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Legally Speaking

 

Issue: October, 2005
Author: John M. Burman

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Ethically Speaking - Who May Practice Law in Wyoming?

This column recently addressed the issue of what is the practice of law in Wyoming, and it has addressed the related issue of the duties of lawyers who are admitted pro hac vice and the local counsel with whom they associate. It has never, however, focused on the general question of “Who may practice law in Wyoming?” While the answer may seem obvious–Wyoming lawyers may practice law in Wyoming–there are some exceptions and refinements to that generally true statement that are worth discussing. Accordingly, that question is the topic of this column.

The General Rule

The law is clear. “Only active members of the Wyoming State Bar may engage in the practice of law within this state.” A similar rule applies in federal courts in Wyoming. “Attorneys who are regularly admitted and licensed to practice before the Supreme Court of Wyoming may be admitted to practice in the United States District Court for the District of Wyoming upon motion . . .” Both the state and federal rules contain important exceptions.

The Exceptions

The rule which governs who may practice law in Wyoming is Rule 11 of the Rules of the Supreme Court of Wyoming Providing for the Organization and Government of the Bar Association and Attorneys at Law of the State of Wyoming (“the Bar Rules”). That rule, which is entitled “Attorneys’ right to practice law; pro hac vice admission,” was recently amended. A new rule, Rule 11.1, was also added. As amended, Rule 11 contains two exceptions that allow persons who are not Wyoming lawyers to appear as advocates and not be engaging in the unauthorized practice of law. New Rule 11.1, which is entitled “Unauthorized practice of law,” lists four more. The local federal rules echo the exception for attorneys to appear pro hac vice, and the constitutions of Wyoming and the United States both entitle a criminal defendant to appear pro se.

There are two general exceptions to the prohibition on non-Wyoming lawyers practicing law in Wyoming. First, “[m]embers of the bar of any other state, district or territory of the United States may be admitted to practice pro hac vice . . .” Admission pro hac vice is discussed in more detail below. Second, “[a]ny person may act pro se in a matter in which that person is a party.” Appearing pro se is also discussed below. Those exceptions are consistent with the Uniform Rules of District Courts for the State of Wyoming. Furthermore, they are consistent with federal law.

The third exception is that a person may appear “as an advocate in a representative capacity” before any tribunal “when such conduct is authorized by Wyoming Supreme Court rule,” or any federal, state, or local law. Fourth, a non-lawyer may perform acts “which would normally be construed as the practice of law” if such acts “are performed under the supervision and control of an attorney . . .” Fifth, “partnerships . . . and sole proprietorships may appear through the owners” pursuant to Rule 101 of the Uniform Rules for District Courts. Finally, while other legal entities must normally appear through an attorney, “in small claims actions” non-lawyers may appear on behalf of an entity.

Lawyers Admitted Pro Hac Vice

“Members of the bar of any other state, district or territory of the United States may be admitted to practice pro hac vice . . .” An attorney who wishes to be admitted pro hac vice to appear before the Wyoming Supreme Court must comply with W.R.A.P. 19.0; a lawyer who wishes to appear in state district court must follow Rule 104 of the Uniform Rules of District Court (that rule also applies to Circuit Courts); a lawyer who wishes to appear in federal court must adhere to Local Rule 83.1.12(b), regarding civil cases, and Rule 61.1 of the Local Rules of Criminal Procedure, regarding appearances in criminal cases. The duties of lawyers admitted pro hac vice and the local lawyers with whom they associate were previously discussed in this column.

The only non-Wyoming lawyers to whom the pro hac vice rules do not apply are “employee[s] of the Justice Department who [are] appearing solely on behalf of the United States so long as 28 U.S.C. §§ 515-519, 28 U.S.C. § 530B or similar laws are in force.” Such lawyers may appear only in the United States District Courts for the District of Wyoming without complying with the pro hac vice rules.

A non-Wyoming attorney who wishes to appear in the Wyoming Supreme Court “must seek admission pro hac vice upon a motion made by local counsel . . .” “Local counsel” is “an active member of the Wyoming State Bar.” An attorney seeking admission pro hac vice must comply with Rule 11 (those requirements are discussed below). In addition, the non-Wyoming lawyer must associate with local counsel, and local counsel must play an active part in the appeal. “Unless excused by the court, local counsel must sign all papers filed, be present in court during all proceedings in connection with the case, and have full authority to act for and on behalf of the client(s) in all matters in connection with the case.” Finally, an attorney who is admitted pro hac vice “consent[s] to the . . . disciplinary jurisdiction by the court over any alleged misconduct which occurs during the progress of the case.”

Admission pro hac vice to a Wyoming State District or Circuit court is identical to admission to the Wyoming Supreme Court. First, a Wyoming lawyer (“local counsel”) must move the admission of the non-Wyoming attorney “to appear in a specific matter in a Wyoming trial court; the motion must be in accordance with Rule 11.” Second, local counsel must take an active role in the matter. “Unless otherwise ordered, a motion to appear pro hac vice may be granted only if the applicant . . . associates with local counsel, who must participate in the preparation and trial of the case to the extent required by the court.” Finally, an attorney admitted pro hac vice “consent[s] to the exercise of disciplinary jurisdiction by the court over any alleged misconduct which occurs during the progress of the case . . .” The attorney is also subject to “the Rules of Professional Conduct [and] the Disciplinary Code for the Wyoming State Bar . . .”

Rule 104 spells out three obligations of local counsel: (1) “move the . . . admission” of the non-Wyoming attorney; (2) sign all pleadings and “continue in the case unless another local counsel is substituted;” and (3) “be present in court during all proceedings in connection with the case, unless excused, and have full authority to act for and on behalf of the client in all matters, including pretrial conferences, as well as trial or any other hearings”

Rule 11 of the Bar Rules applies to admission pro hac vice. An attorney applying for such admission must be “a member [in good standing] of the bar of any state, district or territory of the United States.” “Local counsel” must be “an active member of the Wyoming State Bar, who has associated with” the attorney seeking admission.

Whether to grant a motion for admission pro hac vice is “discretionary” with the court to which the motion is made. In deciding how to exercise its discretion, the court “may consider any information it considers relevant . . .” Appropriate considerations include whether the attorney seeking admission:

(A) is familiar with Wyoming rules of evidence and procedure, including applicable local rules;
(B) is available to opposing parties;
(C) has particular familiarity with the legal affairs of the party relevant to the case;
(D) complies with the rulings and orders of the court;
(E) has caused delay or been disruptive; and
(F) has been disciplined in any other jurisdiction within the prior seven years.

An application for admission pro hac vice must be “on a form prescribed by the Wyoming State Bar.” It must include “certificate(s) of good standing,” from the jurisdiction(s) where the applicant is admitted, and be accompanied by an “application fee, determined by and payable to, the Wyoming State Bar.” The current fee is $250.00.

Just as non-Wyoming lawyers have no right to admission pro hac vice, that admission “may be revoked by the court or tribunal upon its own motion or the motion of a party if, after notice and a hearing, the court or tribunal determines that admission pro hac vice is inappropriate.” Revocation is appropriate “if the court or tribunal determines that the process is being used to circumvent the normal requirements for the admission of attorneys to the practice of law in this state.”

The same general procedures apply in federal court in Wyoming. Local Rule 83.12.2. governs admission pro hac vice in civil matters. As in state courts, a non-Wyoming attorney may be admitted pro hac vice upon motion made by a Wyoming lawyer, which must be filed with an affidavit from the attorney seeking admission. Appendix E to the Local Rules specifies the information which must be included in the motion and attorney’s affidavit. The motion is to be granted only if the attorney seeking admission “associates with a currently licensed member of the Bar of the State of Wyoming and of this [federal] Court who shall participate in the preparation and trial of the case to the extent required by the Court.” Finally, the attorney so admitted “consents to the exercise of disciplinary jurisdiction by [the federal] Court over any alleged misconduct which occurs during the progress of the case.” The rule is similar regarding criminal matters.

A non-Wyoming attorney may be admitted pro hac vice in a criminal matter in federal court upon motion of a Wyoming lawyer, filed with an affidavit from the lawyer seeking admission. Appendix A to the Local Rules identifies the information that must be in the motion and the affidavit. As in civil cases, the motion may be granted “only if the applicant associates with a currently licensed member of the Bar of the State of Wyoming and this Court who shall participate in the preparation and trial of the case to the extent required by the Court.” Finally, an attorney so admitted “consents to the exercise of disciplinary jurisdiction” by the federal court in Wyoming.

In Wyoming, admission pro hac vice is limited to “a specific matter in a Wyoming trial [or appellate] court . . .” The same is true in federal courts in Wyoming. This approach is somewhat more restrictive than recommended by the American Bar Association.

The ABA Model Rules adopted in 2002 broaden the concept of pro hac vice to non-litigation matters that “are reasonably related to the lawyer’s practice . . .” in another jurisdiction. The ABA’s model has not, however, been adopted in Wyoming, though it may be (the Wyoming Supreme Court is currently considering amendments to the Wyoming Rules of Professional Conduct). In the meantime, admission pro hac vice in Wyoming remains limited to matters in litigation.

Proceeding Pro Se

The other major exception which allows a non-Wyoming lawyer to appear before a tribunal is that “[a]ny person may appear, prosecute or defend any action pro se.” While the right to appear pro se generally exists because of court rules, the right to appear pro se in a criminal matter is guaranteed by both the United States and Wyoming Constitutions.

The right to appear pro se, regardless of the type of proceeding, is limited to natural persons, except that partnerships or sole proprietorships may appear through their owners. Other entities must appear through lawyers, except in Small Claims Court. Lawyers who represent business entities or other organizations are subject to and must pay special attention to Rule 1.13 of the Wyoming Rules of Professional Conduct, “Organization as Client.”

Summary

Preventing non-lawyers from practicing law has both economic and other justifications. The economic benefit is obvious. By controlling who may practice law, lawyers have “a monopoly over a vast area of regulation and activity that extends far beyond courtroom litigation.” By controlling the number of persons who may perform legal services, the supply side of the supply and demand equation remains tilted, at least somewhat, in favor of lawyers (although the explosive growth in the number of lawyers in recent decades has had a significant impact).

More importantly, lawyers are often retained to perform vitally important tasks, involving the life, liberty, or property of their clients. Restricting the practice of law to persons trained and licensed to perform those tasks, and subject to both ethical and legal strictures, “protects the public against rendition of legal services by unqualified persons.” Perhaps just as importantly, a person harmed by a lawyer’s providing inadequate services has remedies. The injured person may file a grievance based on a lawyer’s unethical conduct, a malpractice case based on the lawyer’s failure to live up to the standard of a reasonable lawyer in Wyoming, or both. In a criminal case, a convicted individual may seek direct or post-conviction relief on the basis that his or her lawyer failed to provide effective assistance of counsel, under the Sixth Amendment to the United States Constitution, Article One, Section Ten of the Wyoming Constitution, or both.

A non-lawyer must not only avoid the practice of law, he or she must be careful not to even create the impression of being able to do so. “It shall be unlawful, and punishable as contempt of court, for any person not a member of the Wyoming State Bar to hold himself out or advertise by whatever means as an attorney or counsellor-at-law.” The Wyoming Supreme Court maintains an Unauthorized Practice of Law Committee to police this restriction. The committee is to “receive complaints alleging the unauthorized practice of law . . . investigate those complaints and initiate litigation in the district court for injunctive relief and/or criminal contempt proceedings.”

While it is easy to say that non-lawyers may not practice law, it is much more difficult to say what that really means. As discussed in the June issue, it is difficult to define the practice of law in a useful way, though recent amendments to Wyoming’s rules provide some helpful guidelines.

Copyright © 2005 – Wyoming State Bar

     

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