DealingWith Lawyers, Engineers, Business Managers, and Consultants

• Author: Frank B. Friedman
• Pages: 381-396

Chapter 9:

Dealing With Lawyers, Engineers,

Business Managers, and

Consultants

As an environmental manager, you will deal with three main types of

specialists: lawyers, engineers, and consultants. Yourprimary clients

will be business managers. Members of these groups can be either very

helpful or counterproductive. In some instances you will have authority to

hire in-house people or specialists to handle specific situations. (See Chap-

ter 4, Recruiting Environmental Professionals, for a discussion of tech-

niques for hiring competent staff.) At other times you may be stuck with

people that you did not hire and would not hire if given a choice. This chap-

ter gives some suggestions for dealing with each group.

Dealing With Lawyers

Environmental managers must learn to work closely with lawyers if they

are to have successful programs. Some managers may view this as analo-

gous to learning to work closely with porcupines. For those environmental

managers who are lucky or are able to work with lawyers, or both, in-house

or outside counsel can be valuable allies in developing a program. If envi-

ronmental managers are unlucky or are unable to work with lawyers be-

cause of either inability to understand the importance of legal issues or a

simple clash of cultures, counsel can be a major pain in the neck.

The first step in establishing a productive relationship with your environ-

mental counsel is picking the right counsel. Tothe extent you control the se-

lection decision, you should consider several factors. First, environmental

law is a recognized professional specialty. Modern federal environmental

laws and regulations have been in place now for more than 30 years and

have generated a complex body of administrative and judicial authority.

Thus, one criterion for selecting an environmental lawyer should be the

lawyer’s experience in handling environmental matters, including specific

areas such as air, water, hazardous waste, and Superfund. This is not to say

that one of the legal department’s general practitioners would be an unsuit-

381

able choice, but as in environmental management, experience helps consid-

erably.In addition, effective environmental counsel recognize that environ-

mental law is not limited to protection of health and the environment, but

extends to implementation of wide-ranging social policies in areas of major

public concern. Finally, to the extent possible, you should avoid counsel

who respond to every potential risk by just saying no.

Whether you choose your environmental counsel with great care or have

the choice made for you, it helps to be lucky.The skill and personality of the

lawyer can make a major difference in the success of your program. Despite

your best efforts, you are likely to face problems in dealing with counsel at

some point in your career. The following discussion provides tips on han-

dling two common types of “problem” lawyers.

The first type is the lawyer who says no to everything. For the conserva-

tive—or perhaps lazy—lawyer, it is always easier to say no than to develop

a creative solution to a complex problem. Saying no eliminates all obvious

risk. Some lawyers use this rationale to advise against doing environmental

assessments, for example. As discussed in Chapter 6, there is no question

that these assessments do present legal risks. But the creative lawyer, like

the creative manager, recognizes that the risks of not finding problems can

be much greater. The difference is that failure to discover a problem until

too late cannot be directly pinned on the overly cautious lawyer.

Fortunately, we are now seeing fewer “Dr. Nos” in environmental legal

practice. They are still too often found, however, particularly in companies

that have not faced environmental crises. Companies that have faced such

crises recognize that they are better off dealing with problems before they

become major.

Before you conclude that your lawyer is overcautious about environmental

assessments, remember that the decision to conduct such assessments must

include dealing with any issues that are discovered. Both the lawyer and the

manager must be certain that senior management recognizes this. In these in-

stances, the cautious lawyer is being properlycautious, not overly cautious.

The second type of problem lawyer—who, fortunately,is fast approaching

or has already passed retirement age—is the lawyer with a strong, traditional

litigation background who attempts to read environmental laws and regula-

tions narrowly. This lawyer thinks Superfund cases call for extensive motion

practice, not realizing that in most instances, the only realistic approach is ne-

gotiation. He or she also sees a potential constitutional challenge in every

statute or regulation. Many of these more traditional lawyers have had limited

experience with administrative law, particularly the broad interpretations

characteristic of environmental law. Environmental law differs from some

older fields in that the narrow approach will usually get you nowhere.

A lawyer in either of these categories can be a major impediment to your

382 Practical Guide to Environmental Management