As you know, in this era of aggressive enforcement by OSHA, EPA and other regulatory agencies, employers are increasingly concerned about their potential liabilities and their compliance obligations. As a result, many employers seek the assistance of legal counsel for advice.
Since many of these compliance obligations involve analysis of technical data, the attorney who provides the legal advice will need to rely on third parties, such as engineers, industrial hygienists, toxicologists, to translate this technical information for the attorney in order to be able to meaningfully consult with and provide legal advice to the client. The enclosed article discusses the creation of these legal privileges. It also discusses a recent OSHA decision in which an Administrative Law Judge held that the report of a third party consultant retained by the client’s attorney was not protected under the attorney client privilege. The decision was appealed to the OSHA Review Commission and the Commission remanded the case to the Administrative Law Judge to review the consultant’s report within certain guidelines to determine if it is in fact privileged. This article provides Recommendations as to when and how to involve counsel in a matter in order to create the legal privileges and how to maintain the privileged nature of the information from disclosure. Please feel free to use the article in your training and publications. If you have any questions regarding these issues, please do not hesitate to contact us.
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