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Interference in Environmental Representation

August 2003

Citation: ELR 10598

Author: Robert R. Kuehn

As members of the legal profession should well know, few legal controversies can be adequately and fairly resolved without the assistance of an attorney. The U.S. Supreme Court has recognized that the right to be heard in agency or court proceedings would be, in many cases, of little use if it did not involve the ability to be heard by counsel: "Even the intelligent and educated layman has small and sometimes no skill in the science of law."1 Likewise, rules of legal ethics and standards of professionalism emphasize that our complex adversarial system can only work if all sides to a legal controversy are well represented.2 As one author observed: "Access to minimal legal services is necessary for access to the legal system, and without access to the legal system, there is no equality before the law. The lawyer becomes the critical medium by which access to that legal system and the concomitant opportunity to secure justice is achieved."3

Access to legal proceedings and legal representation is particularly appropriate in environmental disputes, where the law provides for extensive public participation in executive branch decisionmaking and for a right to judicial review of those decisions.4 Moreover, by authorizing "citizen suits" and attorney's fees to successful environmental plaintiffs, legislatures have embraced the notion that lawyers serve the public good by bringing cases against government agencies or private entities that fail to comply with environmental laws.5

Professor of Law, University of Alabama School of Law. This Article is based on Robert R. Kuehn, Shooting the Messenger: The Ethics of Attacks on Environmental Representation, 26 HARV. ENVTL. L. REV. 417 (2002).

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