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Review Shows Slottje and CEDC May Be Violating New York Legal Standards

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Found in EID on website

by JD Krohn

Attorney David Slottje, as any reader of this blog knows, has been traversing Upstate New York encouraging towns to enact resolutions limiting natural gas development. What began as bans turned into moratoriums, but the intent has remained the same.  That is to implement as many actions as possible in support of the Community Environmental Defense Council’s mission of protecting “land, air, water, health, and quality of life threatened by resource extraction activities… by providing free high quality legal advocacy and assistance to communities and citizen groups to help these groups in obtaining the benefit of environmental protection laws.”

In pursuit of this goal, Slottje presents himself to towns as someone of authority on issues involving natural gas regulation and limitation. He is, often, the only “expert” towns hear from before deciding whether to enact the policies he recommends.  However, a recent event in North Norwich shows Slottje’s expert advice adds up to little more than speculation on matters with which he is wholly unfamiliar.  One could argue this behavior doesn’t meet the “obligation of lawyers to maintain the highest standards of ethical conduct” as outlined in the New York Bar Association’s Rules of Conduct and Code of Professional Responsibility.

During the question and answer session in North Norwich a resident asks Slottje, “If the town doesn’t do anything and fracking does come in and there is an accident…who’s liable for that.”  Slottje’s response makes it pretty clear he is biased on the matters he is attempting to address.

Slottje’s response (1:05): “Some of the people on the other side will tell you about something… called the Commerce Clause and they will tell you that therefore its OK to tear up roads.”

Slottje’s statement is completely inaccurate.  No one from “the other side” has ever suggested they have the right to tear up roads due to the Commerce Clause.  This is a falsehood made up by Slottje. In fact, natural gas operators, as Slottje mentions briefly, enter into road use agreements and bonding with towns well before their operations take place. Here’s an example of a road use agreement from Texas and here are the procedures in place in Pennsylvania.  Moreover, it’s worth noting natural gas operators have provided over $400 million in voluntary payments to make roadway improvements in the Commonwealth of Pennsylvania.

Further, according to officials at the Pennsylvania Department of Transportation (PennDot), the type of negligence Slottje alleges doesn’t seem to exist. Last year Scott Christie, deputy secretary for highway administration for PennDOT stated the following to the Pittsburgh Post Gazette:

PennDOT requires companies to obtain permits to run heavy trucks on the weight-restricted roads. To do so, they must enter agreements to repair any damage caused by the trucks and post bond for every mile of road being used, he said. The department inspects such roads at least weekly and notifies companies when repairs are needed. In most cases, they have five days to start the work and 10 more to complete it and could have their permits revoked if they don’t comply.

‘Companies generally have been responsive,’ Mr. Christie said. ‘The simple fact is the industry is fixing the roads.’

New York State Bar Association logo

With this as background, a cursory review of the New York State’s Professional Standards for Attorneys show Slottje’s response may run afoul of the following rules:

EC 1-7: “A lawyer should avoid bias and condescension toward, and treat with dignity and respect, all parties, witnesses, lawyers, court employees, and other persons involved in the legal process.” (emphasis added, page 8)

EC 2-6 A: “…Of course, all communications by lawyers, whether subject to the special rules governing lawyer advertising or not, are governed by the general rule that lawyers may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation, nor knowingly make a material false statement of fact or law.” (emphasis added, page 17)

DR 1-102 [1200.3] 4 Misconduct: “A lawyer or law firm shall not engage in conduct involving dishonesty, fraud, deceit, or misrpeprentation.” (emphasis added, page 11)

This was only the beginning. Slottje’s worst, and least professional, speculation was in full view when he spoke on lawsuits emanating from potential contamination from natural gas development activities. Slottje stated (2:46):

“the only thing worse than that kind of lawsuit…is when you own c, and A and B have fracked and all of the sudden you’ve got a problem with contamination on your property.  You want to see a lawyer’s dream. The only people who win on that are lawyers representing the insurance companies. The beauty of representing the insurance companies is you get paid regularly…the other people, so you’re going to sue this one, pretty soon you are going to run out of money by the way, I don’t care how wealthy you are.  You are going to sue this one, this one is going to sue this one, this one is going to run out of money no matter how much they made from fracking.  The only people who make out are lawyers.  Ultimately, the only lawyers who make out are the insurance company lawyers because everyone runs out of money eventually.”

This statement does more to damage Slottje’s credibility than any statement EID could ever make.  Quite simply, Slottje describes a situation that doesn’t exist.

Neighbors don’t typically sue neighbors when it comes to potential natural gas contamination suits.  Landowners, and groups of landowners, as collective agents, file suit against the natural gas companies who developed the natural gas well. Many times insurance companies aren’t even involved as the operator has direct liability. In most cases the natural gas operators attorneys interface directly with the complainants attorneys.  This much is noticeable in a cursory review of ongoing litigation in Dimock, Pennsylvania for example. This is a topic Slottje should know something about given the requirement that lawyers maintain “competency” and “through preparation” on matters in which they are involved.

Slottje’s lack of direct involvement in this type of litigation is understandable. He’s been a member of the New York Bar Association for a short time and high volume hydraulic fracturing has been on hold in New York State during that time.  That said, the competency and thorough preparation standards indicate Slottje should be knowledgeable about litigation associated with natural gas development. After all, he is presenting himself as an expert and providing legal education and advice.

Again, a review of the New York State’s Professional Standards for Attorney’s and Slottje’s statements show some wiggle room between what the standards require and Slottje’s actions. For example:

New York Professional Standards for Attorneys EC 6-2:  A lawyer is aided in attaining and maintaining competence by keeping abreast of current legal literature and developments, participating in continuing legal education programs, concentrating in particular areas of the law, and by utilizing other available means. The lawyer has the additional ethical obligation to assist in improving the legal profession, and should do so by participating in bar activities intended to advance the quality and standards of members of the profession. Of particular importance is the careful training of younger associates and the giving of sound guidance to all lawyers who consult the lawyer. In short, a lawyer should strive at all levels to aid the legal profession in advancing the highest possible standards of integrity and competence and personally to meet those standards. (emphasis added, page 54)

From the New York Rules of Professional Conduct for Attorneys Rule 1.1 Competence:

Maintaining Competence [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject. See 22 N.Y.C.R.R. Part 1500. (emphasis added, page 11)

Again Slottje’s statements, which he voluntarily provided without prompting, seem as though they may run afoul of the following sections of the New York Bar Association’s Code of Professional responsibility:

DR 1-102 [1200.3] 4 Misconduct: A lawyer or law firm shall not engage in conduct involving dishonesty, fraud, deceit, or misrpeprentation (Page 11)

EC 2-6 A: “…Of course, all communications by lawyers, whether subject to the special rules governing lawyer advertising or not, are governed by the general rule that lawyers may not engage in conduct involving dishonesty, fraud, deceit or misrepresentation, nor knowingly make a material false statement of fact or law.” (emphasis added, page 17)

EC 9-6: “Every lawyer owes a solemn duty to uphold the integrity and honor of the profession; to encourage respect for the law and for the courts and the judges thereof; to observe the Code of Professional Responsibility; to act as a member of a learned profession, one dedicated to public service; to cooperate with other lawyers in supporting the organized bar through devoting time, efforts, and financial support as the lawyer’s professional standing and ability reasonably permit; to act so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.” (emphasis added, page 70 )

While this video only represents 10 minutes of one of Slottje’s presentation, it demonstrates he either lacks competency and through preparation or is willfully making false statements.  Either way, it seems these actions could run afoul of the key governing documents for attorneys in New York.

With that as background, we also examined if CEDC and Slottje’s actions in general might also run afoul of rules outlined by the New York State Bar Association.  While we will refrain from making judgement, it seems this provision is directly at odds with CEDC and Slottje’s overall campaign:

EC 2-7 C: “A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for non-lawyers should caution them not to attempt to solve individual problems on the basis of the information contained therein.” (emphasis added, page 17)

Once the hysterical debate over hydraulic fracturing has ended the legal system in New York will continue, and for it to operate effectively, actions of officers of the court should inspire trust, faith, and confidence in the system.  These actions, whether uninformed or purposefully misleading don’t seem to support that goal. While a formal review on CEDC and Slottje hasn’t been requested, a quick glance shows there are questions worth asking.

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