CHAPTER 15 ETHICS POTPOURRI: EXPLORING INTERSECTIONS OF ETHICS, PROFESSIONALISM, & ESA PRACTICE

• Jurisdiction: United States

Endangered Species and Other Wildlife (Oct 2019)
CHAPTER 15
ETHICS POTPOURRI: EXPLORING INTERSECTIONS OF ETHICS, PROFESSIONALISM, & ESA PRACTICE
Kim Diana Connolly
Professor
University at Buffalo School of Law
Buffalo, NY

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KIM DIANA CONNOLLY is a Professor of Law, Vice Dean for Advocacy and Experiential Learning, and the Director of the Environmental Advocacy Clinic at the University at Buffalo School of Law. One of Kim's areas of academic interest is natural resources, and she has published and lectured extensively in the area of wetlands, domestically and internationally. She also teaches Ethics in Context as an intensive summer course. As an academic, Kim likes working on real-world matters, and together with her clinic student attorneys has successfully provided thousands of pro bono legal and policy support for many environmental and natural resource matters since leaving private practice in Washington DC in 1999. She holds an AB in chemistry from University of North Carolina at Chapel Hill, a JD magna cum laude from Georgetown University Law Center, an LLM in environmental law with highest honors from George Washington Law School, and a certification in restorative practices from the International Institute of Restorative Practices.

Introduction

Attention to, and compliance with, ethical and professional obligations is an essential part of legal practice, and observance of same is part of being both a great and satisfied lawyer. This paper pivots around four particular questions in ethics, but in so doing explores a deeper truth: what is ethical lawyering? Certain state-promulgated rules guide lawyers in all aspects of client representation, of course. Such ethics rules are integral to every facet of law practice, including Endangered Species Act and related work.

This paper will focus on ethics as regards waiver, confidentiality, and communications matters. These can be tricky areas, as seen in these materials. Each section will start with a hypothetical and offer ideas as to how to assess the ethical implications of each invented situation. The PowerPoint that accompanies the conversation in the live lecture will build on these materials. It is, of course, impossible to offer a sufficiently robust record as to allow definitive assessment in short hypotheticals, but they can provide opportunities to spot issues. For ease of reference, relevant rules are reproduced at the end of this document.

Before turning to these hypotheticals and their corresponding sections, importantly, it must be noted that ethical practice is not a matter of being an ethical person. Instead, as Professor Wooley recently noted, "if we want ethical legal

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practitioners we not only need to identify what constitutes ethical practice in particular practice settings, we also need to create a culture and circumstances of legal practice that encourage those behavio[]rs, and discourage those which are unethical."¹ It takes commitment, and reminders that we receive in conference sessions like this one, to create and maintain a culture of ethics and professionalism. Yet it is up to each of us to ensure that ethics pervade the settings in which we as lawyers work.

I. Attorneys involved in a meeting with agency officials without someone from the Solicitors' Office - when is that okay?

HYPOTHETICAL: Lee works for a boutique firm and represents Sustain Foods, a relatively new corporation operating large scale hydroponic operations at a number of locations along the west coast. Citizens mobilized and a notice letter was filed in 2016 against Sustain Foods by a regional office of a national environmental group, asserting violations of various laws (including the ESA) in construction and operation of these hydroponic operations. Shortly thereafter, the Fish and Wildlife Service brought an enforcement action for violation of permit conditions against Sustain Foods. Lee has a good relationship with the local FWS field offices, having worked with them closely on the original permits and other related matters for Sustain Foods. Lee is also counsel of record in the enforcement action, which may be heading toward settlement. Is Lee's access to - and relationship with - the agency officials altered because of the law suit?

Rule 4.2, often called the no-contact rule, has at its heart the integrity of the judicial system in mind. The ABA model rule states that "[i]n 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."²

Yet this is tricky in situations where the opposing party is an agency which is represented by the Department of the Interior's Office of the Solicitor.³ "The Office of the

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Solicitor performs the legal work for the United States Department of the Interior. The Solicitor is the chief attorney for the Department, and principal legal adviser to the Secretary of the Interior." Working with Interior regularly is often essential to on-going work of an entity, even if they are also facing an active enforcement action.

Generally, it is acceptable to discuss matters outside of the litigation with the agency. Yet there is a potential that other issues related to the enforcement may come up. Some attorneys choose to notify the Solicitor's office about all meetings, though of course Rule 1.6 and confidentiality concerns may arise there. One exploration of some of the issues at hand was presented in an article focusing on New York law, which concluded that attorneys should be careful when attending "unguarded conversations with litigation adversaries, and should urge them to exercise caution and restraint in responding to direct communications from adversary counsel."⁴

The "answer" to the hypothetical is, of course, "it...