The “The Buck Stops Here” generated some interesting feedback.  An attorney experienced in consultant liability commented to me on the three Environmental Professionals (EPs) who clashed on the findings of a site assessment, yet they all agreed to sign as the EP.  Here is a summary of him “thinking out loud” on potential liability concerns posed by the scenario.

The attorney said that this “significant disagreement” could be a deposition gold mine. He saw three issues which an aggressive plaintiff’s lawyer might choose to try and exploit. He stressed that at the moment these are merely legal theories, with no cases to say that these ideas would or would not work.... 

First, since many EP’s are also professional licensed as engineers or geologists, any applicable canons of ethics would be triggered. How could the EP explain to his or her licensing board (a complaint having, of course, been filed by the plaintiff) that he or she signed a report as the EP that he or she thought was wrong or incomplete without having a statement showing the client where the professional felt the report went astray?

Second, how would the EP (and the EP’s employer) explain to their professional malpractice carrier that the EP signed something they disagreed with? Remember: the plaintiff’s lawyer will characterize this much less charitably. The plaintiff’s lawyer might ask the same question in this way: “Why did you deliberately sign something you knew was wrong? Why did you sacrifice your professional integrity to the detriment of my client? Will you sign anything for money?” With this spin, the insurance carrier might take the position that the decision to sign something which your professional judgment told you was wrong (or so incomplete as to be effectively wrong) that it amounted to a knowingly wrongful act – and that might mean no insurance.

Third, and the lawyer stressed again for emphasis that this was speculation without a case to point to, the transmittal of the report with conclusions you believe to be wrong via mail or email (or both) might rise to the level of a violation of the federal mail or wire fraud criminal statutes. And, of course, there is no insurance for a crime. If this is a viable theory (again, a big “if”), it could create among the multiple EPs a new title: “co-conspirators.”

Whether or not you agree with the attorney, his comments should serve to caution all EPs.  You may find yourself in similar circumstances.  After all, differences of opinion are common in the ESA arena.   The next part of this series will focus on some strategies for productively resolving disagreements before the report is finalized. There is a commonground discussion on issues like this associated with the role and responsibilities of the Environmental Professional.  Please check it out and share your opinions.