CHAPTER 2 WHEN HARRY MET SALLY...AT THE FISH AND WILDLIFE SERVICE (AN ADMINISTRATIVE LAW ETHICS ROMANCE)

• Jurisdiction: United States

Natural Resources & Environmental Administrative Law and Procedure
(Nov 1999)
CHAPTER 2
WHEN HARRY MET SALLY...AT THE FISH AND WILDLIFE SERVICE (AN ADMINISTRATIVE LAW ETHICS ROMANCE)
J. B. Ruhl
Florida State University College of Law
Tallahassee, Florida

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INTRODUCTION

Natural resources attorneys in the private and public interest sectors make their living in large part through their knowledge of administrative law and agencies: which agency has jurisdiction over a matter; whom to call in the agency for information on the current policy; what information is available and by what means; what laws apply to which agencies; what rules and decisions are on the agency's horizon; what procedures will the agency follow to make policy and adjudicatory decisions; and so on. Practice before administrative agencies thus involves many different procedural settings, a variety of potential communicants, and both rights of communication and constraints thereon.

Against that backdrop, administrative law contains several familiar sources of law covering how attorneys working in or before an agency must conduct themselves. Chief among these sources of law are: (1) the Constitution and the state constitution if a state agency is involved; (2) the agency's organic statute; (3) the federal or state general administrative procedure law; and (4) the agency's rules of practice. Natural resources attorneys must become adept at navigating these rules of practice and communication in each of the procedural settings and with each of the agency positions described above. What is often overlooked, however, is the additional layer of regulation the rules of professional attorney conduct may impose in that regard. Once the administrative law setting is defined according to constitutional, statutory, and administrative rules of procedure and conduct, the attorney must also consider whether rules of professional attorney conduct impose additional constraints on how attorneys work within the administrative system. The focus of this paper is on the extent to which the law of legal ethics and codes of professional attorney conduct add to the other rules of administrative practice in ways that may present ethical problems for attorneys.

What makes this ethical dimension perhaps different in administrative law settings from other types of litigation and transactional practices, where rules of procedure also apply independent of ethical rules, is the basic nature of administrative practice in general. For example, a litigation or transactional attorney will usually find the employees of his or her client's opposing party to the litigation or contract negotiation to be complete strangers, whereas attorneys routinely practicing before administrative agencies are often dealing with long-term acquaintances, if not friends, even when the agency is the opposing party. Also, unlike the litigation world, where lawyers have a near monopoly on representation before the tribunal, administrative attorneys often work alongside and in competition with other professionals who may not be subject to industry ethical rules.

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The regular contacts and familiarity natural resources attorneys have with agency employees, plus their exposure to competitors facing more relaxed rules of ethics, may desensitize the attorney to the need to consider the impact of ethics rules. Indeed, in large agencies the notion of the agency as a "party" or "represented person" can become complicated by the tendency even of the agency employees to treat the agency as an abstract, separate entity, such that even they would not consider themselves the "party" or "represented person" when in fact they may be for purposes of ethics rules. Also, the notion that the agency serves all members of the public may desensitize the agency's employees and attorneys working before the agency to the need to consult not only the agency's rules of procedure, but also attorney ethics rules.

Regardless of whether any of these effects is significant, the bottom line is that any attorney working in or before an administrative agency must keep track of the layer of conduct rules added by the code of professional ethics. Lawyers working before and in agencies carry these ethical considerations with them at all times.

THE TALE (IN THREE ACTS)

To emphasize this special focus on administrative law settings, and in particular the ethical pitfalls that may arise from the casual, day-to-day familiarity a seasoned natural resources attorney gains after years of working before an agency, I have concocted a tale that places two attorneys, one working in an agency and one practicing before it, in a not so unusual series of events that nonetheless raises some ethics questions for thought. I subject these situational tales to scrutiny under the ABA Model of Professional Conduct (Model Rules) to illustrate how murky the world of ethics in administrative practice can be.

ACT I: ENFORCEMENT

Setting: Ms. Sally Gogettah is a name partner in one of the leading natural resources law firms in Arizona. One day the inside counsel for one of her largest mining clients, Mine-Glom Inc., faxes her a letter he just received from the U.S. Fish and Wildlife Service field office with jurisdiction over the client's largest mine. The letter states that the FWS has determined that runoff and particulate emissions from the mine site have contaminated soils and sediments in and along a river that serves as habitat for the Five-finned Slick-scaled Wobbly minnow, finneus fishyiusa, a federally-listed endangered species protected under the Endangered Species Act. Further operation of the mine in a manner that continues such deposition of contaminants could violate section 9 of the ESA—the prohibition against take of endangered animal species—and result in enforcement action against the company. The letter, signed by FWS Biologist Truman B. Leever, refers the company to Leever for questions of fact and enforcement policy and to Mr. Harry Careir of the local office of the Department of Interior's Office of the Solicitor on questions of law pertinent to this situation.

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First Scene: Deception

Sally had heard that several letters like this one had been sent in recent weeks to various industrial operations along the river. She decides to strike quickly to gather as much information as possible about the agency's positions with respect to the minnow. But she is concerned that if she introduces herself as an attorney for Mine-Glom she will get the silent treatment. So, she calls Harry and, amazingly, gets him on the first try. "Hello, Mr. Careir," she says with a put-on southern accent and a purposeful air of innocence, "I'm Donna Dana, a reporter for the Tucson Sun — Times, and I've heard a lot about this bitty minnow that is being pushed to extinction by all these polluters. What can you tell me about your agency's plans to stop them from harmin' this poor fish?"

What might pass for a "white lie" in the normal course of life may lead an attorney into ethical trouble. Sally means no harm-she just wants to avoid the stifling effect a phone call from a lawyer can have on people. And she is likely to do no harm either, in the sense that neither Harry nor the agency is put at risk by the subterfuge. Indeed, it is likely that many people lie about who they are when the contact agencies for information. But Sally is an attorney, contacting the agency on a client's behalf, and hoping to gain some information she might otherwise not obtain were she to truthfully identify herself. Does her status in these circumstances trigger any rules of attorney ethics?

Not surprisingly, the Model Rules contain many provisions focused on attorney truthfulness. Model Rules 3.3 and 3.4 are focused in that respect narrowly on the practice of an attorney in an adversary "proceeding" before a "tribunal" and thus do not seem to apply to Sally's conduct as Harry is not a tribunal, attorney, or party in any proceeding.¹ Arguably, by referring Sally's client to Harry FWS intended to initiate some form of proceeding that would be protected by these rules, but it is difficult on careful reading to fit Harry and the FWS letter into any of the provisions focused on trial-type proceedings.

Moreover, Model Rule 3.9, which extends the "tribunal" rules to administrative settings, probably will not cover this situation. Model Rule 3.9 requires "a lawyer representing a client before a legislative of administrative tribunal in a nonadjudicative proceeding...shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5."² But this is intended to apply to "representation before bodies such as legislatures, municipal councils, and executive and administrative agencies acting in a rule-making or policy-making capacity."³ In our scenario Harry

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is not acting in a rule making or policy making capacity; at most, he is acting in a prosecutorial capacity.

Nevertheless, Model Rule 4.1 is designed, in the same language that Model Rule 3.3 uses, to require truthfulness in statements to "third parties"⁴ and applies unbounded by the limitations found in the Article 3 Rules. It succinctly requires that "In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person."⁵ Application of Rule 4.1 thus presents a closer question here: Sally clearly is contacting Harry on Mine-Glom's behalf;⁶ she has made a false oral statement of fact to the attorney she knows is assigned to the Mine-Glom case;⁷ Harry is a third person within the meaning of the Rule.⁸ The issue will become whether Sally's identity as a lawyer in connection with her request for information about the agency's enforcement policy is a material fact as Rule 4.1 requires. I have designed the scenario to make that question as close as possible, finding no judicial or ethics...