Ethics at the 31st Annual Conference on Environmental Law

John Cermak
Jenkens & Gilchris

On March 17, 2002, the final general session of the 31st Annual Conference on Environmental Law (Keystone Conference) titled "How Will the Changes Recommended by Ethics 2000 Commission Change Environmental Practice" served as a wake-up call to the attendees on the very direct day-to-day impact the proposed amendments to the American Bar Association (ABA) Ethics Rules will have on environmental practitioners.

The two rules at issue are ABA Model Rule 1.6(b)(1) and ABA Model Rule 5.5. Current Model Rule 1.6(b)(1) provides that a lawyer "may" reveal information relating to representation of a client "to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal act that is likely to result in imminent death or substantial bodily harm . . .." The Ethics 2000 Commission has proposed to amend Rule 1.6(b)(1) to allow disclosure of information relating to representation of a client when the client conduct is not criminal and the resulting harm is not likely to result in imminent death, but rather is only "reasonably certain" to result in death.

Current Model Rule 5.5, in turn, provides that "[a] lawyer shall not practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction . . .." The Ethics Commission and the American Corporate Counsel Association (ACCA) have each proposed amendments to Rule 5.5 that allow for multi-jurisdictional practice. The Ethics Commission is proposing a number of exceptions (safe harbor amendments) to Rule 5.5's prohibition on the unauthorized practice of law in another jurisdiction if the legal services are performed on a temporary basis. ACCA, in turn, has put forward a "common sense proposal" because of its concern that the Ethics Commission's proposed amendments create "problematic and perplexing panoply of safe harbor amendments to Model Rule 5.5 . . .."

The proposed changes to the two Model Rules were debated by four panelists with diverse perspectives under the direction of the moderator, Kenneth Moore, the ethics partner for Squire Sanders: 1) William Freirogel, a consultant on legal ethics and professional liability and a member of the Advisory Council to the Ethics 2000 Commission; 2) Professor Carl Arthur Pierce, one of the two reporters for the Ethics 2000 Commission; 3) Susan Ponce, assistant general counsel for Halliburton Company, and the chair of the Section's Ethics Committee; and 4) Sean M. SeLeque, a recognized expert on lawyer ethics and risk prevention.

The Debate on the Amendments to Rule 1.6(b)(1)
After the panel debated the pros and cons of the amendments to Model Rule 1.6(b)(1), the moderator asked the audience to speak either for or against the amendments to Model Rule 1.6(b)(1). As a long-time attendee of the Keystone Conference, I did not expect that much debate would be generated among audience members in the last session of the last day of the conference. I was quickly proved wrong; it became apparent that the proposed amendments to Rule 1.6(b)(1) struck a nerve. This prompted a variety of audience comments and questions on the amendments, most of which were at least impliedly critical of them. The comments initially focused on concerns about whether clients, because of the amendments, would withhold information from their lawyers about environmental releases. One participant expressed the concern that the amendments would heighten the existing reluctance of clients to consult counsel about environmental conditions. In-house counsel in the audience, in particular, expressed such concerns.

The tenor of the comments changed further as it dawned on the audience that under the amendments any release of hazardous substances (whether or not reportable under federal or state law) might arguably trigger a lawyer's obligation to disclose such release if the client failed to do so. The problem was best summed up by an audience member (formerly with the USEPA) who stated that any release of hazardous substances results in a level of risk, which statistically quantified, is reasonably certain to result in a death, even if it is only one hypothetical death in a population of one million. Thus, the expressed sentiment of the audience was that the amendments were not workable, at least in the environmental law context.

Another concern expressed by the audience with regard to the proposed amendments to Rule 1.6(b)(1) was the possibility that plaintiffs' counsel in toxic tort suits would name counsel as defendants for failing to disclose a release, pointing to the amendments as establishing a standard of care to be met by both in-house and outside counsel. This concern was also expressed by at least one Panel member, who pointed out that Ethic 2000's revised version of the Model Rules states that the rules "may" establish the standard of care for civil liability.

The fervent opposition of the audience to the proposed amendments to Rule 1.6(b)(1) became apparent when 69 out of 86 audience members voted in writing against the amendments. The vote was, however, punctuated by a note of irony when the audience was informed by a member of the panel that the ABA Section of Environment, Energy, and Resources had sent a letter to Ethics 2000 supporting the amendments.

The Debate on the Amendments to Rule 5.5
The Panel's debate over the amendments to Model Rule 5.5 generated less controversy in the audience than the amendments to Rule 1.6(b). Here the question seemed to be less whether lawyers should practice in other jurisdictions, but rather what rules should govern a multi-jurisdictional practice. This debate however was a wake-up call of a different sort. Many in-house and outside environmental counsel (including many in the audience) already practice in multiple jurisdictions, in some ways as if Rule 5.5 had already been amended. In fact, according to a panel member, the amendments to Rule 5.5 are an attempt to acknowledge what is already the practice.

There appeared to be strong support in the audience for a multi-jurisdictional practice rule. One person noted that, as a member of the Pennsylvania bar, he can draft a will in Pennsylvania, but in fact he is more competent to handle an environmental matter in New Jersey. Moreover, the session ended with a question by an audience member struggling with the ethics of attending a phone call the following day with clients in multiple jurisdictions. That struggle made clear the need for a change to Rule 5.5.

In summary, the general session on legal ethics was a clear wake-up call to the audience on the significant impacts the amendments to Rule 1.6(b)(1) would have on the environmental practice, and the need for a change to Rule 5.5 to reflect the realities of the modern environmental practice. As I left the room, however, I continued to think back on how proposed ABA Model Rule 1.6(b)(1) might require lawyers to make disclosures regarding environmental releases that their clients might not have to report. A truly sobering thought.