A successful environmental-law practice is made from a number of key ingredients. Some of them are common to all areas of a legal practice; others apply primarily to environmental law and related litigation. Some of the most important ones to keep in mind:
Know the difference between being the “decider” and being an advisor
Recognize and embrace that all decisions are to be made by the client. Our obligation is to provide intelligent counsel to enable sound decision making—and equally sound execution thereof. Analyze the risks and benefits of all primary options so the client can make rational decisions at the earliest possible point. Develop a playbook with the client, then keep him or her regularly apprised of all developments.
Know the circumstances in which you’re the decider
If you’re asked to act in an illegal or unethical manner, you can (and should) decide not to.
Appreciate the difference between advice and advocacy
Offering advice requires a rational and unbiased assessment of the law and the relevant facts, then communicating your assessment clearly and dispassionately. A lawyer often provides advice before a client has made a decision to help the client determine how to act. This often entails identification of the various risks of different positions, followed by a recommendation based on this dispassionate judgment. Advocacy, by contrast, often occurs after the client has already acted. It typically entails developing positions (and defenses) one might have considered high-risk, or that are inconsistent with the advice one would have given before the client acted. Conflating advice with advocacy can lead to unnecessarily risky advice, depriving the client of the opportunity to meaningfully assess the situation at hand.
Say you’re asked to provide your thoughts on a regulatory interpretation—whether a certain change is a routine repair and therefore exempt from New Source Review (NSR), for example, or is a modification, which would trigger a complex NSR analysis. You’re given the underlying facts, which tend to support routine repair (the client is replacing an old air blower with a new one), but the change could just as easily be construed as beyond routine (the new air blower is larger and thus will increase production). If you conflate advice with advocacy, you might here fall into the trap of overstating advocacy, telling the client the project can proceed under the routine-repair paradigm.
If you’re providing dispassionate advice, though, you’ll inform the client of the inherent uncertainty, then possibly help him or her find alternative approaches (replacing the blower with one of similar size, perhaps), determine whether there are other changes to offset any emissions increase, or proceed with NSR. (If you’re asked for this advice after the client has acted, of course, you’ll develop an advocacy position while advising the client that the results are by no means certain.) Advice and advocacy are different things. Always distinguish between them.
Understand the consequences of your advice
All advice has consequences, and your client is entitled to know what they might be. If you advise a client to sample property for contamination, say, that could lead to reporting and remediation obligations if significant contamination is found. Failure to sample, however, might lead to future claims if contamination were to migrate off-site. Any advice you give should assess the consequences if the client either takes or rejects your input.
Develop subject-matter expertise, build on it, and expand to other areas
Environmental law consists of more than a dozen statutes, thousands of regulations, and an immense amount of guidance and lore. Clients are typically generalists who rely on counsel for our breadth of knowledge. Mastery of a single area—air law, water law—takes time. If possible, focus on one area of the law for several years. That will help you master it quickly and enhance your value to clients earlier in your career. Then refine and build on your expertise by expanding into other areas, which will improve your knowledge base and your client value alike.
Develop negotiation and litigation tools
The practice of environmental law often entails the application of knowledge in adversarial contexts such as negotiation and litigation. You will likely be required to make presentations to counsel for opposing parties, to regulators, to mediators, and—if you also litigate—to a court. Don’t shy away from learning how to read social cues and body language adroitly. Learn how to listen carefully without immediate argument. These soft skills are a challenge to master; take every opportunity to do so.
Develop and exercise judgment
Clients rely on us for sound judgment. That requires a combination of those soft skills noted above, and analytical skills such as parsing complex statutory and regulatory language. Judgment develops over time, and it can be burnished by observing how senior lawyers practice their craft and seeking their counsel before offering your own to the client.
Above all, remember that the keys to lasting success are knowing that the client makes all decisions, except those that would compel you to act illegally or unethically; understanding the difference between advice and advocacy, and recognizing the consequences of your advice; and developing and exercising expertise, negotiation and litigation tools, and good judgment. With these attributes at your disposal, you’ll prosper.
Robert Brager, who has practiced environmental law for more than 37 years, is a principal at Beveridge & Diamond, P.C., where he was managing principal from 2001 to 2008.