November 01, 2012

Views from the Chair: Ethics developments and environment, energy, and resources practice

Alexandra Dapolito Dunn

“Environmental law presents ample opportunities for exploring legal ethics, policy, morality, and public interest. Indeed, at times, environmental practice may seem to present an unending series of ethical dilemmas.” These wise words were written by immediate past Section Chair Irma Russell, dean of the University of Montana School of Law, in the Foreword to the Section’s book Issues of Legal Ethics in the Practice of Environmental Law. Although Dean Russell’s quotation and book title refer to environmental law, I believe the statement is also true as to energy and resources law. In this column, I explore some of the ethical issues facing our profession today, and the steps the Section is taking to provide guidance and expertise to our members. In preparing this article, I have drawn on the tremendous contribution to the Section’s work on these issues, particularly on three ethics experts whom we are proud to count among our Section leaders, Dean and Professor Irma Russell, Professor Kim Diana Connolly, and Pamela Esterman.

First, a brief perusal of the ethics topics addressed at some past Section programs gives a very good sense of what may be keeping us up at night. For example, a recent program delved into when a lawyer deemed to “know” that a client is engaged in criminal, fraudulent, or other conduct that is likely to result in substantial injury to the client. We have explored how a lawyer determines whether she has discretion—or a duty—to take action to prevent a corporate client from creating liability for itself. We have inquired—and offered guidance—on whether a blog is advertising, marketing, or has an editorial, personal, or business function. In a related question, we have asked where the First Amendment ends and the Model Rules of Professional Conduct begin. Our speakers have parsed ethical issues raised by lawyers employing the latest trends and technologies, including working in the “cloud.” And, we have reflected on how U.S. lawyers can reconcile domestic ethics responsibilities with conflicting multinational rules.

Second, a journey through the ethical issues addressed in our various Section publications gives additional insights into current ethics topics. While Dean Russell’s book content is still more than relevant, I am delighted to announce that the book is in the queue for a Second Edition, where it will be enhanced and expanded with additional contributors and new topics. You may have noted that a recent volume of Natural Resources & Environment was dedicated to ethics and disclosures. Volume 25, No. 3 contains brilliant articles on the merging of environmental law and ethics in the realm of environmental justice, the practical and ethical issues of blogging in environmental law, ethics and professional conduct for federal government lawyers, and an Environmental Law Practitioner’s Guide to the Model Rules. This last article, written by the recent chair of the Section’s Ethics Committee, Pamela Esterman, discusses conflicts of interest among current and past clients, confidentiality duties, opinion letters, the retention of expert witnesses, environmental liability disclosure and reporting requirements, technology and law firm websites, and metadata. Our 2011 The Year in Review—now online and hyperlinked—contains an overview of changes proposed by the ABA Commission on Ethics 20/20.

Third, at our August 2012 Meeting, the Section Council promoted our Ethics Committee to a Council level Special Committee on Ethics, chaired by Professor Kim Diana Connolly of SUNY Buffalo Law School. This new, high-level special committee is charged with ensuring that ethics issues remain front and center for our membership. It will identify and report on ethics developments, cases, and opinions relevant to the practice of environment, energy, and resources law; develop a new Section ethics web page; and of course—continue the trend of offering relevant and timely ethics CLE programs at our meetings. The special committee will add Section member value by synthesizing relevant activities of the ABA Commission on Ethics 20/20. For example, at the ABA Annual Meeting in August, the House of Delegates approved six commission proposals to update the ABA Model Rules of Professional Conduct to reflect current law practice. These proposals—which go into effect only when adopted by a state bar—touch on legal services outsourcing, protection of client confidences when new technology is employed, temporary bar access for relocated lawyers, the role of technology in marketing legal services, and disclosure of client information for certain limited, non-prejudicial conflicts checking where a firm relocates or changes in composition or ownership. The commission now is working on guidance on conflict of interest problems arising because some U.S. and foreign jurisdictions allow nonlawyer ownership of law firms, while others do not; and on guidance on fees division between lawyers in different firms where their jurisdictions differ in allowance of nonlawyer ownership of firms.

Pamela Esterman’s Natural Resources & Environment article concludes that lawyers in environment, energy, and resource arenas “should keep abreast of revisions to the rules in jurisdiction in which they practice and remember that evolving technological norms may alter how existing rules apply to their day-to-day practice.” I fully agree, and am both confident and proud that the leadership of our Special Committee on Ethics will support us in this essential endeavor.

Alexandra Dapolito Dunn

Alexandra Dapolito Dunn is the executive director and general counsel of the Association of Clean Water Administrators.