It's not just wildfires in Australia or our rapidly warming oceans (to the tune of five Hiroshima bombs every second). Climate change affects every aspect of our world, and it's forcing us reevaluate all of the human institutions we've built up over years, decades, and centuries. One such institution that CPR Member Scholar Victor Flatt has begun investigating is the legal profession itself.
Members of the legal profession are bound by a code of professional ethics that applies in the state in which they practice, and this code spells out their professional responsibilities to their clients, to the legal system, and to broader society. As Flatt explains in an article in the current issue of the Environmental Law Institute's Environmental Forum, it's time to review these rules of professional responsibility through the lens of climate change. In particular, his article looks at the climate implications of Rule 1.6 from the American Bar Association's (ABA) Model Rules of Professional Ethics, which governs attorney-client confidentiality. (Most states have adopted or based their respective legal codes on the ABA's Model Rules.)
Section (b) of Rule 1.6 outlines several exceptions to the general rule of confidentiality. Flatt argues that one of these exceptions has particular significance for attorneys that represent the fossil fuel industry. One exception either permits or even requires (depending on the state) lawyers to reveal otherwise privileged information if they have a reasonable belief that it is necessary "to prevent reasonably certain death or substantial bodily harm." By now, the evidence of the risks that climate change poses to human life and safety, and the contribution of fossil fuels to those risks, is beyond dispute. The question that Flatt examines is to what extent do considerations of professional ethics permit attorneys to disclose information about how their clients' activities are contributing to climate change and the potentially existential threat it poses to humanity.
Flatt also recently had the opportunity to discuss these issues on the Law to Fact podcast. You can give it a listen here. Flatt's analysis is drawn from a longer article that will appear in the spring edition of the 2020 Utah Law Review and will be featured in a national webinar hosted by the Environmental Law Institute this spring.
Other professions, including medicine, are starting to grapple with the implications that climate change holds for them. It is long overdue for other legal professionals to join Flatt in doing the same for the legal profession.
