On 19 April 2023, the Law Society issued guidance for its members to consider the way that they practise in the context of climate change. It is expressly noted that while the Solicitors Regulation Authority supports the guidance, it should not be interpreted as its regulatory position on these matters. Still, it remains an important development.
The guidance is ambitious in scope, considering both how law firms and in-house employers manage their business in a manner consistent with the transition to net zero and how climate change risks may be relevant to client advice, solicitors’ professional duties and the solicitor/client relationship.
Climate and professionals generally
The Law Society is one of many professional bodies considering how climate risk and the transition impacts the way in which its members conduct themselves and provide advice. The Institute of Chartered Accountants in England and Wales, the Financial Reporting Council and the Royal Institution of Chartered Surveyors are three further bodies developing guidance in this regard.
Guidance on managing business
The guidance demonstrates the subtlety and complexity of the challenges associated with climate change for the legal profession, introducing the concept of advised (or Scope 4) emissions.
In this context, it states that the most significant greenhouse gas emissions associated with a law firm’s organisation are likely to be emissions associated with the matters upon which they advise, rather than the law firm’s own activities. Guidance suggests that firms committed to pursuing the Paris Agreement goal should also consider how they might be able to influence the reduction of advised emissions in line with their broader target setting. This includes:
- “understanding the climate change-related strategy, goals and transition plans of your organisation or clients to the same extent that you understand their commercial and financial position
- understanding the climate-related risks and opportunities that typically present themselves in your practice area and the matters you advise on
- advising clients of relevant climate legal risks and opportunities associated with the global transition to a net zero economy
- assisting clients who wish to reduce their emissions and engage in transition planning
- considering whether it is consistent to accept instruction and to advise on certain matters that the firm decides are incompatible with its climate change commitments.”
Even a cursory review of these observations raises important and potentially sensitive issues for lawyers. Other management issues raised include greenwashing and the attraction and retention of talent.
The impact of climate risks on professional duties
The guidance highlights that solicitors’ duty of care may require looking beyond the narrow scope of an instruction to consider whether and to what extent climate risks are relevant. Further, climate change may have an impact on solicitors’ duty to warn clients of legal risks. This may have a knock on effect in terms of retainers, training and professional indemnity insurance.
Conclusion
With the promise of further sector-specific guidance on how solicitors should advise clients on climate risks, this will continue to be a defining issue for the legal profession. Such a development represents both a significant opportunity and, in some respects, an enhanced risk.
