Vol. 28, No. 2 #4 (April 2005). ETHICALLY SPEAKING.

• Author: Committee Recommends Changes to the Wyoming Rules of Professional Conduct

Wyoming Bar Journal

2005.

Vol. 28, No. 2 #4 (April 2005).

ETHICALLY SPEAKING

WYOMING LAWYER April 2005/Vol. XXVIII, No. 2 ETHICALLY SPEAKING Committee Recommends Changes to the Wyoming Rules of Professional Conduct

By John M. Burman By Order dated March 14, 2003 ('the Order"), the Wyoming Supreme Court created the Select Committee to Review the Rules of Professional Conduct ("the Committee"). The Committee was charged with examining the ABA Model Rules of Professional Conduct, the Wyoming Rules of Professional Conduct for Attorneys at Law ("the Wyoming Rules"), which were adopted nearly twenty years ago, and other related matters, to evaluate whether it would be appropriate to recommend changes in the Wyoming Rules.

The Order directed the Committee to deliver its final report to the Wyoming State Bar Board of Commissioners ("the Commissioners"), which will be presented to the Wyoming Supreme Court after review and comment by the Commissioners and the Board of Professional Responsibility. The Committee delivered its final report to the Bar Commissioners in early March.

The final report contains the Committee's proposed revisions to the Wyoming Rules. The Commissioners considered the Final Report at their regular meeting on April 8, 2005. The Commissioners plan to post the proposed changes on the State Bar's web-site and solicit comments from members of the Bar. The Commissioners will then consider the comments before submitting a recommendation to the Wyoming Supreme Court regarding changes to the Wyoming Rules.

Membership of the Committee

The Committee consisted of 14 voting members, two ex-officio members, and a chair (who voted only in case of a tie):

Voting Members

The Honorable Randall R. Arp Vicci M. Colgan

Richard E. Day

The Honorable Jeffrey A Donnell Jon R. Forwood

Jamie Jost (Patrick)

The Honorable Marilyn Kite Kenneth M. Koski

Michael J. Krampner

Warren Lauer

George E. Lemich

Terry W. Mackey

Melinda McCorkle (who was originally the Committee's law student intern) Cheryl Ranck Schwartz

Ex-Officio Members

Mary B. Guthrie Rebecca L. Lewis

Chair

John M. Burman

Process

Beginning in April of 2003, the Committee met every two weeks, except during July and August of 2003, and August of 2004, by telephone conference (over forty times). The Committee also held two all-day meetings at the College of Law in Laramie. The Committee began with the Preamble and Scope to the Wyoming Rules and worked through the rules (and their comments) in numerical order. Several issues arose which the Committee referred to ad hoc subcommittees to consider and report back to the Committee.

First, Rule 1.15 governs lawyer trust accounts. The Committee asked Bar Counsel Rebecca Lewis to draft changes to address recurring enforcement issues. Second, the ABA Model Rules contain a rule regulating the sale of law practices (ABA Model Rule 1.17). Wyoming currently does not have a rule that addresses that issue. The Committee asked Warren Lauer to take an informal survey of members of the Albany County Bar to determine if there is a need for such a rule. Third, Rule 4.2 restricts lawyers from contacting a person who is represented by another attorney. The rule is difficult to apply to government lawyers, either those who represent agencies or those who prosecute. The Committee asked Vicci Colgan to solicit comments from the Attorney General and the United States Attorney. Fourth, Rules 7.1 through 7.4 apply to lawyers' communications, in general, and advertising and solicitation of prospective clients, in particular. The Committee appointed a subcommittee to consider advertising and solicitation. The subcommittee consisted of John Burman, Richard Day, Mary Guthrie, Michael Krampner, George Lemich, Rebecca Lewis. and Melinda McCorkle. Finally, Rule 8.4(g) of the current rules prohibits a lawyer from hiring a disbarred or suspended lawyer. The Committee asked Rebecca Lewis and Warren Lauer to collect rules from other jurisdictions.

Each time a subcommittee was appointed, it gathered appropriate materials, held meetings as necessary, and ultimately reported back to the Committee with a recommendation. The subcommittees' recommendations were then considered and modified by the Committee.

From its inception, the Committee had the assistance of a third-year law student. Anna Reeves was followed by Melinda McCorkle. They took minutes and conducted research as requested by the Committee (Melinda McCorkle, for example, researched and reported to the Committee about the empirical data on lawyer advertising). Both Anna and Melinda did excellent work. Anna graduated in May of 2003, but stayed on with the Committee until the fall of that year. Melinda graduated in May of 2004, but stayed with the Committee until it finished its work in

March of this year. Melinda's employer, Judge Brimmer, generously allowed her to continue to participate on the Committee. After she passed the Colorado bar, the Committee asked Melinda to become a voting member. After each meeting, and before the next one, Anna and then Melinda would distribute minutes of that meeting to the Committee, so there is a complete record of the Committee's deliberations. Their assistance was critical to the Committee being able to do its job.

Summary of Changes

Describing every change would be both difficult and result in a document that would be too long to be useful, and individual changes are shown in the proposed rules. The Committee is recommending important changes in several areas, and those changes are discussed in general terms below. The references below are to the Committee's proposed changes, which will be posted on the State Bar's web-site.

Preamble

The Preamble contains numerous proposed changes. Only one of them represents a significant departure from the current language. Paragraph [3] recognizes that a lawyer may "serve as a third-party neutral [which encompasses a mediator or arbitrator]," which is a "nonrepresentational role" that is very different from the representational roles discussed in paragraph [2]. Rule 2.4, discussed below, establishes ethical standards for lawyers functioning as third-party neutrals.

Rule 1.0. Terminology

Several definitions have been added or amended. The most important deletion is "consult." Three new definitions, "confirmed in writing," "confidential information," and "informed decisions" are worthy of particular note.

The ABA recommended, and the Committee agreed, that many client decisions should be in writing, including, for example, decisions to waive conflicts of interest. Accordingly, the term "confirmed in writing" is now defined to guide lawyers in obtaining written consent.

Current rule 1.6(a) says that "a lawyer shall not reveal information relating to the representation of a client." That broad definition has been narrowed by adopting a definition of "confidential information," so that Rule 1.6(a) now says that "a lawyer shall not reveal confidential information . . ." The key is the definition of "confidential information." That term means "information provided by the client or relating to the client not generally known to the public." The Committee's rationale was that a lawyer should be able to reveal information that is generally known, such as that the lawyer represents a client in a high-profile case.

The ABA suggested that states require "informed consent" before a client may waive conflicts of interest, etc. The Committee recommended replacing that term with "informed decision." The Committee's reasoning was that "informed consent" is generally associated with the medical profession, and, more importantly, "informed consent" has come to mean the perfunctory signing of consent forms, when the question of whether to consent should be a much more considered

matter. The term "informed decision" is therefore used throughout the proposed rules to emphasize a lawyer's duty to explain matters to clients, and client's right to make decisions based on adequate information provided by their lawyers.

Finally, the commentary section to the rule is all new. Significant parts of it currently exist in other places in the Wyoming Rules (Comment [2], for example, is largely taken from current Comment [1] to Rule 1.10). Generally, the Committee believed that the commentary helps to explain and illustrate the terminology.

Rule 1.4: Communication

Rule 1.4(a) has been substantially reorganized. The reorganization clarifies a lawyer's...