Lawyers should have to warn clients about environmental damage, say campaigners

By John Hyde >>

(16 September 2022)

A group of more than 170 members of the legal profession have called for new obligations on lawyers to advise clients about the environmental impact of their business.

In an open letter published today, the signatories urged lawyers to use their influence for good and to support clients in transforming their business practice.

Those who support transactions which might increase climate change ‘expose themselves and their clients to substantial legal risk, as well as the real-world risk of catastrophe’.

The focus, it is put forward, should be on not breaching the 1.5˚C temperature increase goal established by the Paris Agreement on Climate Change.

The letter makes three proposals for the profession’s obligations that should be supported and enforced by their regulators.

Lawyers should ensure they acquire and maintain understanding of the 1.5˚C goal and the urgent action required by 2030 to prevent it being exceeded.

There should also be renewed efforts by lawyers to develop climate literacy and ensure courts have access to relevant evidence concerning climate change.

Perhaps most relevant to day-to-day practice, the letter also calls for lawyers – including in-house and government lawyers – to be ‘ethically obliged’ to advise their clients of the risks of pursuing any investment, project or transaction that might risk the 1.5˚C limit being breached. Government lawyers, it is said, ‘should highlight the potential human rights violations not only of measures inconsistent with 1.5˚C but also measures which disproportionately criminalise protestors who raise the alarm’.

The letter says: ‘These propositions will be challenging to some, but in the context of the extreme emergency we face, they are modest. The climate crisis is not just “another issue”. To the contrary, a stable climate is the foundation for a stable civilisation and the rule of law. Breaching the 1.5˚C Paris temperature goal thus threatens disorder and the end of the rule of law.’

The letter highlights a report last year from the US Law Students for Climate Accountability which said that the top 100 law firms facilitated $1.36 trillion in fossil fuel transactions, a $50 billion increase from the previous reported year. It also found that the top 100 firms litigated a total of 358 cases for fossil fuel clients in the past five years, compared to 275 cases from the previous year’s report.

In October last year, the Law Society launched a climate change resolution and said that 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’.

Asked if that extended to not representing a company building a coal-fired power station or oil pipeline, the Society said: ‘It is essential to a functioning legal system that everyone is able to access a lawyer to understand their rights and obligations within the law. Over the next year, we aim to provide the profession with guidance on how to take climate change into consideration when advising clients and providing legal services.’

(Courtesy: The Law Society Gazette)