Shuja: Solicitors need to pre-empt climate legal risks
Climate-related issues may be “valid considerations” for law firms in deciding whether to act for potential clients, the Law Society has said.
The society warned that solicitors might also be acting with a lack of integrity and breaching the Solicitors Regulation Authority (SRA) code of conduct if they made misleading claims about their green credentials.
In new guidance on the impact of climate change on solicitors, the society said the principle of access to justice and right to legal representation were “fundamental”, but solicitors were not “obliged to provide advice to every prospective client that seeks it” and had “wide discretion” in choosing whether to accept instructions.
Climate-related issues may be “valid considerations in determining whether to act”. These included “any potential impact” on the law firm’s reputation and “any apparent conflict with the client organisation’s stated values and the potential impact on climate change generally”.
The society said that If law firms decided not to accept instructions, they should provide the reasoning to their prospective clients in writing.
“Some solicitors may also choose to decline to advise on matters that are incompatible with the 1.5°C goal, or for clients actively working against that goal if it conflicts with their values or their law firm’s stated objectives.
“This is a matter for individual solicitors and law firms, recognising solicitors’ professional obligations.”
The society predicted that the interpretation of SRA principles in the context of climate change was “likely to evolve over time”, as “global social issues” such as strategic lawsuits against public participation (SLAPPs) or sexual harassment claims against members of the profession “interacted” with regulatory duties.
“How solicitors interact with climate-related issues is likely to change as the narrative on climate change develops.”
Solicitors might decide that acting for clients who were “wilfully, recklessly, or negligently making misleading claims about their organisation’s climate impacts or established climate science” might be incompatible with their duty of integrity.
Law firms should also be sure that they did not “mislead the public” with claims about their or their organisation’s own climate change credentials, either intentionally or inadvertently by ‘greenwashing’.
The society warned: “As with clients, your firm’s ability to attract and retain employees may be significantly influenced by its approach to climate change and, for some, the nature of the work they are asked to do.
“In particular, young lawyers and law students increasingly consider the stance taken by firms on climate change when choosing where to work.”
The society said in-house lawyers “may face particular additional challenges” in advising on climate legal risks.
“As in-house lawyers cannot limit their advice to the scope of a retainer, they may need to be proactive in raising questions about the sustainability of business models and alignment to any climate pledges made by their organisations.”
Lubna Shuja, president of the Law Society, said: “We encourage solicitors to take the initiative to understand and pre-empt the climate legal risks with the help of our guidance.
“This will ensure they can continue to run their businesses and advise their clients competently and compliantly.”
Ms Shuja said the guidance set out how firms could “manage their business in a way which is consistent with the transition to net zero.”
Caroline May, chair of the society’s climate change working group, described the guidance as the first of its kind for the solicitors’ profession “anywhere in the world”.
Last year, the Law Society published a climate change resolution, which agreed, among other things, to “support solicitors to be fully informed on how they might act to mitigate the climate crisis”.
Meanwhile, an open letter last year organised by Plan B.Earth – a charity that supports strategic legal action against climate change – and the Good Law Project said lawyers should be ethically obliged to advise clients of the serious risks, legal or otherwise, of pursuing activities that risked exacerbating climate change.
More recently, there has been considerable debate over the cab-rank rule – which does not apply to solicitors – after barrister signatories to a Declaration of Conscience pledged not to prosecute climate protestors or advise on fossil fuel projects.
The Solicitor-General also weighed in to support the rule recently, saying in reply to a written parliamentary question that the pledge undermined the independence of the legal profession “and is fundamentally at odds with the idea that every person is entitled to a fair trial”.
Michael Tomlinson continued: “The impact of this action on the Crown Prosecution Service will be negligible, not least because many of those ‘refusing’ to prosecute are not in fact qualified to do so.”
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