Not surprisingly, the nuclear industry is heavily-regulated and draws on a variety of highly-specialized experts across the full range of engineering and technical disciplines. And equipment and components at nuclear power plants reflect state-of-the-art technologies and specialized design and manufacturing capabilities. Lawyers serving the nuclear industry are no different, and the ability to serve clients effectively often hinges on an attorney’s ability to synthesize engineering principles and data and to test that information against the regulatory framework. A recent decision in the Northern District of Indiana, Valley Forge Ins. V. Hartford Iron & Metal, Inc., calls into question the ability to provide practical regulatory advice to clients while still maintaining the attorney-client privilege.
Valley Forge involved a dispute between Valley Forge and Hartford Iron over a site remediation. At issue were claims by Hartford Iron that various withheld emails were confidential communications between its counsel and agents hired by counsel to aid counsel in providing legal advice to Hartford Iron. Valley Forge disagreed, contending that the primary purpose in retaining two consulting firms was not to provide legal advice, but rather to provide environmental remediation services—that is, to design and construct a new stormwater control system.
Although the attorney had hired the consulting firms ostensibly to aid the attorney in providing legal advice by acting as “a translator who puts the client’s information into terms that the attorney can use effectively,” the court explained that “retention or employment by the attorney alone is insufficient to bring the consultant within the scope of the attorney-client privilege.” The court concluded that the consultants work was “based on factual and scientific evidence obtained through studies and observation of the physical condition of the site, and not through client confidences.” As a result, the court found that the attorney-client privilege did not apply. In other words, the privilege does not protect a lawyer’s emails to consultants when the communications concern remediation (i.e., technical consulting services) as opposed to legal advice.
The court seemed to place significance on the fact that the attorney’s role at times appeared to morph into that of an environmental consultant, most likely due to her extensive experience performing clean ups as a consulting geologist prior to practicing law, noting that “[h]iring lawyers to do consultants’ work does not bring a privilege into play.” But, for heavily-regulated industries, like nuclear power, this is often a distinction with no difference. In sectors subject to prescriptive regulations and detailed technical requirements, it often takes an attorney with technical knowledge to understand the issues and be able to put them in the proper regulatory context. The dichotomy between legal advice and consulting services that the judge in Valley Forge drew so readily seems outdated in a legal profession that increasingly relies on technically-savvy professionals to provide sophisticated legal advice in complex regulatory environments.
In the end, the court held that the work product doctrine could nevertheless apply to a document that had multiple purposes, as long as one purpose was in anticipation of litigation. So, there was an alternate basis for protecting the emails. But, the case nevertheless serves as a reminder of the limits of the attorney-client privilege in a world where counsel are increasingly expected to understand and advise on issues at the intersection of regulatory compliance and technical services.