Environmental attorneys often provide their clients Environmental Litigation Support involving environmental conditions of a property using environmental consultants. Their clients include property owners, buyers who are seeking legal interpretation of environmental regulations, environmental assessment standards, client attorney privileged support, or to present claims against another party.
Identify the Client’s Needs
The environmental attorney should first identify the level of experience needed in an environmental consultant to properly assist the client. The level of experience required is minimal for a consultant performing a simple Phase I Environmental Site Assessment in connection with the acquisition of property. However, specialized experience may be needed to assist in evaluating the cleanup of releases of complex chemicals to the environment. The environmental consultant selected by the attorney should properly meet the needs of the client’s project
The consultant selected should have the necessary experience required to provide the appropriate level of environmental due diligence, sampling, analysis, or interpretation of applicable environmental regulations. The attorney and the client have selected an environmental consultant, and then should decide who will retain the consultant- the attorney or the client? The client must then decide to have attorney/client privilege or work product doctrine protecting the papers prepared in connection with any reports. There is a difference between attorney/client privilege and work product.
Work product in general is a rule that an opposing party generally may not discover or compel disclosure of written or oral materials prepared by or for an attorney, especially in preparation for litigation.
The attorney-client privilege is a rule that preserves the confidentiality of communications between lawyers and clients. Under that rule, attorneys may not divulge their clients’ secrets, nor may others force them to.
Once you have selected a consultant and decided on a deliverable work product or attorney client privilege, then a contract should be negotiated. Written contracts between the consultant and the attorney help demonstrate the relationship to the outside world.
Consultants and lawyers may have different views of the work needed to allow the attorney to provide legal services. This difference typically involves what type and how many samples are necessary, or to what level of assessment is required to address the client’s needs. The attorney and consultant should prepare the scope or work according to the Client’s needs to provide the appropriate approach from pre-assessment, to environmental due diligence, to permitting, and work plan approval from the appropriate environmental agency.
If reports are to be submitted to regulatory agencies, they should be reviewed by counsel prior to submission. When reports are shared outside of the attorney and client, any attorney client privilege and or work product doctrine is waived. So, you should be sure to keep drafts of the reports to the attorney and the consultant.
Conclusions and Recommendations
Conclusions and recommendations reached by the consultant are by far the most subjective area of the report. The consultant puts results into context with the recommendations to provide the next appropriate steps or to conclude a resolution of legal matters. These conclusions and recommendations may go beyond what is needed or appropriate. Recommendations submitted to regulatory agencies could become regulatory mandates, and should be considered before the report is final.
CRG Texas provides litigation support to attorneys with clients who have various needs. Contact one of our environmental professionals today to discuss your next project needs!