November 01, 2016

Emergency Lawyering in Environmental Law Today

Irma S. Russell

This brief article considers issues of legal ethics in the context of planning for emergencies in practicing environmental law. The likelihood that an environmental lawyer will face situations of urgency (and possibly even life and death emergencies) is real and worthy of advance thought and planning. Emergencies need to be viewed in the context that all lawyers are subject to the rules of ethics and professional conduct of their jurisdictions of practice. While emergency circumstances do not alter the duties of due diligence or competence, the Model Rules now acknowledge the existence of emergency situations. Model Rule 1.1 declares the duty of lawyer competence, stating that “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The rule discusses the lawyer’s duty to attain and employ the necessary knowledge and skill and identifies factors relevant to competence, such as the lawyer’s experience and training, the possibility of consulting other lawyers, and the study of new areas. Comment 3 to Rule 1.1 now includes a direct reference to emergency situations. It states:

[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.

This comment can be read as an acknowledgment of the practical reality of emergencies without creating a safe harbor to the duty of competence. Additionally, the comment does not state a Good Samaritan exception or foreclose a claim that a lawyer’s action constituted malpractice.

As Len Niehoff explains in Ethics for Media Lawyers: The Lessons of Ferguson, Comm. Law., Summer 2015, at 4,

Model Rule 1.1 provides some allowances for lawyers who are called upon in an emergency to give advice or assistance in an area outside their field(s) of competency. But . . . [it] offers cold comfort. The defense it affords us may prove consoling in truly desperate circumstances, but surely none of us relishes the prospect of explaining to a client, a judge, or a disciplinary body that we offered incompetent advice but it was the best we could do at the time.

Lawyers may gain insights from the proactive approach of doctors and hospitals that have rigorous checklists, from routines for “triage” and materials to insure readiness in case of a medical emergency to planning for emergencies, which can arise at any time. As a basic example, having the government hotline numbers at the ready is a common practice at manufacturing facilities and waste sites, and having such numbers close at hand is a useful redundancy for environmental lawyers as well. Lawyers who aren’t experienced in dealing with environmental emergencies also may want to consider in advance who they could consult if faced with an emergency. For example, some firms have a team of emergency response experts who can mobilize at the site of an oil well blowout, refinery fire, or other facility where an accident or spill has occurred to help preserve evidence, prevent the situation from getting worse, and advise clients on ways to interact effectively with the investigating regulators.

In her article, Hurricane Katrina: The Duties and Responsibilities of an Attorney in the Wake of a Natural Disaster, 37 St. Mary’s L.J. 1153, 1167–68 (2006), Brenna Nava explains that “[t]here are no rules exonerating lawyers because a disaster occurs, and no reason why the rules normally applicable to an attorney’s conduct should not apply because disaster strikes.” Id. For a deeper look at issues of practice involving emergencies see Barbara Glesner Fines, The Ethics of Emergency Lawyering, 5 Geo. J. Legal Ethics 317 (1991), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1132347.

Ethical practice requires thoroughness and preparation even while a lawyer is expanding into unfamiliar areas. Comment 5 to Model Rule 1.1 recognizes that a lawyer may limit the scope of a representation in the engagement letter. It states: “An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible.” Also of importance in areas of technological change, Comment 8 to Model Rule 1.1 draws attention to the lawyer’s duty to stay abreast of developments and advances relating to the lawyer’s practice. It states: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” While this comment is generally thought to relate to business and communications practices such as email, metadata, texting, and social media, it also relates to technology the lawyer needs to understand to fully represent her client.

Rule 1.4 covers the communications between the lawyer and his client, and states:

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent . . .;

(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Lawyers have the duty to reasonably communicate with their clients. In certain emergency situations, normal channels of communication with the client may not always be possible. The time to take action can be limited, making each communication between the lawyer and client vital in clearly expressing the next steps of reaching their goal.

Special concerns can arise with respect to corporate clients and other organizational clients. The individual client speaks her own mind about the objectives, making the decision clear. The organizational client, by contrast, operates through its officers, employees, and other constituents, who are human actors for the non-human entity. When a lawyer represents a corporate entity or an agency involved in the environmental area, it is important to remember that the lawyer acts for the organization rather than for the person or persons with whom the lawyer communicates. See Model Rule 1.13 cmt. 2. What is in the best interests of the client contact may not always be in the best interests of the organization, particularly in situations where that person may have had a role in causing, perpetuating, or covering up the emergency.

The duty to hold in confidence client information is one of the central tenets of the legal profession. Model Rule 1.6 articulates the lawyer’s duty of confidentiality to clients, prohibiting lawyers from revealing information relating to any representation except when the client gives informed consent or the disclosure is authorized expressly or impliedly or when one of seven carefully envisioned exceptions applies. These exceptions include the prevention of “reasonably certain death or substantial bodily harm,” prevention of a crime or fraud “reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services” and other similarly weighty exigencies. See Model Rule 1.6(b).

Comment 6 to Model Rule 1.6 uses the environmental context to provide an example of permissive disclosure despite the lack of authorization from the client, stating:

Paragraph (b)(1) recognizes the overriding value of life and physical integrity and permits disclosure reasonably necessary to prevent reasonably certain death or substantial bodily harm. Such harm is reasonably certain to occur if it will be suffered imminently or if there is a present and substantial threat that a person will suffer such harm at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply may reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.

This example makes clear that the rules recognize urgent or emergency situations as sufficient to justify discretionary disclosure of client information even when the risk is not a matter of temporal urgency.

In fact, some states make the disclosure mandatory. For example, Florida Rule 4-1.6(b) states that a lawyer “must reveal confidential information to the extent the lawyer reasonably believes necessary: (1) to prevent a client from committing a crime; or (2) to prevent a death or substantial bodily harm to another.” Similarly, Tennessee Rule 1.6(c) states that the lawyer “shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes disclosure is necessary: (1) to prevent reasonably certain death or substantial bodily harm” or to comply with a court order or other law. Comment 14a to the Tennessee rule uses the hypothetical case of the toxic discharge into a town’s water supply and states that the situation requires disclosure. It states:

Substantial bodily harm includes life-threatening and debilitating illnesses . . . Such harm is reasonably certain to occur if such injuries will be suffered imminently or if there is a present and substantial threat that a person will suffer such injuries at a later date if the lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows that a client has accidentally discharged toxic waste into a town’s water supply must reveal this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of victims.

Rule 2.1 presents the lawyer’s role as advisor to his client. In addition to guidance with the law, the “lawyer shall exercise independent professional judgment and render candid advice.” It is important for the lawyer to be honest with his client about the likely outcome of the situation, and an emergency client is no different. Truly, in an emergency situation, candid advice may be even more crucial to respond quickly.

Legal representation in the modern, complex world often presents complex and difficult situations. The complexity and risks to clients are particularly dramatic in areas relating to health and safety of the public or third parties. Understanding the complex calculus of the laws and rules governing lawyers is essential to competently and ethically representing clients and to thriving in the important work of the law.

Irma S. Russell

Ms. Russell is Professor of Law and Edward A. Smith/Missouri Chair in Law, the Constitution, and Society at the University of Missouri-Kansas City School of Law, where she teaches environmental law, administrative law, and related courses. She is a member of the editorial board of Natural Resources & Environment and may be reached at russelli@umkc.edu.