Ethics and the property lawyer
As a property lawyer, how often does your mind turn to the impact of your advice on the rule of law? In the context of demanding clients, complex negotiations, and short deadlines how often do you take a moment to wonder whether the advice you are providing your client upholds the rule of law? Or whether it contributes to its systematic breakdown.
Each of us as lawyers has a legislative duty to uphold the rule of law. That obligation is enshrined in section 4 of the Lawyers and Conveyancers Act 2006. Interpretations of what is meant by “the Rule of Law” vary. It is ironic that, in a profession where words are our tools and precision is our aim, each of us is bound to protect a concept that is not clearly defined nor universally understood.
For some the rule of law is met by ensuring the legality of a client’s actions. Others might examine the impact of those actions.
The Justice Department on its own website declares that “the principles of the rule of law are not easily defined”. It offers these minimal expectations of the principles:
· powers must be based on legal authority;
· minimum standards of justice;
· safeguards against the abuse of discretionary powers;
· no unfair discrimination;
· fair hearings before an impartial court or tribunal.
Others take a broader approach, anticipating the protection of democracy, and the institutional systems that support our social, political, and judicial structures.
Historically these issues have raised few day-to-day concerns for the property lawyer. Our legal role generally revolves around understanding the legalities of transactions, ensuring that they are done in a way that meets both the requirements of the client and legal expectations. Our enquiries have rarely gone beyond that unless regulation insists.
Sustainability issues change this.
Climate change and the destruction of biodiversity create the possibility that lawyers, through their daily transactional advice enable the destabilisation of such systems and structures. Activities we transact may be lawful, may be socially acceptable and may in the context of things be small, but if they fail to mitigate the climate crisis, their impact will enable a degradation that cannot be sustained and that threatens the stability of important social structures.
University Colleges, London held a conference on the topic earlier this year. Academics and lawyers from around the world debated climate change and the rule of law. The university also run a blog specifically on the topic of climate change and the rule of law. In a recent article authors explained that:
“[The rule of law] is also an idea that connotes social stability, acceptance of the political status quo, and acceptance of legal institutions in controlling governments and social relations. These stable foundations are increasingly destabilised by climate change.”
Alasdair Cameron, the Climate Change Resources Adviser for the Law Society of England, and Wales is adamant that climate-conscious practice is necessary to safeguard the rule of law.
“For lawyers, the implications of the [extreme weather events, biodiversity loss and ecosystem collapse] to the fabric which supports our society – the rule of law, which they have a duty to uphold - are immense.”
This holistic way of thinking challenges any perception that legal advice regarding property matters need only be concerned with existing regulations. It encourages us to think more laterally regarding our role. An understanding of the timeframes for climate action does the same.
The Gatekeepers Project
In 2022 the International Bar Association launched a project to look closely at the ethical obligations of lawyers and consider whether they remain appropriate today. It was the most significant analysis of our ethical obligations since 1956 when the first international code of ethics was issued. The intention was to “clarify the ethical responsibilities and obligations of lawyers when providing legal services”. The project has been launched in response to criticisms of the role of lawyers in:
· enabling unethical or criminal activity by using client privilege
· facilitating illicit financial activity
· enabling climate change
· frustrating the achievement of the UN Sustainable Develop Goals; and
· providing legal services to clients associated with the invasion of Ukraine.
The project, called the Gatekeepers Project, began with consultation with lawyers and bodies that represent lawyers across the world.
NZLS Independent Review
An independent review of the regulation of New Zealand lawyers and their services is underway. The review has been commissioned to ensure “the Law Society is a fit-for-the-future body, ready to tackle the challenges and opportunities of the 2020s and beyond.” Consideration of our ethical obligations in relation to both climate change and other matters of sustainability seems appropriate.
At the time of writing, it is expected that Lawyers for Climate Action New Zealand Inc will make a submission to the review panel encouraging both the consideration of these ethical obligations pertaining to climate and the provision of guidance to lawyers in navigating climate crisis issues.
Next time
Next time you are drafting a contract for the construction of a building, or for the acquisition of a fleet of motor vehicles, or a company constitution, a trust deed, or a lease, next time you are running a team meeting, undertaking a due diligence enquiry or reviewing a resource consent, once you have assessed the client risk, take a moment to consider the broader impact of your advice. In what way do your actions in this transaction mitigate the climate crisis? In what way do your actions limit the threat to the stability of our social fabric? Have you upheld your obligation to maintain the Rule of Law?
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.