Environmental Law 101: John Dean and Environmental Decision Making.

Time passes.  One surmises, however, that, when John Dean graduated from law school in 1965, he never anticipated that he would work for a President of the United States, be charged with the obstruction of justice, become a book author and become a national speaker on ethics.  No lawyer’s career, however, could better highlight the pitfalls of representing powerful clients and the tension between client loyalty on the one hand and a lawyer’s duty to the justice system on the other.

I met John Dean several years ago when he appeared on a panel dealing with Presidential powers at the Los Angeles Times Book Fair at UCLA.  As I was entering the “Green Room” where speakers were kept before their appearances, Dean walked by and we exchanged greetings.  After he passed, I asked my daughter (who was born in 1975):  “Do you know who that is?”  The name meant nothing to her, but, of course, it meant tons to me.

Dean spoke recently at my alma mater, the University of Wisconsin Law School; during that presentation he highlighted some of the lessons he learned as they relate to the legal profession.

He pointed out that no fewer than 21 lawyers were ultimately implicated in Watergate—from the President, to Presidential advisers, to burglars and to former FBI and CIA agents who moonlighted as political fix-it men.  Dean pointed out that there was no one, single trap that the lawyers fell into; rather, there were a variety of traps.  Identifying them is important to understanding the importance of the attorney-client relationship.   After all, the primary objective of a lawyer is to keep clients out of a hole in the first place rather than to help dig them out of a hole after the fact.

The following issues raised by Dean were reported on the UW Law School publication Gargoyle in its Winter 2014 edition.

1. Competence.  Dean talked about the fact that he was not a criminal lawyer, yet was expected to provide advice on criminal law issues.  During my career I’ve been involved in five criminal cases.  They are not fun.  I learned quickly that dealing with criminal prosecutors is different than dealing with civil enforcers and regulators.  In one case, there were almost 20 criminal defense lawyers involved.  Most defense lawyers are former criminal prosecutors.  You have to learn when to call in the experts—and it is generally earlier rather than later.
2. Confusion as to Who the Client Is.  During my career, I can remember two times when I was forced to ask:  “Who is my client?”  Was it the General Counsel; the President or CEO; the Board of Directors; or the shareholders?  Or, if I was representing a municipality, was it the City Attorney, the Mayor, the City Council, the water department or the citizens?  I remember getting the same answer from both a City Attorney and from the General Counsel of a huge international natural resources company who was internationally renowned:  “Jim, I would like to think you are representing all of us.”  Thinking politically, Dean thought he was representing “all of the above” until it was too late.  Thinking like a lawyer, it was clear that Dean should have been representing the President of the United States and not Bob Haldeman, John Erhlichman, John Mitchell, Chuck Colston or Gordon Liddy.  For an attorney to perform his or her job properly, the client needs to be identified because the interests of all parties are never the same.
3. Client Loyalty.  During law school, I worked for a Governor.  I know the strength of the loyalty that a staff person feels toward the person for whom he works.   A lawyer feels that same passion for every client he represents.  One can only imagine the pressures on John Dean as the President’s lawyer—particularly because he was young and inexperienced.  Many times, the reason that young lawyers are selected to perform political jobs is not that they are brilliant, but, rather, because they are malleable, can be intimidated or exercise power without restraint or judgment.  Ultimately, a lawyer has to decide whether he is going to please a client or serve a client.  Clients like to hear good news.  Clients don’t like complexities.  Clients like black-and-white answers.  Well, those are rarities in the law.  The best way to be loyal to a client is to be candid, clear and as loud as is necessary to overcome the tendency to ignore you or to “zone you out.”
4. Arrogance toward the Law.  Where there is no rule of law, there is no civilization.  There have to be rules; and, above all, the legal profession needs to be in the forefront of maintaining them.  Nixon was not the only President to act outside the law; he was the one that did it so badly that he got caught.  The reason he did it so badly was not just that he was a bad actor, but because he felt, as he told David Frost:  “When the President does it, it is not illegal.”  Although he was a lawyer, a unanimous United States Supreme Court disagreed with him.  Lawyers are sworn to serve the law.  There are many fine lines and ambiguities, but as Oliver Wendell Holmes once famously said:  “Even a dog knows the difference between being stumbled over and being kicked.”
5. The Psychology of Cover-up.  My career has taught me that regulatory agencies and prosecutors, civil and criminal, look for good faith; and they measure good faith in terms of disclosure.  They suspect wrongful conduct because of an incorrect perception that everything that a regulated entity does is intentional when, in fact, almost all environmental disasters arise from stupidity, lack of caring and/or negligence (gross or otherwise).  The first thing that typically happens after a disaster is to try to discover, and then spin, the facts; pretty soon there is a temptation to try to hide them rather than to disclose them.  There is a reason why Tylenol is still perceived as a safe product regardless of the tampering that was done with its product years ago—it acted quickly, made a full disclosure of the facts and acted quickly and decisively to cure the problem.  Several years ago, I had to deal with the reality that farm land that a client was going to develop for residential housing had measurable amounts of DDT and Toxaphene resulting from decades of pesticide use.  The levels were not significant except at several pesticide landing strips, but, when dealing with these two contaminants, nobody knew at the time precisely what “safe” was.  I told the client:  “We have to deal with this issue based on the assumption that we will have to defend this land to regulators and the media; if we don’t, then we may lose it all.”  A lot of environmental testing was done, the pesticide landing strips were excluded from development until they underwent millions of dollars of remediation by the former owner,  standards were developed and cleared with the state environmental agency and the land was developed—but only after a major media frenzy that required us to defend the safety of the property.  There could have been an attempt to cover up the facts, but ultimately all cover-ups are unsuccessful.  The value of the land would have been lost and the reputation of corporations and individuals would have been destroyed.  Full disclosure may be difficult, but, when dealing with environmental issues, a lawyer needs to be out in front in managing the crisis.

Watergate was a long time ago; half the country today isn’t familiar with the Constitutional crisis that the country faced.  But the “lessons learned” can’t be lost.  That’s why I look for lessons from experts like John Dean—and personal experience.