Our view of the Law Society’s Guidance on the Impact of Climate Change on Solicitors

This week, the Law Society of England and Wales published the Guidance on the Impact of Climate Change on Solicitors.

This is the first time that the Law Society has given such a direction focused on protecting the environment. Although, this action seems consistent with the Climate Change Resolution they made on 28th October 2021:

“to provide guidance to solicitors on how, when approaching any matter arising in the course of legal practice, to take into account 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;”

The guidance has three parts:

• Part A contains guidance for organisations on how to work in a manner consistent with climate change. It provides the background of the major concepts of climate change, including Greenhouse Gas (GHG) emissions, science-based targets, climate risk disclosure frameworks, advised emissions and Greenwashing.
• Part B is the core part and contains guidance for solicitors on the relevance of climate change legal risks in the advice they give to clients, their professional duties, and the solicitor-client relationship.
• Part C is complementary to the previous two parts. It contains an explanation of the categorisation of climate risks, some examples of potential climate-related legal risks for specific practice areas, and a checklist for climate-conscious legal practice.

What is the big deal with this guidance?

First in the world: By issuing this guidance, the Law Society has become the first professional legal organisation in the world to issue climate change guidance to its members.

Capacity to say no: While the principle of access to justice and legal representation are recognised in the guidance, it also provides that solicitors are not obliged to provide advice to all clients and that “climate-related issues” are a valid consideration when choosing to decline providing representation. As per the guidance, one of these considerations could be “any apparent conflict with the client organisation’s stated values and the potential impact on climate change generally”. This would make it easier for environmentally aware solicitors to act only in matters they believe in.

Sector specific: While the guidance only has a few examples of legal risks for specific areas, it also provides that “further sector-specific guidance on particular areas of law will be published by the Law Society addressing how solicitors should advise clients on climate change legal risks”. These sector-specific approaches might change the day-to-day work of the solicitors in every sector, but we will need to wait and see what will be included in them.

Climate change awareness: The guidance by itself is helpful in promoting the consideration of climate change risks in the wider legal profession, making it clear that climate change is not only something that concerns to environmental solicitors.

Critic

While the guidance is a positive step for the protection of the environment, it is not perfect.

Non-binding: The guidance is only an aid for solicitors to make better decisions in the context of climate change, but it is not binding. In fact, while the Solicitors Regulation Authority (SRA) supports this guidance, it is expressly provided that this guidance “should not be interpreted as the SRA’s regulatory position on these matters”. Given that there is no real obligation to follow this guidance or the future sector-specific guidance, it is unclear whether it would have a real effect in the work of the majority of our colleagues.

Clients’ pockets: Among other matters, the guidance suggests that the solicitors have a duty to warn clients on the impact of climate change and, when providing advice on climate change, solicitors “may wish to include a provision in their retainer reserving the right to instruct specialists where appropriate (along with the right to charge the client the fees incurred in doing so).” While providing this type of advice is ideal, it assumes that the clients will be willing to pay for this. Unfortunately, this is not the case. Clients, either for lack of knowledge or lack of funds, most of the times are not keen to pay for additional services apart from the specific ones that they were looking to obtain from a firm. As solicitors, we can only act if instructed by the client. Thus, considering that the guidance is not binding, it will largely depend on the clients’ pockets whether climate change advice is provided or not, which does not represent a big difference from the current status quo.

Low effectiveness: The guidance gives solicitors and law firms the ability to refuse to act for polluters. However, in a professional world directed by the market, every law firm is trying their best to get the greatest number of clients and revenue. In this context, it is quite unlikely that any firm will decline a potential profitable client just for climate change concerns. While climate change concerns might have some weight in deciding whether to take a new client, we do not believe they will play a major role compared to other considerations like revenue or reputational impact, mostly considering that most (if not all) corporations in the world generate some type of pollution either by themselves or within its value chains.

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