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Attorneys discuss ethics of energy law practice

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Indiana Lawyer Focus

Ethical issues faced by attorneys practicing energy law are often the result of the small number of lawyers currently in that field of law.

Evansville lawyer Kathryn Schymik, of Jackson Kelly, says that many energy law practitioners in Indiana are on a first-name basis and it’s not uncommon for a case to come up where a potential conflict exists.

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An Indiana Continuing Legal Education Forum conference on Feb. 22 focused on the expanding and changing area of energy law, with one session devoted specifically to ethical challenges. Linton attorney John Rowe and Schymik led the 30-minute open discussion, which included 26 Indiana attorneys attending either in person or via webcast.

One of the ethical challenges energy law practitioners brought up at the session involved conflicts of interest between parties they’re representing. In this area of law where mining or natural resources are tapped for energy, those owning the land and others producing or purchasing the end-product often rely on the same attorneys to handle their legal work.

Steve Link in Evansville said he often has clients who request his counsel on different stages of the same matter, such as an oil and gas operator that signs a land lease to drill wells and later the company that purchases the product from that land owner.

“We often see that there can be a question of who your duties are to at that point, and that’s something we all have to be mindful of,” Link said.

Schymik said she tries to be up front with clients about potential conflicts that could exist and let them know that, because of the small network of attorneys, they might have to be referred to other counsel.

For example, she said one of the challenges that she’s faced involves title work for one client on a lease or land transaction and then later having a purchaser or lender ask to rely on the same title opinion in order to draft a similar agreement. Essentially, Schymik said she must carefully examine what work-product and privilege issues exist.

Practitioners in this growing practice area say the changing nature of energy law and the regulatory environment present issues that could significantly alter their practices. This is particularly true when it comes to renewable energy issues surrounding wind, natural sustainability and climate change.

“We’re dealing with something akin to the Wild West from a legal perspective,” said Jeff Lorenzo of Lorenzo & Bevers in Seymour. “Much like the law related to the Internet, so many new issues have arisen in the past 15 years and we’re just beginning to sort through them.  But we can see a framework being constructed as we move forward. As the Legislature and courts respond to new environmental technologies, we’ll be confronted with issues we have no or very little regulation for. It will give attorneys a ground floor opportunity to contribute to the development of ethical responses to critical issues.”•

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