Solicitors lead the way with climate change guidance

Solicitors lead the way with climate change guidance  

In April, the Law Society became the world’s first professional body to publish climate change guidance for its members.  

The guidance doesn’t just encourage solicitors to take responsibility for their own emissions, but also provides guidance on how to consider the climate change impact of and onto their clients. 

The guidance is divided into two parts: 

• Part A sets out guidance for organisations on how to manage their business in a manner which is consistent with the transition to net zero. 
•  Part B provides guidance for solicitors on: 

1. how climate change physical risks and climate legal risks may be relevant to client advice,
2. issues which may be relevant when considering the interplay of legal advice, climate change and solicitors’ professional duties,
3. issues which may be relevant when considering the solicitor-client relationship in the context of climate change. 

It should be noted that the guidance is just that and should be considered in conjunction with the SRA’s regulatory framework for solicitors. 

Guidance for solicitors 

The guidance considers the impact of climate change on solicitor’s’ duties. For example: 

•  Duty of care: in exercising reasonable care and skill, solicitors may need to consider the relevance of climate risks to the matter they are advising on. 
•  Duty to warn: solicitors may need to be in a position toconsider warning their clients about potential climate risks, including hazards, which should be obvious to the solicitor, but which the client may not appreciate. The guidance suggests that a solicitor should consider the character and experience of the client in deciding whether this is relevant. 
• Duty to disclose: This requires a solicitor to disclose all information material to the matter of which the solicitor has actual knowledge (See rule 6.4 of SRA code of conduct). 
• Duty to uphold service and competence levels: Solicitors may now need to be able to discuss climate related legal issues competently. The Law Society accepts that the standard of competence around ESG may not currently be high enough now but, there is an expectation that the general standard will increase as climate knowledge increasesgrows over time. A solicitor should now consider bringing in a specialist when relevant or, they are out of their depth. 

Guidance on client relationships 

The guidance also covers the impacts on solicitors’ client relationships. For example: 

• Solicitors may now need to consider wWhether climate related legal advice is within the retainer and how to communicate this clearly to the client.? 
• Solicitors may exercise discretion on whether or not to act, given a potential client/matter impact on climate change. Some firms are already limiting their instructions based on a client’s climate change commitments. 
• Solicitors may be encouraged to work with clients who are considered to be making a difference. 
• Conversely, clients may want to work with legal advisers who are aligned with their commitments, as clients are facing regulatory and market pressure to demonstrate their suppliers and advisors are playing their part.  

• PII cover in the future may require ESG competency or may affect pricing. 

The direction of travel is clear 

It’s clear that climate change considerations are only going to increase for solicitors and their clients and that ESG matters will impact on the practice of law more and more. All firms and lawyers need to educate and equip themselves for a future in which environmental matters are at the forefront of how business is done.   

How can we help? 

We offer a comprehensive ESG service, which includes: 

• General ESG training and guidance for your organisation and/or its clients. 
• Advice on incorporating sustainability into your business strategy. 

• Climate clauses for your legal documentation. 
• Advice on navigating climate reporting such as writing a carbon reduction plans. 

For a confidential, no obligation chat about your ESG needs, do get in touch- Catherine.Oh@nexa.law.