Faced with a corporate attorney who obsessively invokes “attorney-client privilege” on all EHS audits, a colleague recently asked my opinion regarding this “privilege” being used as a “practice.” In the spirit of full disclosure, I am not an attorney; however, I have worked with both EHS and non-EHS attorneys throughout my career.
For the most part, corporate attorneys or outside counsel invoke “attorney-client privilege” when an EHS audit is being conducted for a specific purpose of providing legal advice. Examples may include circumstances when a fatality(s) or significant injury(s) has occurred, where it is highly likely that litigation is imminent, responding to notices of violation or consent decrees from regulatory agencies, or when preparing or responding to a lawsuit brought against the company or a plant site for whatever reason.
There is general agreement among colleagues I spoke with for this article that the most ideal EHS auditing programs are structured as a separate, stand-alone and independent group with direct reporting responsibility to the CEO or the board of directors’ audit committee. Typically, these auditing groups are staffed with EHS professionals who are certified auditors through such groups as the Board of Environmental, Health and Safety Auditor Certifications (BEAC). A lead auditor normally heads the group and is the person responsible for reporting to the CEO or board on a routine (e.g., quarterly) basis. Rarely, if ever, is the “attorney-client privilege” applied to EHS audits.