Chapter 21: Ethical Issues

Representing the highly regulated client presents unique problems for the unwary attorney. Wide-ranging and sometimes overlapping federal, state, and local environmental statutes and regulations can impose a heavy burden on legal counsel to be both knowledgeable and assertive in protecting the client’s legitimate interests. Foremost in this attorney-client relationship is clear communication as to the scope of the legal representation and the related risks and benefits involved in the area of environmental compliance.

This chapter discusses some of the ethical duties implicated in representing a client under circumstances that may involve environmental contamination. This chapter includes a discussion of the following: the lawyer’s duties to the client, generally; the lawyer’s responsibility in connection with a client’s misconduct or misrepresentations; protection of confidential information and related privileges; the common interest doctrine and joint defense agreements; the lawyer’s obligation to the organization client; contacting another party’s former and current employees; and the lawyer’s obligation to preserve evidence.

§ 21.1 Introduction
§ 21.2 Lawyer’s Duties to the Client, Generally
§ 21.3 Lawyer’s Responsibility Regarding Client Misconduct or Misrepresentations
§ 21.4 Protection of Confidential Information
§ 21.5 Common Interest Doctrine and Joint Defense Agreements
§ 21.6 Lawyer’s Obligation to the Organization Client
§ 21.7 Lawyer’s Ability to Contact Another Party’s Present and Former Employees
§ 21.8 The Obligation to Preserve Evidence

FEDERICO CHEEVER, ESQ.
University of Denver Sturm College of Law

Federico Cheever is Director of the Environmental and Natural Resources Law Program and Professor of Law at the University of Denver Sturm College of Law. After graduating from Stanford University (B.A./M.A. 1981) and UCLA (J.D. 1986), and clerking for Judge Harry Pregerson of United States Court of Appeals for the 9th Circuit in Los Angeles (1986-1987), he came to Denver as an Associate Attorney for the Sierra Club Legal Defense Fund (1987-1989). Between 1990 and 1993, he was an associate at the law firm Faegre & Benson in Denver, doing commercial and environmental litigation. He began teaching at the University of Denver College of Law in 1993, specializing in Environmental Law, Wildlife Law, Public Land Law, Land Conservation Transactions and Property. Professor Cheever served as the Hughes/Rudd Research Professor at the University of Denver College of Law in 2002. He is also currently an adjunct professor at the Colorado School of Mines, teaching Environmental Law. Professor Cheever writes extensively about the Endangered Species Act, federal public land law, and land conservation transactions. He has recently co-authored a natural resources casebook, Natural Resources Law: A Place-Based Book of Problems and Cases, with Christine Klein and Bret Birdsong (2005).