Environmental law matters frequently involve an overlap of and interplay between legal, scientific and business concerns. Translating science into policy and policy into law and the resulting enforcement or interpretation of the law by government agencies and the courts can leave the prospective client frustrated, confused and confounded by the law and its regulators. Adding to that frustration is both the complexity and harshness of the law and, often times, the absence of simple, quick and easy solutions to environmental legal problems.
That being said, there is much an environmental lawyer can do to benefit the client’s interests. Counsel is best sought, of course, prior to any actual conflict arising. Environmental counsel can minimize potential client liability through compliance counseling, assistance with permitting, site and process auditing, the performance of pre-acquisition due diligence and the presentation of public comments or testimony prior to the enactment or promulgation of statutes or regulations which might impact the client. Should issues of non-compliance or liability arise, counsel familiar with the specifics and peculiarities of environmental matters will likely be the best advocate for a client confronted with environmental concerns.
First and foremost, an environmental lawyer must be a good lawyer. Ask your friends, business associates and trade organizations, state or local bar and business groups and your engineer, technical consultant or non-environmental lawyer for one or more recommendations of a lawyer or a law firm that practices environmental law.
Interview any lawyer that you might consider hiring. Determine their qualifications and experience. Consider first the candidate’s general qualifications, including years of experience; years of environmental law experience; their professional development through organizations, attendance at seminars, written articles, or teaching; and prior experience, including past governmental positions. Next, consider the candidate’s experience as it relates to your legal concerns. Among the many types of environmental matters which might require the assistance of environmental counsel are the selling or purchasing of contaminated real estate, securing a government permit, notice of a government enforcement action, a neighbor who alleges that you are polluting his property or your concerns that a neighbor has polluted your property. Determine if your candidate’s experience includes matters similar to yours. If she has never assisted a client secure a permit or he has never defended a government enforcement action, he or she might not be the best-qualified environmental lawyer to resolve your legal matters. Determine if the lawyer has practiced before the government agency with which you have a conflict. While not mandatory or essential, familiarity with the specific regulator and its procedures and practices is always helpful.
Ask the candidate to explain how the law works in your particular area and what type of solutions might be available. Remember, because environmental law involves the confluence of law, science and business, you should select a lawyer who not only understands the complex issues you are confronted with but who can communicate the issues and possible solutions in a clear, precise and understandable manner. If you cannot understand your lawyer, you will be frustrated and the other side, whoever it may be, is also likely to be frustrated.
Inquire as to what other professionals may be needed. Not only environmental engineers and consultants, but other legal professionals. Often times environmental issues arise in the context of other legal conflicts such as potential foreclosures, bankruptcy or trust and estate matters. Determine if your candidate has access to the necessary qualified professionals or if the candidate can successfully work with your existing counsel and experts.
Before engaging the services of an environmental lawyer, or any lawyer, discuss fees. Be aware, however, that lower hourly rates do not necessarily translate into lower total costs. Determine how your matter might be staffed, who will do the work and the likely or potential complications, which will add to the costs of a solution. Speaking to more than one candidate is the best way to determine a realistic picture of the potential range of costs and time involved and the options and approaches to solving your problem.
In making your final choice, do not disregard your instinct – select the lawyer you are most comfortable with and the lawyer you trust. Be wary of promises that are easy to make but difficult to keep. Make sure your lawyer listens and understands your goals and objectives but, at the same time, listen to what your lawyer says I can and cannot do for you.
Kevin C. Murphy is a member of the Wladis Law Firm, P.C., located in Syracuse, New York, and is listed in The Best Lawyers in America.