Speaking of infringements on what is now the scope of attorney-client privilege, an Oregon law professor has proposed to make environmental protection part of lawyers’ ethical duties. [Daily Climate; Tom Lininger, “Green Ethics for Lawyers,” Boston College Law Review, 2016; Scott Greenfield] Some backers hope the idea will encourage lawyers representing the fossil fuel industry, in particular, to disregard conventional attorney duties of loyalty to clients; indeed, it might someday serve as grounds for them to be disciplined if they refrain from betraying client interests in various situations.
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The level of arrogance shown here is amazing
Lininger writes “Remarkably, however, the American Bar Association (‘ABA’) Model Rules of Professional Conduct do not mention the environment once.” (emphasis added) Because the Rules do in fact mention the environment several times—including in the comments that define what counts as pro bono work—Lininger uses a footnote to qualify his claim to be that the word doesn’t appear in the black letter of the rule as opposed to in the comments.
He’s right about that. But to put Lininger’s “remarkably” in context, consider that the text of the rules also don’t mention police violence, affirmative action, war, Medicare, abortion, social security, religious liberty, the economy, the federal deficit, reparations, immigration, terrorism, economic inequality, the war on crime, the war on drugs, guns, foreign affairs, or national security, to name just some of the important issues of the day.
Those of us in legal ethics often encounter one-issue advocates want to re-write the lawyers’ ethics rules so as to make their issue special and to control the substantive law in their field. It’s virtually always a bad idea. Lawyers and clients are already bound by environmental law. If you want to change their behavior in the environmental field, immigration, foreign affairs, etc., then change the substantive law in that field.
This is a terrible idea – where would it end? Thin end of the wedge, people, thin end of the wedge….
For an example of the approach attorneys should take to defending environmental criminals in an enlightened society, look up the Vyshinsky page in my Cyberussr (Google “cyberussr vyshinsky flowers” and scroll most of the way down to the “defense lawyers.”).
Some 10-20 years ago, a defense lawyer faced charges for advising a client in a child-porn case. (My impression is that the client was an innocent administrator who discovered usage on his institution’s machines.) Instead of advising the client, his duty was to denounce him immediately to the authorities. I am not sure how the case was resolved.