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14听March 2022
By听Sarah de Gay, Visiting Professor at 新香港六合彩开奖结果Laws
The independence of the legal profession is an important part of the rule of law. Self-regulation is one of the many components that makes up this complex idea of professional independence. Since the Legal Services Act 2007, solicitors have been regulated by a statutory body, the (SRA). And (TLS) has been relegated to a representative role (although the exact contours of what the SRA can or should do and what TLS can or should do are ). This means that, as a starting point, the SRA writes the rulebook on what solicitors should do, both in terms of the overarching principles that guide solicitor and law firm conduct and in terms of specific rules on practice. But the SRA is not the only regulator in this space that sets out what is expected of solicitors. Contractual, tortious, and fiduciary relationships are also in play. And professional associations, not just TLS but those like the whose sole focus is the climate change crisis, have a role, as do clients.
When it comes to climate change, I think two questions are both important and worth exploring. First, is there an obligation on solicitors in England & Wales to advise on climate-related risks? And, second, if so, what sort of obligation is that and who gets to decide what sort of obligation it is? These are questions of self-regulation (and thus independence and the rule of law) but they also show how whatever form or meaning we wish to give to the rule of law (and its practical operationalisation by solicitors) it exists in a complex space of rules (professional, contractual, tortious, fiduciary etc). That is, we cannot think of climate change and the rule of law and what it might expect of practising solicitors without also reflecting on the other norms and obligations to which solicitors are subject.
On that first question -听鈥淒o solicitors in England & Wales have a legal duty to advise their clients on climate-related risks?鈥� 鈥� the initial answer is 鈥渕ost likely yes鈥�. It鈥檚 not a universal 鈥測es鈥� because the answer is retainer-specific and will depend on a variety of factors including: how sophisticated the client is; what the law firm鈥檚 T&Cs and the client鈥檚 Outside Counsel Guidelines say; whether the law firm is a large City/commercial firm; what the firm has said publicly about its ESG-related credentials; what climate-related initiatives the firm has voluntarily signed up to; the extent to which the firm chases trusted adviser roles with its clients, and so on. And, even when all the relevant factors align, it鈥檚 not an 鈥渁bsolutely yes鈥� response because the common law authorities do not (yet) specifically address and there is no specific legislation or regulation that clearly stipulates that a duty to advise on climate-related issues exists. Much, then, will depend on first principles, which seems unsatisfactory for a number of reasons.
One is that the body of negligence case law on solicitors suggests that the exact limits of the duty to exercise reasonable care and skill is often fact dependent. And whether any duty has been breached requires reflection on whether any given solicitor has acted in accordance with practice accepted as proper by a responsible body of fellow professionals, often referred to as the 鈥渞easonably competent practitioner鈥� test. This means that, in the absence of a regulator or the legislature stepping in, the profession could and can define for itself whether a duty to advise on climate risks exists and, therefore, what the standard is in relation to climate conscious lawyering. This might align with fundamental ideas of self-regulation and independence (and thus the place of solicitors in relation to the rule of law) but it also poses challenges. For example, self-definition might not result in one uniform standard for the whole profession. In the 1984 case of Maynard, the courts said that when considering the duty of care owed by a specialist consultant, the standard was the ordinary skill of a medic with that speciality and not a generalist.听City lawyers, to take just one example, are probably specialists as a collective.听We know this from remarks made in 2007 the case of .听It would be absurd, the judge said in that case, to hold RJW to the same standards as, say, 鈥渁 small country firm鈥�. The judiciary are unlikely to be given the opportunity to clarify this messy situation anytime soon. The development of the law of negligence is, as we know, completely dependent on the right cases getting to court and a professional negligence case with a climate change-related allegation at its heart which does not settle at/before the court door could be many years away.
In the absence of judicial opportunity, the obvious body to step in to clarify the position is perhaps the SRA. The SRA has been tasked, since 2007, with leading the charge on setting the expected standard of competence for solicitors, in the public interest.听Although there may be no universal understanding of what constitutes the 鈥減ublic interest鈥� in legal circles, many may feel emotively that setting climate change-related competency must surely be in the public interest given climate change promises to .听Whilst, so far, the SRA has been silent on the matter of climate change and competence, TLS has stepped in to fill the silence and, in doing so, may even have contributed to filling the regulatory gap. In October 2021, TLS published a which, among other things, urges solicitors to provide 鈥渃ompetent advice to their clients on鈥he potential legal risks and liabilities which may arise from action or inaction that negatively contributes to the climate crisis鈥�.听 And so it seems that the profession鈥檚 former regulator either thinks that a duty to advise on climate-related risk exists now or that it should. This has the potential to be quite powerful. Most notably because the more solicitors who rise to the challenge, the more likely it arguably is that a duty to advise could be created. Whilst that particular clock ticks, there are other indirect regulators in the mix who may conceivably have a more immediate impact, including clients and the 鈥渢alent鈥�.
Clients are backdoor regulators of their favoured law firms in many senses.听 We have seen them make increasingly serious demands in the diversity arena.听 In 2020, to law firms lamenting that new partners 鈥渞emain largely male and largely white鈥� and vowing to prioritise their legal spend on those firms committed to diversity.听 This bottom line incentive could conceivably be part of the armoury this powerful cohort employ, in the future, in relation to climate conscious lawyering. Further, any law firm is by and large a people business and currently there aren鈥檛 enough associates to staff M&A deals, so what good associates think/say, and what motivates them to join and stay at a firm, also has the potential to play a role in standard-setting too. At the moment, large law firms seem to be competing for associate talent by .听 In short, they are throwing money at the problem.听But at the same time, there is a sense that increasingly , and do not wish to leave their personal values at the virtual/actual office door. Many large corporates have become purpose-led and some law firms are following suit.
How becoming more purposeful impacts on the work a law firm feels able to do is not yet something which is fully understood.听 Time will tell.听But if (and I appreciate that for some this may feel like a big 鈥渋f鈥�) the law firm partners of the future genuinely wish to achieve fulfilment and not just legal mastery in their work, and if salary/pay only matters to them so much, then the current war for talent may ultimately be won by the most purposeful law firms. These purposeful law firms could begin to lead the charge in professionalism in this area and step in with climate conscious lawyering ambitions for the sector not yet seen from its regulator but encouraged by its representative body.
Image credit:听,听, via Wikimedia Commons