In an effort to mitigate risk you should not contract directly with an environmental consultant, but rather your attorney should contract with that consultant.

While laws vary from state to state, in the vast majority of factual situations a business or property owner is ill served by contracting directly with a third party for most environmental services.

And yes, of course an experienced environmental attorney will be able to recommend third party consultants to undertake an investigation, provide counsel on the necessary and proper scope of those services, aide in interpreting results and make recommendations about how to move forward, but this blog post is about the role of legal counsel in mitigating risk in the realm of hazardous substances and the like. What is described here is much more than simply good drafting of consultant contacts (e.g., so that investigation derived wastes, such as drill cuttings and bailed groundwater, are properly disposed of by the consultant).

The recommendation here is that in an environment of strict liability hazardous substance laws, from CERCLA and its state counterparts to local lead based paint codes, attorneys should be contracting with those undertaking hazardous substance investigations and the like.

First and foremost, the attorney-client privilege protects communications made in confidence by a client to its attorney in the attorney’s professional capacity for the purpose of obtaining legal advice. Significantly, the attorney-client privilege can extend to consultants hired by the attorney on behalf of a client. Be aware, however, only where the document or communication is primarily concerned with legal assistance does it come within the attorney-client privilege.

Second, the separate work-product doctrine is a qualified privilege and is distinct from and broader than the attorney-client privilege. The work-product doctrine protects documents prepared by attorneys in anticipation of litigation for the purpose of analyzing and preparing a client’s case. The litigation need not be ongoing or even imminent and it may simply be possible future litigation.

Third, environmental services contracts with an attorney almost always also include a broad confidentiality provision encompassing the contract itself, the scope of services, any test result, all reports (that should be only in draft form), and more.

And fourth, the client should not have knowledge of certain environmental facts. Some suggest that the role of legal counsel appears to morph into that of an environmental advisor. And it may be much more than that. In many instances all data, results, information, and draft reports are not only legal counsel’s property, but none of that documentation or detail is shared with clients (not a board of directors or a sole proprietor real estate developer). What a property owner does not know it cannot share.

This topic includes ordering a Phase I Environmental Site Assessment in contemplation of a real estate transaction, but it includes so much more, .. think defensively.