adds a more positive approach for dealing with issues that are often beyond the individual abilities of members to both recognize and cope with.

Section 4(e) of the Bylaws now allows the Executive Director, rather than the Board of Professional Responsibility, to recommend termination of an attorney’s license if the attorney has not petitioned for reinstatement prior to three years from the date of an attorney’s suspension for failure to pay license fees. This also provides for an administrative process that in both theory and fact, lessens the administrative burden and avoids additional disciplinary stigma.

Similarly, the change to Section 4(f) allows the Executive Director, in consultation with Bar staff rather than with the Board of Professional Responsibility, to make the recommendation to the Supreme Court regarding a member’s request to withdraw from Bar membership. This further streamlines administrative procedures within the Bar and eliminates duplicate efforts.


Disciplinary Code for the Wyoming State Bar
The Disciplinary Code was not consistent or clear as to how long various disciplinary actions remained on an attorney’s record. Subsection (d) was added to Section 4 to specify that any order of public discipline is a permanent part of the attorney’s record. The new subsection (e) provides that private disciplinary actions will stay on the record for five (5) years and then be removed.

A new Section 9(b)(v) has been added as a compliment to the procedures for “incapacitated” status, and the change to Section 12 simply changes “disability” to “incapacitated” for consistency. As mentioned earlier, Disciplinary Code section 15 has been repealed as it would conflict with the new incapacitated status.

Several other provisions in Section 11 have been clarified for ease of understanding and to provide more specificity as to process and procedure. Rule 11(a) of the Disciplinary Code has been changed to clarify who pays for a review by the Peer Review Panel when Bar Counsel has made a decision to dismiss a case. The new change provides that the complainant is to pay those costs before the record will be prepared.

Likewise, the default procedures in Section 11(m) of the Disciplinary Code previously provided for an extra 20 days for a respondent attorney to answer a formal charge by requiring Bar Counsel to serve a notice that default will be sought if the answer is not filed within 20 days of that notice (after the initial 20 days to answer). The change will eliminate the extra 20 days so that this procedure is similar to the civil rules requiring an answer to be filed within 20 days of service. The overall goal here is to improve the administrative process and move the matter forward more efficiently.


Rules and Procedures Governing Admission to the Practice of Law
Rule 105 of the Rules for Admission to Practice has been changed to broaden the powers of the Board of Law Examiners to waive (for good cause shown) any rule relating to the admissions.


Rules of Professional Conduct for Attorneys at Law
When the new Rules of Professional Conduct were reviewed and adopted several years ago, rule 7.4(d) allowed attorneys to advertise as specialists in certain areas if guidelines were issued by the Wyoming State Bar. Since that time, the Officers and Commissioners have grappled with how to regulate such advertising. Rules from several other states were studied and several unsuccessful attempts to draft guidelines were made. It quickly became clear that many states that regulate specialties have effectively created substantial bureaucracies to evaluate certifying entities, the specialty, and the requirements for becoming certified. After much discussion and analysis, the decision was made to simply modify rule 7.4 to eliminate the portion of the rule that allowed for advertising of specialties.

So where does all this leave us? I like to think that it leaves us, in most instances, with a much better understanding of simplified and clarified rules by which to live. Of even greater note, I think we should better appreciate the long-range and pragmatic considerations of our Bar Officers and Commissioners. Not only do they clearly recognize the significant obligations and trust commitments their service requires, but they have embraced both the notion of carefully weighing any and all policies and procedures that go to the heart of fulfilling the commitment that as attorneys, we seriously accept the role and obligations of being a self-regulated profession. Yet at the same time, they have taken steps to insure that normal and natural human frailties can, and at some point will assuredly intervene in the normal course of our lives, and to that end, avenues must be available to address such matters in a sure and certain, but also rational and reasonable, way.

It is to that end that the meticulous and often frustrating review and revision of long standing rules and processes are undertaken in order to provide more appropriate and timely functionality and enlightened self-regulation.

Copyright © 2009 – Wyoming State Bar

     

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