A retired judge argued in a column for the National Review that energy companies have a valid reason to ask questions regarding many large law firms’ connections with the Environmental Law Institute (ELI).
Andrew Gould argued that the ELI has “worked to sell” controversial climate theories, promoted by their “Climate Judiciary Project,” to judges across the nation. Therefore, Gould argued that firms who work with energy companies while also maintaining ties to ELI present a possible conflict of interest that could undermine energy companies’ legal defense.
“ELI’s board chairman, Rob Kirsch, is a retired WilmerHale partner who led the firm’s environmental practice group. WilmerHale partner Peggy Otum and Arnold & Porter partners Ethan Shenkman and Stacey Halliday also serve on the board. Arnold & Porter’s former New York partner in charge, Michael Gerrard, previously served as an ELI director and now directs the Sabin Center for Climate Change Law at Columbia Law School, the key academic clearinghouse for the “attribution science” theories that ELI promotes and climate plaintiffs rely on. Several Latham partners have served stints on ELI’s board or leadership council, and the firm was central to the formation of ELI’s China working group.
The firms and their lawyers have also sponsored, hosted, and participated in ELI programming. WilmerHale has hosted multiple ELI seminars in its offices in California and Washington, D.C. Arnold & Porter hosts ongoing ELI ‘boot camp’ events for attorneys and previously partnered with ELI on a webinar series on ‘Extended Producer Responsibility.’ From 2021 to 2022, Latham partnered with ELI on a webinar series devoted to ‘environmental justice litigation.’”
Among the cases against energy companies are multiple cases where upwards of a billion dollars hang on the verdict. Gould argues that energy companies ought to ask questions on whether or not the firms representing them can be trusted to provide a full defense given their ties to ELI.
“The professional rules that govern matters of legal ethics recognize that conflicts can arise without direct adversity between two clients. Model Rule of Professional Conduct 1.7(a)(2) contemplates situations in which there is a significant risk that a representation will be materially limited by the lawyer’s responsibilities to another person or by the lawyer’s own interests. The rule’s commentary makes clear that this personal-interest prong does not depend on an attorney-client relationship with the outside organization.
Whether any lawyer or firm has crossed that line here would require more investigation. The relevant questions might include a lawyer’s role within ELI, the firm’s financial or institutional relationship with it, the subject matter of the representation, the lawyer’s participation in the client matter, and the degree to which any outside commitment could materially limit advocacy for the client.”
Read more in National Review.
