Green Ethics for Lawyers

INTRODUCTIONIt is now common to view environmental protection as an ethical issue. According to United Nations Secretary-General Ban Ki-moon, "protecting our environment is an urgent moral imperative and a sacred duty."1 Top officials in the Obama administration speak of a "moral obligation" to reduce carbon emissions, a sentiment also expressed by Pope Francis.2 Polling indicates that most Americans regard environmental protection as an ethical duty. 3 Several professional codes, including codes for doctors, 4 engineers, 5 planners, 6 landscape architects, 7 business executives, 8 and officials of nonprofit organizations, 9 include provisions that address the importance of environmental stewardship.Remarkably, however, the American Bar Association ("ABA") Model Rules of Professional Conduct do not mention the environment once. 10 While the ABA Model Rules are extremely thorough, and govern matters as picayune as handling an errant fax11 or designing a firm's letterhead,12 the ABA has never seen fit to address the issue of environmental protection in the rules that serve as the boilerplate for state bars throughout the nation. Lawyers in the United States continue to operate under a set of ethical rules that the ABA adopted in the early 1980s13-an era when environmental protection ranked low on this country's list of priorities. 14The time has come to remedy the conspicuous omission of environmental protection from the list of lawyers' ethical duties. An effort is underway in Oregon-and soon, hopefully, in other states-to elevate the importance of environmental issues in the bar's regulation of lawyers. 15 One aspect of the strategy is to present proposals for revisions of ethical rules, either in the ABA's template or in individual states' ethical codes.This Article suggests amendments that would import "green ethics" to the ABA Model Rules. Each of the amendments proposed herein is suitable for any of the forty-nine states that have modeled their ethics codes after the ABA Model Rules. 16 The proposed reforms fit together, and they are also freestanding; the efficacy of any one amendment does not depend on adoption of the other amendments. A state could adopt some of the proposed amendments or the state might simply revise the commentary accompanying the state's existing rules in order to stress the importance of environmental protection. Even in a state that declines to revise its rules or commentary, the proposals in this Article might hopefully invite reflection on the ways in which lawyers can act voluntarily to protect the environment.The dearth of pertinent scholarship requires that this Article must begin with first principles. 17 Part I begins by exploring the current conceptual framework for the ethical regulation of lawyers. 18 Historically, the highest imperative in the legal profession has been zealous advocacy on behalf of a lawyer's client. 19 This goal began to yield somewhat when the ABA's Ethics 2000 Commission proposed several reforms permitting-but usually not requiring- lawyers to address third-party interests distinct from their clients' priorities. 20 T he ABA adopted the Commission's recommendations and also adopted additional reforms to permit whistleblowing in the aftermath of the corporate scandals that led to the passage of the Sarbanes-Oxley Act in 2002. 21 While the cognizance of nonpartisan interests in the updated ABA Model Rules is commendable, the fact remains that only human interests provide a basis for disloyalty to a client.22 Environmental considerations standing alone cannot trump the duty of partisan advocacy, except to the extent that those considerations translate to financial harm or health risks to humans. 23Next, P art II of this Article sets forth proposals that represent only a small departure from the current version of the ABA Model Rules.24 These proposals are consistent with the rationale that now underlies many of the Model Rules. …