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NEW Rules of Professional Conduct - Effective October 6th

In a 2013 meeting, the Board of Officers and Commissioners approved the formation of an advisory committee to make recommendations for improvements to the Wyoming Rules of Professional Conduct. The Advisory Committee, comprised of Wyoming lawyers Joseph B. Bluemel, Stephen D. Easton, Mark W. Gifford, Weston T. Graham and Donald I. Schultz, conducted several months of bi-weekly conference calls, during which the committee compared the current version of the Wyoming Rules of Professional Conduct and Comments to the current version of the ABA Model Rules of Professional Conduct and Comments. The goal was to recommend revisions to update the Wyoming version where appropriate.

There have been many Model Rule revisions since Wyoming's rules were last updated in 2006. In some specifics, the Committee found good reason for Wyoming departures from Model Rule revisions, including, for example, where Model Rule revisions are unclear, untested, or have met with mixed reception in other states; where Model Rule revisions did not seem applicable to Wyoming practice; and where Wyoming Rules already set standards for lawyer conduct that are well established and better protect the interests of the public.

The committee presented its preliminary recommendations to the Board of Officers and Commissioners in April. The Board approved publishing the proposed revisions for comment by the members. After the comment period the committee reconvened to discuss additional revisions. The committee’s final report was submitted to the Board in June. The Board forwarded the committee’s final report to the Wyoming Supreme Court with a recommendation for adoption of the proposed changes. On August 5, 2014, the Court issued its order adopting the proposed amendments effective October 6, 2014.

In general, the committee's preference or default position was to recommend that the Wyoming Rules be revised to adopt Model Rule revisions in the absence of a good reason for departure. ABA model rule revisions represent the result of good thinking and craftsmanship by conscientious ABA delegates and committee members; Wyoming should benefit from those efforts. Most states follow the Model Rules with few or minor variations. Consistent wording of Wyoming Rules with the Model Rules where appropriate will facilitate teaching of good ethics in law schools and CLEs and reduce risk of confusion among practitioners associated with state-by-state exceptions. Judicial interpretations of other states' rules will be of more value to Wyoming courts and practitioners if comparisons are not complicated by minor differences of wording.

Though many of the changes are housekeeping in nature, some of the changes are substantive, including:

  • Confidentiality
    Rule 1.6 of the Wyoming Rules states that "[a] lawyer shall not reveal confidential information relating to the representation of a client," with certain exceptions. Model Rule 1.6 states that "[a] lawyer shall not reveal information relating to the representation of a client," with certain exceptions. Thus, the Model Rule prohibits a lawyer from revealing any information relating to a client, unless an exception exists. The Committee considered the Model Rule language, but concluded that this language is overly broad and unrealistic. Thus, under the committee's proposal, which is incorporated in the amended rule, an attorney's duty of confidentiality in Wyoming would continue to apply to confidential information, which would continue to be defined by Wyoming Rule 1.0(b) as "information provided by the client or relating to the client which is not otherwise available to the public."

  • Client Signature on Waivers of Conflicts of Interest
    With limited exceptions, when the Model Rules require "informed consent" for the waiver of a conflict of interest, they require the informed consent to be confirmed in writing, but they usually do not require client signatures on the confirming writing. The existing Wyoming rules often require waivers of conflicts of interest to be confirmed in a writing signed by the client. The amendments approved by the Court continue this practice of requiring client signature for waiver of conflicts in many, but not all, circumstances.

  • Lawyer Advertising
    Wyoming's existing lawyer advertising rule (Rules 7.1 and 7.2) and in particular the detailed advertising disclaimer requirement pose overwhelming enforcement challenges in this age of national media saturation. A huge number of television and print ads for lawyers from around the nation appear every day without adequate compliance - disclaimers are missing or unreadable. The enforcement complaints that come in are consistently raised, understandably, by those lawyers who take the extra care and burden to comply while competitors do not comply. On the other hand, it is not apparent that the disclaimers in practice make a meaningful difference to, or better protect, consumers. Consumer complaints that they were misled by lawyer advertising are rare. Advertising rules have also been a frequent source of burdensome First Amendment challenges in other jurisdictions. For these reasons, after much consideration, the committee recommended and the Court approved adoption of the Model Rules on advertising.

  • Special Responsibilities of Prosecutors
    The committee sought and received extensive input from criminal prosecutors and from criminal defense lawyers regarding whether to adopt Model Rule revisions to Rule 3.8. Most states that have adopted the Model Rule revisions have done so with some modifications. After considering thoughtful input received, the committee recommended and the Court approved selective adoption of some of the Model Rule revisions to Rule 3.8, including some language modifications for clarity.

  • Limited Scope Representation
    The committee came to the conclusion that conforming Wyoming Rule 1.2(c) and Comments 6 and 7 to the language of the Model Rule would best serve the objectives of the Court and the Bar in promoting limited scope representation as an appropriate means to enhance availability of legal services to those who can less afford counsel. Some of the Wyoming-specific provisions in the current version of Rule 1.2(c) have had unnecessary and unintended consequences of discouraging lawyers from engaging in limited scope representation. The amended Rule 1.2 does not contain the requirement that a notice and consent form be signed in every limited scope engagement. It is hoped that the new, less stringent rule will encourage Wyoming lawyers to engage in more limited scope representation of clients.

  • Deletion of "Intermediary"
    In 2002 the ABA deleted Model Rule 2.2 describing a lawyer's role as "intermediary." The committee recommended and the Court approved that Wyoming follow this ABA example, deleting Wyoming Rule 2.2. The concepts behind former Rule 2.2, that a lawyer could serve as a representative of multiple parties as an "intermediary" even where the parties' interests were not fully aligned - leaving the multiple clients to deal for themselves without counsel on areas where their interests remained in conflict - is not compatible with other conflict of interest rules. Lawyers can act as mediators or third-party neutrals under Rule 2.4.
The Court’s order, which contains the full text of the amendments, can be seen by clicking here.

Questions? Contact Mark Gifford at (307) 432-2106.

     

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