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Victor B. Flatt, Disclosing the Danger: State Attorney Ethics Rules Meet Climate Change, 2020 Utah L. Rev. 569 (2020).

In 2021, when the chair of the International Bar Association’s International Trade in Legal Services Committee (IBA ITILS) recommended that our committee prepare an information paper on climate change, my first reaction was, “isn’t this a bit far afield from lawyer regulation and ITILS topics?” After reading the available resources, including Professor Flatt’s article entitled Disclosing the Danger: State Attorney Ethics Rules Meet Climate Change, I became convinced that climate change is relevant to lawyer regulation and that this is a topic that legal ethics and legal profession scholars need to keep on their radar screens.

Professor Flatt, who is primarily an environmental law scholar, serves as the Co-Director of the University of Houston Law Center’s Environment, Energy, and Natural Resources Center. Disclosing the Danger reviews recent climate change developments and provides legal ethics scholars with important perspectives about the intersection of climate change and lawyer regulation issues.

Professor Flatt’s article focuses on Rule 1.6 of the ABA Model Rules of Professional Conduct (Rules), but also discusses Rules 1.2, 1.16, and 4.1, examining lawyers’ confidentiality, disclosure, and withdrawal obligations in situations that involve greenhouse gas emissions.1 The strengths of this article include its easy-to-understand summary of national and intergovernmental climate change reports and its use of two fact patterns to anchor the legal ethics discussion. In 2014, a lawyer who represented ExxonMobil issued a one-page statement concluding that in the next forty years, there would be minimal risks and cost to ExxonMobil from greenhouse gas regulation. This statement was subject to U.S. securities laws that require disclosures to be truthful. The first hypothetical in Disclosing the Danger asks the reader to consider whether that same short statement could properly be issued today. The second hypothetical examines the obligations of a government lawyer who works for the Environmental Protection Agency and is asked to insert into proposed notice and comment rulemaking a statement that the social cost of carbon is only one dollar per ton. The hypothetical states that the attorney believes that $40/ton is the correct figure and that the $1/ton figure is a misstatement of all available evidence and is contrary to prior government precedent requiring the EPA to examine the costs and benefits for future generations.

When analyzing these two hypotheticals, Disclosing the Danger effectively draws upon both scientific and legal ethics literature. The article suggests that credible arguments can be made that the lawyers would be permitted to disclose confidential client information and might even be required to do so or required to withdraw. (P. 577.) Professor Flatt’s analysis of lawyer confidentiality obligations is consistent with the analysis that applies in other practice areas, such as clients who produce dangerous products.

What is particularly useful in Disclosing the Danger is the application of Professor Flatt’s expertise about climate change to lawyer confidentiality issues. Having access to this type of expertise is important because Professor Flatt predicts that, in the future, the Rules are likely to be viewed as an additional strategic tool by climate change activists. As he explains:

No state supreme courts have yet applied attorney ethical rules to require disclosure of dangerous client activities relating to greenhouse gas emissions. However, given climate activism to reduce greenhouse gas emissions, the ease of filing attorney ethics complaints, and requirements to disclose potential ethical violations of other attorneys, the application of ethical rules to representing greenhouse gas emitters is not only possible but likely.” (P. 575.)

His article concludes with the following admonition to lawyers:

Given that greenhouse gas emissions could trigger attorney ethical responsibilities, it is only a matter of time before attorney ethics rules become another legal tool that climate advocacy organizations use to try and lessen continued greenhouse gas emissions. Practicing attorneys have a duty to stay abreast of relevant ethical rules and their application to the ever-evolving practice of law. The climate activism emerging now, coupled with the recent judicial recognition of the harms caused by climate change and their connection to greenhouse gases, suggests caution. Therefore, attorneys should be aware of this possibility and react accordingly. Whether in the employ of a large multinational firm or the government, ethical obligations exist. This Article reveals the possible coming vulnerability of attorneys for failing to disclose the dangers of client activity related to climate change. (P. 611.)

Professor Flatt’s article provides a thoughtful introduction to a lawyer’s disclosure obligations regarding climate change issues, but it does not provide an exhaustive overview of all of the places in which legal ethics and climate change issues intersect. Fortunately, Professor Flatt (and others) have produced two additional resources that address additional issues.

The first additional resource is a June 2021 (free) IBA webinar entitled Burning Down the House: The Role of Lawyer Regulators in Addressing Climate Change for Domestic and International Legal Services. During this webinar, Professor Flatt and the other panelists discuss issues that include lawyers’ accountability for the clients they represent. On the one hand, ABA Model Rule 1.2(b) states that, “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” (Other countries have similar principles.)  On the other hand, it has become somewhat common for lawyers to be challenged because of the clients they represent. To illustrate the tension between these two principles, Professor Flatt cited the “naming and shaming” initiative at more than twenty U.S. law schools. As illustrated by their website and Climate Change Scorecards, Law Students for Climate Accountability have asked legal employers to reject representation of clients whose actions are viewed as harmful to the environment. (Additional examples of the tension between these two principles include advocacy efforts following Russia’s invasion of Ukraine and developments outside of the United States.)2

A second useful resource is the climate change information paper prepared by the International Bar Association’s BIC ITILS Committee. Although this paper is only five pages long, it notes several areas of overlap between climate change and lawyer regulation. For example,  it identifies topics on which lawyers may need to offer climate change advice to their clients in order to provide competent representation.3 It also suggests that, in the future, law firms might be subject to climate change regulation. After pointing out that climate disclosures are mandatory in the field of finance, the IBA paper observes that climate change activists may argue that law firms should also be required to address the impact of their work on greenhouse gas emissions.4

In sum, if you are like me, you might not have previously considered the interplay between climate change and lawyer regulation. Professor Flatt’s Disclosing the Danger article, and the two IBA resources mentioned in this post, have convinced me that the time has come for all lawyers to consider not only how climate change might affect their personal lives, but how it could affect their professional lives and lawyer regulation.

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  1. Although Professor Flatt’s article focuses on lawyer disclosure and withdrawal issues, it cites resources that show additional connections between climate change and legal ethics issues. For example, Professor Flatt cites the ABA’s 2019 resolution on climate change, which is relevant to Rule 1.1 regarding competence and Rule 6.1 regarding pro bono. (P. 574.) (citing ABA Resolution 111). Among other things, this resolution urges lawyers “to engage in pro bono activities to aid efforts to reduce greenhouse gas emissions and adapt to climate change, and to advise their clients of the risks and opportunities that climate change provides.”) Because such clients are often organizations, Rule 1.13 would also be relevant.
  2. See, e.g., Amy Salyzyn & Penelope C. Simons, Professional Responsibility and the Defense of Extractive Corporations in Transnational Human Rights and Environmental Litigation in Canadian Courts, 24 Legal Ethics 1 (2021), available at SSRN; Ending the Shell Game: Cracking down on the Professionals who enable Tax and White Collar Crimes, OECD (2021); Financial Integrity for Sustainable Development, FACTI, Feb. 2021; How does a firm on-board clients? Unworthy clients—who decides? What are the risks?, IBA Free Webinar, Nov. 11 2021.
  3. Legal services and climate change, IBA BIC ITILS 4, 5 (Dec. 2021).
  4. In addition to identifying potential lawyer regulation issues associated with climate change, the IBA paper identifies how lawyers and law firms can evaluate and reduce their carbon footprint. (Id. at 4, ¶¶ 14-15.) See also Climate Change, The Law Society (Mar. 27, 2022).
Cite as: Laurel Terry, Is Climate Change Really a Lawyer Regulation Issue?, JOTWELL (October 19, 2022) (reviewing Victor B. Flatt, Disclosing the Danger: State Attorney Ethics Rules Meet Climate Change, 2020 Utah L. Rev. 569 (2020)), https://legalpro.jotwell.com/is-climate-change-really-a-lawyer-regulation-issue/.