WyoLaw, LLC v. Wyo. Office of Attorney General

• Citation: 2021 WY 61
• Decision Date: 05 May 2021
• Docket Number: S-20-0148
• Court: Wyoming Supreme Court
• Parties: WYOLAW, LLC, Appellant (Petitioner), v. STATE OF WYOMING, OFFICE OF THE ATTORNEY GENERAL, CONSUMER PROTECTION UNIT, Appellee (Respondent).

2021 WY 61

WYOLAW, LLC, Appellant (Petitioner), v. STATE OF WYOMING,OFFICE OF THE ATTORNEY GENERAL,CONSUMER PROTECTION UNIT, Appellee (Respondent).

S-20-0148

SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D. 2021

May 5, 2021

Appeal from the District Court of Natrona County

The Honorable Catherine E. Wilking, Judge

Representing Appellant:

Timothy D. Elliott of Rathje Woodward LLC, Wheaton, Illinois; Timothy M. Stubson of Crowley Fleck, PLLP, Casper, Wyoming. Argument by Mr. Elliott.

Representing Appellee:

Bridget Hill, Wyoming Attorney General; Misha Westby, Deputy Attorney General; Michael T. Kahler, Senior Assistant Attorney General; Kit Wendtland, Assistant Attorney General. Argument by Mr. Wendtland.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

DAVIS, Chief Justice.

[¶1] WyoLaw, LLC filed a petition in district court to set aside an investigative subpoena served by the Consumer Protection Unit of the Wyoming Office of Attorney General ("Attorney General"). It claimed that it was not subject to the Attorney General's investigative authority, that the Attorney General lacked probable cause to support its subpoena, and that the requested documents were protected by the attorney-client privilege and the work product doctrine. The Attorney General filed a counter-petition to enforce the subpoena.

[¶2] The district court found that the Attorney General had the authority and probable cause to subpoena the information under the Wyoming Consumer Protection Act, and that WyoLaw failed to demonstrate any ground to set the subpoena aside. It thus denied the request to modify or set aside the subpoena and ordered WyoLaw to produce the requested documents. We affirm.

ISSUE

[¶3] WyoLaw presents several issues on appeal, which we rephrase as follows:

1. What constitutes probable cause for issuance of a subpoena under the Wyoming Consumer Protection Act?

2. Can out-of-state consumer complaints provide the Attorney General probable cause to issue a subpoena?

3. Was the Attorney General's subpoena supported by the required probable cause?

4. Did the Attorney General's investigation based on out-of-state consumer complaints violate the commerce and due process clauses of the United States Constitution?

5. Was WyoLaw exempt from investigation under the WCPA because it is a law firm?

6. Did the district court abuse its discretion when it ordered WyoLaw to produce the requested documents and information despite its claims of attorney-client privilege and work product protection?

FACTS

[¶4] WyoLaw, LLC, also known or doing business as Summit Law Firm,¹ is a Wyoming limited liability company. It was organized on October 31, 2017 by Traci Mears, a former Wyoming lawyer who has since been disbarred from the practice of law in Wyoming. In 2018, Ms. Mears sold her controlling interest in WyoLaw to two attorneys: Guillermo Geisse, a resident of California, and Mark Scheer, a resident of Missouri. WyoLaw remains a Wyoming-registered LLC with a registered agent in Wyoming and its mailing address and principal office in Casper, Wyoming.

[¶5] WyoLaw describes itself as a national law firm that represents clients in approximately forty-four states across the country, with 106 attorney-members in those states. It claims to provide "legal services to clients located across the United States, particularly clients who are faced with high credit card (and other) debts." Its client retainer agreement states that it "will assist [clients] with the resolution of burdensome debt" through a "debt resolution program," and that it will provide "legal services" and "non-legal services related to the implementation, management and maintenance of Client's debt negotiation plan performed under the supervision of [WyoLaw's] attorneys."

[¶6] In 2018 and 2019, the Attorney General received a number of consumer complaints alleging that WyoLaw failed to render debt resolution services as promised. These included "four (4) formal complaints and three (3) other letters and emails from consumers who contracted with WyoLaw for assistance in negotiating the settlement of their debts." The Attorney General also learned that the Better Business Bureau serving Northern Colorado and Wyoming had received numerous consumer complaints against WyoLaw and had revoked its accreditation in July 2019.

[¶7] Based on the consumer complaints, the Attorney General began an investigation into WyoLaw's activities under the Wyoming Consumer Protection Act (WCPA). As part of that investigation, it served WyoLaw with an investigative subpoena on October 11, 2019. The subpoena contained twenty-seven enumerated document requests and originally required WyoLaw to respond by December 9, 2019, but the parties agreed to extend the deadline to December 20, 2019.

[¶8] WyoLaw provided a partial response to the subpoena on December 23, 2019, responding to eight of the enumerated requests with a reservation of its rights to further object. The parties attempted to resolve their dispute concerning the subpoenaed documents, and when that failed, WyoLaw filed a petition to modify or set aside thesubpoena. In response, the Attorney General filed an opposition and counter-petition requesting that the district court enforce the subpoena.

[¶9] In support of its petition, WyoLaw argued that: (1) the plain language of the WCPA exempts attorneys and law firms from its coverage; (2) the subpoena violated the Dormant Commerce Clause of the United States Constitution; (3) the Attorney General did not have probable cause to issue the subpoena; (4) the subpoena was overbroad and created an undue burden on WyoLaw; and (5) the documents were protected from disclosure by attorney-client privilege and the work product doctrine.

[¶10] On May 7, 2020, the district court held a hearing on the matter, and on May 21, 2020, it denied WyoLaw's petition. It ruled that the Attorney General had authority under the WCPA to investigate WyoLaw and probable cause to issue the subpoena. It further ruled that WyoLaw failed to establish grounds to set aside the subpoena. WyoLaw timely appealed the district court's order.²

DISCUSSION

A. Probable Cause Under the WCPA

[¶11] The WCPA authorizes the Attorney General to subpoena witnesses or documents, and collect evidence, if it has "probable cause" to suspect that an entity has engaged in, or is engaging in, an act or practice that violates the Act. Wyo. Stat. Ann. § 40-12-112(a) (LexisNexis 2019). The district court held that probable cause, as used in the Act, means "sufficient and reasonable information to support a belief that a violation of the WCPA has occurred or is occurring." WyoLaw contends that the district court's definition is not rigorous enough. It urges this Court to instead give the term the same meaning it has in the context of a criminal search or seizure, and to apply those same principles when the Attorney General seeks to justify an investigative subpoena issued under the Act.

[¶12] The meaning the legislature intended for the term "probable cause" as used in the WCPA is a question of statutory interpretation that we review de novo. Matter of Estate of Britain, 2018 WY 101, ¶ 15, 425 P.3d 978, 982-83 (Wyo. 2018) ("This Court interprets statutes as a matter of law de novo."). "When interpreting a statute, we seek the legislature's intent as 'reflected in the plain and ordinary meaning of the words used in the statute.'" In re Interest of JB, 2017 WY 26, ¶ 12, 390 P.3d 357, 360 (Wyo. 2017) (internal citations omitted). "Where legislative intent is discernible a court should give effect to the 'most likely, most reasonable, interpretation of the statute, given its design and purpose.'" Lozano v. Cir. Ct. of Sixth Jud. Dist., 2020 WY 44, ¶ 15, 460 P.3d 721, 728 (Wyo. 2020)(quoting Sullivan v. State, 2019 WY 71, ¶ 10, 444 P.3d 1257, 1260 (Wyo. 2019)). We presume that the legislature acts with full knowledge of existing law, and that it intends new statutes to be read in harmony with that existing law and "as part of an overall and uniform system of jurisprudence." Hayse v. Wyo. Bd. of Coroner Standards, 2020 WY 4, ¶ 6, 455 P.3d 267, 270 (Wyo. 2020) (quoting Wyoming Jet Ctr., LLC v. Jackson Hole Airport Bd., 2019 WY 6, ¶ 12, 432 P.3d 910, 915 (Wyo. 2019)).

[¶13] The relevant provision of the WCPA provides:

If, by inquiry by the enforcing authority or as a result of complaints, the enforcing authority has probable cause to believe that a person has engaged in, or is engaging in, an act or practice that violates this act, investigators designated by the Wyoming attorney general may administer oaths and affirmations, subpoena witnesses or matter, and collect evidence.

Wyo. Stat. Ann. § 40-12-112(a) (emphasis added).

[¶14] Since the WCPA does not define the term "probable cause," WyoLaw contends that the legislature must have intended it to be defined with reference to existing law, which it argues consisted only of that which governs criminal searches and seizures. We disagree. The law has long recognized a difference in the Fourth Amendment protections afforded an individual subject to a search or seizure in a criminal investigation from those afforded to an agency's investigative subpoena.

[T]he Fourth [Amendment], if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.

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The requirement of 'probable cause, supported by

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