It was a record breaking attendance at the AIRROC Spring Membership Meeting on March 5 & 6. Hosted at the offices of Norton Rose Fulbright in New York City, members held meetings and also heard from great education panels. Read on for highlights for this particular session.
Doing the right thing is easy . . . isn’t it? Not always. When it comes to environmental contamination cases of Himalayan proportions, practitioners can find themselves longing for an “ethics sherpa” to help them reach the summit and return to base camp with extremities intact. During our final session, Bassi Edlin Huie & Blum Partners Earl L. Hagström and Erin K. Poppler traversed this tricky terrain.
Hagström started with the big picture — ethics, morals, and the law — by examining the differences between them. Morals apply to personal behavior. Ethics apply to professional interaction. Laws apply to relationships between individuals and society. With all three, there are separate and equal or conflicting obligations. The tough part comes when conflicts of interest arise. Environmental contamination cases can be particularly complex in this regard.
Hagström handed off to Poppler, who began with a pointed question: If confidentiality is the hallmark of the attorney-client relationship, what happens when it conflicts with a duty to disclose information? Professionals must report releases of hazardous substances due to environmental statutes. Under the rules of professional conduct, attorneys are required to disclose information to courts, and sometimes, to regulatory agencies. This gives rise to ethical quandaries, and bar rules and regulatory reporting requirements vary by state. From a regulatory agency’s perspective, an attorney’s duty as an officer of the court applies to public agency proceedings if they are adjudicative or the agency is considered a tribunal. Notably, if it is the client’s obligation to disclose information, disclosure by the attorney is a more relevant issue.
Poppler pressed on, discussing situations when attorneys must keep confidentiality intact and when ethics require them to break it, for example, when a substantial threat of harm or a duty to protect public health is at issue. Confidentiality becomes increasingly complicated when the client is a complex organization of people, systems, and information that could all one day become evidence that clients must preserve. Using a hypothetical lawsuit (a gold mine operator using the mercury recovery process) and a transaction scenario (a seller of property once used as a chemical plant), Poppler demonstrated how these issues might play out in real life.
Hagström took over again to cover corporate disclosures, including SEC requirements, materiality determinations, personal accountability, the importance of transparency, and environmental impacts. He considered the important role the insurance industry plays in driving high ethical standards, then broke down the legal, ethical, and moral aspects of potential events. Ultimately, laws are guidelines that set minimum standards of acceptable behavior in society. Ethics go beyond minimum standards to promote optimal behavior. When faced with environmental contamination matters, practitioners must first understand if they are dealing with a moral, a legal, or an ethical decision. In the end, Hagström emphasized that doing the ethical thing is always good business. And though a lofty topic, no one had to summit Mt. Everest to earn this ethics CLE credit.
Refer to page 31 in the Spring 2019 issue for article. https://www.airroc.org/assets/docs/matters/AIRROC-MATTERS-Spring-2019-Vol-15-No-1.pdf
