by Mark Sabourin
May 9, 2019
Opinions matter: ECs must not cross the line from expert to advocate
Applying for approvals, preparing documentation, liaising with regulators – these are bread and butter tasks for a wide range of environmental consultants. But in complex matters or on high-profile issues, a professional may cross the line from consultant to advocate.
If that happens, “It can later undermine your ability to provide assistance to a tribunal or in a courtroom,” explains Janice Walton, an environmental lawyer with the Vancouver office of Blakes.
That’s what happened to Oliver Thomae, a registered professional forester with a 30-year background in the field. Thomae was retained to resolve what appeared to be an error in a water license. He got nowhere with local and regional administrators, and unexpectedly found himself in the unfamiliar role of agent for his clients before the BC Environmental Appeal Board. Ultimately, the appeal was successful, but during the proceedings the appeal panel refused to qualify Thomae as an expert witness on hydrology, stating that he was not sufficiently independent to give opinion evidence.
Walton says it’s not unusual for a consultant to act as a client’s agent before a British Columbia environmental tribunal, particularly for individuals and smaller operators. The consultants often give evidence and, occasionally, are qualified as an expert witness.
“This is the first time I’ve seen the board push back on it,” she says.
“He signed correspondence on their behalf and used pronouns such as ‘we’, ‘us’ or ‘our’, indicating a position closely aligned with and, in fact, advocating for, the Appellants,” the appeal panel wrote in its decision.
“That is categorically unprofessional,” says Robin Brown, president of Rubidium Environmental. You always hope for a positive outcome for your client, he says, but it must always be clear in documentation that opinions are the professional opinions of the firm.
“Submissions in support of an approval [should] be made in the client’s name,” advises Doug Petrie, who has turned the page on a 27-year career as an environmental lawyer and now helps clients navigate the regulatory process as principal consultant at Regulatory Contact Management. That means client letterhead and client signature, he says.
The submission will likely include attachments from consultants or other third parties, and there’s no need to conceal that, says Petrie. But the formal submission should be the client’s or the client’s lawyer’s. Whether in the initial submissions or in any later testimony as an expert, the consultant’s role is to provide a professional opinion based on the facts, he says.
Walton warns that consultants do sometimes become too invested in their clients’ projects. “They can unwittingly cross over into being an advocate,” she says.
Kevin Shipley, partner at XCG Consulting Limited, has plenty of experience as an expert witness in cases involving clients. He’s never been denied, he says, nor has anyone ever raised a question about his objectivity. He figures that’s because his earlier involvement was also objective.
“You’re doing boreholes, you’re installing monitoring wells, you’re collecting samples, you’re writing a report, and your report is objectively worded and it’s a scientific report,” he explains. “You’re just reporting on the results. You’ve never acted as an advocate.”
Making arguments in support of a client, making categorical statements, giving media interviews – these are some of the lines he tries not to cross because they can create an appearance of bias.
Another line he and Brown are clear they would not cross is actually arguing the case – acting as the client’s agent before a tribunal, as Thomae did. That’s a lawyer’s job.
Consultants, whether they are providing factual subject-matter evidence or offering expert opinions, still run the risk of knowing too much, particularly if they have a long history with the client, Petrie warns. Clients do not always come with an unblemished past.
“If a regulator asks the right questions, it’s possible that the consultant would either have to misrepresent or lie to protect the client, or tell the truth and incriminate the client,” Petrie says. But by acting as a conduit of information from the consultant to the regulator, Petrie says he can be truthful and helpful, while insulating the consultant should the matter be appealed. There is little or no contact between the consultant and the regulator, and therefore little or no risk of the consultant appearing contradictory.
In the digital age, almost everything is discoverable, adds Petrie, including instances where a consultant may have offered an opinion that appears to differ from the one being given now.
“They said, if you’re in the business long enough, somebody will ask you a question that you answered differently 10 years ago.” Those words stuck.
“I don’t worry about that,” he says now. “I use, usually, multiple lines of evidence. I always lead with ‘this is what the data say.’” He’s always confident that in 10 years, if he were to look at the same data, he’d arrive at the same opinion.