Ethically Speaking
| Publication year | 2005 |
| Pages | 4 |
| Citation | Vol. 28 No. 3 Pg. 4 |
Vol. 28, No. 3 #4 (June 2005). ETHICALLY SPEAKING
June 2005/Vol. XXVIII, No. 3
In December of 2003, an article entitled "Defining the Practice of Law" appeared in this column.(fn1) That article noted that the Wyoming Supreme Court had "defined the 'practice of law' broadly . . . [and p]art of the definition is vague and difficult to apply . . ."(fn2) Since then, the Court has adopted two definitions of the "practice of law," one of which is much more comprehensive and answers many of the questions previously left open, though some questions can never be answered, as the concept of "the practice of law" will always be a judgment call. The rules containing the definitions were adopted on October 28, 2004, and became effective on March 1, 2005.(fn3) Given the adoption of the new definitions, it seems appropriate to update the earlier article. Accordingly, this article is an updated version of that one.
The Rules of Professional Conduct
Lawyers in Wyoming are governed by the Wyoming Rules of Professional Conduct ("the Rules").(fn4) The Rules do not, however, define the practice of law. The only direct reference is in the commentary to Rule 5.5: "The definition of the practice of law is established by law and varies from one jurisdiction to another."(fn5) One must look outside the Rules, therefore, and examine Wyoming's substantive law to determine what is the practice of law in this state. (Although the Rules do not define the practice of law, the ABA has recommended that "every jurisdiction . . . adopt a definition of the practice of law."(fn6) The definition should include "the basic premise that the practice of law is the application of legal principles and judgment to the circumstances or objectives of another person or entity."(fn7) The ABA also recommends that each jurisdiction determine who may practice law, and in making that determination, consideration should be given to "the potential harm and benefit to the public."(fn8) Finally, the ABA created a task force to develop a model definition of the practice of law.(fn9))
The Wyoming Supreme Court recently adopted amendments to the rules that govern attorneys' right to practice law and regulate the unauthorized practice of law.(fn10) Each rule contains a definition of the "practice of law." The definitions are discussed below.
The Rules Providing for the Organization and Government of the Bar Association and Attorneys at Law of the State of Wyoming
As with the previous definition of "the practice of law," the new ones are not easy to find. They are located in Rules 11 and 11.1 of the Rules Providing for the Organization and Government of
the Bar Association and Attorneys at Law of the State of Wyoming (the Bar Rules). Rule 11 is entitled "Attorneys' right to practice law; pro hac vice admission." Section (a)(3) defines the "practice of law." A new rule (Rule 11.1) is entitled" "Unauthorized practice of law." Part (a) of the rule is its definitional section. It contains a comprehensive definition of the "Practice of
Law."(fn11)
As before, the Court has defined the "practice of law" broadly in both rules. The first definition, in Rule 11, defines "practice of law" for the purpose of describing who may practice law. The second, the one in Rule 11.1, defines the term for the purpose of describing in which activities a non-lawyer may not engage. The first definition is quite general.(fn12) The second definition is much more detailed (it contains six subparts). The reason for the specificity is apparently to make clearer what non-lawyers may not do. Both definitions encompass three general concepts (the same three concepts covered by the previous definition): (1) giving legal advice; (2) drafting legal documents; and (3) appearing and advocating for another before a tribunal.(fn13) Each is discussed in more detail below.
Lawyers spend much of their time advising others about the law. It makes sense, therefore, that the definitions of the practice of law include giving legal advice, and they do. First, Rule 11 says the practice of law includes "providing professional legal advice."(fn14) Rule 11.1 refers to "[p]reparing or expressing legal opinions . . . to obtain or secure the prevention or the redress of a wrong or the enforcement or establishment of a right."(fn15) Rule 11.1 also says that the practice of law includes "[p]roviding advice or counsel" about any of the other activities described in subparts (A) through (C) which "might be done, or whether they were done, in accordance with applicable law."(fn16) Although the rules refer to "providing advice" and "expressing legal opinions" as part of the "practice of law," the terms "advice" and "opinions" are necessarily somewhat vague - a phenomenon that is not unique to Wyoming. Defining "advising" is a problem in every jurisdiction.
The spectrum of potential advice about legal matters is very broad. It runs the gamut from telling another that one may turn right on red in Wyoming, to evaluating whether one has a valid claim for professional malpractice. It seems that the former should not result in a finding that one who has given such advice has engaged in the unauthorized practice of law and should, therefore, be subject to injunctive or other judicial action.(fn17) The latter, by contrast, seems to fall squarely within the purview of what only lawyers should be allowed to do. The question is, therefore, where to draw the line?
Wyoming Case Law
The Wyoming Supreme Court has only addressed the issue of the definition of the practice of law twice, both in cases involving allegations of the unauthorized practice of law.(fn18) While neither opinion provides a clear test, both make important points about when a person is engaged in the practice of law, and especially whether one is giving legal "advice." In addition, the Bankruptcy Court in Wyoming has considered the issue, providing more important guidance on what is the practice of law.(fn19)
Nearly sixty years ago, long before the adoption of the previous rule defining the practice of law, the Bar brought a contempt action against G. W. Hardy, alleging that he was engaged in the unauthorized practice of...
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