Impact of climate change on solicitors

Greenhouse gas emissions

Many organisations are involved, or considering getting involved, in programmes to understand and reduce their climate impact.

To set targets and reduce the climate impact of your organisation, you will need to understand and measure the greenhouse gas (GHG) emissions associated with your business operations to identify the primary sources of emissions.

Table one below explains the categories of GHG emissions provides some practical examples of how they may arise in the context of an organisation.

The scopes set out in table one are developed by the Greenhouse Gas Protocol, which supplies the most common greenhouse gas accounting standard. The scopes are equally relevant to any organisation irrespective of its size.

Table 1: emissions scopes (Greenhouse Gas Protocol)

You will need to take a proportionate approach to calculating your organisation's GHG emissions based on its size, operations and supply chains.

Scope three emissions are generally the primary source of emissions for law firms.

Understanding GHG emissions will include an analysis of the impact of your organisation’s procurement and supply chains.

Larger organisations may have complex supply chains. You may wish to consider instructing technical or consulting services to help gather accurate and comprehensive data.

Smaller organisations may find help from voluntary organisations or initiatives listed on our climate change pages and/or listed below in section 1.2.

Science-based targets

GHG emissions reduction targets set by organisations vary hugely in scope, comprehensiveness and ambition.

Many include a commitment to achieve net-zero GHG emissions by a certain date.

However, such targets are considered 'science-based' only if they are in line with what the latest climate science deems necessary to meet the 1.5°C Paris Agreement goal.

For further detail, see the Science-Based Targets Initiative (SBTi) or 1.5 C Business Playbook (as part of UN Race to Zero).

Although the precise implications of climate science will vary for each sector and organisation, certain features are likely to be present in a robust science-based target. These include:

The SBTi offers a framework for validating organisations’ science-based targets appropriate for some organisations, depending on size, operating model and resources.

A UN Expert Group has provided best practice guidance on creating and implementing ‘net zero’ commitments.

Climate risk disclosure frameworks

Some large organisations may already be subject to mandatory GHG emissions or other climate-related reporting obligations. For example:

Your organisation may also need to align its reporting framework to any relevant voluntary target-setting or disclosure initiatives the organisation has adopted, such as SBTi or CDP. Each of these has its own publicity and reporting requirements.

Businesses that have endorsed the UN Race to Zero criteria through membership of a partnership network or initiative may also be required to report annually and publicly on actions taken and progress against their interim and long-term targets to meet the minimum criteria for membership of Race to Zero.

Voluntary and mandatory frameworks such as those above may also be helpful sources of guidance for the development, adoption and communication of your organisation’s climate targets, whether or not your organisation has adopted or is bound by the relevant framework.

Advised emissions: understanding and addressing the climate impact of your client work

For lawyers, the most significant GHG emissions associated with your organisation are likely to be emissions associated with the matters upon which they advise, rather than scope one-to-three emissions (see table one).

These downstream emissions are sometimes referred to as ‘scope four’ or ‘advised emissions’.

In this guidance, ‘advised emissions’ means emissions associated with matters on which solicitors advise, as a proxy for understanding whether these are reducing, alongside those of your clients, in line with the IPCC recommendations.

Advised emissions are not currently included in the GHG Protocol (see table one).

However, advised emissions are coming under increased scrutiny from some clients and stakeholders across a variety of sectors in the context of organisations’ climate commitments.

Advised emissions are discussed in more detail in section 4.3.

Firms will need to decide on the approach which is most effective for your client base and practice areas.

Greenwashing

Marketing, pitch and other materials that communicate your organisation’s approach to climate change should not mischaracterise or overstate your organisation’s targets, or progress made against them.

This has the potential to leave your organisation open to accusations of 'greenwashing' and may lead to breaches of the Competition and Markets Authority’s guidance on environmental claims (Green Claims Code) and/or the SRA’s Standards and Regulations.

For example, the term 'sustainable' is widely taken to mean “meeting the needs of the present without compromising the ability of future generations to meet their own needs” (EU Brundtland Report, 1987; as quoted in the Charity Commission’s definition of sustainable development).

If your law firm describes itself as sustainable, or providing sustainable legal services, or makes similar claims relating to its response to climate change, you need to consider whether those claims can stand up to external, objective scrutiny.

Setting standards by reference to accepted scientific methodologies and measuring impacts using those methodologies is an established way of demonstrating this.

The Green Claims Code provides guidance for businesses on existing obligations under consumer protection law when making environmental claims in the UK. See the relevant heading ‘Claims must be true and accurate’.

Communicating your commitment

As with any other public statements made by you and your organisation, you should be mindful that your communications are accurate and not misleading to ensure any such communications cannot give rise to claims of misrepresentation or greenwashing.

Issues to consider for firms as employers

As with clients, your firm’s ability to attract and retain employees may be significantly influenced by its approach to climate change and, for some, the nature of the work they are asked to do.

In particular, young lawyers and law students increasingly consider the stance taken by firms on climate change when choosing where to work.

The Employment Appeals Tribunal (EAT) gave guidance on the definition of ‘philosophical belief’ as a protected characteristic under the Equality Act 2010. The EAT concluded that commitment to climate change could be a recognised philosophical belief.

Your firm may wish to consider whether and to what extent you would be prepared to consider employees identifying climate change as a philosophical belief and to accommodate this stance within your practice.

This might become relevant in making decisions about the firm’s approach to advised emissions (see sections 1.4 and 4.1 to 4.3) and work allocation.

Transparency in relation to the firm’s position on this issue (and that of the solicitor) and consistency in the implementation of that position is likely to be relevant to how any dispute on this topic might be resolved.

Duty of care

Solicitors have a general legal duty to exercise reasonable care and skill. The standard is that of a reasonably competent practitioner (Oliver J in Midland Bank Trust Co Ltd v Hett Stubbs and Kemp [1979] Ch 384 at 403.)

Climate change will impact different areas of the law, businesses, and wider society to varying degrees (directly and/or indirectly).

Consequently, solicitors may have to look beyond the narrow scope of an instruction by a client to consider whether and to what extent climate legal risks are relevant (see section 2.1).

Duty to warn

Advising on matters often requires solicitors to make judgements on complex issues and uncertain outcomes. This analysis may be impacted by climate change.

A solicitor has a duty to warn a client about potential risks by pointing out hazards of a kind which should be obvious to the solicitor but that the client may not appreciate (County Personnel (Employment Agency) v Alan R Pulver & Co [1987] 1 WLR 916).

This may extend to information obtained while fulfilling the solicitor’s retainer, whether or not the matter in question is itself expressly within the scope of the retainer (Minkin v Landsberg [2015] EWCA Civ 1152; [2016] 1 WLR 1489 at [38]).

Presently, climate change may have an impact on a solicitor’s duty to warn clients of the legal risks in certain contexts.

The steps involved in fulfilling your duty to warn will be fact- and context-dependent but should be addressed by a solicitor at all stages of your advice.

The character and experience of the client are among the relevant circumstances to be considered in determining the extent of a solicitor’s duty to offer advice or information or warnings that are reasonably incidental to the work being carried out:

Such an expectation may arise more readily in respect of larger organisations that have made their own net zero commitments and/or independent public commitments to climate change and human rights standards such as the UN Global Compact and the UN Guiding Principles on Business and Human Rights, such that they may be deemed to have specialist knowledge of the area (given the widespread recognition of climate change as a human rights concern, which may also have implications for organisations’ own human rights due diligence processes). This may enhance the duty to warn.

The level of risk the client wishes to take after being warned of relevant climate legal risks will be a matter for the client.

However, this does not include a solicitor condoning any breaches of law where solicitors’ professional conduct rules will apply as usual.

Duty to disclose

When acting on a matter, solicitors have a duty to disclose to your client all information material to that matter of which you have actual knowledge.

In the context of climate change, this means that a solicitor who becomes aware in the course of acting on a retainer that there are climate legal risks that might impact the client’s interests in scope of the retainer should disclose such risks to your client in a clear and understandable way.

Regard should also be given to relevant regulatory obligations (see rule 6.4 of the SRA Code of Conduct for Solicitors).

Duty to uphold service and competence levels

The SRA Code of Conduct for Solicitors (SCCS) and the Code of Conduct for Firms (SCCF) (the SRA Codes) each require that “you ensure that the service you provide to clients is competent and delivered in a timely manner” and that the service takes account of clients’ attributes, needs and circumstances.

You must ensure that you provide a proper standard of service to your clients. In doing so, you should have regard to the SRA’s regulatory requirements, including those relating to the continuing competencies that it expects solicitors to demonstrate.

Solicitors should also refer to the SRA’s statement of solicitor competence, which defines the continuing competencies that the SRA requires from all solicitors.

Actions to take where there are gaps in your competence

You may need to be able to discuss climate-related legal issues competently with your client and potentially encourage certain clients to engage with climate issues where they are relevant or material to the particular client or matter.

Parallels may be drawn with tax or competition law, which may not be central to a specific retainer but are still of relevance and should be in a practitioner’s mind when considering the scope of instructions.

Not all solicitors have expertise or training in matters relating to climate legal risks. However, as solicitors undertake training as part of their professional development, widespread awareness and acknowledgement will grow over time.

This may intensify the expectation that a reasonably competent solicitor should be aware of the impact and the relevance of climate change to their practice area and be able to advise clients accordingly.

Therefore, the general standards that solicitors are required to meet to discharge their duty of care to clients in this area may shift accordingly.

A solicitor who does not have the relevant knowledge of the impact of climate change on the legal area they are advising on should not advise if it is outside their knowledge or competence.

In such circumstances, you may wish to consider professional training to develop your competence and/or that of your organisation.

Alternatively, when you have identified a relevant legal risk on which you feel unable to advise you should liaise with your client about seeking specialist third-party assistance, such as technical consultants (Hurlingham Estates Limited v Wilde Partners [1997] 1 Lloyds Rep 525).

Even where solicitors elect to advise on climate change, they may wish to include a provision in their retainer reserving the right to instruct specialists where appropriate (along with the right to charge the client the fees incurred in doing so).

You may wish to discuss and/or document the prospect of any specialist instruction with your client.

See section 4.4 for guidance on how this section might impact a solicitor's retainer.

SRA Principles

The SRA Principles, which comprise the fundamental tenets of ethical behaviour expected of solicitors, will also be relevant when considering your professional obligations.

The SRA Principles require that:

In your day-to-day work, you will need to apply your professional judgement and take a balanced approach to meeting all of the duties set out in the SRA Principles.

However, should the SRA Principles conflict, you are expected to prioritise those that safeguard the wider public interest (such as the rule of law, public confidence in a trustworthy solicitors’ profession and a safe and effective market for regulated legal services) over the interests of an individual client.

The interpretation of the SRA Principles in the context of climate change is likely to evolve over time as the former secretary general of the Law Society Sir Thomas Lund, wrote in 1960:

Global social issues interact with these solicitors’ regulatory duties and the way the regulator enforces those duties, for example, including the recent treatment of strategic lawsuits against public participation (SLAPPs) and/or sexual harassment claims against members of the profession.

How solicitors interact with climate-related issues is likely to change as the narrative on climate change develops.

How to present to prospective clients and the public

As the impacts of climate change reach further into more areas of society and the law, solicitors may be expected to guide and support clients as they navigate these challenges.

You should therefore adopt a proportionate approach to climate change.

You and your organisation should communicate your approach to providing legal advice in the context of climate change to clients, prospective clients, and the public (where appropriate; see section 1.6).

How to approach a new instruction

When presented with a new instruction, you should consider whether climate legal risks may be material to your advice (section 2.1).

The same factors identified at the start of section 4.1 are relevant here.

In some cases (for example, where climate-related legal issues are marginal to the subject matter of the potential instruction), good practice may involve simply ensuring the client understands how such issues may be relevant.

Like all matters you advise on, you should be clear about what advice falls within and outside your retainer and how this relates to your fee proposal.

How to decide whether or not to advise

The principle of access to justice and the right to legal representation are fundamental aspects of our legal system. There are established examples:

• ensuring parties charged with criminal offences have representation
• that you do not refuse to provide a service due to discrimination on the grounds of protected characteristics such as age, race and religion or belief under the Equality Act 2010 (for example, environmental regulatory breaches on criminal grounds)

However, solicitors are not obliged to provide advice to every prospective client that seeks it. Solicitors have wide discretion in choosing whether to accept instructions.

Climate-related issues may be valid considerations in determining whether to act (see section 3.6).

Some law firms are evaluating risks to their commitments in this area and some are placing limitations on the instructions they will accept citing their own organisation's climate change commitments.

If your organisation decides not to accept an instruction, you should provide the reasoning to your prospective clients in writing.

As outlined in section 1.4, advised emissions associated with matters on which a solicitor provides legal advice are attracting increased attention in relation to professional services, including legal services.

Such scrutiny is an area that lawyers should be aware of and monitor, particularly when advising potential ‘greenwashing’ clients in relation to any statements made or advice given.

This might also involve identifying and measuring such emissions and seeking to work with clients to promote the just transition, so these advised emissions reduce over time in a manner that is consistent with scientifically supported targets.

This may be achieved by working with clients proactively engaged in transition planning, and who value legal advisers who are aligned with such business approaches, both in terms of the advice they give and their corporate practices.

Some solicitors may also choose to decline to advise on matters that are incompatible with the 1.5°C goal, or for clients actively working against that goal if it conflicts with your values or your firm’s stated objectives.

This is a matter for individual solicitors and law firms, recognising solicitors’ professional obligations.

Scope of the retainer

If a client wishes to engage a solicitor who is offering legal services, then a retainer arises when that solicitor is instructed.

This retainer is governed by the terms upon which the solicitor agrees to act and by the duties imposed by law and regulation upon the solicitor.

A solicitor and client may, by agreement, limit the terms of the retainer which may limit the solicitor’s duties.

In certain circumstances, it may be possible to exclude climate issues specifically from your retainer, for instance: where you are not competent to advise or where the client is directed to more expert technical advice.

As a matter of good practice, you should confirm any such agreement in writing. If you do not do so, a court may not accept that any such restriction was agreed upon.

The informed consent of the client should be obtained to any such exclusions from the retainer where there are, or could be, material climate legal risks beyond the competence of the relevant solicitor.

This is not straightforward, requiring an explanation of the significance of the relevant issues to the client and the risks that you will not be advising upon, overlapping with the residual duty to warn the client of these issues and that they will need to obtain specialist advice.

However, where climate legal risks are relevant, it is becoming less realistic in practice to exclude consideration of such matters from the instruction completely, given that these risks impact so many areas of activity (see section 2.1 and annexes).

Increasingly, clients are facing regulatory and market pressures to demonstrate that their suppliers (including professional advisers) are adopting responsible approaches to climate issues.

They may impose their requirements on legal and other advisers reflecting those pressures.

This may make it undesirable, competitively and/or reputationally, for some firms to try to carve out climate legal risks from the retainer other than in narrow and specialised circumstances.

Further sector-specific guidance on climate legal risks will cover how the scope of the retainer is impacted in different contexts.

Impact on professional indemnity insurance (PII)

Insurers are also giving greater attention to climate issues and the risks they pose to their business.

Solicitors should be mindful of current and prospective requirements of professional indemnity insurers, so that you can obtain affordable cover for the areas of practice upon which you wish to advise (for example, ensuring that pollution risks are covered as appropriate).

To obtain PII cover in the future, you may need to demonstrate how you are equipping yourself to be able to advise on climate legal risks and identify when you are not competent to advise.

In-house lawyers (including public sector and academia)

If you practise in-house, you may face particular additional challenges in advising upon climate legal risks.

Often, you are closer to the commercial objectives of your organisation and can therefore be a driver of change in an organisation’s strategy and operations.

In particular, general counsel are often trusted advisers to the Board on matters related to good governance, reputation and integrity in the context of, for example, environmental, social and governance (ESG) issues.

As in-house lawyers cannot limit advice to the scope of a retainer, you may need to be proactive in raising questions about the sustainability of business models and alignment to any climate pledges made by your organisation.

The employer may be more exposed to the commercial consequences of climate change impacts (including climate legal risk) if you do not warn of climate legal risks.

You may therefore need to develop a broad understanding of climate risks and climate legal risks to provide holistic advice to the organisation.

General counsel are in a position to advise on the impacts of climate risks on the commercial function of your organisation. This includes impending policy, legal and regulatory changes, which may present opportunities and/or risks for your organisation.

In-house lawyers may need to consider and seek educational resources as needed for this role and also to consider if external legal advisers have the relevant skills for their retainer.

Education materials and resources

This guidance has referenced the need for solicitors to:

• source appropriate educational resources to equip you to be able to provide competent advice on relevant climate legal risks
• be aware of other relevant professionals whose skills may be needed