Summary of 2014 Changes to the Wyoming Rules of Professional Conduct

By:  John M. Burman

By Order dated August 5, 2014, with an effective date of October 6, 2014, E. James Burke, Chief Justice of the Wyoming Supreme Court, adopted significant changes to the Wyoming Rules of Professional Conduct (“the Rules”). While a comprehensive survey of the impact of those changes is beyond the scope of this article, lawyers need to know about some of the changes. This article simply describes some of those changes. It focuses only on the fact of those changes to the Rules, and not on changes to the Preamble, the Scope, or the Comments.

Rule 1.0 Terminology.

(c) Confirmed in writing. This is a new definition for the Wyoming Rules. It is used to waive some concurrent conflicts (Rule 1.7 (b)(4)), and conflicts involving former clients (Rules 1.9 (a) and (b).  As discussed below, both Westlaw and the Wyoming rules database online (that website is called the Wyoming Judicial Branch) contain both the new and the old language.

(f) “Informed consent.” This definition replaces “informed decision,” and is used throughout the Rules (except in in Rule 1.4(b), which still uses “informed decisions.”)

Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer.

(c) the Wyoming specific language that provided for “unbundled” legal services, as well as the forms (formerly in the appendix to the Rules) has been eliminated, and replaced with the general language of the ABA’s Model Rules (“the Model Rules”), which should allow for such limitations.

Rule 1.4 Communication.

(a)(1) the term “informed decision,” has been replaced with “informed consent.”

(b) The term “informed decisions” remains; that term is also used in the Model Rule 1.4(b) (though only in this Rule).

Rule 1.5 Fees.

(f) the restriction on Wyoming lawyers paying or receiving referral fees remains, though that restriction is not part of the Model Rules.

Rule 1.6 Confidentiality of Information.

(a) the Model Rules say that a lawyer “shall not reveal information relating to the representation . . . .” By contrast, the Wyoming Rules, as of 2006, limit the obligation to “confidential information.” That term has been, and is, defined as “information provided by the client or relating to the client which is not otherwise available to the public.”[1]  That difference remains.

The permissive exceptions to Rule 1.6 (b) have been changed. They are a combination of Wyoming provisions and Model Rule provisions. Subparagraph (1) is a Wyoming provision. It allows a lawyer to disclose “confidential information” “to prevent the client from committing a criminal act.” Subparagraph (8) is also a Wyoming provision. A lawyer acting as a guardian ad litem may disclose “confidential information” “to protect the best interests” of the person the lawyer/GAL is representing. Subparagraphs (2), (3), and (7) are Model Rule provisions and are new in Wyoming. Subparagraphs (4), (5), and (6) are also Model Rule provisions, but they are not new in Wyoming.

(2) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client; or

A new paragraph (c) has been added to Rule 1.6: “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, confidential information relating to the representation of a client.” (Similar language was and is in the commentary to the Rule.)

Rule 1.7 Conflict of Interest: Current Clients.

(b)(4) A client’s consent to a concurrent conflict of interest (a conflict involving current clients) need not be in a writing signed by the client (except for conflicts under Rule 1.8 (a) which applies when a lawyer enters into a business transaction with a client). Now, the consent may be “confirmed in writing.” That term is defined as: “an informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming the oral informed consent. See paragraph (f) for the definition of “informed consent.”  If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.”[2]

Rule 1.9 Duties to Former Clients.

(a) and (b) While those both use the language “confirmed in writing,” they also, according to Westlaw and the Wyoming Rules database on the Internet, say: “confirmed in writing shall be signed by the client.”[3]

Rule 1.10 Imputation of Conflict of Interest: General Rule.

(a) Significant language has been added that permits lawyers to “screen” for some conflicts that arise under Rule 1.9 (a) or (b).

Rule 1.13 Organization as Client.

This Rule has been revised significantly, including new permissive disclosure provisions (See Rule 1.13(c)).

Rule 1.14 Client with Diminished Capacity.

(d) this paragraph, which is not part of the Model Rules, has been retained.

Rule 1.15 (Safekeeping Property) and 1.15A (Interest on Lawyers Trust Accounts Program) remain.

The former Rule, which applies to trust accounts, is very different than the Model Rule 1.15. The latter Rule, which applies to the Wyoming IOLTA program, is not part of the Model Rules. Lawyers need to read and follow the Rules closely.

Rule 2.2 has been eliminated.

Rule 3.1 Meritorious Claims and Contentions.

(c) has been eliminated, though the substance of former (c) is now in (b), and that paragraph, which basically incorporates rule 11 of the Rules of Civil Procedure in the Rules, remains. The Model Rules do not make such an incorporation.

Rule 3.8 Special Responsibilities of Prosecutor, has been revised.

Rule 4.4 Respect for Rights of Third Persons.

(c) The prohibition on using threats of criminal prosecution “solely” to gain an advantage in a civil case, which was removed from the Model Rules decades ago, has been eliminated in Wyoming. That removal, according to the ABA, means that such threats are permissible under some circumstances. See ABA Fremal Op. 92-363 (Use of Threats of Prosecution in Connection with a Civil Matter); see also J. Nick Badgerow,Rattling The Saber: The Ethics of Threatening Criminal and Disciplinary Prosecution. J. Mo. B. 13 (2005) (Discussing how other rules may apply and limit the use of such threats).

Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law.

(c) The ABA has been an advocate of multi-jurisdictional practice. Rule 5.5 (c) is the provision of the Model Rules that incorporates the ABA’s position. The Model Rules 5.5 (c) has four subparts. The new Rule in Wyoming has three of those four subparts, meaning, it appears, that practice by out-of- jurisdiction lawyers will now be easier in Wyoming.

Rules 7.1 through 7.5 (Information About Legal Services).

By adopting the communication provisions of the Model Rules, the Wyoming Rules appear to have been significantly liberalized. Since the Rules apply to all communications from a lawyer, such as bills, lawyers should review chapter 7 carefully.

The foregoing represents some of the many changes to the Wyoming Rules, but does not purport to describe their effects, beyond a few general comments.

With the changes, the Wyoming Rules now have several provisions that have no analogous provisions in the Model Rules. First, the Model Rules contain no provisions regarding guardians ad litem. The Wyoming Rules have several (1.2 (e), the last clause of 1.4 (b), 1.6 (b)(8), and 1.14(d)). Second, and perhaps most importantly, the Wyoming Rule on confidentiality, 1.6 (a), applies only to “confidential information,” as that term is defined in Wyoming Rule 1.0 (b). Third, Wyoming still limits Wyoming lawyers who wish to pay or receive a referral fee (1.5 (f)). Fourth, the Wyoming Rules on trust accounts and Wyoming’s IOLTA program (1.15 and 1.15A) are unique. Fifth, the Wyoming Rules incorporate Rule 11 (3.1 (b)). Sixth, the Wyoming Rules on multi-jurisdictional practice contain only three of the four subparagraphs recommended by the Model Rules (5.5 (c)).

There are some other differences between the Model Rules and the Rules that went into effect last October. The changes described in this article, however, will have an impact on the everyday practice of Wyoming’s lawyers.

[1]   Wyo. Rules of Prof’l Conduct, 1.0 (b) (Westlaw 2015).

[2] Id. at Rule 1.0 (c).

[3] Id. at Rule 1.9 (a) and (b)(2).

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