The Consultant: An Attorney’s View
Communicating, negotiating and working with lawyers as an expert consultant.

By Bruce A. Keyes

Managing the relationship between a lawyer, a consultant and a client can be challenging. However, a good attorney-consultant relationship is extremely valuable for both. I often work with three or four consultants on any given day, and I am just one of 23 attorneys in the environmental-regulatory practice group in our offices nationwide. Having seen some of the best work product and some of the worst, we have very high expectations.

Marketing

We are always reluctant to recommend new consultants to a client—because they are an untested entity and because we have to spend client time negotiating a new contract. We typically hire new consultants when we admire the work they do for an adversary, when clients come to us with their own consultants or when the consultant refers a client to us and we have the opportunity to see the consultant’s work firsthand.

Contracting

When we hire a new consultant, we negotiate the contract on behalf of our client. We then expect to use the same contract for every future client who uses this same consulting company. This process often begins with a contract for a small job, but recognize that the terms you negotiate now may be the same terms we use in two years. One complaint from my colleagues: Consultants often try to unreasonably limit the extent of their liability to the price of the contract. A more reasonable approach is to limit damages to either the dollar amounts specified for your insurance or—better for the consultant—to the extent of coverage provided by your insurance, which should be a minimum of $1 million. Since language choices can have subtle distinctions, we recommend you use an attorney in contract negotiations.

Confidentiality

Any matter you are working on stands the risk of proceeding to litigation. Attorney-client privilege is not black and white. Also, different states have different laws concerning another form of privilege that may be afforded to compliance audits. In the face of enforcement, employee complaints or litigation, we recommend that the client’s attorney retain consultants in an effort to shield his or her communications and analysis. There are several steps to establishing and maintaining privileged communications. For instance, consultants retained by counsel should clearly mark documents as “attorney-client privileged” until such time as they are made public in final form. Consultants should also limit their conversations to only the key employees necessary to complete their work. Discuss the issue of privilege with counsel at the beginning of a project.

Understand the client’s needs and decision points. Listen to your client and his or her counsel. Your background is technical, but you need to approach issues and explain choices in the context of the business decision your client faces.

Expectations

Most clients want the best solution that costs nothing. Some clients may pressure their consultants. It is never acceptable for a client, or his or her lawyer, to push a consultant to go beyond professional judgment or ethics.

Communications With Lawyers

I have never told consultants they gave me updates too frequently or shared written communications in draft form too often before finalizing. Discuss with counsel what method of communication works best—e-mail, telephone or in-person meetings. Keep counsel well informed and ask for approvd draft communications that protects you, your client and the attorney.

Identifying Violations and Interpreting Regulations

This critical issue is the most common source of tension between consultant, client and counsel. The most disturbing situation arises when a consultant advises a client in writing that the client has committed a violation—and is wrong. Use triage to prioritize the issue. Is it an emergency situation? Will there be harm done by contacting the client’s counsel to discuss it? If the client does not have an attorney, perhaps you should recommend he oe she retain counsel. You can describe the factual context of an issue in writing, but avoid concluding in writing that a violation has occurred until you have consulted with counsel.

Minor or Major Violations

What may appear to be a violation may be eligible for an exemption or may be subject to interpretation. In Texas a few years ago, a report was submitted stating that our client possessed a drum containing hazardous waste, and the drum was not properly labeled or logged into the system. On close analysis of regulations, we were able to determine that the material was not a solid waste because of recycling exemptions. No matter the scope of the violation, be hesitant about creating any paper trail and avoid committing conclusions to paper until the issue has been fully explored and counsel agrees with your conclusion. If there is a paper trail, try to protect it as confidential.

Ethics

Stick to high ethical standards. Credibility is your most valuable commodity. Avoid conflicts of interest, even if you have to pass up work. Do not talk about clients outside the office—you never know who is listening.

Reports

Your report is the standard by which you will always be judged, so take the time to prepare your best work. Reports should be clearly written and include descriptive figures. Wherever possible, reports should look at resolving issues, not just raising them. For instance, rather than report that “the company did not have the proper operating license at the facility,” dig deeper into the issue: “The company possesses the proper operating license for the facility, but failed to keep the license on display. The situation was corrected prior to the conclusion of the visit.” Finally, provide the report as a draft, in the same form and with all exhibits, as it would appear in final form. The added effort and expense is minor in comparison to the professionalism it portrays.

When the relationship between consultant, client and attorney works well, there is a great sense of teamwork and intellectual challenge. This can be the making of a long and fruitful relationship.

Keyes is an attorney with Foley & Lardner in Milwaukee. He wrote the article for the AIHA Consultant Special Interest Group. ConsultSIG invites your comments on this article and ideas for future pieces. Post them to the ConsultSIG listserv or e-mail them to jkeyes@chess-safety.com. For more information on ConsultSIG and the listserv, contact Dennis Francoeur at (603) 659-8899 or dennisf@airpf.com