Office of Bar Counsel, 1015 GABJ, Vol. 39 No. 5. 10

AuthorMark W. Gifford, Bar Counsel.
PositionVol. 39 5 Pg. 10

Office of Bar Counsel

Vol. 39 No. 5 Pg. 10

Wyoming Bar Journal

October, 2016

Mark W. Gifford, Bar Counsel.

Judgment and Reasonableness as Factors in Lawyer Discipline

The preamble to the Wyoming Rules of Professional Conduct sets the table for all that follows. Early on we are told, “The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.”1 The preamble also recognizes that ethical dilemmas almost always involve tension between the various duties owed by lawyers: In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise.2

What guiding principle are lawyers to apply in solving these ethical dilemmas? The answer: “Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.”3

As I near completion of my sixth year as disciplinary counsel for the Wyoming State Bar, two basic tenets emerge from the collage of the few dozen disciplinary sanctions I have shepherded from initial complaint to disciplinary order. The first is that when reasonable minds can differ about a lawyer’s course of conduct, the lawyer is unlikely to face discipline so long as he or she can demonstrate that professional judgment was exercised. The second is that a lawyer is more likely to face discipline when his or her conduct was, by any objective measure, unreasonable.

The Importance of Professional Judgment

The Rules of Professional Conduct are comprised of 55 rules, 51 of which contain imperatives – things a lawyer “shall” or “shall not” do. However, within the text of the rules and their comments, there are a host of guidelines that help lawyers identify permissible conduct – what a lawyer “may” do.

For instance, though a lawyer “shall provide competent representation,” “[i]n an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have...

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