Attorneys as Compliance Officers: Using the Law as a Preventative Measure Instead of a Last Resort

Issue January/February 2019 January 2019 By Suzanne Englot
Young Lawyers Division Section Review
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Suzanne Englot

The public’s interaction with attorneys often occurs at moments when there is no other option, and something has happened to create a situation where knowledge of the law, and how to navigate the judicial system, is a necessity. These can be high-pressure moments when a person’s life or livelihood hangs in the balance.

So many of these moments could have been avoided if the client had sought legal counsel beforehand, but that is often not a person’s or company’s first instinct, which speaks to precisely what needs to change in the way our profession interacts with the public. Because, the truth is, in addition to being able to provide help when all goes wrong, lawyers are uniquely equipped to prevent things from going wrong in the first place. We can interpret the laws that are already enacted, as well as ones that have yet to take effect; determine which ones are applicable to our clients; and make suggestions that will ensure that they will not encounter any legal issues down the road.

This preemptive service is particularly useful for companies, big and small, who are struggling to keep on top of their many regulatory obligations. Attorneys in all types of practice can offer their corporate clients peace of mind by reviewing the laws that apply to their businesses and targeting areas of their compliance framework that could use more work. We can help establish safety training schedules, environmental monitoring and measurement programs, permit renewal procedures, and so much more.
Best of all, compliance systems developed by lawyers would not exist in a vacuum, because of our understanding of the way that laws are intended to be implemented and enforced. Our legal experience can help us to identify key actors within our clients’ organizations, like site managers and risk-facing personnel, who have institutional knowledge that, when incorporated, supports a compliance program that is not only good on paper, but is feasible to implement internally.

Recently, OSHA published new regulations on the sort of equipment that must be in place to protect employees who walk and/or work at heights from injury due to falls. Most of the regulations were already in place by the end of 2017, but a shrewd legal eye would note that a couple of the provisions concerning ladders above 24 feet became effective on Nov. 19, 2018. A slow rollout of regulatory provisions like this, which address an area of work safety that leads to a lot of injuries, could result in serious issues for a company that is not devoting resources to identifying exactly this type of liability.

What if an employee fell from a 25-foot ladder on Nov. 20, and not only was the ladder improperly equipped, but the employee was overdue to be retrained in ladder safety? The injury could have been easily prevented, as well as the ensuing workers’ compensation claim and OSHA investigation. An attorney consulted on compliance issues could not only have helped put systems in place to try to prevent that injury, but could also then prepare a strong defense, based on firsthand knowledge, that their client controlled the controllables and established a program that would pass muster by the standards set forth in the relevant regulations.

Building up strong regulatory compliance programs is a company’s best defense from legal challenges. The upfront work you do to protect your clients’ interests will save them time and money in the long term, and proves your value as a resource, making it more likely that your clients will come to you with issues and concerns long before a court appearance would be necessary. 

Suzanne Englot is an associate attorney at CMBG3, where she focuses on asbestos, toxic tort and environmental defense. She graduated cum laude from the Haub School of Law at Pace University in 2016 with a special certificate in environmental law. Prior to joining CMBG3, Englot worked as an environmental health and safety consultant, partnering with primarily manufacturing, property management and insurance clients to ensure regulatory compliance. When not in the courtroom, you can find Englot in one of our country’s national parks with her dog Ginny, or in a community room channeling her passion for the environment into her role as the current president/chair of the board of Green Cambridge.