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COMMUNICATION ETHICS

David G. Ebner, Joint Operations and the New AAPL Form 610-2015 Model Form Operating Agreement (Dec 2017)

The ethical rules governing both lawyers and land professionals reflect great concern over speech content and conduct-what's being said and how it's being said. Honesty, integrity, professionalism, and courtesy are expected in both professions, but the rules governing lawyers are special because they also limit the people with whom lawyers may speak. Lawyers are, for example, limited in speaking to the clients of others without first obtaining permission from the other lawyers, and are strictly controlled in speaking to unrepresented persons. These rules are informed by an underlying sense that lawyers know more than others (as they may about the law, although not necessarily about other things) and that the loyalty they owe their clients may cause them to skirt discussion of matters that aren't favorable to their clients (although separate rules dealing with honesty in dealing with others may ameliorate, even if they do not eliminate, this concern), while at the same time creating an opportunity for the others inadvertently to disclose privileged or confidential information. These contact rules--or, as the rule dealing with communications with persons represented by counsel is known, the "no contact rule"--can be very useful in contexts where there is a great disparity in knowledge and sophistication. This disparity isn't immediately apparent in JOA negotiations. To begin with, the vast majority of domestic JOA negotiations occur among landmen, without any involvement by lawyers. When lawyers become involved, it's usually because a company has no in-house land staff with available time and a JOA must be prepared quickly as an exhibit to an earning or purchase agreement. Because they are involved in the preparation of more JOAs, and because they are the ones who actually use JOAs to conduct real world operations, land professionals often have much more knowledge, experience and sophistication in negotiating JOAs than lawyers. The no-contact rules, like many other ethics rules, are also informed by the litigation process. They're certainly not limited to litigation, but many of the most detailed and contentious issues arise in litigation, especially as lawyers seek to communicate with prospective witnesses. The rules, cases and ethics committee opinions deal with these litigation-based issues at length, but they generally are not discussed here. These aspects of the rules would be relevant if a dispute arose under a JOA, but they don't impact negotiation and preparation of the JOA and generally interest only litigators, not oil and gas transactional lawyers or land professionals. Similarly, the extensive concern with maintaining on-going regulatory contacts with governmental employees while litigation is underway with their agencies is only lightly touched upon; these concerns conceivably could bear on the negotiation and preparation of JOAs involving State lands, but the negotiations regarding State land contract areas are not primarily