The impact of climate change on solicitors (Law Society)

Our key takeaway: “Climate change is a risk to you, your firm and your clients. Navigating the issue isn’t just an aspiration, it’s often a professional obligation.” Words from the Law Society of England and Wales, the first to issue guidance to lawyers on how to practise law within a context of climate change. But it won’t be the last. Climate change is with us, whether we like it or not, and is impacting business and the legal practice in a major way. Laws are rapidly evolving; business risks are increasing; professional expectations are changing. The Law Society points to a number of reasons why any solicitor should have at least a basic level of understanding of the impact of climate change - just like other areas such as tax and competition law. With time, it will start to be malpractice to not consider climate change in legal advice. The guidance tackles the elephant in the room when it comes to law firm emissions: it’s not about travel to client meetings. It’s about those emissions associated with matters solicitors advise on (referred to as ‘advised emissions’ or ‘scope four’ emissions). It delves into actions solicitors can take - whether in law firms or in-house - underscoring that in-house solicitors will have to do this to provide holistic advice to the organisation. Yes, definitely a changing world for solicitors too.

The Law Society published ‘The impact of climate change on solicitors’ (April 2023):

• Purpose of guidance: The Law Society had previously committed (in 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 that is compatible with their professional duties and the administration of justice.” The guidance applies to organisations - solicitors’ practices, legal firms and in-house employers - as well as individual solicitors. In short: “We developed this guidance for you to consider the way you practise in the context of climate change.” It supports “solicitors to recognise where the impacts of climate change may affect your practice and/or your clients.” The Law Society emphasises that “the effects of climate change are wide-ranging and constantly evolving” and that it “will be important for solicitors to be aware of this changing landscape and its potential impact upon your organisation, as well as your legal advice.” The Law Society makes clear that although this is not a regulation by the Solicitors Regulation Authority (SRA), the SRA supports the guidance. The guidance underscores that the “expanding scope of climate legal risks may impact your professional duties to your client” - delving into the duty of care, duty to warn, duty to disclose and duty to uphold service and competence levels. 
  

• Law firms transitioning to net zero: The guidance observes that scope three emissions are generally the primary source of emissions for law firms. But more importantly, “[f]or lawyers, the most significant GHG emissions associated with your organisation are likely to be emissions associated with the matters upon which they advise, rather than scope one-to-three emissions.” These ‘advised emissions’, or ‘scope four’ emissions, are those “emissions associated with matters on which solicitors advise.” The guidance observes that, although not in the GHG Protocol, these emissions “are coming under increased scrutiny from some clients and stakeholders across a variety of sectors in the context of organisations’ climate commitments.” In short, law firms are asked to consider how they can influence the reduction of advised emissions - which can include a number of steps (e.g. advising on climate legal risks and opportunities; assisting clients who are transitioning; considering whether to accept matters that are incompatible with 1.5 degrees). The guidance delves into a range of other areas for law firms to consider - including greenwashing, reporting and communicating, and the connection between the firm’s ability to attract and retain employees and its approach to climate change. Specifically, the Employment Appeals Tribunal (EAT) has found that commitment to climate change could be a recognised philosophical belief and therefore is a protected characteristic under the Equality Act 2010.
  

• Guidance for solicitors: The Law Society emphasises that “climate change risk is now recognised as one of the main global risks ranked by severity leading up to 2050.” There are three categories of climate-related risks: (1) physical risks; (2) transition risks; and (3) liability risks - with the guidance focusing on the climate liability risks. The guidance delves into the range of reasons for why solicitors may take account of climate legal risks: climate change physical risks will impact the built and natural environment; there are new climate-related legislation and regulation and existing legislation and regulation is adapting; the firm’s target setting may impact advice provided; and last but not least - standards are evolving. The guidance highlights that “continuing to advise client without taking climate legal risk into account could create risks for solicitors, their organisations and/or their clients” - referencing the shift in client expectations, duties of care as well as competency requirements. The Law Society recommends solicitors build their knowledge and skillset in this area: they predict that the expectation will intensify “that a reasonably competent solicitor should be aware of the impact and the relevance of climate change to their practice area and be able to advise clients accordingly.” The guidance delves further into the impact of climate change on the solicitor-client relationship in practice, with a specific emphasis on the role of the in-house lawyer who “may therefore need to develop a broad understanding of climate risks and climate legal risks to provide holistic advice to the organisation.” Annex 3 of the guidance provides further a checklist for climate-conscious legal practice.