Vaughan: “Active lawyering” call
Lawyer are not merely “servants of their clients” and should counsel their clients about environmental harms their instructions may lead to, a leading legal academic has argued.
Professor Steven Vaughan said “difficult and important questions” about the meaning of Solicitors Regulation Authority (SRA) principles and the best approach to lawyers’ ethics should be brought “into the open”.
Professor Vaughan, based at UCL Faculty of Laws, said it was “not unreasonable to say that the obligation to act in a client’s best interests – given what we know of increasing regulatory, financial, and reputational risks to clients for environmental harms, even the legal ones – means that lawyers should be thinking beyond ‘getting the deal done’ and should be engaged in active client counselling on environmental impacts”.
Delivering his delayed inaugural lecture, entitled The Unethical Environmental Lawyer, the professor said client counselling could be seen as “an expanded form of climate-conscious legal practice”, where environmental consciousness was simply a consequence of the SRA principle requiring action in a client’s best interests.
“Given what I’ve said so far about the SRA’s principles I don’t think it’s that much of a stretch to say that independence, integrity, acting in a client’s best interests and so on likely require some active lawyering by solicitors − including forms of client counselling − about the ‘perfectly legal’ environmental harms their clients plan to bring about.”
While the principles were useful in “tempering and seeking to prevent what I have labelled the ‘prima facie, obviously problematic’ cases – lawyers bullying, cheating, lying etc when it comes to environmental harms – the most the SRA’s principles probably require is client counselling when it comes to the ‘perfectly legal, well-lawyered’ environmental harm-causing matters”.
He said there were different conceptions of being a lawyer. In the ‘standard conception’ approach to legal ethics, lawyers “should do all that is permissible for their clients within the bounds of the law”.
However, under the ‘justice-seeking responsible lawyer’ conception, lawyers must “act in the interests of their client, but are obligated to do so in a way which accords not merely with the letter of the law, but also with the law’s inner morality or purpose”.
The responsible lawyer would be “much more active with their clients in terms of counselling about environmental harms” and on the impacts of the use of the law “in a certain way” by clients.
“A responsible lawyer would robustly defend their professional independence and accept their place mediating between client and state, meaning they wouldn’t just take at face value their clients’ instructions.
“And a responsible lawyer would not use loopholes, procedural rules or minimally arguable points to frustrate the purpose of the law.”
Professor Vaughan said that “as well as being servants of their clients”, lawyers had “agency to bring about or not bring about or mediate environmental harms”.
He went on: “While that agency is constrained, I think we read and hear far too much about lawyers as technical facilitators of their clients’ objectives versus lawyers as active designers and structuring forces, creating, innovating and influencing client decision-making.
“Second, there is important work to be done by law firms, representative groups, and regulators when it comes to reflecting on the ‘perfectly legal’ environmental harms that lawyers help to bring about.
“The Law Society has started some of this work in relation to climate change, and I hear of a handful of law firms who are having these hard conversations behind closed doors.
“Third, we will likely disagree on what the SRA’s principles mean or require and/or on what approach to lawyers’ ethics is best or most appropriate. But let’s at least have the disagreement; let’s bring these difficult and important questions out into the open.”
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