Like all practitioners, environmental lawyers are subject to rules of professional responsibility. The American Bar Association’s (ABA) Standing Committee on Ethics and Professional Responsibility (ABA Standing Committee) is the principal drafter of the Model Rules of Professional Conduct (Model Rules). Additionally, it issues ethics opinions on questions it identifies as significant. It does not issue enforcement decisions. The highest court from each state adopts ethical rules that apply to lawyers licensed in that state for conduct, including rules relating to competence, communication, consultation and candor, direct and imputed responsibility, and misconduct. While all state ethics rules follow the template of the Model Rules, states alter the rules in both minor and significant ways. For example, the ethics codes in California, the District of Columbia, and New York diverge markedly from the Model Rules. Additionally, special rules apply to attorneys who act in specific roles. Judges, arbitrators, special masters (also called court-appointed neutrals) and lawyers who represent governmental entities are subject to specific rules by under specific rules.
The highest court in a state typically has authority over lawyers licensed in that state regardless of where or in what jurisdiction the lawyer is practicing, virtually or otherwise. Independent disciplinary boards within each state, whose decisions enjoy Full Faith and Credit under the U.S. Constitution, typically enforce ethics rules. Direct or imputed misconduct can lead to disbarment, suspension from practice, censure, fines, or other penalties, which are generally part of the public record. Moreover, proof of violation of a rule may be a factor for malpractice or other civil liability for failure to comply with the prevailing standard of care.
This chapter starts with a brief review of ABA and state ethics Opinions, rules changes, and professional developments since November 2022 that may be related to the practice of Environmental, Energy and Resources Law. The most far-reaching state debates focus on the use and disclosure of artificial intelligence (AI) in the Practice of Law.
The rest of the chapter focuses on the debates surrounding the status of attorney ethics with respect to sustainability disclosures and climate change, the ongoing ethical charges brought against attorneys related to the 2020 presidential election results, and continuing risk to energy attorneys regarding sanctions against Russia.
The ABA issued ethics opinions 504, 505, 506, 507, and 508 in 2023. Though these are general in nature, they may be of interest to environmental, energy, and resources law practitioners.
Formal Opinion 504 regards Model Rule 8.5. That rule generally declares that for an attorney admitted to more than one Bar, that ethics rules of both jurisdictions apply. But if there is a conflict between jurisdictions rules, the governing jurisdiction can provide a “safe harbor” for ethical charges in the competing jurisdiction. The controlling analysis should be generally governed by the location of the ethics tribunal where the action occurred unless the “predominant effect” of the action is in another jurisdiction. This opinion clarifies that in addition to the factors that can be considered in determining an attorney’s reasonable belief regarding “predominant effect,” that an agreement between the attorney and client agreeing to a particular jurisdiction can be considered in making the determination. Specifically, the following clarifying language was adopted:
[W]ith respect to conflicts of interest, in determining a lawyer's reasonable belief under paragraph (b)(2), a written agreement between the lawyer and client that reasonably specifies a particular jurisdiction as within the scope of that paragraph may be considered if the agreement was obtained with the client's informed consent confirmed in the agreement.
Many environmental, energy, and natural resources attorneys operate in multiple jurisdictions. Additionally, direct conflicts may be more likely to emerge in the future as jurisdictions start to look more at actions related to greenhouse gas emissions and environmental protection in general.
Formal Opinion 505 clarifies that pre-paid attorney fees should not be labelled non-refundable. Until work is expended using the pre-paid legal fees, ownership in funds remains with the client.
Formal Opinion 506 states that attorneys may use non-legal assistants for many client intake procedures, including presenting fee proposals, but that due to the bar on attorneys assisting non-attorneys in the practice of law, any questions a client may have in intake procedures, including scope of work, or fee arrangements, must be directed to the attorney.
Formal Opinion 507 clarifies that attorneys may share offices in many circumstances, but that special care should be afforded the protection of client confidentiality and records. The precautions needed for such protection will vary based on the circumstances.
Formal Opinion 508 begins by noting that competent representation of a client includes the important tactical component of a lawyer’s advocacy when a client or witness will provide testimony. It also notes the applicability of prohibitions against falsity and assisting in criminal enterprises may be in tension. Among the rules applicable to such conduct are Rule 1.1 (Thoroughness and Preparation), Rule 1.2 (Scope of Representation and Allocation of Authority between Client and Lawyer), Rule 3.3 (Candor Toward the Tribunal), Rule 3.4 (Fairness to Opposing Party and Counsel), Rule 4.4 (Respect for Rights of Third Persons), and Rule 8.4 (Misconduct). The opinion was motivated by the increase in the opportunity to coach witnesses in depositions or trials when participants may be in various remote locations.
The most significant state ethics debates this past year revolved around the use of AI in legal practice and disclosure of that use to clients, other attorneys, and tribunals. In November of 2023, the California Bar’s Committee on Professional Responsibility and Conduct was the first state to issue a formal guidance. The guidance emphasizes that AI can raise issues of client confidentiality and attorney competence. In particular, an attorney must be on guard that the generative AI is factually correct and free of bias, and that client information is protected. The protection of confidentiality is of particular import because generative AI programs may allow the program to use the information entered.
The guidance also notes that the attorney should not be charging clients for time saved by the use of generative AI. California guidance documents can be referenced in attorney disciplinary proceedings.
By this time next year, attorneys should expect more state rules or guidance concerning the use of generative AI in practice. Many law firms are now routinely using some AI. Very importantly, this suggests that all attorneys may be required to learn how to use and interpret AI according to their duty of competent representation and the duty to keep abreast of technological change, as AI continues to impact the legal environment.
California also became the final state to require attorneys with knowledge of ethical violations to report them. New Rule 8.3 was accepted by the California Supreme Court on June 21, 2023.
In an attempt to make legal services more available to the public, this year, ten states (Colorado, Alaska, New Hampshire, Oregon, Utah, Arizona, Minnesota, North Carolina, Washington and DC) took steps to make it easier for non-attorneys to provide help in certain situations related to routine legal representation.
2023 continues to see concern about information provided in company sustainability reports to government offices and to private rating organizations. In particular, the environmental, resource, and energy attorney should beware of making “net zero” pledges that cannot be substantiated. Such pledges may implicate candor to the public as well as issues of fraud. The rule for attorney competence also suggests that attorneys in this space must continue to make themselves aware of new rules for reporting sustainability and client information required by the EU, California, and other jurisdictions. The SEC’s greenhouse gas reporting rule was put off again and is now predicted to drop in April of 2024.
Competent attorneys must also make themselves aware of the growing political backlash against ESG in some state jurisdictions. In the past year, in compliance with state law, the Florida Bar has prohibited CLE credit for bar programs about “fairness” or “DEI.” Additionally, Florida, Texas and many other states are attempting to penalize certain company actions or statements. Such fast changing requirements (whether legal or not) can implicate the best interests of the client and may signal the need for different or more nuanced ESG reporting.
This past year saw action in multiple state bars regarding disbarment of attorneys associated with Donald Trump’s false claim of election fraud and attempts to seat alternate electors in the 2020 election.
Of particular note to Environmental, Energy, and Resources attorneys, one of those whose disbarment has been sought is Jeffrey Clark, former head of the Environment and Natural Resources Division (ENRD) at Justice during the Trump Administration. Speculation about Mr. Clark includes the possibility that he would be a possible Attorney General in a new Trump Administration.
Similar to a year ago, there are concerns on representation that might run afoul of sanctions against Russia. For energy attorneys in particular, there is a chilling effect on representation of energy extraction and transport which could run afoul of multiple sanctions scheme put in place around the world against Russia and Russian companies and resources. Many of the sanction schemes are new and evolving, and depend on insurance companies and finance companies for enforcement, spreading the risk of their impact on attorney actions.
SEER webinars, some of which have ethics content, can be accessed here. Of particular note is the SEER ethics panel on SEER attorneys and DEI at the SEER Fall conference. This panel looked at attorney recruiting and representation of community groups, particularly given the new Supreme Court case on affirmative action.
Thanks to former SEER Ethics Advisors, Professors Katrina Fischer Kuh and James R. May, for their past work utilized in this chapter.
