Ethics Considerations for the Environmental Lawyer By Carol E. Dinkins

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Ethics Considerations for the Environmental Lawyer

By Carol E. Dinkins

I. Introduction

Environmental practitioners confront various ethical issues of particular concern to them, and these arise for reasons ranging from substantive issues conflicts, to conflicts in multi-party CERCLA cases, to those inherent in a practice in multiple jurisdictions. The many government lawyers who practice in the environmental area also have their own concerns. Fortunately for environmental lawyers, ethics rules are not stagnant and do, from time to time, move to account for changes in the nature of the profession. Also, fortunate for environmental lawyers in private practice, those who provide their professional responsibility coverage report few claims in this practice area.

II. Overview of Recent Developments

The American Law Institute (ALI or the Institute) adopted its Restatement of the Law Governing Lawyers (Third), a noteworthy endeavor for many reasons, not the least of which is that the Institute has not otherwise, and almost certainly will not in the future, focused on any other specific vocation. The Restatement was initially conceived over fifteen years ago and took some thirteen years in preparation. Ethics codes generally follow the form of statutes or a regulation. The Restatement, on the other hand, looks to decisions, and it goes well beyond the codes in addressing civil liability for malpractice.

The American Bar Association (ABA) in 1969 adopted the Model Code of Professional Responsibility and in 1983, the Model Rules of Professional Conduct. In 1997, the ABA established the Commission on Evaluation of the Rules of Professional Conduct (Ethics 2000) for comprehensive review of, with an eye toward proposing revisions to, the Model Rules. The Commission chose to propose to refine, not overhaul, the Model Rules.

The policy-making body of the ABA, its House of Delegates, beginning at its Annual Meeting in August of 2001 in Chicago, and concluding at its February 2002 mid-year meeting in Philadelphia considered the recommendation of Ethics 2000, and made a number of changes to the Model Rules. Of particular interest to environmental practitioners are the changes related to conflicts of interest and the amended crime/fraud exceptions to the duty of confidentiality. Because these are, indeed, only Model Rules, each state now must consider whether and, if so, how it will incorporate these changes into its own governing rules of professional conduct. As of May 17, 2006, eight states n1 were reviewing the application of the Ethics 2000 recommendations to their state rules of professional conduct, and seventeen states n2 and the District of Columbia had issued reports on proposed revisions for public comment or for review by their state supreme courts. In twenty-four states, n3 the state supreme courts have already approved rule amendments based on the Model Rules. As of May 17, 2006, Alabama had no review pending.

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n1 Georgia, Hawaii, Kentucky, Massachusetts, New Mexico, Tennessee, Texas, and West Virginia.

n2 Alaska, California, Colorado, Connecticut, Illinois, Kansas, Maine, Michigan, Missouri, New Hampshire, New York, Ohio, Oklahoma, Rhode Island, Vermont, Washington, and Wisconsin.

n3 Arizona, Arkansas, Delaware, Florida, Idaho, Indiana, Iowa, Louisiana, Maryland, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, Virginia, and Wyoming.

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In August of 2002, the ABA House of Delegates amended the Model Rules on multi-jurisdictional practice (MJP). As of May 2, 2006, twenty-six states n4 had adopted the language of Model Rule 5.5 in whole or in part, and adoption was pending in five other states. n5 Thirteen states n6 were still considering the application of the ABA's revisions to their own rules. Four states n7 and the District of Colombia, through their MJP committees, recommended adoption of a rule identical or similar to Model Rule 5.5. On January 12, 2004, Connecticut declined to adopt a rule similar to Model Rule 5.5. Oklahoma has made no provisions for multi-jurisdictional practice in its proposed rules.

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n4 Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Maryland, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oregon, Pennsylvania, South Carolina, South Dakota, Utah, and Wyoming.

n5 Illinois, Michigan, Montana, New Hampshire, and Washington.

n6 Alabama, Alaska, Hawaii, Kansas, Kentucky, Maine, Massachusetts, Mississippi, Rhode Island, Tennessee, Texas, Virginia, and West Virginia.

n7 New York, Ohio, Vermont, and Wisconsin.

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States' regulation of the unauthorized practice of law (UAL) must be considered in the context of MJP, and states tend not to make much of a distinction between non-lawyers and lawyers not admitted in the state.

The Restatement standard at Section 3 is quite sensible and would align disciplinary rules with modern reality:

ยง 3 Jurisdictional Scope of the Practice of Law by a Lawyer

A lawyer currently admitted to practice in a jurisdiction may provide legal services to a client:

(1) at any place within the admitting jurisdiction;

(2) before a tribunal or administrative agency of another jurisdiction or the federal government in compliance with requirements for temporary or regular admission to practice before that tribunal or agency; and

(3) at a place within a jurisdiction in which the lawyer is not admitted to the extent the lawyer's activities arise out of or are otherwise reasonably related to the lawyer's practice under Subsection (1) or (2).

The MJP Commission work was preceded by that concerning multi-disciplinary practice (MDP). In August of 2000, the House of Delegates of the ABA voted three to one not to amend the model rules governing multi-disciplinary practice.

III. Client Relationships

These can arise in numerous ways, as they can for any practitioner.

A. Before the Beginning

Today many prospective clients conduct beauty contests to select counsel, and these opportunities create various ethical considerations, especially where the lawyer ultimately is not engaged. There are issues of confidentiality and prospects of creating conflicts that could cause very serious problems. These issues are addressed in Section 15 of the Restatement.

Although somewhat dated because of recent developments, Dorothy Glancy's article, Prospective Client Interviews, ABA, Section of Natural Resources, Energy, and Environmental Law, 27th Annual Conference on Environmental Law at Keystone, Colorado, March 1998, thoughtfully analyzes the ethical issues inherent in beauty contests, and her treatment of these issues will start the practitioner on a well-marked path to avoid ethical pitfalls.

B. Multiple Representations

1. This situation commonly occurs in CERCLA matters. Usually counsel represents clients in the same type of circumstances--transporter, small-or large-quantity generator diposer, or de minims generator. This is an area where multiple informed consent must be sought, and most clients are quite sophisticated about these types of representations. The State Bar of Michigan Opinion No. R-16 (1993), remains one of the best treatments of this issue. See also, Patrick Donovan, Comment, Serving Multiple Masters: Confronting the Conflicting Interests that Arise in Superfund Disputes, 17 B.C. Envtl. Aff. L. Rev. 371 (Winter 1990); and David Littell, "Consent and Disclosure in Superfund Negotiations: Identifying and Avoiding Conflicts of Interests Arising from Multiple Client Representation," ABA/SONREEL 23rd Annual Conference on Environmental Law (Keystone Conference, March 10-13, 1994).

2. Ethical considerations also attend this situation in criminal investigations, although prosecutors generally disfavor defense counsel representing multiple clients in an investigation. See Stanley Arkin, Ethical Issues Raised During Criminal Defense Representation: Environmental Cases (409 PLI/Lit 279, West 1996). Given the prospect that multiple representation, joint defense agreements or common interest arrangements can pose difficulties for counsel to an organization when cooperation with government investigators is the chosen policy, careful evaluation is needed. Once such an arrangement exists, waivers of confidentiality are necessary for counsel to share any information with the government, even if exculpatory for the organization.

In the course of a grand jury investigation, a number of individuals may need advice of counsel either because they are targets, subjects or witnesses or their files are seized or subpoenaed. Given the complexity and sheer expense of defending a company and individuals in the course of a grand jury investigation, it usually is preferable for a single counsel to represent multiple clients. It is exceedingly difficult to develop the facts and then to develop and pursue a coherent defense strategy if a single investigation spawns a large number of defense counsel. Additionally, given the scope and length of a grand jury investigation, it soon becomes quite expensive for a company to pay the fees and expenses of multiple counsel. A corporation, under the law in most states, can pay attorney's fees for its employees and officers. The attorney will then evaluate whether the corporation's interests conflict with those of the company employee or official and, if that may be the case, whether the client can waive the conflict. See Code of Professional Responsibility, EC 5-22, 5-23. Other issues arise in this context, such as government grants of immunity, the potential for the in-house law department to be implicated in the investigation, and the duty of the court and counsel to advise the client of the consequences of potential conflicts of interest. For an excellent discussion of these issues, see Mickenberg, Grand Jury Investigations: Multiple Representation and Conflicts of Interest in Corporate Criminality Cases, 17 Crim. Law Bull. 5 (1981).

As noted above, the government generally disfavors multiple representation, given the prosecutor's concern that the defense can "stonewall" the grand jury, whereas defense counsel is concerned about the prospect of conflicts. As one writer observed, "there is, then, constant tension between the clear Sixth Amendment mandate of the right to counsel and the implied right to counsel of one's own choice, a right some infer from case law." Thompson, Multiple Representation: An Unneeded Sideshow in Complex Prosecutions, Nat'l Env. Enf. J. 3 (Oct. 1990).

Usually counsel to an organization must interview various employees, managers and executives to determine what happened, to provide information on which to evaluate the strengths and weaknesses of the case, and to assure the basis on which to render advice about whether to seek a disposition short of trial. Counsel should give a corporate Miranda to avoid later facing assertion that the interviewee thought corporate counsel also served as individual counsel.

The attorney-client privilege lies with the corporation in this instance and does not protect what corporate officials and employees say to counsel representing the corporation if the corporation elects to waive the privilege and disclose what was learned from the corporation's employees. Counsel for the corporation generally will explain this at the outset of interviews with employees if they are thought to possess knowledge that puts their personal conduct or omission at risk. Additionally, counsel generally will advise the employees that their discussions are voluntary and they are not compelled to cooperate, and that they may engage their own counsel to advise them. See Gallagher, Legal and Professional Responsibility of Corporate Counsel to Employees During an Internal Investigation for Corporate Misconduct, 6 The Corp. L. Rev. 3 (1983).

In 1999, Eric H. Holder, Jr., then U.S. Deputy Attorney General, issued a memorandum to federal prosecutors providing guidance as to what factors they should consider when determining whether to bring charges against a corporation. Holder suggested that prosecutors not treat corporations leniently because of their status as artificial persons. He proposed that in determining whether to bring charges, prosecutors should consider the following: the nature and seriousness of the offense, the pervasiveness of wrongdoing within the corporation, any history of similar conduct, the timely and voluntary disclosure of wrongdoing and willingness to cooperate, the existence and adequacy of the corporation's compliance program, any remedial actions undertaken, any collateral consequences including disproportionate harm to shareholders and innocent employees, and the adequacy of non-criminal remedies. In 2003, then U.S. Deputy Attorney General Larry D. Thompson expanded upon and reissued the Holder memorandum to advise that, in addition to the factors already suggested, prosecutors should consider whether the prosecution of individuals responsible for the corporation's malfeasance renders charging the corporation itself redundant or otherwise unnecessary.

Notably, the U.S. Sentencing Commission recently amended its guidelines, omitting commentary suggesting that waiver of the attorney-client privilege is in some instances a prerequisite for credit at sentencing. The change will go into effect on November 1, 2006, unless Congress votes its disapproval. See Carter, Privilege Waiver Policy Dumped, ABA Journal E-Report (April 14, 2006), available at

IV. Crime-Fraud Exceptions to Confidentiality

This issue is of particular concern to the environmental lawyer, given the types of information that can be learned in the course of representation.

A client may find, perhaps through conducting an environmental audit, that its facility is not in compliance with the law. The client may intend to continue to operate in violation of the law. Given the strict liability nature of the environmental law and the many criminal sanctions, counsel must be especially mindful of Model Rule 1.2(d), which prohibits a lawyer from assisting a client in the commission of a crime.

In the same vein Model Rule 1.6, which addresses confidentiality of information, permits but does not require disclosure of information related to the representation of a client to prevent reasonably certain death or substantial bodily harm. Additionally, Model Rule 1.6 allows disclosure to prevent a client from committing a criminal act that is likely to result in substantial injury to the financial interests or property of another when related to and in furtherance of matters on which the client has used or is using the lawyer's services. n8 Counsel can, however, discuss with the client the consequences of its activities and counsel on good faith efforts to determine validity, scope and application of the law under the circumstances at hand. But Model Rule 1.16 requires counsel to decline or withdraw if "the representation will result in violation of the rules of professional conduct or other law . . . ." (Counsel then must look to the rules concerning termination of representation.). For a thorough treatment of this issue, see Krakow and Ephron, The Ethics of Disclosure in the Environmental Arena, ALI/ABA Criminal Enforcement of Environmental Laws, 1994 (West 1996).

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n8 See Model Rule 1.6 for additional exceptions to the duty of confidentiality.

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V. Environmental Lawyers in Government

Commentators to Section 97 have asserted that representation of a governmental client differs from that of a client in private practice in several ways. First, a lawyer representing a governmental client must consider that one of her client's goals is the pursuit of the public interest. Second, government lawyers and non-governmental lawyers serving governmental clients often face a greater degree of legal constraint than lawyers in private practice or serving private clients. Third, a government lawyer may enjoy a greater degree of power than that exercised by a non-government lawyer (e.g., a lawyer serving as a state attorney general or prosecutor wields an incredible amount of discretionary power). Yet, she may also be held to a higher standard of conduct in order to maintain the public's trust in government.

Fourth, a government lawyer is protected from dismissal, demotion, and certain other negative actions if such actions are based solely on his political leanings or party support, while a non-government lawyer may be discharged by a client without cause. A government lawyer, however, must work to advance her governmental client's lawful objectives competently and diligently even if she disagrees with her client's political inclinations. Yet, courts have also emphasized that a lawyer representing a governmental client must seek to protect and advance the "public interest" but have hesitated to provide additional direction. Note that a lawyer employed or retained by the government to represent a governmental official who is being sued in his public capacity is subject to Section 97. A lawyer who is retained by such an individual personally has that individual as a client, whether the individual is being sued in her public capacity or private.

Government lawyers may at times experience some difficulty in determining who exactly their client is. As a government lawyer may be considered by some as representing "the public" and by others as representing the federal government or a particular agency, identifying the client can become a tricky matter. Commentators to Section 97 stress that in cases involving inter-agency disputes, a lawyer should consider himself as representing the particular agency for which he works and as operating under the direction of that agency's officials.

VI. Multi-Jurisdictional Practice

Given that environmental law predominantly is federal law with state analogs, this is an issue of great interest to the environmental lawyer. EPA enforcement actions often are attended by state actions of various kinds and resolution of one may implicate issues in the other. Additionally, EPA's multi-media, multi-facility, industry sector enforcement initiatives often cover multiple facilities in multiple states and regions and the conduct of due diligence in a large acquisition or merger almost certainly cannot stop at state borders.

The ABA changes concerning multi-jurisdictional practice amend Model Rules 5.5, 8.5, 6, and 22. They, among other things, seek to identify circumstances in which a U.S. lawyer may practice law in another jurisdiction, including:

1. With local counsel;

2. When admitted pro hoc vice;

3. In ADR; and

4. On non-litigation work.

They also address standards relating to a lawyer who is an employee of the client, discipline, and admissions pro hac vice and on motion.

VII. Ethical Guidelines for Settlement Negotiations

The ABA Litigation Section prepared a set of guidelines that were adopted by the House of Delegates during its annual meeting in August 2002. These guidelines address many ethical issues necessarily implicated in the settlement process and are designed to assist counsel in ensuring that conduct in the settlement context is ethical.

VIII. Conclusion

Ethical considerations for the environmental lawyer are an integral part of the practice, and guidance appears to be evolving in helpful ways. Practitioners should mind the pending and developing proposals for change, and provide comment on them whenever an opportunity arises to affect opinion leaders and others who can affect change.

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