Legal Practice and Climate Change

FEATURE

Legal Practice and Climate Change

The climate crisis is the greatest threat facing modern humanity and, as we all know, human-induced climate change is already affecting the world with massive deadly changes causing scorching heat, storms, floods, rising sea levels caused by melting glaciers and other natural disasters. The best assessment of scientists indicates that there will be devastating global consequences if rapid and far-reaching changes are not made to limit warming to 1.5°C. To do that, global net human-caused emissions of carbon dioxide would need to fall by about 45% from 2010 levels by 2030 reaching net zero around 2050. The International Energy Agency has also advised that new coal, oil and gas investments should end by 2021 in order to meet such targets. COP26 has demonstrated how the selfishness of nations threatens to make these necessary accomplishments impossible to attain without a drastic change in our behaviour. At COP26, countries representing 70% of carbon emissions were absent (Russia, China, Saudi Arabia and Brazil). India’s promises, although welcome, will take three generations to accomplish assuming that there is no fall-back.

Solicitors, through advocacy or daily practice, can be part of the change needed to tackle the climate crisis and provide a safe environment for future generations. The Law Society’s Council has therefore passed a climate change Resolution1 . This Resolution acknowledges the essential role of the legal profession in strengthening and upholding the rule of law, human rights and access to justice which are vital for society as a whole, including for advancing efforts which mitigate the climate crisis and strengthen climate justice. It further acknowledges that solicitors have played a crucial role historically in fundamental positive societal changes and can lead in mitigating the climate crisis to avert its worst effects, including by supporting their clients and (for in-house solicitors) their employers in doing so.

This Resolution binds the Law Society only and does not bind its members. It resolves, amongst other things, to support solicitors to be fully informed on how they might act to mitigate the climate crisis and provide guidance to solicitors on how, when approaching any matter arising in the course of legal practice, to take account of the likely impact of that matter upon the climate crisis in a way which is compatible with their professional duties and the administration of justice. It urges solicitors, always in a way which is compatible with their professional duties and the administration of justice, to engage in climate conscious legal practice by continuing education, approaching any matter arising in the course of legal practice with regard to the likely impact of that matter upon the climate crisis and providing, whether themselves or through others, competent advice to their clients on how they can achieve their objectives in ways which mitigate the effects of the climate crisis. And it urges us to promote adaptation to climate change and the potential legal risks and liabilities that may arise from action or inaction that negatively contributes to the climate crisis. Further it urges solicitors when advising clients, where applicable, to advise about the benefits of disclosure of climate-related risks and opportunities related to their entire business operation (including supply chains) when reporting to regulators, investors and stakeholders and on the assessment, monitoring, management, mitigation and reporting on such risks.

The Resolution also urges law firms and organisations that support the legal industry to operate in a way which restricts the increasing global warming to well below 2°C and to pursue efforts to limit the increase to above 1.5°C pre-industrial levels by adopting science-based targets and practical measures to reduce the environmental impact of their businesses and policies and by reporting publicly on the steps taken to meet these commitments and the outcomes of such steps.

We all understand that professional considerations require that there is no influence or restriction on the independence of the advice given to clients in connection with their legal affairs. However, any such advice, even by an independent lawyer, should be in accordance with legal and moral principles. Most of us would agree that it is essential that we develop a climatecontrolled approach to our legal practices. Law Society President I. Stephanie Boyce said “Solicitors and law firms need to prepare for how the consequences of the climate crisis will affect them and contribute to the global drive to transition to net zero. This includes identifying climate change related risks and greener courses of action, as well as reducing the greenhouse gases associated with running any business. Nearly a third of the U.K.’s largest businesses and many law firms have now pledged to eliminate their contribution to carbon emissions by 2050. Clients are also looking to law firms and lawyers to reflect their values and stands on climate change and sustainability. Solicitors can play a crucial role in the transition towards net-zero and climate change will affect their daily practice. This is something we all need to educate ourselves on now, incorporate into legal practice and dedicate resources to. We hope our climate change resource hub will be a valuable support to members.”

The SRA has confirmed that, in the ever-growing fight against climate change, it will consider the impact of environmental, social and governance upon the profession as well as the legal sector’s response to climate change and they have published their own resolution to support both individual solicitors and the companies or firms they work for to develop a climate-controlled approach to legal practice. To date the Legal Services Board (LSB) have no plan relating to climate change.

The Gazette (28 October 2021) posed the question of whether the Resolution could potentially be interpreted as inviting solicitors (for example) not to represent a company building a coal-fired power station or an oil pipeline. The Law Society responded saying it was essential to the functioning legal system that everyone can access a lawyer to understand their rights and obligations within the law.

Over the next year the Law Society aims to provide the profession with guidance on how to take climate change into consideration when advising clients and providing legal services.2 The Law Society will not be developing its own material but creating a Hub for Solicitors using the products of others who have produced excellent material to assist law firms and by bringing all of these together and promoting them to the profession. Of significance is the Chancery Lane Project3 which has developed dozens of contractual clauses that can be incorporated into precedents and commercial agreements. The Legal Sustainability Alliance4 offers support and advice to law firms across the UK helping them to manage and reduce their carbon emissions and to become more sustainable. These are two examples of many.

But we must not underestimate the amount of work and resources which we will need to have committed to deliver what the Resolution promotes. We should also remember that we have in the past encountered difficulties in promoting positive change with clients despite being ahead of others in the field of law in trying to do so. The UN Guiding Principles on Business and Human Rights5 promoted respect for the human rights of others in relation to business, supply chains and the use of cheap labour, inter alia, in an effort to change the often extreme and desolate conditions in which many of those living in the developing world and providing that cheap labour live. The lack of financial resources has caused this important contribution to human rights to be put on the backburner. For that to happen to work to keep the climate change down to 1.5 C would be fatal.

At present it is for clients to decide whether they want climaterelated advice assuming that we are educated and equipped to provide it. At present it is not compulsory but that might change if, for example, insurers require us to give that advice or to include a suitable disclaimer in our terms of business to avoid a negligence claim for having failed to give it should that advice have resulted in clients doing better had the advice been given. Change could also come about from the SRA and the LSB.

Concerns have been raised as to whether the wording of the Resolution widens the responsibility of solicitors or raises expectations of competence in areas outside the scope of specific retainer or to advise beyond legislated requirements. This is not the case. They are not requirements. They are part of activities where the Law Society is urging lawyers and law firms to engage. But lawyers should be clear that climate change is here. It is not going to go away, and it very probably will get a lot worse. And make no mistake there is rising pressure for the profession not to be seen as enablers of those who damage the climate through their actions. ■

Alastair Logan

Alastair Logan OBE., LL.B.,

Council Member for the Surrey Constituency

1. https://planb.earth/wp-content/uploads/2021/10/ LawSocResolution.pdf

2. https://www.lawsociety.org.uk/topics/climate-change/ creating-a-climate-conscious-approach-to-legal-practice

3. https://chancerylaneproject.org/

4. https://legalsustainabilityalliance.com/

5. https://www.ohchr.org/documents/publications/ guidingprinciplesbusinesshr_en.pdf