David R. Perry, P.G., American Geosciences, Inc.
Abstract
Many environmental consulting firms can easily conduct several hundred projects per year with almost as many different clients. This large number of projects and clients ensures that many senior level consultants will eventually be requested to assist with litigation either as an expert witness or as a non-testifying consultant assisting lawyers preparing a litigation case. Some consultants may also participate in numerous litigation cases during their career. Therefore, it is likely that many consultants will encounter apparent, and not so apparent, ethical dilemmas during their career. This paper provides a practical guide for helping to address and, more importantly, prevent ethical dilemmas facing consultants in both routine projects and as an expert witness. The following topics are addressed:
Common Sense Guidelines to Avoiding Ethical Conflicts
The golden rule is: it is better to prevent an issue rather than deal with it after it occurs. This rule is particularly true with ethical issues. Therefore, a summary of general guidance in avoiding an ethical conflict is presented. This guidance is primarily common sense rules. However, many of these common sense rules are not so obvious until after they have been learned the hard way.
Legal and Ethical Implications Associated With Professional Certifications
Most senior level consultants will have some form of professional certification (e.g., P.E., or P.G.) that requires they follow a regulatory mandated code of ethics. Acting as an expert also has its own set of (non-legal) ethics. Threading between the two codes can sometimes create their own ethical conflicts. The paper presents common conflicts and ways to help minimize or avoid them.
Appropriate Responses to Addressing Conflicts
There are many responses to addressing ethical conflicts. An inappropriate response to a conflict can cause significant harm to an expert’s professional reputation. Therefore, appropriate, and more importantly, inappropriate responses to conflicts are discussed.
Ethical Considerations of Acting as an Expert Witness
Experts generally do not have a formal ethical agenda to help guide them through the minefield of testifying in litigation cases. There are several suggested practices available, but generally, these practices are not comprehensive in presenting a map through the minefield. Further, few companies have formal procedures or an in-house “guru” to assist the expert in making ethical decisions during the legal process. Therefore, a compilation of suggested practices is presented.
Ethical Issues Associated With Property Transfers
The majority of consultants conduct numerous due diligence investigations every year. Inadequate characterizations, or previously unidentified disposal activities, create the potential for litigation as buyers and sellers look to the consultants to cover the cost of remediating contamination not identified during the due diligence investigation. Therefore, these projects actually have a significant potential to create ethical conflicts for consultants as they are asked to testify regarding the adequacy of prior investigations. The paper presents many of the common, and not so common, potential conflicts associated with these projects.