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INSIGHT: Disclosing Danger—Attorney Ethics Rules Meet Climate Change

Sept. 16, 2020, 8:01 AM

Client confidentiality is considered one of the bedrocks of attorney client relations. If clients cannot be truthful with their attorneys about particular actions, even illegal ones, then the law’s adversary system might fail and there could be more wrongdoing rather than less.

The prohibition against disclosing client information (unless allowed by the client) is enshrined in all state attorney ethical guidelines. Failure to follow this rule could lead to disciplinary action against the attorney.

However, this non-disclosure rule is limited. Importantly, all states either require or permit attorneys to disclose information if that disclosure would prevent reasonably certain death or substantial bodily harm. Some states require that the disclosure be related to client wrongdoing, while other states, and the American Bar Association’s Model Rule, do not.

Fortunately, there are few situations where many people are exposed to dangerous risk based on confidentially held information. And in those situations where there could be such risk, such as chemical or hazardous waste spills, our laws are very clear about requiring information disclosure, and attorney disclosure would be required by the broader ethical rule that an attorney cannot further criminal or fraudulent behavior.

There still exist situations of course wherein parties may not carefully contain hazards that cause risk (such as failure to create adequate safety plans) or where there may be financial incentives to hide risk (as in the case of tobacco and cancer risks several decades ago). But for the most part, this ethical provision has not had widespread use.

That could be about to change.

Greenhouse Gas Emitters Put Attorneys in Crosshairs

Three important drivers are coming together that could place many more attorneys, specifically attorneys that represent greenhouse gas emitters, in the crosshairs of potential ethical liabilities.

First, knowledge of client greenhouse gas emissions could trigger attorney disclosure requirements given the broad reading of the ethical rules governing disclosure.

Second, climate activists are looking for ways to put pressure on greenhouse gas emitters to reduce or eliminate emissions, and will use all legal tools at their disposal.

And third, attorney ethical complaints are easy to lodge, create hardship for an attorney even when the claim is baseless, and can be filed in 51 different jurisdictions.

It is now beyond dispute that climate change is deadly, with estimates ranging up to 250,000 to 400,000 deaths per annum. While many states may not determine that disclosing previously unknown client emissions could prevent future ones, much environmental enforcement is predicated on this theory.

Thus, in some states, attorneys might have to (or be allowed to) disclose confidential client emissions information because such disclosure could prevent death or substantial bodily harm.

If it is possible to read attorney ethics rules in this fashion, then climate activists have an incentive to do so. Given the ease in which ethical complaints can be brought, multiple states in which such claims could be brought, the number of attorneys barred in more than one state, and reciprocity of attorney discipline between states, it isn’t hard to imagine that many attorneys may have to examine their practices to ensure they do not run afoul of this ethical risk.

That, of course, would be the goal of climate activists. The more attorneys are concerned about their own legal risks, the more they are likely to influence or abandon clients that contribute to climate change, in turn putting pressure on these entities to eliminate or lower climate risk.

Being an attorney has always been considered a privilege granted by the state for which attorneys are held to high standards including working for the public good. The last 20 years have seen an acceleration in attorney roles and influence in business and government. With that acceleration, we are also seeing more responsibility. Responsibility means risk.

As climate risks become more visible and widespread, and given the lack of coordinated federal climate action in the U.S., attorneys will be bearing more of that responsibility and risk. Last summer the ABA called on all attorneys to do what was in their power to reduce harm from climate change.

No one knows what the future will bring, but attorneys should at least be made aware of a possible risk they face. This Insight discloses that danger.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Victor B. Flatt is the Dwight Olds Chair in Law and the faculty co-director of the Environment, Energy, and Natural Resources (EENR) Center at the University of Houston Law Center. He writes and teaches in the areas of environmental law, energy, and climate, and is a member scholar of the Center for Progressive Reform.

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