Chapter 9 The Ethics of Working with Government Attorneys During Public Lands Planning and Projects

• Jurisdiction: United States

Chapter 9 The Ethics of Working with Government Attorneys During Public Lands Planning and Projects
Alison D. Garner Dorsey & Whitney LLP Salt Lake City, UT

ALISON D. GARNER is a Senior Attorney at Dorsey & Whitney in Salt Lake City, Utah. She helps clients anticipate, navigate, and respond to the complexities of natural resources litigation. Alison brings her broad public service experience advising decision-makers in complex litigation to her current practice helping clients develop natural resources and energy projects, counseling on strategies for NEPA and other permitting issues. She also defends projects under federal and state public lands laws. Before joining Dorsey & Whitney, Alison worked from 2008 to 2017 at the U.S. Department of Justice, Environment and Natural Resources Division, where her practice included litigation of NEPA and various federal land and wildlife management statutes. She also litigated challenges to large infrastructure projects and loan guarantees, as well as various Indian law and inverse condemnation issues. She represented client agencies within the Departments of Agriculture, Interior, Transportation, and Defense. From 2017 to 2020, Alison worked for the Utah Office of the Attorney General, where she advised high-level government officials on a variety of administrative matters and long-standing disputes.

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This paper explores, using real world scenarios, the ethical obligations of private sector and government attorneys in common situations arising in public lands practice. The paper discusses the American Bar Association's (ABA) Model Rules of Professional Conduct (Model Rules). Most jurisdictions have adopted rules of ethics for attorneys based on some form of the ABA Model Rules. The ABA has published a helpful guide comparing the Model Rules to the rules in various jurisdictions.¹ Attorneys are encouraged to familiarize themselves with the rules applicable to their jurisdiction for further guidance in addressing a particular situation.

Introduction and general duties owed to clients

All attorneys owe a duty of competence toward their clients. ABA Model Rule 1.1 states: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."²

Attorneys must confer with their clients. A lawyer must "reasonably consult with the client about the means by which the client's objectives are to be accomplished; keep the client reasonably informed about the status of the matter; [and] promptly comply with reasonable requests for information. . . ."³ Subject to a few limitations, a lawyer "shall abide by a client's decisions concerning the objectives of representation," including a client's decision whether to settle a matter.⁴

Attorneys also owe a duty of confidentiality to their clients. The scope of information considered "confidential" varies among jurisdictions. ABA Model Rule 1.6 states:

(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:

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(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;
(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;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.⁵

This duty of confidentiality contributes to the trust that is the "hallmark" of the lawyer-client relationship.⁶ Clients are encouraged to seek legal assistance and to communicate "fully and frankly" with their lawyer, even regarding embarrassing or damaging subject matter.⁷ "The lawyer needs this information to represent the client effectively and, if necessary, to advise the client to refrain from wrongful conduct."⁸

The duty of confidentiality also applies to the transmission of information relating to the representation of the client. A lawyer must take "reasonable precautions" to protect the information from unintended recipients.⁹ This duty does not generally require a lawyer to use special security measures for transmitting information, so long as the method of communication affords a reasonable expectation of privacy.¹⁰ However, particular clients may request special precautions, with which lawyers generally have a duty to comply.¹¹

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Related to the duty of confidentiality is the attorney-client privilege. The attorney-client privilege is recognized in every state, though its scope varies widely. Federal Rule of Evidence 502 governs the privilege in federal courts.

The attorney-client privilege exists if legal advice of any kind is sought from an attorney acting in her capacity as such, with the communications made in confidence by the client, and must be intended to be protected permanently from disclosure by the client or the attorney, except that the protection may be waived.¹² The burden of establishing the applicability of the privilege rests with the party seeking to assert it.¹³

I. Scenario One: You are an attorney in private practice, representing a company applying for a permit from the Bureau of Land Management (BLM). You are aware that the Department of the Interior, Office of the Solicitor, is involved in the BLM's review of your client's permit application. What ethics rules apply during this process?

Model Rule 4.2 is often called the "no-contact rule." It states: "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."¹⁴

Applying this rule to communications with a government agency raises many questions. What is a "matter"? To which agency employees does the rule apply? Might I obtain consent to communicate directly with agency employees? These questions are discussed below. But at the outset, one should be aware that many attorneys avoid even the potential for a problem and communicate with the agency through agency counsel.

A. What is a "matter"?

Not all communications with agency employees are restricted simply because the agency employs "in house" counsel. Model Rule 4.2 only applies when a "matter" exists.¹⁵ Whether a "matter" exists is straightforward when litigation is pending or ongoing. However, in the absence of litigation, the question becomes less clear. The ABA has opined that "the 'matter' with which the representation is concerned must have been concretely identified."¹⁶ Applying this guidance, then, an agency's formal rulemaking or formal adjudication, as well as appeals from those proceedings, likely qualify as "matters."

Outside of those formal proceedings, the situation is even less clear. Therefore, attorneys should keep in mind that Rule 4.2 should "operate to prevent a lawyer from adversely affecting

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the relationship between a client and her lawyer even in the absence of a formal proceeding.¹⁷ At a minimum, if an attorney decides to contact an agency employee, the attorney should identify herself clearly at the outset of any conversation, and state the purpose of the conversation so that the agency employee may terminate the conversation if she wishes. The ABA recommends an even more cautious approach: when an attorney wants to communicate with an agency employee it knows to be generally represented, the attorney "may find it more expeditious and less likely to generate dispute to communicate through counsel."¹⁸

B. Assuming a "matter" exists, to whom does the Model Rule apply?

Comment 7 to Model Rule 4.2 provides some guidance:

In the case of a represented organization, this 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.¹⁹

The ABA also addressed this question in a formal ethics opinion, and indicated that the prohibition on communication with represented parties applies to those employees who have managerial responsibility, or whose acts or omissions may be imputed to the organization, or whose statements may constitute an admission by the organization as to the...