CHAPTER 15 AVOIDING ETHICAL TRAPS WHEN CHALLENGING AND DEFENDING AGENCY DECISIONS
| Jurisdiction | United States |
(Sep 2016)
AVOIDING ETHICAL TRAPS WHEN CHALLENGING AND DEFENDING AGENCY DECISIONS
Partner
Davis Graham & Stubbs LLP
Denver, CO
Chelsea Huffman Grossi 1
Associate Davis Graham & Stubbs LLP
Denver, CO
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MARK CHAMPOUX is a partner in the trial group at Davis Graham & Stubbs LLP in Denver, Colorado. His commercial litigation practice includes disputes involving natural resources, oil and gas, and environmental liabilities across a broad range of subjects and forums. He also has substantial experience in complex litigation involving contracts, business torts, real estate, securities fraud, shareholder actions, civil RICO, products liability, and special districts. Mark has particular expertise in assisting clients navigate discovery challenges in light of evolving rules and practices related to retention and discovery of electronic documents and information, and he also advises on issues concerning legal ethics. Mark received his J.D. in 2007 from Harvard Law School, where he was deputy editor-in-chief of the Harvard Journal of Law & Public Policy, and received his B.A. in 2004 from Brigham Young University, graduating magna cum laude and as valedictorian.
CHELSEA HUFFMAN GROSSI is an associate in the environmental group at Davis Graham & Stubbs LLP in Denver, Colorado. She works with oil and gas, mining, aerospace, and manufacturing clients. Chelsea's experience includes representing clients in environmental administrative and civil litigation matters, negotiating settlements with enforcement agencies, and leading clients through privileged environmental audits. Chelsea has experience counseling clients to compliance under the CAA, CERCLA, CWA, among other environmental and safety statutes, including corresponding state statutory counterparts. Chelsea received her J.D. from the University of Denver Sturm College of Law and received a B.A. in Political Science from The Ohio State University, where she graduated with distinction. Chelsea is passionate about serving the Colorado community, and serves on the Young Professionals Council for the Rose Andom Center; an organization that co-locates services for domestic violence survivors.
Although all ethics rules are important, some are more relevant than others to each particular area of legal practice. In this paper, we identify some of the ethics issues that are especially pertinent when lawyers participate in challenging or defending natural resource agency decisions. Specifically, we address the following subjects:
1. Lawyer Communications with Represented Agency Officials
2. Duty of Candor to an Agency or Court
3. Common Interest Arrangements
4. Joint Representation of Multiple Parties
5. Working with Consultants
In addressing these subjects, we will discuss the Model Rules of Professional Conduct ("Model Rules") published by the American Bar Association ("ABA") wherever applicable. Although most jurisdictions have adopted some form of the ABA Model Rules, each jurisdiction has its own interpretation and application of those and other rules that may be relevant to your circumstances. So, while we hope this paper will flag ethics issues that may arise in your practice and provide some practical advice relating to those issues, we encourage you to consult your own local authorities (rules of professional conduct, state bar association ethics opinions, case law, etc.) for further guidance or discussion.
I. Communications with Represented Agency Officials: When and how can I communicate with an agency official who is represented by counsel?
The Problem
Working for natural resources clients requires frequent interaction with government agencies. Often the agency personnel you need to communicate with are not attorneys. (For this section, we assume you, the reader, are an attorney). Although a phone call to or meeting with the non-attorney agency employee may make for efficient communication, it may also violate
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legal ethics guidelines. The so-called "no contact" rule--an ethics prohibition against lawyer ex parte communications with represented persons--is easy enough to understand when dealing with private parties on all sides, but the rule is more nuanced, and usually less restrictive, when one of the parties in a matter is a government agency.
The Law
Model Rule 4.2 is the key authority:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
It's just one sentence, but it's a sentence packed with conditions and qualifications. We'll begin with some of the easier-to-understand components and work our way up to the key language that complicates matters when dealing with government agencies--the question of when ex parte communications with represented persons are "authorized ... by law."
1. What is the general rule?
In general, if you're a lawyer, you may not have ex parte communications with a non-lawyer who is represented by counsel when both of you are involved in a "matter," unless you have the other lawyer's consent or unless you're authorized to do so by law or court order--phrases that will be discussed below.
2. What is a "matter"?
Just because a government agency has "in-house" counsel doesn't mean communications with agency employees are always restricted by Model Rule 4.2.2 The Rule applies only when there is a "matter" where the agency employee is represented by counsel. Whether a matter exists is easy enough to tell when actual litigation is under way. But the answer is not always so clear in the absence of active litigation.
Some guidance exists. The ABA has opined on this phrase, stating that "the matter with which the representation is concerned must have been concretely identified."3 Other authorities seem to require more. For example, the Colorado Bar's Ethics Committee opines that "[a]n organization must have taken affirmative steps to retain counsel in a specific matter or referred the matter to its in-house counsel before it is represented for the purpose of Model Rule 4.2."4
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Courts interpreting Model Rule 4.2 have similarly held that it applies outside of litigation only where there is "an adverse or a ripening adverse relationship."5
Given this guidance, any formal rule-making or formal adjudication by an agency, as well as appeals of decisions from rule-making and adjudications, should qualify as a sufficiently identified "matter" so that Model Rule 4.2 applies. Short of such formal proceedings lays a broad gray area. In this area, the no-contact protections of Model Rule 4.2 apply when there is an "adverse or a ripening adverse relationship" with the government agency, or whenever the agency has otherwise taken affirmative steps to engage its counsel on the particular issue at hand.
Because it's not always clear--absent the trappings of litigation, rule-making, and adjudication--when a "matter" has crystallized sufficiently to trigger the protections of Model Rule 4.2, most bar authorities recommend a cautious approach. For example, the Colorado Bar's Ethics Committee counsels that "at the outset of a permissible ex parte contact, an attorney should identify himself or herself as such and state the purpose of the inquiry."6 Doing so provides an opportunity for the agency employee to inform the attorney whether or not the agency is represented by counsel for the issue the attorney proposes to discuss. For its part, the ABA recommends a default approach of always initiating contact through agency counsel, observing that, "[a]s a practical matter, ... a lawyer wishing to open a dialogue with a person or entity known to be generally represented ... may find it more expeditious and less likely to generate dispute to communicate through counsel."7
3. Who is a represented person with whom communications are limited by Rule 4.2?
Assuming there's an identified "matter" so that Model Rule 4.2 applies, the next question is which persons are "represented" within the meaning of the Rule. As with non-governmental organizations (such as corporations), not all employees are considered to be represented by the organization's counsel sufficient to bring an employee within the attorney-client privilege or, similarly, to trigger the protections of Rule 4.2.
Along these lines, Comment 7 to Model Rule 4.2 explains that, "[i]n the case of a represented organization, this Model Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability." The ABA also addressed this question in depth in its Formal Opinion 95-396, and similarly concluded that "the bar [in Rule 4.2] applies only to communications with those employees who have managerial responsibility, those whose act or
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omission may be imputed to the organization, and those whose statements may constitute admission by the organization with respect to the matter in question."8
Thus, even in a matter where Model Rule 4.2 applies, attorneys can generally have ex parte communications with non-managerial agency employees, absent some other prohibition. What's more, government lawyers representing an agency "cannot insulate all employees from contacts with opposing lawyers by asserting a blanket representation of the organizations."9 It is only the agency's management-level personnel, and any others with authority to obligate or bind the agency, that may potentially be off-limits for...
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