CHAPTER 14 ETHICAL CONSIDERATIONS FOR PRACTITIONERS ADVISING ON ESA ISSUES

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 14
ETHICAL CONSIDERATIONS FOR PRACTITIONERS ADVISING ON ESA ISSUES
Irma S. Russell ¹
Professor and Edward A. Smith Chair
University of Missouri-Kansas City School of Law
Kansas City, MO

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IRMA S. RUSSELL is the Edward A. Smith Chair of Law, the Constitution, and Society at the University of Missouri-Kansas City School of Law where she teaches environmental law. Prior to joining the UMKC School of Law, Russell served as Dean of The University of Montana School of Law from 2009 to 2014. She was the NELPI Professor and Director of the National Energy-Environment Law & Policy Institute at the University of Tulsa College of Law from 2006-2009. Among the courses she has taught are Environmental Law, International Environmental Law, Natural Resources Law, Professional Responsibility, Administrative Law, Contracts, Environmental Law Seminar, International Environmental Law Seminar, and Environmental Justice Seminar. Russell is former chair of the ABA Section of Environment, Energy and Resources and served as chair of the following AALS Sections: Natural Resources & Energy, Professional Responsibility, and Socio-Economics. She has served on the ABA Standing Committee on Ethics and Professional Responsibility and the Standing Committee on Professionalism. In practice, Russell represented potentially responsible parties, government entities, lenders, and other clients on issues arising under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the National Environmental Policy Act (NEPA), wetlands designation, site mitigation, and other environmental issues. She served as the Liaison of the ABA Environmental Section to the AALS and Chair of the Strategic Response Committee of the ABA Environmental Section. She also served as the Chair and Vice-Chair of the Ethics Committee, and as Section Liaison to the ABA Standing Committee on Ethics and Professional Responsibility. She was founding Chair of the Memphis Bar Association Environmental Law Section and served as Chair of the Tennessee Bar Association Environmental Section. Dean Russell is an elected member of the American Law Institute, Phi Kappa Phi, the Judicial Conference for the Tenth Judicial Circuit, and the American Bar Association.

Introduction

All lawyers are subject to the rules of ethics and professional conduct of their jurisdictions of practice. Regulation of lawyers is within the jurisdiction of the states, typically the supreme court of each state.² Many state supreme courts have adopted customized versions of the professional rules from the American Bar Association's Model Rules of Professional Conduct ("Model Rules"). While the Model Rules are not law in any jurisdiction, most states base their ethics codes on the Model Rules. In fact, all jurisdictions, with the exception of California, now base their ethics rules on the Model Rules. Additionally, courts have inherent power to impose sanctions on lawyers who have violated a professional obligation.³ To determine applicable law, lawyers should research the Model Rules for general principles but use the rules of their jurisdiction for the application of the law.

Laws and regulation and the lawyer's rules of professional responsibility all encourage legal compliance. In addition to the specific laws addressing requirements under the Endangered Species Act and the Model Rules, lawyers are subject to all the laws that bind people generally. In other words, the law governing lawyers includes statutory and common law as well as ethical rules,. Lawyers do not have a "free card" by virtue of the representational relationship with the client. Salient features of legal compliance relevant to environmental legal counsel include sanctions found under environmental laws and important federal initiatives such as the U.S. Federal Sentencing Guidelines, the Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley),⁴ and the

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Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the Dodd-Frank Act).⁵ Avoiding violations of laws and ethics regulations is possible only if lawyers have confidence in their understanding of the rules and the law. Thus, lawyers practicing in all areas of law, and particularly in endangered species law, must be aware of the rules and ethical considerations that can impact their work and their clients' interests.

Issues arising under the Endangered Species Act (ESA) are among the most dynamic facing natural resource practitioners and developers. The ESA and regulations promulgated under the Act impact individuals, companies, and governments around the country and have extraterritorial reach. Natural resource practitioners accustomed to dealing with "bugs and bunnies" may find unfamiliar territory relating to both ethics and personal liability issues in advising clients on issues associated with "taking" of endangered species and other issues relating to listed species. Like all people, lawyers are not exempt from the laws, such as the laws relating to endangered and threatened species by virtue of the fact that they are serving clients in a representational capacity. Issues of legal ethics deserving special attention in ESA matters include confidentiality of client information, integrity, and the lawyer's duty in representing organizational clients. Both criminal and civil sanctions apply to violations of some provisions of the Act. The high stakes and challenging questions in the area mean that practitioners need to give particular attention to ethical obligations when advising in relation to the ESA. This Article sets forth basic principles of the ESA, analyzes statutory text, and considers application of the Model Rules of Professional Conduct in the challenging contexts that can arise under the ESA.

The Endangered Species Act - Overview

Congress enacted the Endangered Species Act in 1973 with the declared purposes of providing the means "whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions."⁶ The Act presents a comprehensive regulatory scheme that substantially affects interstate commerce to protect listed species.⁷ The significance of congressional concern in this area is revealed in numerous ways, including the language of the Act, and the scope of the duties imposed by the Act, and the sanctions authorized under the ESA for violations of the Act. It is noteworthy that the language of the Act specifically includes within its purpose the conservation of the ecosystems upon which endangered species and threatened species depend. Rather than declaring a purpose of protecting these species and then an instrumental use of the ecosystems to achieve that goal, the Act expressly states its purpose of conserving the ecosystems themselves. The ESA's fundamental objective of helping species recover from the threat of extinction is intimately associated with ecosystem conservation.

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The ESA declared the policy that: "[A]ll Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter."⁸ Today, regulatory efforts continue to seek to promote the Act's conservation and recovery goals. Moreover, the importance of this area is clear from the Act's reach in terms of the responsibilities it imposes on federal agencies. The purpose provisions of the Act declare that all federal agencies "shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species."⁹

The ESA uses a wide variety of measures to serve its stated purpose. These mechanisms include the process for determining species that are at risk through the listing process that triggers the protections of the Act, including designation of critical habitat and prohibiting federal agency actions adversely affecting critical habitat. Additionally, the Act's measures include a program for land acquisition in order to conserve ecosystems and the at-risk species, cooperation with states to fulfill the purposes of the act, cooperation among federal agencies (interagency cooperation), cooperation with other countries in the provisions for international cooperation, and implementation of the Convention on International Trade in Endangered Species (CITES). The ESA prohibited acts that pose risks for endangered or threatened species, including the prohibitions against taking endangered species and destroying critical habitat. It also provides significant penalties for violation of the prohibitions set forth in the Act. The Act also sets forth protections for endangered plants and authorizes appropriations to fulfill the purposes of the Act.

The Endangered Species Act - Prohibitions

Section 9 of the Endangered Species Act (ESA) sets forth stringent measures for protecting fish and wildlife, making it illegal for any person to import, "take any such species within the United States or the territorial sea of the United States," or to "take any such species upon the high seas." It makes it illegal to possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species which has been "taken" in violation of its provisions. Likewise, the Act makes it illegal for any person to "deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species, to sell or offer for sale in interstate or foreign commerce any such species; or violate any regulation pertaining to such species."¹⁰ The Act prohibits similar conduct with respect to endangered species of plants, including making it illegal to "import...