In Michigan, solar energy development is on the rise. After Governor Gretchen Whitmer signed House Bill 5120 (PA 233 of 2023), which provides siting authority to the Michigan Service Public Commission, solar energy developments in the State of Michigan will be pushed through with more regularity. Solar developments have a plethora of costs associated with them from both the developer side and from the landowner. Landowners, who typically do not have access to funds like developers, will need to be strategic with their decision making in terms of costs. But one cost that should not be overlooked is hiring an attorney.
Many landowners, and people generally, are hesitant to hire an attorney at the outset as they believe they can handle most matters themselves. While that may be true in a sense, in the solar development context, like most construction projects, there are a multitude of steps that go into any single development. Although cutting costs may sound enticing in theory, one expense that should be accounted for is hiring your own counsel and not relying on the developer’s attorney. There are a multitude of reasons why you should hire your own counsel, and the rest of this blog will give you a sense of why.
First, and most importantly, the developer’s attorney serves one party: the developer. Although he or she may offer to assist you in the transaction, at the end of the day the developer’s attorney has a duty and obligation to their client, the developer. You, the landowner, will want to have someone who adequately represents your interests.
Second, the Michigan Rules of Professional Conduct generally do not allow a party to advise their clients on both sides of a transaction. Under Rule 1.8 of the Rules, “a lawyer shall not use information relating to representation of a client to the disadvantage of the client…” If the lawyer were to theoretically represent both parties of the transaction, it would be almost impossible to not use certain information to disadvantage one of their clients.
Lastly, the developer’s attorney may not be an expert in the area of law you have an issue in. For example, you may have a zoning issue and the developer’s attorney may only be a transactional attorney. Generally speaking, it is best to find an attorney who specializes in solving your respective problem even if it may cost more.
The attorneys at Dalton & Tomich, PLC, are highly experienced in all areas of transactional law and land use are here to help guide you through all legal complexities to help achieve your goals. Please do not hesitate to reach out for a consultation with an attorney.
