What is climate conscious legal practice?
Photo by Quinn Pocock
LCANZI used it in the wording of their proposed climate change resolution for consideration by NZLS. The Chancery Lane Project uses the phrase, but what does it mean to be ‘climate conscious’, and in particular, what does it mean to have a climate conscious legal practice?
In this article I give some practical tips about how climate conscious legal practice might originate. I also delve a little into current ethical debates regarding the role of lawyers in addressing climate change in their legal advice.
Perhaps the popularity of the phrase can be attributed to the writings of Chief Justice Brian Preston, Chief Judge of the Land and Environment Court in New South Wales. In a paper published in February 2020 (Preston, 2020), Justice Brian Preston addressed what a climate conscious approach to legal practice might entail. His opening paragraph sets the tone for recognizing that daily advice, that impacts a multitude of business and boardroom decisions, can qualify.
“Climate change is often seen as a global problem, one that is removed from the daily practice of lawyers and courts. In reality, climate change is a multiscalar problem; it is as much a small scale, local immediate issue as it is a global issue. Climate change is also a cumulative problem and the combined effect of many small-scale and individual actions is significant.”
He goes on to describe a climate conscious approach to legal practice:
“A climate conscious approach requires an active awareness of the reality of climate change and how it interacts with daily legal problems. A climate conscious approach demands, first, actively identifying the intersections between the issues of the legal problem or dispute and climate change issues and, secondly, giving advice and litigating or resolving the legal problem or dispute in ways that meaningfully address the climate change issues. “
Climate law has been described as “hot law”. It is fast evolving and difficult to fit within existing frameworks. (Fisher, Scotford, & Barritt) It challenges us in a way the evolution of other laws might not. It is extremely polycentric and it focusses on “controlling future impacts”.
The norms of current practice – of waiting for legislation, regulation or commercial expectations to dictate behaviour - do not meet the requirements of climate conscious legal practice. Time frames are too short. Social norms are changing too quickly. The problem is too big, too multi-dimensional.
Practicing in a climate conscious manner - practical tips
Ultimately the extent to which issues relating to climate will form part of a property lawyer’s advice to their client will vary depending on that practitioner’s personal decisions - how they view their role, their personal ethics, their interpretation of their duty to the court. Whatever those decisions though, as a first step to practicing in a climate conscious manner, property lawyers will need to understand both the basic facts about climate change and the existing legal and policy framework. Here are some useful starting points.
· Understand what New Zealand agreed to when it signed the Paris Agreement and what we then incorporated into the Climate Change Response Act 2002
· Read the National Climate Change Risk Assessment for New Zealand
· Read New Zealand’s Nationally Determined Contribution and understand our carbon emissions targets (to reduce net emissions by 50 per cent below gross 2005 levels by 2030 and to be net zero by 2050)
· Read the summary of the Climate Change Commission’s advice to government, to understand likely changes in New Zealand in particular those that impact property ownership and development
· Keep an eye on the regular IPCC reports that issue and read the executive summaries, including the latest Sixth Assessment Report
· Read MBIE’s Building for Climate Change Programme
· Watch this free webinar provided by NZLS CLE Limited on climate change obligations and a description of the arguments made in the recent judicial review of the advice of the Climate Change Commission https://www.youtube.com/watch?v=W99Z1YENtVw
· Keep an eye out for New Zealand’s Emissions Reduction Plan expected to be released in May 2022[DD1]
· Understand the timeframe for action
· Get clear on what greenwashing looks like
At the same time, including climate change on a range of agendas will provide mechanisms for addressing the issue within the context of a working day.
· At team meetings share information about how climate change has affected negotiations or expectations
· At partnership or director meetings find out how people feel about acting for clients in the absence of addressing climate change and share an understanding of the impact of that
· In client engagement letters address whether you will consider issues relevant to climate change and the associated risk and give yourself space to consider how it might be relevant
· Address these questions in relation to each property transaction and property document you prepare “What direct or indirect risk does climate change pose to our client’s position?” “Does this transaction or project align with the objective of the Climate Change Response Act 2002 to contribute to the global effort to limit the global average temperature increase to 1.5 degrees Celsius above pre-industrial levels?
· In annual reviews discuss what issues climate change raises for both employers and employees
Questions are always useful professional tools. They unlock different viewpoints. They bring you new perspectives. When practicing in a climate conscious manner, asking questions can be as important as knowing the answers. Here are a few practical examples:
· Ask your bankers what climate change trends they see in how service industries conduct their business, and how the bank’s own climate requirements will impact its customers, in particular the TCFD disclosure requirements
· Ask your insurer how climate risk will affect insurances both for your business and those of your clients in the decade to come
· Ask prospective employees what they think climate conscious legal practice looks like
· Ask your IT provider what their carbon emission objectives are and how changes they propose will affect you
· Ask clients how climate change is impacting their business.
· Ask clients whether they want the impact of climate change considered in the giving of your legal advice.
· Ask each other what you are doing as businesses and individuals to mitigate and adapt to the effects of climate change.
And as you progress with your own style of climate conscious legal practice, at some point there will be the overarching ethical questions for you to consider. You will form your own view about whether, in providing legal advice that is blind to climate change, you can meet the fundamental requirement to uphold the rule of law, the over-arching obligation to facilitate the administration of justice, or the requirement for competence. Views will vary among practitioners. It’s worth the debate.
Pericles or Plumber, Trusted adviser or technician – an ethical debate
The very nature of our profession requires that lawyers are more than technicians, although workloads and client demands can make that easy to forget. Our advice is hardly ever black and white or binary. It is invariably couched in an understanding of surrounding issues, how the market might react to a proposed course of action for example, how a future society might judge actions taken now, what changes in legislation or social licence are expected, what ethics are relevant.
I caught up recently with Alasdair Cameron. Alasdair works for the Law Society of England and Wales where they have a climate change policy. He is responsible for climate change matters there. He characterised the different expectations of lawyers as a choice between Pericles or plumber. It’s the difference between being a trusted adviser and being a technician.
Wherever we sit on this spectrum, there is no doubt that our responsibilities reach beyond the blind implementation of the wishes of a client. We have over-arching responsibilities that come with being part of the legal profession and whether we choose to engage clients on climate change directly impacts on the bigger picture of whether justice is served, and indeed whether the rule of law is upheld.
Alasdair Cameron explained that the recent refusal of some firms in the UK to act for certain Russians has brought this issue into clear focus. “The public says it is morally irreprehensible to act for these people. Could we see the same in relation to climate change? It could be that firms get to the stage that a client must have a net zero policy or goal.” “Does it threaten the rule of law to act other than in line with the Paris Agreement?”
Supporting lawyers by clarifying their ability to make ethical, professional decisions around whether they will act for emitters is something the Law Society of England and Wales is working on. He tells me of other law societies around the world who are similarly considering this. Alasdair’s view is that lawyers can already use ethical grounds to refuse to act for emitters, despite the first-cab-off-the-rank rule. Nonetheless he champions the proposal that the Law Society should specifically make this clear.
Climate conscious legal practice does not necessitate waiting for our own law society to form policy on the issue. Practitioners can form their own view on their ethical and legal requirements. They need not wait before forming their own opinion on whether they can continue to act competently while failing to flag climate change to clients.
Precisely where we each get to on deciding what climate conscious legal practice is will differ from one practitioner to the other. Currently, the most important matter is to start; to refuse to accept that climate blind advice is competent advice. Armed with some practical tools and a lot of questions, you will make great strides in forming your own definition. Keep the reading up, keep the enquiry going. As your understanding evolves, so too will clarity on your very own professional stance.
A version of his article first appeared in The Property Lawyer and is published with the consent of the NZ Law Society, Property Law Section.
© Debra Dorrington 2022.