Time for action on all fronts

The Law Society published its Guidance on the Impact of Climate Change on Solicitors on Wednesday, a few weeks after the release of the IPCC’s Sixth Synthesis Report. The latter summarises the findings of thousands of scientists from across the globe, and has been agreed by every government on the planet. The one-line takeaway offered by UN secretary general António Guterres (pictured above) was that ‘our world needs climate action on all fronts – everything, everywhere, all at once’. 

The guidance does not communicate the same level of urgency expressed by the secretary general, but it is timely. It offers solicitors a reference point for taking climate issues into account in their work; and it is also the product of a combination of expert input, consultation with stakeholders and a measure of compromise.

The Law Society’s Climate Change Resolution of October 2021 includes a commitment 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 just released fulfils that commitment. As one of the Climate Change Working Group appointed by the Society to provide advice on this issue (and speaking only for myself), I would say that, by turns, it has been a challenging, energising, frustrating and rewarding experience.

The challenges have included needing to produce something applicable to all Law Society members, when they and their clients may be affected in very different ways. They have markedly different resources available, and some have been engaging with this for years already, while others are only now needing to do so. We had to strike a balance not to overload some readers with detail which would rarely, if ever, be applicable to them. But also not to be so generic that there was nothing of value for members of the profession already wrestling with the implications of climate change for their practice. Central to this has been emphasising the need to regard the guidance through lenses of relevance and proportionality. Everything included will be relevant to some members of the profession, but this does not mean all is applicable to all. Solicitors are expected to exercise discretion in interpreting the guidance for their own context.

Another challenge is the speed with which the effects of climate change are accelerating. We were sensitive to being accused of ‘crystal ball gazing’ and offering opinions. Yet we also wanted to ensure that the profession is aware of issues which are still nascent and not widely known now, but may well be commonplace by the time solicitors are turning to the guidance in earnest. We took comfort in the recognition that the guidance will need updating soon, and more than once, to keep pace with developments in this area, while remaining committed to ensuring the first edition was as current, reliable and informative as we could make it.

The consultation process on the guidance has been hugely valuable in informing what the guidance now contains while, inevitably, not incorporating all suggestions from any of the participants. The process itself probably provoked more adverse reaction than the text, unfortunately, as the consultation periods fell at inconvenient times for consultees (August and over Christmas). There was no devious intent to this. It was the unfortunate consequence of striving to make the draft as robust as possible as we worked on it in spare time around our day jobs, while trying to meet challenging timelines for publication. The guidance has benefited from engagement with the SRA and has been through various internal processes of the Law Society before seeing the light of day.

In addition to useful content, the consultation provided several helpful ‘sanity checks’. Many urged us to keep the guidance short (sometimes while providing lists of additional items they wished to see covered and indicating areas where more detail was desirable). We were encouraged to publish the guidance quickly, to reflect the urgency of the situation and implored to consult much more widely and fully, a process that could have led to the guidance not appearing for at least another year.

Some of the critical themes which either emerged from, or survived, the consultation process, worth highlighting include:

• the guidance is just that – guidance – aimed at helping solicitors identify issues that may be relevant to them in their practice and suggesting some ways in which they may approach them. It does not impose additional regulatory duties or requirements.
• a distinction between climate risks and climate legal risks: the first being risks which may impact on clients in general terms which it may be helpful to be broadly aware of, and the latter being specific legal issues that may arise as a result, which clients may reasonably expect their solicitors to advise upon.
• the guidance is permissive rather than prescriptive. The focus is on indicating what may be possible for solicitors wishing to adopt particular positions in response to climate change rather than telling them what they must or must not do. It indicates some of the threats and opportunities that adopting certain positions may present and seeks to clarify the relationship with professional duties, so that false assumptions are not made and relied upon.

One issue which was a challenge, a theme of the consultation and relevant to the content, was the parameters of the guidance. Some argued for splitting the guidance into discrete parts to be published separately. This has not happened because we believe it is important for solicitors to be aware of the way in which climate issues permeate so many aspects of our lives and work.

We feel it is important to recognise the interconnectedness of what it may mean for law firms as businesses and in terms of professional duties, professional development, relationships with clients and how we deliver our services in the future. Embracing this, rather than trying to compartmentalise, may well be key to responding successfully to the climate crisis. The guidance is just one part of a wider package of support to be offered to the profession by the Law Society on this issue. I suspect few readers of the guidance will be entirely happy with it (I know, too, that all of the Working Group made concessions in agreeing on the final text). But I would hope most, regarding it objectively, will recognise that it strikes a reasonable balance and is a helpful reference point for the profession.

David Hunter is a member of the Law Society’s Climate Change Working Group and also sits on the UK Regional Board of the Global Alliance of Impact Lawyers. He is senior counsel at Bates Wells