As an environmental professional, due diligence should be an important part of your activities. Due diligence inevitably involves legal liability issues. You will need to work with your attorneys on this. Attorneys can be your best friend or your worst enemy – depending on the approach you take with them.
Do not let anyone tell you that because you are not an attorney, you cannot talk intelligently about environmental liabilities. You do not need a degree from Harvard Law School to understand that falsifying records under the Clean Water Act is a crime – big liability there! You also don’t have to be an auto mechanic or mechanical engineer to drive a one-ton SUV.
As in the case of hiring consultants, don’t hire big law firms to work on small legal cases. If you do, you will end up paying $200 per hour for some young lawyer to learn on the job under the supervision of a $400 per hour law partner. In most big corporations, it is the in-house counsel who chooses which outside law firm to retain. But that does not mean you should cede your role and responsibilities entirely and turn your case over to your legal team. You should work very closely with the legal team since you are the environmental manager and you know all the underlying facts about the case. Insist that you be involved in the discussions of strategies. Remember – you not only know the technical issues, you also know the folks at the agency. Since legal strategies inevitably involve relationships between your company (represented by you) and the agency, it makes good management sense that you be involved in the discussions. If you don’t insist, you will be relegated to a mere “technician” – a “janitor in a suit” in the eyes of your legal counsel.
The best way to ensure a meaningful role within your legal team is to develop a professional rapport with your in-house counsel. You do that by keeping your company attorney up-to-date on pending environmental issues at your plants. Don’t call your attorney only when you have a big legal problem. Invite the attorney to visit your plant before problems arise.
Allow me to relay a funny but sad story during my previous life with a multi-national corporation. I attended a meeting at a large law firm with several of my vice presidents. This was one of those law firms with inter-floor spiral staircases, marble flooring, mahogany panels and corridors that resemble a fine arts museum – all paid for by their clients. One of the VPs made the mistake of asking a law partner a simple environmental question. The law partner jumped on it right away and said:”Let us do some legal research on it and we will get back to you”. A month later we received an invoice from the law firm for 14 hours of “legal research” (at $300 per hour). I was horrified and faxed a short paragraph to the law partner requesting that he send us the results of his “legal research” and cease work on any further research. Not only did we not get the “research” results, we received an additional invoice for $75 (minimum charge unit of 15 minutes) for reading my fax.
A true story.