Title: Ethical Consideration in Environmental Representation
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Permanent Link: http://ufdc.ufl.edu/WL00001422/00001
 Material Information
Title: Ethical Consideration in Environmental Representation
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Ethical Consideration in Environmental Representation
General Note: Box 8, Folder 5 ( Vail Conference, 1995 - 1995 ), Item 36
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00001422
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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ETHICAL CONSIDERATIONS IN
ENVIRONMENTAL REPRESENTATION
/ -
ATTORNEY OBLIGATIONS
SEP 27 1994

I. Florida Rules ..

A. The Rules of Professional Conduct ("Ethi~ -ules") can
be found in Chapter 4 of the Rules Regulating The Florida Bar
adopted by the Supreme Court of Florida on July 17, 1986, and
made effective as of January 1, 1987. Certain amendments were
adopted by the Supreme Court on July 23, 1992 and became
effective on January 1, 1993.

B. The Florida rules are modeled after the ABA Model Rules
(with exceptions) and replaced the Canons, Ethical Considerations
and Disciplinary Rules that made up the prior Code of
Professional Responsibility. A copy of the Rules can be found at
the end of this outline.


II. Notice of Contamination-Disclosure Obligations

A. Substantive Issue Requirement to notify or disclose.

1. Some notification requirements under state and
federal environmental laws are straight forward.

2. Other obligations are not clear.

3. A recurring problem is the question of whether or
not a client must notify federal or state agencies upon discovery
that contamination exists on its property.

a. Probably no obligation to report mere
"status" of contamination (absent special requirements in
permit).

b. More difficult question is the obligation to
report based on inferred knowledge of "release" of contaminating
materials. See, e.g., 103, CERCLA (at the end of this
outline).

4. Practical considerations and business judgments
will often lead to voluntary disclosure.

B. Ethical Issue-Blowing the Whistle "What if the client
is required to disclose, and will not?"

1. Many disclosure obligations are subject to
criminal enforcement action.


2,3.









2. Rule 4-1.6 states:


a. A lawyer shall not reveal information
relating to representation of a client except
as stated in paragraphs (b) (c), and (d)
unless the client consents after disclosure
to the client.

b. A lawyer shall reveal such information to the
extent the lawyer believes necessary:

\ l ((1) To prevent a client from committing a
crime; or

(2) To prevent death or substantial bodily
harm to another.

(emphasis supplied)

The Florida rule is made broader than the ABA Model Code
provision. Disclosure is mandatory and is not limited to death
or bodily injury situations. See also Rule 4-2.1.

3. RPC 4-1.6(b)(1) relates to prospective conduct;
therefore, attorney may not be mandated or allowed to disclose
past criminal acts. The key question is whether there is a
continuing obligation to notify. RPC 4-1.6(b)(2), however, may
reimpose the duty to disclose if disclosure of the past action
will prevent death or substantial bodily harm.

4. The attorney must also be aware of the obligation
to withdraw under certain circumstances.

a. Rule 4-1.16 states that:

(a) Consent Required to Reveal Information.
A lawyer shall not reveal information
relating to representation of a client except
as stated in subdivisions (b), (c), and (d),
unless the client consents after disclosure
to the client.

(b) When Lawyer Must Reveal Information. A
lawyer shall reveal such information to the
extent the lawyer believes necessary:

(1) to serve the client's interest
unless it is information the client
specifically requires not to be
disclosed;


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(2) to establish a claim or defense on
behalf of the lawyer in a controversy
between the lawyer and client;

(3) to establish a defense to a
criminal charge or civil claim against
the lawyer based upon conduct in which
the client was involved;

(4) to respond to allegations in any
proceeding concerning the lawyer's
representation of the client; or

(5) to comply with the Rules of
Professional Conduct.

(d) Exhaustion of Appellate Remedies. When
required by a tribunal to reveal such
information, a lawyer may first exhaust all
appellate remedies.

b. Rule 4-1.2(d) states that:

(d) Criminal or Fraudulent Conduct. A
lawyer shall not counsel a client to engage,
or assist a client, in conduct that the
lawyer knows or reasonably should know is
criminal or fraudulent. However, a lawyer
may discuss the legal consequences of any
proposed course of conduct with a client and
may counsel or assist a client to make a good
faith effort to determine the validity,
scope, meaning, or application of the law.


III. Multi-Client Representation in Environmental Matters

A. Many hazardous waste/substance cases involve numerous
potential defendants. Multiple representation of clients with
similar positions in the case can result in significant
transactional cost savings and allows the clients to more
effectively assert their legal rights.

B. Rule 4-1.7(a)-(c) states:

(a) A lawyer shall not represent a client if the
representation of that client will be directly adverse to
the interests of another client, unless:

(1) The lawyer reasonably believes the
representation will not adversely affect the lawyer's

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responsibilities to and relationship with other client;
and

(2) Each client consents after consultation.

(b) A lawyer shall not represent a client if the
lawyer's exercise of independent professional judgment in
the representation of that client may be materially limited
by the lawyer's responsibilities to another client or to a
third person or by the lawyer's own interest, unless:

(1) The lawyer reasonably believes the
representation will not be adversely affected; and

(2) The client consents after consultation.

(c) When representation of multiple clients in a
single matter is undertaken, the consultation shall include
explanation of the implications of the common representation
and the advantages and risks involved.

C. The key to balancing potential conflicts of interest
with the benefits of multi-client representation is early and
continuing communication with all involved clients.


IV. Clients and their Consultants

A. Environmental representation often involves significant
dealings with technical consultants. This fact can lead to
certain ethical difficulties.

B. Rule 4-1.6(c) states:

A lawyer may reveal information [relating to the
representation of a client] to the extent the lawyer
believes necessary:

(1) To serve the client's interest unless it is
information the client specifically requires not to be
disclosed. .

C. ABA Model Code provisions specifically made reference
to implied consent for disclosure. Florida rule language does
not, but the explanatory comments do.

D. The safest course of action is to advise client in
writing that attorney will be making "full disclosure" to
consultant.



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2.3.3









E. Steps should be taken to assure that consultant does
not disclose information, e.g., confidentiality agreement; work
product protection.



GOVERNMENT COUNSEL'S PERSPECTIVE


I. Ethical Constraints on State Employees

A. Code of Ethics for Public Officer and Employees

1. Chapter 112, Part III, Florida Statutes, ("F.S.")
establishes this Code.

2. The Code is designed to prevent conflicts of
interest, but not to deny public officials the opportunity "to
acquire and retain private economic interests except when
conflicts cannot be avoided." S. 112.311(1), F.S.

3. S. 112.320, F.S., creates the Commission on Ethics
to act as the "guardian of the standards of conduct for the
officer and employees of the state." The Commission is a nine-
member volunteer panel which:

a. Investigates complaints and holds hearings on
potential ethics violations.

b. Provides binding advisory opinions to public
officers and employees about the ethics of their own behavior, as
well as opinions on the behavior of those they can hire or
terminate.

c. Upon completion of investigation, if a
violation is found, reports findings and recommends appropriate
actions to the proper disciplinary official (e.g., Governor,
agency head, state attorney where criminal misconduct).

4. S. 112.313, F.S., prohibits state officers and
employees from the following:

a. Soliciting or accepting anything of value
that would be likely to influence the official discharge of
duties.

b. Doing business (e.g., purchase, rent, lease
goods) with one's own agency, with some very narrow exceptions.

c. Accepting compensation if the employee knows
or should know that it was given to influence a decision.


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d. Using an official position to secure special
privilege.

e. With a few narrow exceptions, having a
contractual or employment relationship with any business entity
that is subject to regulation by the employing agency, or having
any employment or contractual relationship that will create a
continuing or frequently recurring conflict between private
interests and public duties.

f. Disclosing or using information not available
to the general public for personal gain.

g. Failing to disclose any interest in any
business entity which is granted a privilege to operate in this
state.

5. S. 112.3143 provides that no public officer,
including any member of an advisory panel, can vote or
participate in any manner that inures to his or her special
private gain without filing a written disclosure within 15 days.
County, municipal or other local public officers must abstain
from voting in addition to filing the written disclosure.

6. S. 112.3145 requires state officers and specified
employees (generally, middle and upper management and attorneys)
to file annual statements of financial interests with the
Secretary of State, in which they must disclose:

a. Sources of income in excess of 5 percent of
the gross state income.

b. Sources of business income in excess of 10%
of the business' gross income where the reporting person has a
material interest.

c. Real property other than residence and
vacation homes.

d. Gifts of more than $100 (other than from
relatives).

e. Liabilities greater than net worth.

In addition, such persons must file quarterly reports of names of
clients represented for a fee before agencies at the same level
of government.

7. S. 112.317 establishes penalties, in addition to
criminal penalties, that range from impeachment or removal or
dismissal from office to suspension, demotion, public censure and


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reprimand, forfeiture of up to 1/3 salary per month up to a year,
a penalty of up to $5,000, and restitution.

8. S. 112.3173 also provides for forfeiture of
retirement benefits for specified felony convictions.

B. Sunshine Law Reauirements

1. Section 286.011, F.S., Florida's Sunshine law,
governs meeting of all boards and commissions of state agencies
and local governments, by requiring that:

a. All meetings must be open to the public at
nondiscriminatory places.

b. Minutes shall be properly recorded and
maintained.

2. Violations can result in fines of up to $500 and
voiding the action taken at the meeting.

3. F.S. 286.012 requires that all members must vote.
Balloting cannot be secret.

4. The meaning of "meeting" has been very broadly
interpreted to include information discussions and telephone
calls between members.

5. Excluded are discussions between staff and
individual board members (unless staff acts as a go between).

6. The law also has been interpreted to require
adequate notice of meetings.

C. What is not Covered

1. Do not expect state employees to police the
ethical violations of those doing business before the agency.
Those violations can only be addressed by the particular
professional regulatory agency, or the state attorney where
criminal offenses are violated.


II. Lobbying State Agencies

A. The Law

1. Chapter 89-325, Laws of Florida, created Section
112.3215, F.S., regulating executive branch lobbyists.

2. The law requires persons who "lobby" an agency to
register, pay an annual fee of $10, indicate the name and
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2.3.(v









business address of each principal, and submit semiannual
expenditure reports.

3. "Lobbyist" includes anyone who "lobbies" on behalf
of another for compensation, except for those who represent
clients before judicial or administrative proceedings. Also
excluded are state employees.

4. The Commission on Ethics enforces the law and
promulgates rules. Those in violation can be reprimanded,
censured or prohibited from lobbying for up to two years upon the
Commission's request and approval by the Governor and Cabinet.

5. Agencies are required to be "diligent to ascertain
whether persons required to register ." have complied. An
agency may not "knowingly permit" an unregulated person to lobby
the agency.

B. The Rules

1. The Ethics Commission has promulgated rules, at
Florida Administrative Code Chapter 34-12, effective October 12,
1989, implementing the law.

2. The big battle in rule making was whether the
registration requirement should apply to persons retained to
influence agency decisions to issue or deny individual licenses
or permits, or to initiate investigations. The rules say not.

3. Further qualifications provided by the rules are
as follows:

a. The exclusion from registration only applies
to judicial representation once a case is filed in court.

b. The exclusion for administrative
representation only applies once a petition for administrative
proceedings is filed (including the filing of declaratory
statements and rule challenges).

c. Also excluded are appearances at publicly
noticed hearings or workshops, but not hallway chit chat.

d. Regarding bids or proposals, lobbying does
not include submitting them, asking information about procedures,
and attendance at bid conferences once the bid specifications
have been announced.

e. Lobbying does not include appearance before
or communications with the agency at its request.


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f. Expert consultants are not required to
register if retained by a person to gather, analyze or
disseminate information required by the agency in conjunction
with a permit or license application.

g. Lobbyists must register annually for each
client on forms provided by the Commission before they can lobby.
The $10 fee covers all principals. Renewal must be by January.

h. Lobbyists must file with the Commission
semiannual expenditure reports for each principal even if there
have been no expenditures.

i. Agencies must take "reasonable steps" to
inform people of the regulatory requirements.

j. Anyone in doubt as to the applicability of
the law to that person in a particular context can request a
binding opinion from the Commission. Opinions will be published.

4. The rules also spell out in detail the complaint
procedures.


III. Ethical Considerations of Attorney Representation Before
State Agencies

A. Rule of Professional Conduct 4-4.2

1. This rule prohibits an attorney from communicating
with a party the attorney knows to be represented; by counsel
without prior consent of that party's attorney.

2. Professional Ethics of the Florida Bar Opinion 87-
2 applies the Rule to matters involving governmental agencies.
It establishes:

a. The restriction on communication applies once
a particular matter has been referred to the legal department for
representation (e.g., for administrative or judicial litigation),
and not to all agency contacts.

b. The restrictions apply to persons having
managerial responsibility regarding the specific matter, and any
other persons who have been directly involved in the matter,
including those whose actions in connection with the matter may
be imputed to the agency. Excluded are mere witnesses having no
responsibility for the matter in question.

3. Note that the Rule only applies to attorney
contact, not direct client or consultant contact with the agency
person. However, the attorney might face disciplinary sanctions
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23..6









if he or she is using those people as an indirect means of
contact.

4. The Rule can be enforced both through protective
orders from a judge or hearing officer when a matter is in
litigation (and sanctions, ultimately including case dismissal,
if orders are violated); or by sanctions against the attorney
imposed by The Florida Bar, which can include private or public
reprimand, probation, suspension, and disbarment.


IV. Reporting Requirements of the Department of Environmental
Regulation

A. Statutory Provisions

1. S. 403.161(1)(d), F.S., requires the owner or
operator of a facility to report to DER within one day the
release of a hazardous substance if such release is required to
be reported under federal law.

a. Hazardous substances are defined at 42 U.S.C.
9601(14).

b. "Release" is defined at 42 U.S.C. 9601(22)
to include "any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into the environment ...."

c. Florida Administrative Code Chapter 17-150
reiterates these definitions and explains how to report.

2. S. 376.302, F.S., prohibits discharge of
pollutants into or upon any waters or lands of the state, in
violation of state standards, but S. 376.311, F.S., absolves a
discharger of liability if the discharge is promptly reported and
removed.

a. "Pollutant" is defined at S. 376.301(12) to
include petroleum products, pesticides, ammonia, chlorine and
derivatives thereof.

3. S. 403.161, F.S., provides both civil and criminal
penalties for false reporting.

B. Regulatory Requirements

1. DER permits generally have reporting requirements.
Failure to comply with permit conditions is a violation of S.
403.161(1)(b), F.S.


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2.3.q









2. Reporting requirements are also contained in DER
rules, both for permits and for non-permitted dischargers. See,
e.g., F.A.C. Rule 17-770.250, requiring the reporting of the
discovery of petroleum product contaminated on site. Discovery
includes seeing it, smelling it, suspecting it, as well as
analytically detecting it.

3. Since stationary installations reasonably expected
to be a source of pollution cannot be constructed, operated or
maintained without a DER permit, S. 403.087, F.S., ownership of a
contaminated site without a permit, and hence without reporting,
is a violation of S. 403.161(1)(b), F.S.


Consequences of Failure to Report


1. Under DER's Settlement Guidelines, non-reporting
of pollution is likely to increase the amount and likelihood of
penalties being sought.

2. Since under S. 403.161, F.S., violations that
cause pollution and are willful are felonies, and those that are
due to reckless indifference or gross careless disregard are
misdemeanors, and other willful violations are also misdemeanors,
knowledge of contamination without appropriate reporting to DER
may increase the likelihood of criminal prosecution.
























VFS.00000.26.8D


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CASE EXAMPLE NO. 1


A developer purchases a large tract of land which has a considerable amount of wetlands on
site. He has a site plan prepared using in-house staff that makes the project unpermittable.
The amount of wetland areas to be filled exceeds the amount of remaining area available for
mitigation.

The developer contacts an engineering consultant to review the plan and ask for a proposal
to do the project permitting. The consultant needs the work, so he quickly overlooks the
problems with the project and provides the developer with a "low ball" proposal.

An attorney is retained by the developer and is made aware of the site plan problems by the
developer, but is told to keep it confidential. The attorney also works with the engineering
consultant on many different projects, but can not make the consultant aware of the project
problems.

The developer sets up a meeting with the primary permitting agency as a pre-application
meeting to review the site plan. The agency staff elects not to point out problems with the
project in order to avoid an early controversy because of the developers political connections.

What is the developers obligation to the project team?

What is the engineers obligation to the developer/client?

What is the attorneys obligation to the developer/client and engineering consultant and
environmental agency?

Is the engineers "low ball" proposal ethical?

Is the environmental agency staff obligated to provide comments to the developer?


CASE EXAMPLE NO. 2

Developer retains engineer, biologist and attorney for a Development of Regional Impact (DRI)
project. The site has "marginal" drained wetlands and the upland portions of the site are
active row crop agricultural. The developer informs the project team that he intends to
expand the row crops into the wetland areas using agricultural "exemptions", which is all prior
to announcement of the DRI project.

During the agricultural construction process an indian mound is uncovered. Developer
consults with the team on what to do. Team advises developer of process which is lengthy
in time. Developer proceeds with filling and leveling the indian mound without notifying
agenciesf)informing the consulting team.

Consulting team responsibilities? ,w k J

Are developers actions ethical?


2.4











CASE EXAMPLE NO. 5


A local developer has applied for environmental permits to fill a portion of a marginal impacted
wetland for an access road to his site. The application includes a mitigation proposal at a ratio
of 10 to 1 plus removal of exotic species from the remainder of the wetland which will be
preserved.

During review of the site by the local government environmentalist, he notices an eagle nest
in the middle of the proposed roadway. He elects not to notify state or federal agencies of
the nest because of problems he encountered with the same agencies in getting approval for
a local park, in addition to recognizing that local government has no authority over eagle
habitat.

A local environmental group is familiar with the site because the property is often used by the
group for bird watching. Because of this they decide to file an appeal to delay the project.
The basis for the appeal is the issue of "eagle habitat" although they know the on site nest
has been inactive for over 5 years.

Is the local government environmentalist unethical in not reporting his findings to state
and federal agencies?

Is the local government environmentalist acting in a responsible manner as an
environmental professional?

Does the local environmental group have rights to the property? Are their actions
ethical in not reporting their knowledge of the inactive eagle nest?

Is the developer at fault? Does he have an obligation to work with the local groups to
relocate the entrance road?


2.4.1




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