CHAPTER 15 COMMUNICATION ETHICS
| Jurisdiction | United States |
COMMUNICATION ETHICS
Lohf Shaiman Jacobs Hyman & Feiger PC
Denver, CO
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DAVID G. EBNER negotiates and documents exploration and production deals around the world. He has devoted a substantial amount of time to coal, uranium, and hard rock transactions over the years, but the majority of his practice focuses on oil and gas. For the past decade, he has worked on increasingly unusual transactions, especially custom production sharing agreements with foreign governments and sophisticated vendor finance transactions for domestic drilling, but he still does title opinions, farmouts, and other everyday oil and gas work. Mr. Ebner relishes the challenge of taking complicated business transactions and distilling them into clear, logical documents. He enjoys the chance to work with clients who know and appreciate high quality documentation prepared under tight time constraints, as well as the chance to work with other members of the relatively small natural resources legal community, many of whom are personal friends. Mr. Ebner graduated from Brown University in 1973 and Harvard Law School in 1976. He has served as chair of the Mineral Law Section of the Colorado Bar Association, president of the Rocky Mountain Mineral Law Foundation, AMAX Distinguished Natural Resources practitioner-in-residence at the University of Denver College of Law, and as an adjunct faculty member at the University of Denver teaching the negotiation of Natural Resources Agreements. He has been with the firm since he graduated law school.
The ethical rules governing both lawyers and land professionals reflect great concern over speech content and conduct-what's being said and how it's being said. Honesty, integrity, professionalism, and courtesy are expected in both professions, but the rules governing lawyers are special because they also limit the people with whom lawyers may speak. Lawyers are, for example, limited in speaking to the clients of others without first obtaining permission from the other lawyers, and are strictly controlled in speaking to unrepresented persons. These rules are informed by an underlying sense that lawyers know more than others (as they may about the law, although not necessarily about other things) and that the loyalty they owe their clients may cause them to skirt discussion of matters that aren't favorable to their clients (although separate rules dealing with honesty in dealing with others may ameliorate, even if they do not eliminate, this concern), while at the same time creating an opportunity for the others inadvertently to disclose privileged or confidential information. These contact rules--or, as the rule dealing with communications with persons represented by counsel is known, the "no contact rule"--can be very useful in contexts where there is a great disparity in knowledge and sophistication.
This disparity isn't immediately apparent in JOA negotiations. To begin with, the vast majority of domestic JOA negotiations occur among landmen, without any involvement by lawyers. When lawyers become involved, it's usually because a company has no in-house land staff with available time and a JOA must be prepared quickly as an exhibit to an earning or purchase agreement. Because they are involved in the preparation of more JOAs, and because they are the ones who actually use JOAs to conduct real world operations, land professionals often have much more knowledge, experience and sophistication in negotiating JOAs than lawyers.
The no-contact rules, like many other ethics rules, are also informed by the litigation process. They're certainly not limited to litigation, but many of the most detailed and contentious issues arise in litigation, especially as lawyers seek to communicate with prospective witnesses. The rules, cases and ethics committee opinions deal with these litigation-based issues at length, but they generally are not discussed here. These aspects of the rules would be relevant if a dispute arose under a JOA, but they don't impact negotiation and preparation of the JOA and generally interest only litigators, not oil and gas transactional lawyers or land professionals.
Similarly, the extensive concern with maintaining on-going regulatory contacts with governmental employees while litigation is underway with their agencies is only lightly touched upon; these concerns conceivably could bear on the negotiation and preparation of JOAs involving State lands, but the negotiations regarding State land contract areas are not primarily
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with the State, but instead with the working interest owners of State leases. Federal unit operating agreements are important in the formation of units, and communications about these unit agreements could occur during the pendency of agency litigation, so these aspects of the rules are briefly mentioned, principally to serve as guideposts to a further investigation, should the need arise.
Finally, this brief introduction refers to "the rules", although there are no rules of universal application. The current version of the ABA Model Rules of Professional Conduct is a starting point for discussion, but State rules frequently vary from the Model Rules. States with significant variations are occasionally noted as a way of highlighting how rules can differ, but there has not been an exhaustive attempt to identify all such variations. Individual State modifications are sometimes simply stylistic, but sometimes have real substantive importance. Curiously, some States modify a rule by moving material from the comment section to the text of the rule, while others move material from the rule to the comment. Moving language in this way may be intended as a way of stressing or lightening the importance of the language, but it is not readily apparent that these movements ultimately change the interpretation of a rule in any meaningful way. Again, some language movements are noted below, but not all. It is very important to examine the specific language of the applicable State's rule before determining a course of conduct, and also to verify that the current rule language is being examined. Language in the rules changes slowly, but it does change--and sometimes these changes may cause previous ethics opinions to be less reliable, or even withdrawn.
Communicating with Unrepresented Persons
Rule 4.3 in the ABA Model Rules of Professional Conduct addresses a lawyer's dealings with unrepresented persons:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows, or reasonably should know, that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
Lawyers being lawyers, there are highly nuanced variations among the states, but they rarely alter the basic thrust of the Model Rule. Texas, for example, has no prohibition against giving legal advice in the text of the Rule, but rather includes it in the comment to the Rule, this time as a prohibition against giving advice, rather than legal advice.1 In addition, the prohibition (other than advice to secure counsel) is unconditional in Texas: there is no language limiting the prohibition to situations where a conflict may exist. California, however, while working toward
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the adoption of Model Rule 4.3, currently has no rule whatsoever explicitly governing lawyers' dealings with unrepresented persons. This may be because California believed when the current rules were adopted that other legal principles--like requirements of honesty and the avoidance of conflicts--adequately addressed the need, but the Second California Commission for the Revision of the Rules of Professional Conduct is now recommending adoption of Model Rule 4.3, albeit with modifications. The Commission proposes specifically to prohibit a lawyer from seeking privileged or other confidential information, if the lawyer knows or reasonably should know that the person could not disclose such information without violating a duty to another.2
State variations often reflect the historical antecedents of the current Model Rule. As time has passed, the ABA has gone back and forth in the way it has presented the rule governing contacts with unrepresented persons, and perhaps in the intended substantive meaning as well. To look only at the most modern history, Disciplinary Rule 7-104(A)(2), first adopted in 1969, prohibited a lawyer from giving advice to an unrepresented person, other than advice to secure counsel, if the interests of such person had a reasonable possibility of conflicting with the client's interests. But what was meant by "advice" was illusive: in 1970, ABA Informal Opinion 1140 stated that it would be wrong for a lawyer to present a waiver of service and additional forms to an unrepresented defendant for signature; in 1973, ABA Informal Opinion 1269 stated that it would be proper for a lawyer to present for signature a waiver of service and entry of appearance to an unrepresented defendant. Was the difference the additional papers involved in the first matter, some of which involved waivers of notice and waivers of the right to contest jurisdiction and venue? There is no indication, although both opinions were clear that no discussion of the documents was proposed with the unrepresented person. Forty years earlier, the ABA had allowed a lawyer to prepare settlement papers in a workers' compensation suit and...
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