In my continuing blog series on my Due Diligence University coursework, I just took the module on “Professional Liability,” which covered three types of risks that environmental professionals face: practice risk (think: ethics and standard of care); contractual risk (think: scope of work, indemnities, E&O insurance, limitations on liability, third party reliance…the scary types of liability that you think about every day); and communication risk.

It was the last one that was newer to me, and not something I had heard that much about until now.

The way to avoid “communication risk” is to avoid making “excessive promises or claims of elevated standards of care of guarantees of results.” This applies not just in marketing materials, but also on company Web sites.

In the class forum, our assignment was to write a marketing statement or an indemnity statement that creates liability issues…and we were not limited to the environmental due diligence field (though most stayed there).

I am lucky to be a student among a very funny mix of professionals. Here's a mix of the serious and amusing:

• “We assure you that we will control, limit and clean up any and all environmental damages before they can become catastrophes for your company.”
• "We guarantee the fastest, most reliable response to your environmental needs. We promise to take care of all your concerns regarding control and clean up of any possible contaminant. We will handle all aspects of environmental concerns before they become disastrous. Don't wait. Call us for the best price in town."
• "We will bring your projects on time and under budget, every time. Look to us for ALL your environmental needs!”
• "The EP agrees to indemnify, hold harmless and defend the Client against any claims made for any reason by anyone for as long as both shall live."
• "With our patented weight loss program, we guarantee you will lose all the weight you want without having to eat all of those healthy foods and without having to spend a minute exercising!"
• "At Ricky Bob's Environmental, Inc. we guarantee that we will take care of all your asbestos removal needs at the lowest prices. We will give you a quote and on that same day, provide removal with no liability to you or your occupants. (Fine print: Prices are predetermined by seasonal variability; removal can only be performed on projects less than 10 sq. feet or 50 linear feet on same day quote; and if you or your occupants are present during removal, liability is forfeited.)"
• "Consultant will provide all services at the highest level of principles and practices as recognized by all reputable members of the relevant profession practicing."
• “KK Environmental:  We guarantee the best assessment and remedial action alternative at the  lowest cost to the client.  If you choose us, then you have chosen the best.  Our strategic planning and execution guarantees the best solution at the lowest cost.  If ever we fail to give you the best, we will refund your money.”
• "Guaranteed Tuna Catch on the charter sportfisherman, Shortfin. We guarantee you will hook up with a Yellow Fin, Big Eye or Bluefin Tuna. We catch fish every trip and have a 100% success rate. Sign up now..no hooks to this claim!"
• "We have removed all petroleum-impacted soils.” (actually seen in a remediation report)
• "We guarantee the best customer service you've ever had.”
• "We will remove contamination to clean levels all over your site!”

How many of you work at firms with formal marketing divisions specifically for Phase I ESA work? My experience has been that it's much more common for Project Managers or Division Heads to shoulder the load of marketing/business development, like attending local shows and calling prospective clients. I do periodically see marketing pieces from Phase I ESA firms, but not very often. If you do marketing pieces on your Phase I capabilities, how much attention is paid to making sure the language is protective and avoids the type of risk exposures I learned about in this week’s coursework?

Ever seen a bold-faced claim like the ones above? What's your favorite?