Ethically Speaking
| Jurisdiction | Wyoming,United States |
| Citation | Vol. 33 No. 2 Pg. 40 |
| Pages | 40 |
| Publication year | 2010 |
Vol. 33, No. 2, 40. Ethically Speaking
Issue: April, 2010
Carl M. Williams Professor of Law and Ethics
University of Wyoming College of Law
Representing a parent in a domestic relations' case, whether a marriage . dissolution, post-divorce, or in a paternity proceeding, is one or the more common matters that a lawyer undertakes. It is also one or the most troublesome, as one's client often wants relief, usually custody, that the lawyer thinks may not be in the best interests of the child(ren) involved. The possibility is high for a conflict between a lawyer's sense of morality and the lawyer's ethical obligations to his or her client. Fortunately, at least for lawyers, that possibility can and may be reduced. This column is about how that may be done while the lawyer still fulfills his or her ethical and legal obligations to the client.
Ethical Framework
Before discussing the allocation of authority between a lawyer and the lawyer's client, it is worth knowing when and with which persons (they will be persons, and not entities, in the domestic relations context) a lawyer-client relationship exists. One reason that issue is a threshold question is "[m]ost of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so."(fn1)
In Wyoming, as in most, if not all, jurisdictions, the question of whether there is a lawyer-client relationship is not answered by the Rules of Professional Conduct ("the Rules"). Rather, "principles of substantive law external to the[] Rules determine whether a client-lawyer relationship exists."(fn2 )In short, one must look outside the Rules to determine when a lawyer-client relationship exists, and if so, what are its terms?
The Wyoming Supreme Court has made it clear that in Wyoming, a lawyer-client relationship "is contractual in nature."(fn3 )As with any contract, it may, and should, arise by express agreement of the parties, or "[i]t may be implied from the conduct of the parties."(fn4) Far too often the lawyer-client relationship arises by implication, not by express agreement (only contingent fee agreements are required to be in writing(fn5)). And while non-contingent fee agreements are not required to be in writing, the Rules say that a lawyer "shall communicate" information to the client about the scope of representation, fees, and costs, "preferably in writing...."(fn6)
Once a lawyer-client relationship has arisen, the normal allocation of responsibility between a lawyer and the lawyer's client is that the client is the predominant figure. As a legal matter, a lawyer is an agent for the client.(fn7) In any agency relationship, the agent is "subject to the principal's control."(fn8) Ethically, the situation is the same. The Rules say that "a lawyer shall abide by a client's decisions concerning the objectives of representation, and . . . shall consult with the client as to the means by which they are to be pursued."(fn9)
In the family law context, therefore (and, indeed, in any lawyer-client relationship), the lawyer is required to pursue the client's objectives, so long as those objectives are lawful and ethical.(fn10) The Rules provide for an important exception, however, that a lawyer may wish to use in the domestic relations context. That is, the lawyer and the client "may limit the scope of the representation ... if the limitation is reasonable under the circumstances and the client makes an informed decision(fn11) [about the limitation]."(fn12) That limitation may apply to the client's objectives or to the means the lawyer will use to try and accomplish those objectives.(fn13)
As discussed below, the lawyer may wish to limit the client's objectives, the means the lawyer will use, or both. For example, the lawyer may not wish to pursue the client's objective of custody when doing so seems contrary to the best interests of the child(ren) involved. Similarly, the lawyer may not want to try to accomplish the objective of custody by calling a child to testify. Either, or both, are limitations to which a client may agree, and both are consistent with the American Academy of Matrimonial Lawyers' ("AAML") "Bounds of Advocacy," which are described below.
A client's decision to limit the scope of a lawyer's representation must, as any important decision made by a client, be an "informed" one. It may be made only after the lawyer "has communicated adequate information and explanation . . . ." to the client.(fn14 )The burden, therefore, will be on the lawyer to explain the proposed limitation "to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."(fn15) And while the ABA has never addressed the issue directly, one of the Formal Opinions of the Committee on Ethics and Professional Responsibility suggests (as it should) that a lawyer's obligations to communicate with and explain matters applies to prospective clients as well as clients.(fn16)
Applying a lawyer's communicative and explanatory obligations to prospective clients makes sense, and it is consistent with the Scope to the Rules which says, "there are some duties . . . that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established."(fn17) The client's decisions about whether to enter into a lawyer-client relationship, and the terms of that relationship, should be as informed as any decisions that relate to the representation itself. The decision will not and cannot be an informed one unless the lawyer provides the information and explanation necessary to permit the client to make the decision informed. That obligation expressly applies to any limitations on the representation.(fn18) That is, the representation agreement may be limited as to objectives, means, or both if the client makes an "informed decision" to such limitation(s).(fn19)
In addition to the duty to communicate with and explain matters to prospective clients, at least one other duty, confidentiality applies and may, in the domestic relations context, leave a lawyer in an uncomfortable spot.
The majority of a lawyer's duties to a client arise only after a lawyer-client relationship has been formed. "But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established."(fn20) A lawyer who learns negative information from a parent who is a prospective client may not, therefore, generally disclose that information.(fn21) The exceptions are that Wyoming's child abuse and vulnerable adult reporting laws may require disclosing information, notwithstanding the ethical obligation of confidentiality.
Wyoming has a very broad child abuse reporting statute. "Any person who knows or has reasonable cause to believe or suspect that a child has been abused or neglected . . . shall immediately report it to the child protective agency or local law enforcement agency or cause a report to be made."(fn22) The words "any person" appear to include lawyers, making them mandatory reporters. The vulnerable adult reporting statute contains similar language.(fn23) Reporting because of a statutory duty is consistent with the Rules, which say that a lawyer may disclose confidential information "to the...
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