Analysis of Consultant "Conflicts"

Environmental Law - Land Use

B has an industrial site which it sells to "A." "C" has adjacent property to the B/A site. A sues the seller, B, for a cleanup, and A states it intends to sue C, the neighbor. C denies responsibility for contamination on B/A's industrial site, claiming that the contamination is the result of historical activities on the site and not on C's property. But, once served, C cross claims against B, as the former owner of the B/A site.

You, an attorney, work for C as inhouse counsel and are considered by some to be a CERCLA legal expert. You recommend several environmental consultants. C hires LoCal Consultants, a local consulting firm, who, six months later is bought out by ICF, an international consulting firm.

After congratulating your friend at LoCal on getting bought out and agreeing to meet for lunch some time soon, you ask your friend at LoCal to run a conflicts check. You explain that C is very worried that it might be dragged into paying for a cleanup of the B/A site, something for which it simply is not liable.

Sure enough, your friend at LoCal Consultants reports that LoCal and ICF have no conflicts. However, ICF has also recently purchased a very small firm, VSF, who has done a lot of environmental consulting work for B on the B/A industrial site.

The litigation, A vs. B, B vs. C, and C vs. B, is in the midst of investigation and discovery. Your friend at LoCal tells you that although he needs to check further, he probably won't be able to assist you ("C") with developing evidence that might lead to an opinion that "B" is liable for all or part of A's claim or that B is liable to your company, C, on C's crossclaim.

At this stage, LoCal's work has been focused on determining whether (1) A has cleanup liability, (2) if A is liable, was the contamination caused by C exclusively, or (3) if A is liable, the contamination was caused by prior owners, including B.

There are at least three questions at this turning point:

1) Is there any circumstance in which you would advise your company/client, C, to continue to use LoCal in this litigation (assuming LoCal obtains a conflicts waiver letter from B - and VSF), or should C fire LoCal immediately?

2) Can or should LoCal continue with field investigations on A's property, if a new consulting firm prepares the workplan and is willing to provide opinions and interpretations and/or testify on behalf of C?

3) Should you advise C that because it will incur enormous expense hiring a new consultant in the middle of the investigation and discovery, it should wait for LoCal to complete its investigation and write its report before firing LoCal and hiring a new consultant?

Please direct your comments to the Editor, Jim Arnold at <Jarnold102@aol.com> and we will publish them in the next newsletter.

Adapted from material written by Stephen L. Saunders and submitted to the Section listserve.