The lawyer’s role

Once the importance of risk management is accepted, the next challenge is to develop a successful strategy. At first sight this process seems to have more to do with product stewards and those responsible for safety, health and environment than it does with lawyers. In fact lawyers can contribute to the process in two significant ways.

First, there are obviously issues that are inherently legal in their nature. Involving lawyers in the process of defining risk can assist in preserving confidentiality. Whilst it would be imprudent to assume that, for all purposes and in all jurisdictions, legal professional privilege will protect documents created in the risk management process, the possibility should always be considered. Even where privilege cannot be guaranteed, lawyers can design protocols for creating, preserving and indexing documents in order to eliminate unnecessary risk. Lawyers can also help to reconcile the legal tensions that exist between the precautionary approach inherent in risk assessment and the tests for liability after the event. These vary between jurisdictions and, especially in common law systems, are based on significantly different principles.