The Duty to Advise the Lorax: Environmental Advocacy and the Risk of Reform

Abstract

Lawyers have an ethical duty to advise their clients on moral, economic, social, and political matters. When applied to the changing field of environmental law, this abstract notion becomes provocative. Lawyers should advise their environmental advocacy clients of the possibility that their efforts to apply statutes or rules might initially succeed, but subsequent legislative reactions might defund, reform, or repeal the laws the client’s case relied upon. As a client’s sophistication decreases, or as the risk of adverse reactions to the client’s environmental advocacy increases, the lawyer’s duty to advise the client of these risks can shift from discretionary to mandatory. Accordingly, to fulfill their duty as advisor, and to protect their clients from harm, lawyers should be sure to assess their clients’ sophistication, objectives, risk tolerance, and advocacy tone. In addition, to prepare for the potential reactions of third parties, lawyers may also need to advise their clients to obtain further assistance from other professionals. While clients will ultimately choose their goals, the failure to ask hard questions could mean that the lawyer fails to obtain informed consent and, in some cases, could even constitute misconduct.