Judging by the reaction to the Law Society’s latest guidance note, Impact of climate change on solicitors, released yesterday, the “milestone climate change guidance” has got lawyers hot under their white collars.
Said to be the first guidance of its kind in the world, the 28-page note seeks to “enable the profession to be at the forefront of responding to the challenges of climate change which impacts all areas of legal practice,” according to Caroline May, chairwoman of the Law Society’s climate change working group.
While the note provides guidance for law firms on how to manage their business in a manner consistent with the transition to net zero, such as avoiding greenwashing in marketing and communications and taking into account employees’ stance on climate change, it also considers how climate change physical and legal risks may be relevant to client advice and how climate change issues may affect both solicitors’ professional duties and the solicitor-client relationship.
It is this final point, in particular, that provoked such a flurry of commentary.
The Law Society guidance states: “Some solicitors may … choose to decline to advise on matters that are incompatible with the 1.5°C goal [of the 2016 Paris Agreement], or for clients actively working against that goal if it conflicts with your values or your firm’s stated objectives.”
“Woke, virtue-signalling nonsense”, “reckless” and “‘landmark guidance’ but for all the wrong reasons,” were just some of the reactions, with the Law Society accused of meddling in green politics and representing the interests of climate change activists rather than solicitors.
The Law Society emphasises the importance of access to justice and the right to legal representation, by stressing that solicitors are not obliged to represent every prospective client that knocks on the door (unlike barristers who are bound by the ‘cab rank rule’).
However, in stating that “climate-related issues may be valid considerations in determining whether to act”, the guidance could further empower climate change protestors to take direct action against law firms and solicitors acting for big energy companies. Moreover, according to Iain Miller, regulatory partner at Kingsley Napley, it raises the prospect that in time firms may face regulatory action for representing clients that damage the environment. The existence of this warning to the profession, he says, may in due course be relied upon to demonstrate that this risk was known about.
The guidance was also criticised for suggesting that law firms may want to consider accommodating employees who identify climate change as a ‘recognised philosophical belief’ – a protected characteristic under the Equalities Act.
Furthermore, as one of its detractors pointed out, in highlighting the impact of climate legal risks on solicitors’ professional duties, the guidance could increase the risk of law firms being sued for professional negligence.
Whatever your take on the Law Society’s guidance, one thing is clear: law firms need to be alive to, plan for and mitigate the increasing reputational risk related to climate change – whether from greenwashing allegations, employment claims, professional negligence cases, the representation – or even non-representation – of energy clients.
Meanwhile, the Bar Council’s Climate Crisis Working Group is crafting draft ethical guidance for the Bar, liaising with the Law Society. It follows last month’s declaration by some 120 lawyers, among them prominent KCs, that they will not prosecute peaceful climate protesters or act for companies supporting new fossil fuel projects. Could this herald the beginning of the end of the cab rank rule?
Written by Sarah Peters, Senior Consultant at Bell Yard Communications