Ethics (wake up!)
Republished from ABA Trends, Section of Environment, Energy and Resources Newsletter – Vol. 49 No. 3
Mary Ellen Ternes is a partner with Earth & Water Law, LLC. She is a past chair of the ABA Section of Environment, Energy, and Resources’ Ethics Committee and moderated the 25th Fall Conference’s ethics panel. As a former chemical engineer in emergency response and chemical treatment for EPA and industry, Mary Ellen focuses on complex technical issues arising under environmental and administrative law for a broad range of clients from her office in Oklahoma City, Oklahoma.
These days it’s hard to turn on the TV and face reporting riddled with logical disconnects, uncertainty, perpetual investigations, and massive leaks, some resulting in literal explosions. These current trends impact our practice as lawyers, as well, and were the focus of the ethics panel discussion at the Section of Environment, Energy, and Resources’ 25th Fall Conference, summarized below. Attendees can download the conference proceedings and review the ethics panel paper for more in-depth discussion.
Everything is in flux—watch that multijurisdictional practice
With client transactions multiplying in response to the new normal, we need to be comfortable with the rules of multijurisdictional practice, see Model Rule of Professional Responsibility 5.5, as well as competence, see Model Rule 1.1 and communications, Model Rule 1.4(b). As presented by Basheer Ghorayeb of Winston & Strawn LLP, attorneys licensed in a single state should be careful where a client’s issues arise in another state and trigger application of that specific state’s law. It helps if you know the client well and the client is based in your state, but representing a client regarding state-specific issues in a state where you are not licensed could result in the unauthorized practice of law. While these rules seem easily solved in litigation matters with a motion for pro hac vice, what are your limitations in attempting to settle the claim before it is filed? Be careful, and see the recent case In re Charges of Unprofessional Conduct in Panel File 39302, 884 N.W.2d 661 (Minn. 2016), where an attorney tried to help his parents settle a case in another state via email and was sanctioned for the unlicensed practice of law. In-house counsel must consider these same questions and should consult their state rules, which vary, while transactional attorneys should consult Model Rule 5.5. Comment 14, which emphasizes the nature of the attorney’s relationship with the client. For a list of states that have adopted Rule 5.5, see https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/quick_guide_8_5.authcheckdam.pdf.
With environmental non-profit organizations’ coffers filling quickly, investigation scenarios may become more common. As presented by Michael T. Kirkpatrick of the Public Citizen Litigation Group, how would you advise an environmental nongovernmental organization staff member who wants to investigate an alleged bad actor undercover by applying to work at the facility to gather video or audio evidence? Could you even assist? Considering the rules regarding scope of representation, Model Rules 1.2(d), organizations, 1.13, and duties to third persons, 4.4, ask whether the activity would even be legal, i.e., whether your state is a one party or all-party consent state, and whether the illegality could be imputed to the organization. Be careful as well, if tempted to suggest such an activity to your client, unless you are sure it would be legal, and even then, consult your local rules. It could be helpful if the staff member intends merely to later testify, where authorities appear to accept the need for deception to facilitate an investigation. See e.g., Oregon Rules of Professional Conduct 8.4(b).
The client’s narrative
What can we say when we doubt our client’s “truth”? Often clients will ask their attorneys to issue statements, to the public or in the course of representation, where sometimes the truth may not be complete, or even present, and we need to remember the rules regarding confidentiality, Model Rule 1.6, candor, Model Rule 3.3, truthfulness in statements to others, Model Rule 4.1, and misconduct, Model Rule 8.4. As presented by James Morgulec of the U.S. Department of Justice, only in his personal capacity, of course, when issuing public statements on behalf of a client, while you would not reveal a client confidence, be careful of knowingly making a false statement, where issuing such a statement would likely be considered representation and could be viewed as misconduct if the statement is false, or just not true enough. And, you may not ask the client to issue the statement, either, to avoid the limitation applicable to you as an attorney.
Or better, what leaked? With the new administration’s regulatory reversals fueling hopes that environmental enforcement may not be at the top of the new administration’s priority list, clients may lose their proactive focus on operational compliance. Attorneys may confront resulting noncompliance in transactions first, potentially followed by incident response and litigation. As presented by Mary Ellen Ternes of Earth & Water Law, attorneys confronted with noncompliance raising safety issues in the context of other work will need to remember, again, the rules regarding scope of representation, Model Rule 1.2, confidentiality, Model Rule 1.6, the organization as client, Model Rule 1.13, and declining or terminating representation, Model Rule 1.16. Your scope of representation does not include assisting the client in criminal or fraudulent activity, but does impose a duty to urge the client to mitigate the noncompliance even if you need to raise the issue to the highest corporate authority. If the client will not mitigate the noncompliance and your representation would enable or result in an illegality, then you should consider withdrawing. If the observed illegality includes ongoing releases, explosive environments, or other scenarios creating certain risk of death or serious bodily harm, and your client still refuses to mitigate even after your efforts to persuade them otherwise, consider your state’s version of Model Rule 1.6, Comment 6, to evaluate whether you may reveal the information to authorities because such disclosure “is necessary to eliminate the threat or reduce the number of victims.”
Who ever said ethics was boring?
Published in Trends January/February 2018, Volume 49, Number 3, ©2018 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.