Melissa J. Lyon 2017-12-07 03:14:35
Attorneys practicing in the Rocky Mountain region play a unique role in keeping the spirit and integrity of the practice of law in the West alive. Those practicing in the area of energy and natural resources, in particular, play a special part in that pursuit; their work touches the land, animals, air, water and minerals. Not to mention that their work relates to the hard working character and grit of the people that built the West in the first place. The heritage of the “Code of the West” is an integral part of the way that we live and practice. I know many attorneys, myself included, who keep a copy of James P. Owen’s Cowboy Ethics on their desks as a constant reminder of the work ethic that drives us, the passion that we live our lives according to and the importance of our country values. Despite this, there are times when the right path is not always black and white; but as members of the Wyoming Bar, we are part of a community that allows us to call someone older and wiser for advice. Seasoned Wyoming lawyers are accessible to young lawyers —they are there to remind us of who we are and who we strive to be. They also remind us that our character is reflected not only in our actions, but in how we treat one another. Although the practice of law in Wyoming can be solitary or isolating at times, no man is an island. Experienced lawyers are there to help remind us that it is okay to depend on one another. We invest in each other; this is what it means to be part of the community that is the Wyoming Bar. While there are times when we must reach out to our community for guidance, most of us have an innate intuition about what is ethical. My grandfather would say that we each know deep down “when somethin’ just ain’t right.” To that end, there are a few ethical considerations for energy and natural resources attorneys in particular to highlight by way of a reminder. A Word of Advice: Our Advisor Role Even when dealing with clients who are sophisticated business owners, oilmen, miners, ranchers, cattlemen, etc., who have been in their industries for decades, as attorneys our role as advisor cannot be overlooked. We cannot assume that just because our clients are sophisticated that they do not want to talk through potential risks and negative consequences with us. Judge Bluemel recently hit the nail on the head when he discussed that we are counselors at law, not just attorneys who advocate for their client.1 Remember that the rules discussing our role as advisor include: • “As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications.”2 • “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.”3 Advising and counseling as to the practical implications and considerations relating to the client’s situation is crucially important, yet easily taken for granted when dealing with a very sophisticated or demanding client. At times, it can feel like because our clients are successful, they do not want to hear our advice or need to be counseled as to the law. Our role as advisor does not cease merely because this is not the client’s first rodeo. My Lips Are Sealed: Confidentiality Confidentiality – arguably, it is the most fundamentally important aspect of our relationships with our clients. It boils down to this – when in doubt, say nothing. It is also important to remember the duration of our confidentiality obligations. “The duty of confidentiality continues after the client-lawyer relationship has terminated.”4 If there were a Nike slogan for lawyer confidentiality, it would be: Just zip it. Let’s Talk: Wait, Is this Government Agency or Organization Represented by Counsel? We all know that Rule 4.2 of the Wyoming Rules of Professional Conduct prohibits us from communicating about the subject of the representation when we know that a person is represented by counsel. However, when speaking with employees of companies and government agencies, two concepts should be considered: Know who it is you are talking to. Communications are prohibited “with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter” or if that person “has authority to obligate the organization with respect to the matter or whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability.”5 How do we know if the organization is represented by counsel? We have to have “actual knowledge of the fact of the representation; but such actual knowledge may be inferred from the circumstances.”6 The trouble is, as attorneys, when we are dealing with agencies, we “know” that the state and federal government are represented by counsel.7 “As a general rule, when contacting an agency on behalf of a client, an attorney should disclose his or her identity to the government employee, disclose the purpose of the contact, and inquire as to whether the employee is represented by counsel regarding the subject matter of the communication.”8 “If the propriety of the communication is in doubt, the attorney should contact counsel for the administrative agency and request such counsel’s consent prior to the communication.”9 Spend the time to analyze whether speaking to that person is permissible and what information should be disclosed before you pick up the phone. You Can’t Know the Players Without a Roster: Read the Rules Many people forget about the Uniform Rules for District Courts and there are some gems contained in there. Obviously, we are required to be ethical under the Wyoming Rules of Professional Conduct, but we are also similarly required to be professional under Rule 801 of the Uniform Rules for District Courts. While “professionalism” is diff erent from our ethical requirements, there are also standards of professional behavior clearly articulated.10 Notably, the comments to Rule 801 explain that the very high standard of professional behavior expected from attorneys is “exemplified by candor, courtesy, civility, honesty, integrity and fairness in all aspects of an attorney’s involvement in the adjudicative process.”11 Is Rule 801 the codification of our Cowboy ethics for attorneys?! Bottom Line Practicing law in Wyoming is a gift. No matter how long you’ve been gone or where your adventures have taken you, Wyoming has a soul of her own and she always welcomes you home. Maintaining the spirit and character of the practice of law in Wyoming is the most meaningful aspect of our work. At the end of the day, no matter how things change and evolve, one thing is a constant – the integrity of the Wyoming lawyer and the sincerity of the community that is the Wyoming Bar. Remember the special role we play in keeping the spirit and integrity of the practice of law in the West alive. What we do here, what we leave here – it matters. Melissa J. Lyon was born and raised in Rock Springs, Wyoming, and has been licensed to practice law in Wyoming since 2008 and in Colorado since 2013. Ms. Lyon, a University of Wyoming and University of Wyoming College of Law alumni, practices in the area of energy and natural resources and general civil litigation. She is also the author of Fox Rothschild LLP’s Energy Law Today blog and was honored as one of the “Top Women in Energy” by the Denver Business Journal (2015 and 2016). Ms. Lyon is a proud donor to the Salt Creek Energy Excellence Scholarship benefiting students enrolled at the University of Wyoming College of Law pursuing a legal career in energy and natural resources.
Published by Wyoming State Bar . View All Articles.