Vol. 30, No. 3, #2. Ethically Speaking - Communications About Legal Services Part II - the New Wyoming Rules.

• Author: Author: John M. Burman

Wyoming Bar Journal

2007.

Vol. 30, No. 3, #2.

Ethically Speaking - Communications About Legal Services Part II - the New Wyoming Rules

Issue: June, 2007 Author: John M. BurmanEthically Speaking - Communications About Legal Services Part II - the New Wyoming RulesEffective July 1, 2006, the Wyoming Supreme Court adopted comprehensive changes to the Wyoming Rules of Professional Conduct. The new rules, the first comprehensive set of changes since 1986, include important changes to Part 7, which is entitled "Information About Legal Services." It is the part that regulates lawyer communications with clients and prospective clients (extra-judicial statements about a client or a case are governed by Rule 3.6, "Trial publicity.") The rules in Part 7 were substantially revised, and a new one that addresses communications about field of practice was added. Taken together, the revised rules and the additional one represent some of the more significant changes in the rules, changes with which every lawyer needs to be familiar, as they may alter significantly how that lawyer communicates with clients, prospective clients, or both.

The last column contained a discussion of the "Constitutional Framework" for communications about legal services. An understanding of that framework is critical to understanding the rules, as the rules, especially in Wyoming, tend to be driven by the decisions of the United States Supreme Court. That is, the new rules limit lawyer advertising and solicitation to the extent permissible under the decisions of the United States Supreme Court.

Communications in General

Before addressing advertising and solicitation, which tend to get all the attention, it is worth noting that all lawyers communicate with their clients at some time, regardless of whether they advertise or solicit for new ones. Accordingly, the rules regulate all communications with clients or prospective clients, not just advertisements and solicitations. All lawyers, therefore, need to be concerned about ensuring that their communications meet the standards set forth in the Rules.

Communications may not be "false or misleading"

As discussed in the last column, the United States Supreme Court first addressed commercial speech by lawyers in Bates v. Arizona. The Court held not only that advertising by lawyers was constitutionally permissible, but that states may regulate lawyers' commercial speech, to prevent "false, deceptive, or misleading" communications. In addition, "there may be reasonable restrictions on the time, place, and manner of advertising." The Wyoming Rules reflect that holding.

Rule 7.1 governs "all communications about a lawyer's services, including advertising . . . ." In accordance with Bates, the Rule's general standard is that "[a] lawyer shall not make a false or misleading statement about the lawyer or the lawyer's services." The Rule contains four paragraphs that describe circumstances under which a statement is considered to be "false or misleading."

Paragraph (a) addresses both active and passive misrepresentations. A communication is false or misleading under the Rule if it "contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement, considered as a whole, not materially misleading." The first clause, which addresses active misrepresentations, applies to both statements of fact and law. The second clause, which addresses passive misrepresentations, applies only to statements of fact. Both parts apply to statements that are literally true, but misleading, nevertheless. A truthful statement is misleading "if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation."

Paragraph (b) focuses on the expectations that the communication creates. In particular, a communication is false or misleading if it either "creates an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate these Rules . . . or other law." The former provision has often been used to disallow advertisements or other communications about the results a lawyer has achieved for other clients, such as ads that recite the amount of prior jury verdicts. The rationale is that the circumstances of every case are so different, that even if it is true that a lawyer's clients have received large verdicts in the past, such an ad creates the expectation that such results can be achieved in cases that are not similar enough to warrant comparison.

Paragraph (c) limits comparisons. A communication is false or misleading if it "compares the lawyer's services with another specific lawyer's services unless the comparison can be factually substantiated." As it is virtually impossible to "substantiate" that one lawyer is better than another, this paragraph basically prohibits any qualitative comparisons.

Finally, paragraph (d) says that a statement is false or misleading if it "contains a dramatization prohibited by 7.2(h), a testimonial or endorsement." Rule 7.2(h) is discussed below. The use of testimonials is increasing, and at least one state supreme court (Ohio) has said that endorsements, including celebrity endorsements, are permissible. The United States Supreme Court, however, has not addressed the issue.

Communications other than advertisements or solicitations

Communications between a lawyer and a client may, and should, begin with a discussion, and ultimately an agreement, about the scope and terms of the representation. While not required by the Rules, an engagement letter, setting forth that agreement, is both easy and advisable. Furthermore, the general standards of Rule 7.1 apply to communications with new or prospective clients, i.e., communications must not be false or misleading. Accordingly, when "entering into an actual client relationship a lawyer must make fair disclosure of the basis on which fees will be assessed."

The next written communications with clients are generally correspondence and bills. As with disclosures about the basis...