Vol. 30, No. 5, #3. Ethically Speaking - The Duty of Communication Under the New Wyoming Rules.

• Author: Author: John M. Burman

Wyoming Bar Journal

2007.

Vol. 30, No. 5, #3.

Ethically Speaking - The Duty of Communication Under the New Wyoming Rules

Wyoming Bar Journal Vol. 30, No. 5, #3 Issue: October, 2007

Ethically Speaking - The Duty of Communication Under the New Wyoming RulesAuthor: John M. BurmanThe last three issues of the Wyoming Lawyer addressed various aspects of lawyers' communications with clients, prospective clients, or others. The April and June issues discussed the constitutional and ethical framework for lawyers' communications through advertisements and solicitation. The August issue focused on trial publicity, lawyers' so-called extrajudicial statements. Most communications between lawyers and clients, of course, do not fall into either category. They involve either a client providing information to a lawyer, or a lawyer advising the client in response to that information, legal research done by the lawyers, other information, or all three. In either event, such communications are subject to very different ethical and legal standards. In fact, unlike advertisements, solicitations, or extrajudicial statements, all of which are permissible, at least to an extent, a lawyer is ethically and legally obligated to communicate with his or her client to carry out the purposes of the representation.

Regardless of the nature of a lawyer's practice, the heart of the attorney-client relationship is communication between the lawyer and the lawyer's clients. First, the attorney-client relationship cannot even be formed without adequate communication between the prospective client and the attorney who has been contacted. Second, communication from the client to the lawyer is essential before the lawyer can even begin to formulate advice, which is always an important element, if not the critical element, of the relationship. Third, the attorney must then communicate that advice back to the client. Finally, there will likely be lots of additional communications, including bills, correspondence, copies of pleadings, and a closing letter when the matter is concluded.

Whatever the context, therefore, the duty to communicate is a functional prerequisite to the existence, the implementation, and the termination of the attorney-client relationship. It is also both an ethical and a legal duty of a lawyer.

The Ethical Duty of Communication

The Preamble to the Wyoming Rules of Professional Conduct ("the Rules) is intended to "provide general orientation" to the Rules. Among other things, the Preamble describes the various roles that lawyers play. One of them is to act as "advisor." As advisor, a lawyer "provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications." The only way to fulfill that role, of course, is to communicate with the client. And while the Preamble does not add to or detract from the Rules, which are "authoritative," it provides general guidance for the practitioner, and many of the Preamble's provisions are echoed in the Rules. One of the concepts that finds expression in both the Preamble and the Rules, themselves, is the duty of communication.

Rule 1.4 has a deceptively simple title: "Communication." The Rule is deceptively simple because that one word captures the essence of an attorney's obligations to his or her client, as well as the client's reciprocal obligation to the attorney. As all the Rules, Rule 1.4 cannot be properly understood if read alone. It must be read in context, together with Rules 1.2 and 2.1.

Rule 1.2 addresses two important issues. First, the scope of a lawyer's representation, and second, the allocation of authority between lawyers and their clients. Reflecting its contents, the Rule is entitled: "Scope of representation and allocation of authority between client and lawyer."

Paragraph (c) of Rule 1.2 says that "[a] lawyer may limit the scope of the representation . . ." The same paragraph specifies how any such limitation, on either objectives or means, should be made. Comments [6] through [9] provide additional information (and encouragement) about agreements to limit the scope of representation. Any such agreement should be the result of an "informed decision" by the client. An "informed decision" can be made only after the lawyer has fulfilled his or her obligation under Rule 1.4(b), which is discussed in detail below, to "explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." Again, communication will be the key.

Paragraph (a) of Rule 1.2 divides authority between clients and lawyers. With specified exceptions, "a lawyer shall abide by a client's decisions concerning the objectives of representation, and, as required by Rule 1.4 [discussed below], shall consult with...