Office of Bar Counsel

• Publication year: 2024
• Citation: Vol. 47 No. 5 Pg. 10
• Pages: 10

Office of Bar CounselNo. Vol. 47 No. 5 Pg. 10Wyoming Bar JournalOctober, 2024

Mark W. Gifford

Mark Gifford is Bar Counsel for the Wyoming State Bar.

Rule 801(a) and Ex Parte Communication: Which Communications with a Judged Staff Violate the Rule?

Wyoming stands alone as the only jurisdiction to have a court rule that empowers district and circuit court judges to enforce standards of professional behavior on the part of lawyers who appear before them. Rule 801(a) of the Uniform Rules of the District Courts (applicable, by extension, in proceedings before the Circuit Courts; seeRule 1.02 of the Uniform Rules for the Circuit Courts) has been in effect since January 1, 2013. The rule's preamble sets the tone:

As one of the learned professions, the practice of law is founded upon principles of fairness, decency, integrity and honor. Professionalism connotes adherence by attorneys in their relations with judges, colleagues, litigants, witnesses and the public to appropriate standards of behavior. The district courts of Wyoming, in furtherance of the inherent power and responsibility of courts to supervise proceedings before them, shall hold attorneys to the following standards of professional behavior:

Here's what Rule 801(a) demands of attorneys:

• Be courteous and civil in your dealings and communications with others, whether orally or in writing.

• Be cooperative.

• Be on time.

• Return calls promptly.

• Don't use discovery as a means of harassment.

• Before getting the court involved, try to work it out with the other side.

• Don't engage in ex parte communications

The Wyoming Lawyer recently surveyed the district and circuit court judges regarding their experience with Rule 801(a). Sixty-four percent responded to the survey, a noteworthy number in this age of survey fatigue. When asked how many have had Rule 801(a) motions filed in their court, 81% responded none. When asked, "Do you believe the adoption of Rule 801(a) has had any discernable impact upon the conduct of lawyers in your court?" 52% responded yes. That figure is up from 23% who responded affirmatively when the last Rule 801(a) survey was done in November 2022.

As with past surveys, several judges commented that they believe having a rule in place goes a long way to discouraging unprofessional conduct in their courts. One commented, "As a judge I'm so thankful to have the rule and be able to point it out to litigants who aren't familiar with their responsibilities of civility to other litigants." Another offered, "I talk about the rule often and I think it being there keeps people on a more professional level." Several judges append Rule 801(a) to case management orders as a matter of course. Few judges have levied sanctions for violations of the rule.

Perhaps most eye-opening in this year's survey are comments about the following provision found in Rule 801(a)(6):

Attorneys shall not initiate any ex-parte communication with a judicial officer concerning any matter pending before the judicial officer unless such communication...