1. Ethics and the Environmental Lawyer: A Hazardous Combination? Los Angeles County Bar Association Environmental Section Lunch Program, December 13, 2007

2. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 20072 As a courtesy... Please silence all cell phones, pagers, Blackberries and other electronic devices. Please silence all cell phones, pagers, Blackberries and other electronic devices. Please be considerate of others if you must respond to an urgent call, page or email. Please be considerate of others if you must respond to an urgent call, page or email. Thank you !

3. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 20073 Participants James M. Fischer, Professor of Law, Southwestern Law School James M. Fischer, Professor of Law, Southwestern Law School Sean B. Hecht, Executive Director, Environmental Law Center, Sean B. Hecht, Executive Director, Environmental Law Center, UCLA School of Law Vincent M. Gonzales, Esq., Moderator, Senior Environmental Counsel, Sempra Energy Vincent M. Gonzales, Esq., Moderator, Senior Environmental Counsel, Sempra Energy

4. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 20074 Program Outline Rules & General Principles Rules & General Principles Hypotheticals Hypotheticals Roundtable discussion format Roundtable discussion format Participation is strongly advised! Participation is strongly advised!

5. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 20075 Roundtable Rules Introduce yourself prior to speaking. Introduce yourself prior to speaking. Briefly summarize your point or issue. Briefly summarize your point or issue. Speak and contribute to the discussion. Speak and contribute to the discussion. Listen as others speak and contribute. Listen as others speak and contribute. Be open and candid, as well as courteous. Be open and candid, as well as courteous. “What happens in this room, stays in this room.” “What happens in this room, stays in this room.”

6. Rules & General Principles “It isn't pollution that's harming the environment. It's the impurities in our air and water that are doing it.” Dan Quayle

7. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 20077 Rules California Business & Professions Code §§ 6000-6228 (the State Bar Act). California Business & Professions Code §§ 6000-6228 (the State Bar Act). Rules of Professional Conduct of the State Bar of California (“Rules”), Rules of Professional Conduct of the State Bar of California (“Rules”), State and County Bar Association ethics opinions (advisory only, essentially interpretations of the Rules of Professional Conduct). State and County Bar Association ethics opinions (advisory only, essentially interpretations of the Rules of Professional Conduct).

8. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 20078 Rules California and Federal Court rules of court (governing attorney admission, legal education requirements, court appearances, decorum, etc.). California and Federal Court rules of court (governing attorney admission, legal education requirements, court appearances, decorum, etc.). Judicial decisions interpreting the rules. Judicial decisions interpreting the rules. American Bar Association model Rules of Professional Conduct (“Model Rules”) (again advisory only because the California Rules differ in many respects). American Bar Association model Rules of Professional Conduct (“Model Rules”) (again advisory only because the California Rules differ in many respects).

9. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 20079 General Principles CRPC 2-100 Communication with a Represented Party CRPC 2-100 Communication with a Represented Party CRPC 3-310 Avoiding Representation of Adverse Interests CRPC 3-310 Avoiding Representation of Adverse Interests CRPC 3-210 Advising the Violation of Law CRPC 3-210 Advising the Violation of Law CRPC 3-600 Organization as Client CRPC 3-600 Organization as Client CRPC 5-100 Threatening Criminal, Administrative or Disciplinary Charges CRPC 5-100 Threatening Criminal, Administrative or Disciplinary Charges

10. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 200710 Sarbanes-Oxley Rule 205 Escalation: A lawyer has an obligation to report “up the ladder” any credible evidence of a material violation of State or U.S. securities laws, a material breach of a fiduciary duty or a similar material violation of any U.S. federal or state law. 17 C.F.R. § 205. Escalation: A lawyer has an obligation to report “up the ladder” any credible evidence of a material violation of State or U.S. securities laws, a material breach of a fiduciary duty or a similar material violation of any U.S. federal or state law. 17 C.F.R. § 205. Reports should be made to CLO, but if CLO does not act appropriately and in timely fashion, counsel has an obligation to make facts known to audit committee or full board. Reports should be made to CLO, but if CLO does not act appropriately and in timely fashion, counsel has an obligation to make facts known to audit committee or full board. Issues abound: “ credible evidence ”, materiality, adequacy of CLO ’ s response. Issues abound: “ credible evidence ”, materiality, adequacy of CLO ’ s response.

11. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 200711 Whistleblowers Ca. Labor Code protects whistleblowers. See §§ 1102.5, 1106 and 98.6 Ca. Labor Code protects whistleblowers. See §§ 1102.5, 1106 and 98.6 The Occupational Safety and Health Act, § 11(c), prohibits an employer from discharging or discriminating against an employee for exercising his/her rights. Similar provisions exist in every major federal environmental law. The Occupational Safety and Health Act, § 11(c), prohibits an employer from discharging or discriminating against an employee for exercising his/her rights. Similar provisions exist in every major federal environmental law. Sarbanes-Oxley § 806 protects employees at publicly-traded companies who are reporting or providing evidence of any violations of securities laws. Sarbanes-Oxley § 806 protects employees at publicly-traded companies who are reporting or providing evidence of any violations of securities laws.

12. HYPOTHETHICAL 1

13. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 200713 Facts Tox Co. makes plastic compounds. Tox Co. makes plastic compounds. Tox Co. discharges wastes into a local river pursuant to CWA permits. Tox Co. discharges wastes into a local river pursuant to CWA permits. Current standards prohibit discharges of wastes >0.65 grams/liter of liquid effluent. Current standards prohibit discharges of wastes >0.65 grams/liter of liquid effluent. RWQCB rarely reviews discharge records. RWQCB rarely reviews discharge records. Increasing discharge to 1.25 grams/liter will have no adverse environmental impact. Increasing discharge to 1.25 grams/liter will have no adverse environmental impact.

14. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 200714 Questions May you advise Tox Co that the regulatory agency will in all likelihood not review or monitor Tox Co’s environmental reports? May you advise Tox Co that the regulatory agency will in all likelihood not review or monitor Tox Co’s environmental reports? May you advise Tox Co to raise its liquid effluent discharge to 1.25 grams per liter? May you advise Tox Co to raise its liquid effluent discharge to 1.25 grams per liter?

15. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 200715 Authorities Cal. Rules of Professional Conduct, Rule 3- 210 Cal. Rules of Professional Conduct, Rule 3- 210 ABA Model Rules of Professional Conduct, Rule 1-2(d) ABA Model Rules of Professional Conduct, Rule 1-2(d) Restatement Law Governing Lawyers §94 (2000) Restatement Law Governing Lawyers §94 (2000)

16. HYPOTHETICAL 2

17. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 200717 Same as Hypo 1, plus: Tox Co. uses Chemical X in its processes. Tox Co. uses Chemical X in its processes. Newly published studies show that Chemical X raises by 7.5% the risk of severe to moderate birth defects in those exposed to the chemical. Newly published studies show that Chemical X raises by 7.5% the risk of severe to moderate birth defects in those exposed to the chemical. Unverified rumors of Chemical X being released into the ground. Unverified rumors of Chemical X being released into the ground. Substitute costly; unreliable supplier. Substitute costly; unreliable supplier.

18. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 200718 Questions: Should you relate your concerns to other constituents of Tox Co? If so, to whom and when? Should you relate your concerns to other constituents of Tox Co? If so, to whom and when? Assume Tox Co holds fast to its decision not to discontinue use of he chemical solvent. Assume Tox Co holds fast to its decision not to discontinue use of he chemical solvent. May you write an op-ed piece in the local newspaper discussing the recently published studies? May you write an op-ed piece in the local newspaper discussing the recently published studies? May you include in the op-ed piece thinly veiled hints regarding leaks of the chemical from Tox Co’s facility? Does it matter that you are no longer working at the firm and Tox Co is no longer your client? May you include in the op-ed piece thinly veiled hints regarding leaks of the chemical from Tox Co’s facility? Does it matter that you are no longer working at the firm and Tox Co is no longer your client?

19. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 200719 Authorities Cal. Rules of Professional Conduct, Rule 3-600 ABA Model Rules of Professional Conduct, Rule 1.13 Restatement Law Governing Lawyers §96 (2000) Ethics Alert: The New SEC Attorney Conduct Rules v. California Duty of Confidentiality (http://calbar.gov/calbar/pdfs/SEC-ethics-alerts.pdf )http://calbar.gov/calbar/pdfs/SEC-ethics-alerts.pdf Conflicting Currents: The Obligation to Maintain Inviolate Client Confidences and the New SEC Attorney Conduct Rules, 33 Pepp. L. Rev. 89 (2004)

20. HYPOTHETICAL 3

21. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 200721 Same Facts as Hypo 2, Plus: Government sues Tox Co. and 4 other companies. Government sues Tox Co. and 4 other companies. Would it be a good idea to enter into a joint defense agreement w/ other PRPs? Would it be a good idea to enter into a joint defense agreement w/ other PRPs? Would answer to above change if there was a parallel mass tort Would answer to above change if there was a parallel mass tort Would answer to above change if the US attorney has convened a Grand Jury. Would answer to above change if the US attorney has convened a Grand Jury.

22. Ethics and the Environmental Lawyer: A Hazardous Combination? LACBA, December 13, 200722 Authorities Cal. Rules of Professional Conduct, Rules 3-100, 3-310 Cal. Rules of Professional Conduct, Rules 3-100, 3-310 ABA Model Rules of Professional Conduct, Rules 1.6, 1.7 ABA Model Rules of Professional Conduct, Rules 1.6, 1.7 U.S. v. Stepney, 246 F. Supp. 2d 1069 (N.D. Cal. 2003) U.S. v. Stepney, 246 F. Supp. 2d 1069 (N.D. Cal. 2003)

23. Roundtable Discussion “It is the trade of lawyers to question everything, yield nothing, and talk by the hour.” Thomas Jefferson

24. Conclusions