Natural Gas Litigator Conflicted Here, There & Everywhere?
Attorney John Smith, solicitor for Robinson Township, Washington County, Pennsylvania, has recused himself from involvement in Range Resources conditional use applications. The basis for the recusal is odd but if Smith is conflicted here, he’s conflicted everywhere on natural gas issues.
There are mighty strange things going on in Robinson Township, Washington County these days. We’ve reported on some of this earlier when we noted the critical role of this township and its solicitor, Attorney John Smith, in natural gas litigation here, here and here. Let’s recap a bit.
Smith is the lawyer who collaborated with a writer for the New York Times on an article talking about “chemical ponds,” among other things. He also represents not only Robinson Township, but several others suing the Pennsylvania Department of Environmental Protection (DEP) over Act 13 and passing local ordinances that, but for this legislation, would zone out natural gas development. He clearly relishes opportunities to apply prejudicial terms to the industry. Indeed, he used the same demagogic term in an article in the Youngstown Vindicator, when he told an audience operations were “dangerous to humans, wildlife, domestic animals and birds, but unregulated” and, in a possible appeal for new law business, recommended enacting restrictive ordinances.
The litigator later appeared on the scene representing Jesse’s Junkyard Plaintiff, an auto salvage yard owner suing Range Resources. Readers will recall the depositions in this case became fodder for Rep. Jesse White’s own campaign against Range and DEP, launched after the former failed to give him a Superbowl trip. Smith also donates to White’s political campaigns. His client in this instance is a very litigious Loren Kiskadden, who is regularly in and out of court on both civil and criminal matters. Kiskadden’s well, like Ray Kemble’s in Dimock, is in the middle of the junkyard where the most likely cause of any water quality issues is the dripping anti-freeze, but if you’re John Smith or Yoko Ono, and that’s the best you’ve got with which to accuse the natural gas industry, you put on the best face you can and go with it, I guess.
Smith next appears in pieces submitted in social media and the local press as the victim, with the Heinz Endowments funded Mountain Watershed Association’s Veronica Coptis and Jesse White rising to his defense because Range Resources dared to call out his conflicts of interest. He is portrayed as a public servant offering help to “so many communities for no cost at all when it comes to legal questions around gas drilling.” We noted that help came with quite a price tag and one that seemed to escalate quickly upon his appointment as a township solicitor.
Are you following all this? It’s complicated. Smith’s firm represents landowners with leases, individual suing various gas companies (not limited to Range Resources) and several municipalities attempting to regulate the industry or fight Act 13 (Cecil, Robinson, et al). Here, in fact, is what he says on his website about his firm’s oil and gas practice (emphasis added):
When you are faced with a decision to sign a lease or any other legal document regarding your oil/gas it is critical to have a knowledgeable attorney on your side to represent you during and after lease negotiations. The attorneys at Smith Butz use their broad knowledge and experience in the gas, oil, and coal industries to protect the rights of mineral owners as well as surface owners. We have worked with oil and gas companies and coal companies negotiating leases, right of way agreements, seismic testing agreements, and royalty disputes. Our attorneys have negotiated hundreds of oil and gas leases with various legal provisions specific to the needs and concerns of individual mineral and surface owners. Attorney John M. Smith, as Solicitor of Cecil Township, has worked to create a model ordinance for the Township that other Municipalities may and have followed to regulate the zoning aspects of oil and gas drilling. Attorney Smith has also been engaged by municipalities as Special Counsel for oil and gas matters. Attorney Smith has been quoted extensively in local papers and has been invited to speak at several public forums on the subject. If a dispute arises regarding your ownership of oil/gas, our experience with Quiet Title Actions will assist you with this process. We have litigated numerous cases regarding gas/oil/coal ownership in Washington, Greene and Allegheny Counties.
Western Pennsylvania has not been immune to issues relating to coal and gas rights in the past. As with any business, the buyer’s approach is to pay as little as possible and at times the tactics employed, a smiling, trusting face and endless promises, often miss expectations. The bottom line is you need to know your rights.
Noticeably absent from this description is the work Smith’s firm has done in representing Kiskadden and other plaintiffs suing gas companies, although it does appear in this news story featured on his website. So, Smith negotiates with gas companies, sues gas companies and assists with regulating gas companies. Something doesn’t seem quite right here, does it. How does an attorney give unbiased advice to a municipality about how to regulate an industry that it must provide for in its zoning scheme when he is simultaneously suing that industry and negotiating with it?
One might ask if this doesn’t create the temptation to bully a company into awarding a higher royalty for a private client based on the implicit threat of denied municipal permits or stricter regulation if such cooperation isn’t forthcoming. Or, might not an attorney so conflicted, offer to settle a lawsuit or deliver a better deal for a gas company if it accepts a certain level of otherwise impermissible regulation that generates fees for a township and its solicitor? The potential for leveraging landowners out of the best deal possible is also very real in cases where an attorney represents parties with contrary interests such as municipalities trying to please special interest NIMBYs.
This isn’t to suggest Smith is doing either of these things or acting unethically with respect to any individual client, but the situation he has created by representing multiple interests certainly raises the potential for real or perceived conflicts of interest. Who does John Smith really represent? Landowners? Litigants? Municipalities? NIMBYs? Jesse White? Himself? No one can know with so many apparent, if not real, conflicts.
The Pennsylvania Rules for Professional Conduct directly address this situation. Section 1.7 says the following (emphasis added):
Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
- the representation of one client will be directly adverse to another client; or
- there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Is there any doubt a lawsuit against a gas company could have an adverse and concurrent impact on the ability of landowners dealing with that company to secure the best deal possible or ensure timely realization of income from royalties and lease bonus payments? Is there any doubt a municipal ordinance exceeding the limitations of Act 13 could not also materially affect the interests of landowners in that municipality? How does a lawyer reconcile such potential conflicts?
Smith himself acknowledges some of these conflicts. He recently wrote to his client, the Robinson Township Board of Supervisors, to recuse himself from future deliberations regarding Range Resources conditional use applications pending in the township. His reason? He noted pending opposition to those applications by individuals alleging health impacts might require him to advise on whether such persons were legitimate parties to the proceedings and offered the following (emphasis added):
While I firmly believe that I could continue to represent the Board with requisite diligence and zeal on these conditional use applications, my concern is that these new circumstances regarding residents seeking “party” status may cause the Board’s decision on these conditional use application issues to potentially be painted in a negative light or be perceived as biased, regardless of how the Board ultimately rules. To be certain, I do not believe there is a conflict of interest with my representation of Robinson Township with this matter. However, because of my familiarity with Range’s operations at another site and my involvement in a lawsuit against Range related to that site, I may be called upon to counsel this Board as it considers whether to recognize these individuals as “parties” to these proceedings. Although in many ways my experience may be useful, from a broader perspective, it can create a negative perception of the Board’s ultimate decision on whether or not to afford these individuals status as “parties.”
Exactly how his “familiarity with Range’s operations” would have any bearing on a procedural question is not explained by Smith if, as he suggests, he was only advising his client on process. It appears, in fact, he is saying “gee, I’d have tell you what I know and that would almost certainly lead you to side with the opposition, so I’ll back off.” The entire letter, in fact, is written in that sort of condescending tone, as if to strengthen his litigation against Range by putting his allegations into the recusal. It is unusually detailed for what is no more than a withdrawal from a case, indicating its purpose is less about recusal and more about making the case against Range. It further suggests Smith was advising his municipal client on a lot more than process.
Particularly galling, however, is Smith’s assertion there was no conflict and only the possibility someone might see it that way. Representing three different parties with very different interests regarding the same subject matter is not a conflict? Also, are we to believe this decision was prompted by a relatively trivial question of who is a proper party to the proceedings and not the larger issue of the competing interests among Smith’s clients and friends (e.g. Rep. Jesse White)? I’ll let you judge that for yourself.
While you think about that, also consider this; the special counsel picked by Robinson Township is Attorney Jonathan Kamin of the law firm Goldberg, Kamin and Garvin. Kamin currently acts as solicitor for 14 municipalities including South Fayette, according to the article reporting the decision. South Fayette is one of the municipal plaintiffs in the Act 13 case on which John Smith is lead counsel. This means Robinson Township has arguably moved from one conflicted attorney to another. Kamin, in advising Robinson Township, has an interest in sustaining the case it and South Fayette are pursuing against Act 13 when the Townsip Board of Supervisors should be getting neutral advice.
This raises still another question. If something as minor as deciding who is a party to a proceeding is enough to create the need to recuse oneself as attorney, why wouldn’t all the other far more serious conflicts also demand recusal? Isn’t the Act 13 case itself diametrically opposed to the interests of landowners as well as gas companies? Wouldn’t the failure or success of Smith’s other litigation against Range also have a bearing on landowner interests? Why is it that only the Township’s interests seem to matter? What about the landowners Smith represents? What about the other litigants? Why, if Smith is conflicted here, isn’t he conflicted everywhere?
That is the root question, after all. Attorney John Smith seems to have weaved tougher a collection of parties with competing interests in besting, regulating and suing gas companies, including one very irate, Kesha quoting politician who wanted favors he didn’t get. It is famously said “a house divided cannot stand.” This house is very divided.