Vol. 29, No. 3 #4 (June 2006). ETHICALLY SPEAKING.

• Author: Supreme Court Adopts Changes to the Wyoming Rules of Professional Conduct

Wyoming Bar Journal

2006.

Vol. 29, No. 3 #4 (June 2006).

ETHICALLY SPEAKING

WYOMING LAWYER June 2006/Vol. 29, No. 3 ETHICALLY SPEAKING Supreme Court Adopts Changes to the Wyoming Rules of Professional Conduct

By John M. Burman On April 11, 2006, Chief Justice William U. Hill signed the Order Adopting Revised Rules of Professional Conduct for Attorneys at Law.(fn1) The revisions represent the first comprehensive changes to the Wyoming Rules in twenty years. They are the culmination of a process that began over three years ago when the court appointed the Select Committee to Review the Rules of Professional Conduct ("the Committee").(fn2) The Committee was charged with examining the ABA Model Rules of Professional Conduct, the Wyoming Rules of Professional Conduct for Attorneys at Law, and other related matters, to evaluate whether it would be appropriate to recommend changes in the Wyoming Rules. The Committee issued its final report to the State Bar Officers and Commissioners ("the Commissioners") in March of 2005.(fn3) The Commissioners adopted the Committee's recommendations and directed that the proposed changes be put out to the members of the Bar for comment. Comments were due on or before July 1, 2005. After considering the comments, the Commissioners recommended some changes, which were also put out for comment. The Commissioners then made a recommendation to the Supreme Court in October of last year. After considering the recommendations, the Court issued its order adopting the recommendation in April of this year.

The Order adopting the revisions specifies that they become effective on July 1, 2006.(fn4) The Order further says that the revised rules "shall be published in the advance sheets of the Pacific Reporter, the Wyoming Reporter, and in the Wyoming Court Rules . . . ."(fn5) As the revisions are extensive, this column presents an overview of them. Subsequent articles will discuss changes in more detail.

Summary of Changes

The revised Wyoming Rules contain many important changes, which are discussed, in general terms, below. Describing all the changes will take a series of columns, and the following is intended to give lawyers a general sense of the changes and the references will direct them to those provisions of the revised rules that may require further reference. The references are to the rules as revised, which means that some of the numbers are different than in the current rules.

Preamble

The Preamble contains numerous 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 decision" are worthy of particular note.

Rule 1.6(a) says that "a lawyer shall not reveal confidential information relating to the representation of a client." The important change is the addition of the word "confidential" to that rule. The terms "confidential information" is, in turn, a defined term, which is critical to an understanding of the revised rule. "Confidential information" means "information provided by the client or relating to the client which is not otherwise available to the public."(fn6) As discussed below, this is an important change to Wyoming's rule on confidentiality. When it comes to the definition of "confidential information," the key for lawyers is to know into which category information fits. Is it confidential or not?

The nature of the representation will go far to determining whether information is "confidential." If, for example, an attorney enters an appearance before a tribunal on behalf of a client, that information is generally available to the public as most court files are open to the public. The common exceptions are juvenile cases,(fn7) commitment proceedings,(fn8) and paternity actions.(fn9) Accordingly, if an attorney enters an appearance in a public matter, the identity of the client will not be confidential as it is "otherwise available to the public." The same will be true of the contents of pleadings filed in a public matter.

By contrast, many representations do not involve the lawyer entering an appearance, e.g., estate planning, commercial transactions, etc. In such matters, the client's identity is likely "not otherwise available to the public." A client's identity, therefore, is confidential. (fn10)

Under the revised rules, many more client decisions must be in writing, including, for example, decisions to waive conflicts of interest. Accordingly, the term "confirmed in writing" is now defined. It means either a "writing by the person or a writing that a lawyer promptly transmits to the person confirming the oral informed decision."(fn11) Lawyers need to be careful to distinguish between decisions that must be "confirmed in writing," such as the waiver of a conflict for current or former government employees,(fn12) from those which require that the decision be confirmed in writing "signed by the client," such as the waiver of a concurrent conflict of interest or a conflict involving a former client.(fn13) Having a decision "confirmed in writing" when the rules require a decision in writing "signed by a client" will simply not suffice.

The term "informed decision" is defined as a "decision by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct."(fn14) The term is used throughout the rules to emphasize a lawyer's duty to explain matters to clients, and clients' right to make decisions based on adequate information provided by their lawyers.

Finally, the commentary section to Rule 1.0, the terminology rule, is all new. Significant parts of it previously existed in other places in the Wyoming Rules (Comment [2], for example, was largely taken from former Comment [1] to Rule 1.10). Adding commentary to the rule should help explain and illustrate the terminology.(fn15)

Rule 1.4 - Communication

Rule 1.4(a) has been substantially reorganized. The reorganization clarifies a lawyer's obligations to (1) have the client make informed decisions about certain matters; (2) consult with the lawyer about the means to be used to attempt to achieve the client's objectives; (3) keep the client informed about a matter; (4) comply with a client's requests for information; and (5) consult with the client about relevant limitations on the lawyer's behavior. The first four concepts were implicit in former Rule 1.4(a). The fifth was formerly codified in Rule 1.2(e).

Rule 1.5 - Fees

The rule of reasonableness now applies expressly to costs, as well as to fees. The change is consistent with a Formal Ethics opinion issued by the ABA's Standing Committee on Ethics and Professional Responsibility regarding old Rule 1.5.(fn16)

Rule 1.6 - Confidentiality of Information

As noted earlier when discussing the new definition of "confidential information," the rule on confidentiality contains a significant change. The change is to make a lawyer's duty of confidentiality apply to "confidential...