Should Lawyers Be Ethically Obligated to Protect the Environment?

Indigenous Day Native march from May 13, 2016. (Photo: Backbone Campaign/flickr)

Should Lawyers Be Ethically Obligated to Protect the Environment?

As states and corporations increasingly head to court over climate change, a lawyer lays out an ethical roadmap to give the environment a louder legal voice

The Daily Climate

Contrary to many corny jokes, lawyers do follow a code of ethics. But there's a glaring omission in the professions' ethical outline: the environment.

The American Bar Association's Model Rules of Professional Conduct is a suggested blueprint for state bars, laying out a boilerplate for client-lawyer relationships, public service, communication and other matters of the professions. "It talks about other legal obligations for third parties, but never talks about the environment," said Tom Lininger, a professor at the University of Oregon School of Law.

Lininger wrote the "time has come to remedy the conspicuous omission of environmental protection from the list of lawyers' ethical duties," in a paper for the Boston College Law Review. He argues in the paper that, as things currently stand, lawyers are ethically encouraged to advocate for clients but there are no incentives for minimizing potential environmental harm. He proposed a series of "green ethics" amendments to ABA's rules.

He suggests allowing lawyers to reveal confidential client information to prevent "imminent, substantial and irremediable environmental damage", and having lawyers inform clients of environmental damage they might do or plan to do and advise how to avoid such risk.

This would require a pretty fundamental change in law: getting rid of the laser-like focus of lawyers on the interests of nothing but their client.

Some of Lininger's proposed changes are a bit more far-reaching, such as the professional responsibility of providing pro bono services that improve environmental protection or adding an "environmental scorecard" to hold firms accountable for their environmental bona fides.

The duty of confidentiality has always been subject to obligations imposed by law. In cases of suspected child abuse, for instance, the duty of disclosure trumps confidentiality. Another example is for cases of financial crime or fraud. Both the child abuse and financial fraud exemptions are to "avoid significant harm to vulnerable third parties," Lininger wrote, which he said can easily apply to the environment.

The "time has come to remedy the conspicuous omission of environmental protection from the list of lawyers' ethical duties."
-Tom Lininger, University of Oregon School of Law

The focus of the law boils down to protecting people, said Irma Russell, a law professor at the University of Missouri-Kansas City. "People are impacted inevitably when the environment is hurt. [People's health] is hand-in-glove with environmental harm," she said.

Russell called Lininger's suggestions "good for clients as well as society."

"The modern world has a lot of environmental hazards and a regime where people don't feel pressure to protect public safety is unbalanced and a bad situation," she said. "Allowing lawyers to be true advisors rather than mouthpieces facilitates good decisions by clients."

In a paper published earlier this year in the George Washington Journal of Energy and Environmental Law, Russell makes the case that advancements in environmental regulations--such as the U.S. EPA's New Generation Compliance, featuring bolstered monitoring, detection, reporting and enforcement tools--is heralding a "new age" of environmental law: one in which lawyers play an increasing role in corporate compliance.

"The lawyer's involvement in explaining compliance and the risks of noncompliance provides a necessary predicate for next generation compliance success," she writes, arguing such involvement falls within the profession's ethical duty of serving the public good.

She said such legal environmental vigilance is even more important in the wake of a Department of Justice memorandum released last fall that made it a federal priority to hold individuals accountable for corporate offenses.

There has been a spate of recent court cases dealing with climate change including a racketeering investigation of ExxonMobil alleging a climate science cover-up for years and children suing Massachusetts for not reducing greenhouse gases as obligated.

Kassie Siegel, director of the Center for Biological Diversity's Climate Law Institute, said such cases are only going to bolster scrutiny on the ethical obligations of lawyers as countries deal with the "single largest threat to society."

"Some of the most important legal issues today are large corporations lying about climate change and being able to pollute a few more years," Siegel said. "The role of lawyers helping them do that and the ethical considerations governing our profession will increasingly come under the microscope."

But many environmental impacts are difficult to discern, and lawyers aren't always trained to make those calls, said Mark Latham, deputy vice dean for academic affairs and professor of law at Vermont Law School.

While certainly a "thought-provoking" concept, the idea of an environmental ethics code for lawyers is troublesome, Latham added.

"I really don't think that it's the role of lawyers to minimize harm to the environment. It's our responsibility to represent clients," said Latham, who previously worked for a firm that counseled clients regarding environmental regulatory compliance.

Latham said lawyers are simply not in a position to make a determination on what constitutes "imminent, substantial and irremediable" environmental harm.

The ABA declined to comment on Lininger's suggestions. Getting the organization to modify its ethics code might be a reach, but Lininger is tapping into a global shift in the international zeitgeist toward environmental protection as an ethical duty.

The most profound recent example was Pope Francis' call for an "ecological conversion" in last year's encyclical, which focused on the environment and the moral need for every person on "our common home" to address issues such as climate change.

Such views have reached other high-powered institutions, with President Obama and his Administration calling carbon cuts a moral obligation, and the United Nations' echoing of the pope's message.

"It is an issue of social justice, human rights and fundamental ethics. We have a profound responsibility to protect the fragile web of life on this Earth, and to this generation and those that will follow," said United Nations Secretary-General Ban Ki-moon at a Vatican meeting with Pope Francis last year.

You will find no such language in the American Bar Association Model Rules of Professional Conduct--ethical rules adopted in the 1980s.

However, it's not completely unheard of. In Lininger's home state, for example, the Sustainable Future Section of the Oregon state bar is designed to involve the lawyers in playing a role in reducing man-made climate change and sustainability promotion.

"Ultimately the legal profession is supposed to achieve justice," Siegel said. "Justice can't include just helping clients, when there's an existential threat to our life support system all professions need to grapple with that--including lawyers."