CHAPTER 16 TOP TEN (MORE OR LESS) ETHICAL ISSUES IN THE NEPA PROCESS

• Jurisdiction: United States

National Environmental Policy Act
(Oct 2010)
CHAPTER 16
TOP TEN (MORE OR LESS) ETHICAL ISSUES IN THE NEPA PROCESS
Walter E. Stern
Modrall Sperling
Albuquerque, New Mexico

WALTER E. STERN is a shareholder in the Albuquerque, New Mexico office of Modrall, Sperling. His practice is concentrated in litigation, administrative practice, ADR, and business advice in the areas of natural resources, energy, Indian law, and public lands administration. Walter's practice includes experience representing private businesses in transactions and litigation with Indian tribes and other Native American groups around the west and across the country. Walter has been active in the affairs of the Rocky Mountain Mineral Law Foundation, having served: as Vice-President in 2008-2009, as Secretary in 2003-2004, as a Trustee from 1997-2001 and 2003-2004; as a Member of the Executive Committee during 1999-2001 and 2003-2004; as Program Chair for the 47th Annual Institute in 2001; and most recently as President from 2009-2010. He also has served as Chair of the Public Lands Committee (1995-97) of the American Bar Association section formerly known as "SONREEL". He has been listed in Best Lawyers in America, since 1995 in the Natural Resources and Environmental Law Category, and in Chambers USA: America's Leading Lawyers for Business since 2004. Walter has written and presented papers on a range of subjects in the areas of federal Indian law, energy, and public land law, among others. A native Californian, Walter moved to New Mexico after receiving his undergraduate degree, a B.S. in Forestry (with honors), from the University of California at Berkeley, and his J.D. from Boston College Law School (cum laude).

By: Walter E. Stern

Modrall Sperling

P.O. Box 2168

Albuquerque, New Mexico 87103

western@modrall.com

505-848-1837

I. Introduction.

This paper addresses a range of ethical and related issues that may arise in the context of National Environmental Policy Act ("NEPA") compliance efforts. As you will see, some of the subjects addressed have broader application, while other parts of the paper focus on agency-project proponent-public relationships, and still others are more narrowly focused on NEPA-specific issues.

Please note that this paper refers to the ABA Model Rules of Professional Conduct. As the name suggests, these are "model" rules. While most States have adopted the lion's share of the Model Rules, each State has the opportunity to modify or re-write the ethics rules they ultimately adopt. Lawyers and others are advised to consult with the specific rules applicable in any given State or in the District of Columbia.¹

II. "In-House" Communications: Preserving the Attorney-Client Privilege.

When lawyers are actively engaged in NEPA compliance proceedings or other counseling, administrative or judicial proceedings, those lawyers must be ever vigilant to protect the confidences and secrets of their clients. While discovery is limited in NEPA judicial review litigation,² discovery is permitted in some circumstances.³ Consequently, lawyers should give consideration to the privileged nature of certain attorney-client communications. Moreover, government agency counsel may find

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their clients on the receiving end of Freedom of Information Act ("FOIA") requests related to NEPA compliance, and must review agency documents within the scope of such requests that potentially would include attorney-client privileged communications.

Another reason to understand the attorney-client privilege and its scope relates to Federal Rule of Evidence 502, adopted in 2007, which provides among other things for the recovery of privileged communications inadvertently disclosed in "a Federal proceeding or to a Federal office or agency." In the event an entity or lawyer inadvertently discloses a privileged communication to a federal agency, this rule addresses whether the inadvertent disclosure actually waives the privilege and whether any inadvertently disclosed material can be recovered.

For these and other reasons, lawyers should be mindful to continue to identify and protect privileged communications during the NEPA compliance process.

A. The Lawyer's Obligation to Protect Client Confidences.

The importance of protecting the attorney-client privilege stems, in large measure, from a lawyer's obligation to protect the confidentiality of information obtained from clients. This obligation is embodied in ABA Model Rule of Professional Conduct Rule 1.6, titled "Confidentiality of Information," which provides:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

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(4) to secure legal advice about the lawyer's compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(6) to comply with other law or a court order.

Executives, management, general counsel and other in-house lawyers working in organizations (including corporations, non-government organizations ("NGOs"), and government agencies) should be constantly vigilant concerning whether in-house communications with in-house counsel or with executives who are also lawyers would be protected from disclosure obligations in the event of litigation involving the organization. There is an ever-developing body of judicial decisions that reflect closer scrutiny of claims of attorney-client privilege, even where a communication's participants include lawyers. This part of the paper reviews some of these decisions, and provides information that corporate (and other types of organizations) counsel and senior executives and management should understand in managing their in-house communications. This may be particularly relevant to electronic communications given their common use today. In certain circumstances, the lessons arising from these decisions may also be relevant to communications with outside counsel.

B. Attorney-Client Privilege: A Primer.

Generally, while most communications are subject to disclosure or discovery in litigation, the attorney-client privileged communication is an exception to that general rule. The privilege protects certain communications by a client to the lawyer as well as responsive communications from the lawyer to the client. Since 1950, many courts across the country have defined the attorney-client privilege by reference to a federal district court decision from Massachusetts:

The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on the law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of

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committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.⁴

This succinct definition is packed with important language, without much wasted verbiage. Other courts have adopted similar definitions. While the focus initially is on the original communication by the client to the lawyer in which the client seeks legal advice, the privilege also is ordinarily applied to the responsive communication:

The responsive communication from the attorney to the client is protected only to the extent that the response reveals the content of the client's prior confidential communication. Many judges, however, tend to interpret this restriction as giving protection to the attorney's advice (either regardless of what it reveals from prior communications from the client, or on the assumption that it will always disclose such confidences) and enforcing the derivative rule [giving protection to the responsive communication] only for factual communications . . . .⁵

As with United Shoe, this Vioxx opinion is a federal district court opinion. As a technical matter, like United Shoe, it is not binding on state or federal courts in other jurisdictions. However, if other courts find its reasoning persuasive, this opinion could be influential well beyond the State of Louisiana. This opinion is discussed in further detail in this article because it provides an analysis of many of the issues courts grapple with in considering attorney-client communications and claims of privilege.

The attorney-client privilege applies to protect corporations as clients, of course.⁶ In the corporate setting, the privilege "protects communications between those employees and corporate legal...