‘Milestone’ Guidance on Climate Change: Solicitors ‘Not Obliged to Provide Advice’ to Big Polluters

‘Milestone’ Guidance on Climate ChangeSolicitors ‘Not Obliged to Provide Advice’ to Big Polluters

Law Society says solicitors in England and Wales can ‘take into account the likely impact’ of their work upon the climate crisis when taking on new clients

The Law Society of England and Wales yesterday issued ‘milestone guidance’ on the impact of climate change, and how law firms can work to ensure that their own and clients’ targets support the transition to Net Zero. Crucially, in what is believed to be the first time such direction has been given, the body laid out terms which give companies the ability to refuse to act for polluting clients if there is a conflict of ‘values’ between the client and the firm. 

The two-part guidance covers a range of issues surrounding “how organisations can manage their business in a way which is consistent with the transition to net zero”, including advice on how they can reduce greenhouse gas emissions, against greenwashing in official statements, and how the physical risks of climate change might impact the legal profession as a whole.

The guidance reads that ‘climate-related issues may be valid considerations in determining whether to act’ on behalf of a polluting client and that the firm would be able to consider the merits of ‘any apparent conflict with the client organisation’s stated values and the potential impact on climate change generally’.

The ‘impact of climate change on solicitors’ document follows on from the Society’s Climate Change Resolution 2021, which noted that ‘nearly a third of the UK’s largest businesses have now pledged to eliminate their contribution to carbon emissions by 2050’ and that ‘increasingly, companies are requiring those they do business with to adopt similar measures’. 

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Clarifying the guidance, a spokesperson for the Law Society told the Byline Times that noted that the guidance ‘does not say to solicitors they should not represent certain clients’. 

Rather, they explained, it extends already existing regulations, now allowing firms to consider their actions in the context of climate change. They said that “Individual solicitors and firms can accept or decline to represent clients as a basic regulatory fact, and we present this neutrally to the profession as something they can consider in a climate change context, as there is a lot of confusion around what approaches can be taken.”

As this release represents a first, the body hopes that similar professional institutions that have been following the progress as it was developed will now release similar literature themselves, including other bar and law associations globally. The Law Society says it is working with fellow bodies internationally to “support the global shift towards aligning legal advice with the transition to net zero”.

Speaking to the Byline Times about its own position on the Law Society’s release, chair of the Bar Council, Nick Vineall, said “The Bar Council recognises the scientific consensus that limiting global heating to 1.5 degrees Celsius above pre-industrial levels is fundamental to preventing the worst effects of climate change. We also recognise the likelihood that global warming will bring increased global inequality and in turn a greater risk of conflict and global disruption.”

“Our climate crisis working group is also exploring how the crisis might affect our existing ways of working and the group was consulted on the new Law Society guidance. Unlike barristers, solicitors are not subject to the cab rank rule,” Vineal told Byline Times. “Alongside the Law Society, the Bar Council is supporting legal professionals in England and Wales who wish to demonstrate climate leadership within their own practice.”

While for barristers, the ‘cab rank rule’ applies, preventing them from refusing work because they disagree with the actions of views of those seeking their services, no equivalent exists for solicitors. The guidance has received the support of the Solicitors Regulation Authority.

Caroline May, Chair of the Climate Change Working Group, said: “I am delighted that on behalf of the Law Society, the Climate Change Working Group has produced the first guidance of its kind for the solicitors’ profession we believe anywhere in the world. “Law and lawyers have an important role to play in shaping the changes necessary to meet the challenges of climate change.” 

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The Law Society guidance comes at an interesting time for the legal profession, which has been the subject of heated debate for its stance regarding climate change and climate protests. In March, eighteen barristers were among over 120 mostly English lawyers who signed a declaration vowing to “withhold services in respect of supporting new fossil fuel projects and actions against climate protestors exercising their right to peaceful protest”. 

The group, who call themselves Lawyers Are Responsible, state they were compelled to sign the resolution  “in light of the substantial evidence that breaching the 1.5C temperature goal established by the Paris Agreement on Climate Change risks mass loss of life and threatens the conditions for a stable civilisation, including the rule of law.”

This follows a year of targeted arrests, restrictions and punishments for those engaged in peaceful climate protests, as actions from groups like Insulate Britain, Extinction Rebellion, and Just Stop Oil have ramped up in intensity and have increasingly caught the attention of the public and the press.

A trio of peaceful protestors from Insulate Britain were recently jailed for contempt of court, for breaching terms set down by a judge that they were not allowed to mention the climate crisis or fuel poverty in explanations to a jury. 

The judge ruled that the motivations of the protestors, who took part in a roadblock in 2021, were not relevant, though campaigners refuted this, saying “The way that some protest trials, in particular those involving climate activists, have been managed has interfered with defendants’ rights to freedom of expression.” The move to limit discussion of protestors’ motivations was labelled as “deeply concerning”. 

Activists from Just Stop Oil have also renewed their campaign of disruption to events in recent weeks, targeting the Grand Prix and World Snooker Championships in efforts to raise awareness. The group say that since the start of their campaign in April 2022, there has been over 2,000 arrests and 138 people have spent time in prison, often being held without trial while awaiting bail.

Setting out the final part of its sixth assessment report last month, the Intergovernmental Panel on Climate Change (IPCC) delivered a “final warning” on the climate crisis, and that the planet is “more likely than not” going to reach a 1.5C increase sinse pre-industrial levels in the near term, resulting in “increasingly irreversible losses”.

The guidance from the Law Society has met with the welcoming approval of campaigners and activists for climate justice. 

In response to the release, a spokesperson from ClientEarth said that “The Law Society’s guidance is much-needed to help lawyers and law firms reckon with the impact of their work on the climate crisis, and the impact of the climate crisis on their work – issues the profession simply cannot ignore”

A representative from Plan B, a charitable foundation which supports strategic legal action to prevent the effects of climate change, told the Byline Times that “The new Law Society guidance vindicates the Lawyer Declaration of Conscience by emphasising that solicitors are free to refuse to act on matters (such as new fossil fuel projects) that are leading us all to climate catastrophe.”

“Lawyers and firms that continue to act for new fossil fuel projects can no longer hide behind ‘professional obligations’. They are making a free choice to profiteer from mass loss of life and the destruction of the conditions which make the planet habitable.”

A representative from Just Stop Oil said “We are grateful to the lawyers who have stepped up so far to say they will not be complicit in bringing about the collapse of our civilisation through fossil-fuelled drought, crop failure and famine.

We call on other professions, including the British media, to examine their responsibilities at this time. Either you are actively supporting civil resistance fighting for life or you are complicit with genocide.”