The Pitfalls of Serving as Activist Attorney and Client: Should We Give A Hoot?

by Michelle C. Pardo

You may have heard the well-known proverb, “a man who is his own lawyer has a fool for his client.” It stands for the concept that while individuals in our country are free to represent him or herself in a criminal or civil trial – acting pro se – many caution that this is not the wisest course.

The issue is even more precarious when an attorney attempts to participate as a fact witness in a case he or she has brought. Rule 3.7 of the ABA Model Rules of Professional Conduct (a rule substantially echoed in many jurisdictions) states that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.” This rule applies absent certain narrow circumstances, such as the testimony relates to an uncontested issue or the nature and value of legal services. The reason for the rule is straightforward: combining roles of advocate and witness can prejudice the court and the opposing party and create a conflict of interest between lawyer and client.

Friends of Animals, an animal rights organization headquartered in Connecticut, recently was called out by a federal judge in Oregon when its in-house counsel, Michael Harris, tried to serve as a declarant in support of Friends of Animals’ summary judgment motion. The declaration was intended to establish the requisite “injury in fact” for Friends of Animals’ members to establish a critical element of “standing” – the threshold inquiry that permits a litigant to have an injury remedied by the federal courts.  Friends of Animals sued the U.S. Fish and Wildlife Service (FWS) and its Deputy Director in an Oregon federal court, alleging that permits and agreements made by FWS (and involving non-federal landowners engaged in timber operations) violated the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA). The FWS actions were part of an experiment to gain data on the relationship between Barred Owl removal and Spotted Owl recovery.

The Northern Spotted Owl is a threatened species that lives in the Pacific Northwest. The Barred Owl, while native to eastern North America, expanded its range to the Pacific Northwest over the last century and outnumbers the Spotted Owls in many portions of their range. The Barred Owl is not a threatened species. The underlying facts of the lawsuit center around a battle of the owls – essentially competition for territory – in which the Barred Owl was typically the victor. The government had formulated a 2011 Recovery Plan to assess the effects of Barred Owl removal on Spotted Owl occupancy, reproduction, and survival. In order to effectuate the study, the agency entered into agreements with private landowners to enter their land which the owls occupied. Friends of Animals viewed the agency’s agreements with private landowners as an improper “quid pro quo” – enabling FWS to enter private land to conducts its owl study in exchange for the timber companies’ ability to “take” owls on their lands. According to Friends of Animals’ complaint, the permits and agreements at issue would “reduce the recreational value of these areas for members by ruining the aesthetic beauty, sanctity, peacefulness and other serenity of these forest habitats, and by increasing the likelihood that they will see the killing of birds, and dead, wounded or dying animals, and diminishing their chance of seeing healthy birds and other wildlife.”

The interesting part of the case lies not in the details of federal compliance with NEPA, the ESA or the applicable regulations, but rather, whether the court even had jurisdiction to hear this case. It underscored an interesting tension that we often see in animal rights activist litigation: the activist attorney crossing the line between advocate and client to advance a philosophical or political agenda.

Friends of Animals submitted two declarations from alleged members to support the members’ injuries. The first was a resident of Oregon who specified certain areas and campgrounds in Oregon that she had visited (although not the areas at issue in the FWS permits/agreements). The second declarant was none other than Michael Harris, the in-house attorney for Friends of Animals. While a resident of Colorado, Harris alleged that he visits Oregon on a near-annual basis and “incidental to his business travel, he spend[s] time in the old-growth forests of Oregon”. While his declaration stated that he had plans to view land in the treatment area in 2017 before the litigation was filed, he never did, but instead drove by a road in the designated area after the litigation was filed to look for Spotted Owls with his son, and had plans to do it again future. Plaintiff argued that the viewing of forests and wildlife on private lands from a publicly accessible vantage point was sufficient to confer standing.

While not offering a lengthy analysis of the Harris declaration, the court cited long-standing caselaw:

“in the Ninth Circuit it is generally disfavored for a litigation attorney to serve as a witness in a case where [he] also serves as counsel. See, e.g., Lau Ah Yew v. Dulles, 257 F.2d 744, 746-47 (9th Cir. 1958) (‘It is usually inappropriate for an attorney connected with the trial of the case to testify [on] behalf of his client. He should ordinarily withdraw before becoming a witness . . . an attorney who assumes the burden of a witness while representing his client in a lawsuit does so at a very great detriment to the credibility of his testimony.’)”

The court went on to reject plaintiffs’ argument, finding that plaintiff’s “generalized grievance” of a “theoretical take” “at some future time” was insufficient to confer standing. Plaintiff’s also failed to show the requisite causation, i.e. FWS’s actions posed no imminent threat to the Spotted Owls (and, in fact, the FWS plan maintained ESA protections to protect Spotted Owls that entered study areas to nest and fledge their owlets). Further, the court found that the FWS actions fell well within the bounds of ESA Section 10 and that the government lawfully executed its duties with respect to the owl project. Having failed to satisfy basic standing requirements, Friends of Animal’s motion was denied and their case was dismissed.

Unfortunately, we have seen several instances in which animal activist attorneys cross the line and become improperly intertwined in the cases they bring into court – either by trying to serve as a fact witness or, even worse, manufacturing an injury to get the case into court. In a case involving Asian elephants in the former Ringling Brothers and Barnum & Bailey Circus, public interest attorneys representing the plaintiff animal rights organizations used a wildlife charity they had created to funnel payments to the named individual plaintiff in the case – a move that proved to be lethal to the case and resulted in a federal court judge in Washington D.C. finding it was “frivolous”, “vexatious”, and “groundless and unreasonable since its inception”.  See Animal Welfare Institute v. Feld Entertainment, Inc., 944 F. Supp. 2d 1 (D.D.C. 2013).

Animal activist attorneys often share the same zeal, passion, and world-view of their clients. While shared passions can make for a positive attorney/client working relationships, it is not a license to ignore ethical rules or established jurisprudence. This decision should serve as an important reminder that serving as both the attorney and the client may serve nobody’s best interest.