Climate Change and Positional Conflicts of Interest
| Publication year | 2011 |
| Pages | 43 |
| Citation | Vol. 40 No. 10 Pg. 43 |
2011, October, Pg. 43. Climate Change and Positional Conflicts of Interest
October 2011
Vol. 40, No. 10 [Page 43]
About the Authors
Christopher L. Colclasure is of counsel with Holland and Hart LLP, where he focuses on air quality and the National Environmental Policy Act. He and others at Holland and Hart represent the lead plaintiffs in Coalition for Responsible Regulation v. EPA, a challenge to the EPA's greenhouse gas regulations-clcolclasure@hollandhart.com. Denise W. Kennedy is a partner with Holland and Hart LLP, where her practice focuses on air quality and climate change, including representation of major industrial and natural resources companies in air quality litigation, permitting, and regulatory development and compliance-dkennedy@hollandhart.com. Stephen G. Masciocchi is a partner in the Denver office of Holland and Hart LLP. He specializes in appellate advocacy, complex civil litigation, and legal ethics-smasciocchi@hollandhart.com.
Positional conflicts of interest may arise when a lawyer asserts a legal or factual position that is adverse to a client in an unrelated matter. Lawyers should be especially alert to positional conflicts in novel areas of law, such as climate change.
Legal issues arising from concerns about climate change are forcing a realignment of interests on all sides of the climate change debate. For example, electric generating units that historically have taken similar positions on air quality might pursue different carbon rules, depending on the type of fuel they use and whether their baseline carbon emissions are high or low. Environmental advocacy groups that are traditional allies may take differing positions on natural gas development and hydraulic fracturing, depending on whether their primary focus is on greenhouse gas (GHG) emissions or the protection of aquifers. Such realignments may pose "positional conflicts"-also known as "issue conflicts"-under Rule 1.7(a)(2) of the Colorado Rules of Professional Conduct (Colorado Rules or Rules). Positional conflicts have the potential to ensnare those who practice in the field of climate change.
Defining Positional Conflict
A positional conflict is a concurrent conflict of interest that arises when a lawyer's representation of one client might be materially limited by a position the lawyer is advocating on behalf of another client in an unrelated matter or by some other factor. Positional conflicts are indirect.(fn1) They are governed by Colorado Rule 1.7(a)(2), which states:
Positional conflicts risk making the lawyer less credible to judges when the lawyer is making contradictory arguments in simultaneous cases.(fn4) They might also compromise the attorney's loyalty or ability to exercise independent judgment on a client's behalf, or even foreclose the lawyer from pursuing otherwise available alternatives.(fn5)[A] concurrent conflict of interest exists if ... there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client(fn2) or a third person or by a personal interest of the lawyer.(fn3)
Positional conflicts are most easily understood in the litigation context, where winning one case might create a legal precedent that is adverse to a position the lawyer or the lawyer's firm is advocating in an unrelated case. This risk is recognized in American Bar Association (ABA) Formal Opinion 93-377,(fn6) as well as in Comment [24] to Colorado Rule 1.7.(fn7)
Positional conflicts are not limited to litigation. As the District of Columbia (DC) Bar Association has noted, they may arise whenever a lawyer simultaneously takes positions on behalf of multiple clients regarding the same types of legal matters and "such representation creates a substantial risk that representation of one client will adversely affect the representation of the other."(fn8)
Positional conflicts usually involve contradictory positions on a question of law, but they also can be based on adverse positions regarding disputed events or facts.(fn9) For example, in Fiandaca v. Cunningham,(fn10) plaintiffs' counsel represented a class of female inmates who sought better prison conditions. Counsel separately represented mentally disabled residents of a state treatment facility in a lawsuit over conditions at the facility. The prison defendants offered to establish a new prison building on the grounds of the treatment facility. Plaintiffs' counsel rejected that settlement offer because the new prison building would displace a number of treatment facility residents and would violate judicial orders previously entered in the treatment facility litigation.(fn11) The First Circuit held that this "combination of clients and circumstances placed [plaintiffs' counsel] in the untenable position of being simultaneously obligated to represent vigorously the interests of two conflicting clients," in violation of New Hampshire's version of Rule 1.7.(fn12) This positional conflict resulted in counsel's disqualification from the inmates' case.(fn13)
Positional Conflicts in Litigation
Positional conflicts most often arise in the context of litigation; however, they may occur in any field of practice, including lobbying, administrative law, transactional work, or a combination of these activities. Williams v. Delaware(fn14) provides a clear example of a litigation conflict. A lawyer represented two clients in separate capital murder cases, and both death sentences were appealed to the Delaware Supreme Court. In the first appeal, the lawyer argued that the trial court erred when it failed to place "great weight" on the jury's recommendation against imposing the death penalty. In the second case, the jury recommended the death penalty and the trial court concluded it was required to place "great weight" on the recommendation. It was foreseeable that the second defendant would argue on appeal that the trial court should not have placed great weight on the jury's recommendation. This created a positional conflict. The lawyer's argument in the first appeal, which was still pending, materially limited his ability to advocate for the opposite position in the second. The Delaware Supreme Court granted the lawyer's motion to withdraw in the second case.(fn15)
Standing and the Political Question Doctrine
Climate change litigation has the potential to involve positional conflicts. One example involves questions of Article III standing and the political question doctrine. Plaintiffs in five federal cases alleged that GHG emissions contribute to climate change, thereby creating a nuisance under federal common law.(fn16) Recently, in American Electric Power v. Connecticut, the U. S. Supreme Court held that the Clean Air Act preempts such claims of federal common law nuisance,(fn17) but it left unresolved the questions of what is required to establish standing in climate change litigation and whether climate change lawsuits grounded in federal common law present nonjusticiable political questions.(fn18)
Standing and the political question doctrine have been significant issues in the nuisance cases.(fn19) These issues remain in dispute in one nuisance case, Village of Kivalina v. ExxonMobil,(fn20)which is pending before the Ninth Circuit. These issues are likely to resurface in other common law climate change lawsuits, such as public trust cases.
One environmental group has filed several public trust lawsuits against the federal government, Colorado, California, New Jersey, and other states. In each lawsuit, the group alleges that the sovereign has a common law fiduciary duty to protect the atmosphere from the effects of anthropogenic GHG emissions.(fn21) The complaint against Colorado seeks a declaratory judgment that "the State Defendants must significantly reduce Colorado's greenhouse gas emissions based upon the best available science."(fn22) The complaint against the federal defendants is more specific. It seeks an injunction requiring the United States, among other things, to reduce its GHG emissions by 6% per year beginning in 2013, and to provide financial and technical assistance to developing countries to support their emissions reductions.(fn23)
Among the public trust cases filed to date, the potential for positional conflicts appears to be greatest for lawyers representing California and New Jersey. Both states were plaintiffs in American Electric Power,where they convinced the Second Circuit that they had standing and that the nuisance claims did not present a nonjusticiable political question. It is unclear whether California and New Jersey will respond to the Supreme Court's rejection of the federal nuisance claim by re-filing their nuisance claims in state court. It might be logical for them, as defendants in the public trust cases, to seek dismissal on standing and political question grounds;(fn24) doing so might raise a positional conflict.
Litigation positional conflicts occur in relatively narrow circumstances. Comment [24] to Rule 1.7 affords substantial leeway to argue contradictory legal positions "in different tribunals at different times on behalf of different clients." The key question, as discussed below, is whether the representation of either client would be materially limited by the lawyer's representation of the other.
Trial and Appellate Courts
Positional conflicts may arise in trial or appellate courts. A comment to the superseded 1983 version of ABA Model Rule 1.7 advised that "it is ordinarily not improper to assert such positions in cases pending in different trial courts, but it may be improper to do so in cases pending at the same time in an appellate court."(fn25)...
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