Summary of 2014 Changes to the Wyoming Rules of Professional Conduct: A Correction

By: John M. Burman

The last article which appeared here addressed the 2014 changes to the Wyoming Rules of Professional Conduct (“the Wyoming Rules”). Recent changes to the Wyoming Rules as they appear on Westlaw and the “Judicial Branch” website and some incorrect statements in the earlier article make a correction appropriate.

The earlier article correctly noted that Rule 1.0 (terminology) now includes the term “confirmed in writing.” Since that term is from the American Bar Association’s (“ABA”) Model Rules, and the Wyoming Rules as they appeared on both Westlaw and the “Judicial Branch” website, were confusing, the author made the erroneous assumption that the Wyoming Rules were the same as the ABA’s Model Rules regarding the documentation of conflicts of interest. Now that the Wyoming Rules on Westlaw and the “Judicial Branch” website (as of early May in 2015), are correct, it is clear that the Wyoming Rules are quite different than the ABA Model Rules when it comes to documenting the waiver of conflicts of interest. This “correction” makes that clear.

Rule 1.0 Terminology.

(c) “Confirmed in writing” when used in reference to the informed consent of a person, denotes 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.

Rule 1.7.  Conflicts of Interest: Current Clients.

A client’s consent to a concurrent conflict of interest (a conflict involving current clients) should be in a writing signed by the client.  Rule 1.7 (b) (4) says: “each affected client gives informed consent, confirmed in a writing, signed by the client.”

Rule 1.9.  Duties to Former Clients.

Rule 1.9 (a) and (b) (2) both use language that includes “confirmed in writing.” Accordingly, it appears that some waivers must be in a writing “signed by the client,” while others need only to be “confirmed in writing.” The Rules specify which types of waivers should be used:

1.9 (a) says: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.  For representation of another person in the same matter the former client’s informed consent confirmed in writing shall be signed by the client.”

1.9 (b) (2) contains similar language: “unless the former client gives informed consent, confirmed in writing. For representation of another person in the same matter the former client’s informed consent confirmed in writing shall be signed by the client.”

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