07.16.2019 A Road Map to Effective Use of Environmental Lawyers and Consultants
Working with an environmental lawyer and an environmental consultant, often a hydrogeologist or an engineer, does not have to shorten your life span. Both professionals add value to a challenging environmental problem. The trick is to understand how to get the most from their collective knowledge on a project. We have some suggestions:
Back to the Privilege Basics. Take advantage of the lawyer’s involvement by considering whether the project should be conducted under the cloak of the attorney-client privilege. To make it clear that the project is under privilege, the lawyer should commission the technical work from the consultant. Starting the project under privilege from the outset may provide a basis to keep all work product confidential, meaning it does not have to be disclosed to the government or third parties. It can be extremely helpful to withhold privileged documents during an environmental inspection, when responding to an information request, or in litigation. Covered documents may include draft reports from the consultant on which the parties may have multiple rounds of comments and strategy discussions. However, the privilege is not a guarantee that the information will remain confidential. There are circumstances where a court can determine that the privilege has been waived and then order disclosure. However, there is a much better chance of maintaining the privilege if the attorney lays out the ground rules at the outset.
Kick-off the project with both lawyer and consultant as a team. The client will receive the most value from a joint project start. All professionals will start with the same information. Consultant and lawyer will have an opportunity to participate in planning discussions and create a timeline for project deliverables.
Maximize the Niches. The attorney and the consultant have different technical niches and educational strengths to add value to a project. For example, the consultant will have expertise advising the client on the science of the project. The lawyer will have advocacy experience to effectively craft the technical message and attempt to avoid problems that have arisen in similar enforcement cases or lawsuits. There will be overlap between the professionals, which adds value to the project. While the lawyer will provide advice on the nuances of relevant laws, a good consultant will have a working knowledge of what they require. Likewise, the lawyer should have enough scientific knowledge to understand and apply the consultant’s technical findings. We find it most effective to keep each professional’s primary skill focus in mind when weighing conflicting advice. Overlapping knowledge is helpful as a quality check for the final product.
Cost Saving Advice. A client’s scope of work for the lawyer and consultant should be clearly defined at the beginning of the project. Costs may be saved by conducting telephone and video conferences. However, we have also seen site visits skipped that would have allowed the lawyer or consultant to become familiar with key aspects of the site. Sometimes the money is well spent to have all parties attend a kick-off meeting and site tour, depending on the project.
The bottom line is that there is value to be added by the effective use of professionals. Using them wisely is the key to a successful project.