David Estrin, LSM
by David Estrin
David Estrin is a Certified Environmental Law Specialist, the Co-Chair International Bar Association Task Force on Climate Change Justice and Human Rights, Ianni Fellow and Co-Director, Climate Litigation and Policy Clinical Program, UWindsor Law, and can be reached at destrin@uwindsorlaw.ca
Adapted by David Estrin from, and inspired by, ‘Climate Conscious Lawyering”, Hon. Justice Brian J. Preston, Chief Judge, Land and Environment Court, New South Wales, Australia (2021) 95 ALJ 51
The climate crisis and its increasing impacts have altered expectations, raising the bar as to who is a competent and careful lawyer. As of at least 2021, lawyers have professional obligations to avoid a climate blind approach. Rules of professional conduct and ethical principles, including the duty of providing competent advice to clients, place a responsibility on lawyers to adopt a climate conscious and justice centered approach in their daily legal practice.[1]
Just as lawyers play a role in upholding human rights throughout their practice, the profession must now recognize the reality of climate change. In 2019, the American Bar Association (ABA) adopted a resolution calling on “federal, state, local, territorial, and tribal governments, and the private sector, to recognize their obligation to address climate change”. Additionally, the ABA resolution urges lawyers to take a climate conscious approach to legal advice by advising their clients of the risks and opportunities that climate change provides. This past year, the International Bar Association (IBA), also known as the “Global Voice of the Legal Profession”, issued a Climate Crisis Statement that recognized lawyers have an important role to play in addressing the climate crisis and its consequences, and urged lawyers to take a climate conscious approach to problems encountered in daily legal practice.[2]
A climate competent lawyer cannot ignore how climate change and its consequences are altering legal and human rights responsibilities of business enterprises, financial institutions, fiduciaries and governments as well as many other components of society. The IBA Climate Crisis Statement specifically cautions “that the economic impact of the climate crisis on states, corporations, communities and individuals will be catastrophic, contributing to destabilizing the natural environment, migratory crises, increased food insecurity, [and] devastating long term effects on health and increased conflict”. The IBA also noted “the increasing concerns expressed by central banks, monetary authorities, supervisors and leading economic institutions about the potential for climate change to materially impact on financial stability and economic growth.”[3]
As of 2021, there can be no doubt that an ordinarily competent and careful lawyer must be aware of climate change issues and impacts, current and changing climate laws and policies, as well as current climate litigation approaches and results as relevant to legal advice; and must use these insights in advising clients. This awareness must also include an understanding of how achieving justice and human rights for current and future generations is increasingly expected, and indeed demanded, by governments, business enterprises, pension plans, investors and lenders who are making decisions on approving or financing projects or plans which could result in new GHG emissions or in simply maintaining current emissions levels. A lawyer’s failure to provide relevant advice pertaining to the implication and impacts of climate change to the standard expected by a reasonably competent lawyer may not only be professional misconduct, but may also amount to professional negligence.
A lawyer’s duty is succinctly stated in Principle 48 of the 2020 Climate Principles for Enterprises: “Attorneys have to investigate the material climate change consequences of any activity in which they are engaged and inform their clients about these consequences”.[4] The commentary to these Principles is even clearer: “Attorneys are under an obligation to deliver proper advice; see Principle 48. That may be a challenge – for which they get paid well – but they do not have a choice. If they do not have a clue or prefer to stay ignorant, they would be best advised to refer their client to better equipped law firms.”[5]
Competent lawyers need to advise clients of the potential risks, liability and reputational damage arising from activity or inaction that negatively contributes, or is likely to be seen to contribute, to the climate crisis. This necessity requires lawyers to be aware of and understand the ever-increasing climate change risks faced by a corporation’s entire business operation (including supply chains), and to competently advise businesses of their legal obligations to assess, manage and report on these risks when reporting to regulators, investors, financiers and shareholders.
Interpreting legal rules also creates opportunities for climate conscious lawyers and judges to adopt an interpretation that promotes or better implements climate change goals, provided that doing so is consonant with and required by the principles of genuine interpretation. In other words, there is a recognized need to “climatize” the legal approaches of lawyers and judges, as articulated by Hon. Antonio Benjamin, Justice of the High Court of Brazil. A climate conscious lawyer will be able to identify likely consequences of different courses of action, remedies and relief and whether they assist climate change goals, so as to counsel the client in considering and, where possible incorporating, the most appropriate one into the preferred solution or approach to the client’s plans, legal problems or dispute.
Climate conscious lawyers will also recognize and counsel clients whose businesses activities significantly contribute to climate change, such as major carbon extractors, producers, emitters and transporters that, while they might have or expect to obtain legal licenses for such activities, they may lack a social license. As illustrated in recent cases they, as well as project lenders or other funders of such activities, are increasingly exposed to significant business risk by facets of society seeking to protest against and interfere with the business and its activities.[6]
Climate conscious lawyers will understand how climate change threatens the enjoyment of the vast range of human rights. The human rights obligations of governments and business enterprises include acting in a precautionary manner, with due diligence, to prevent their actions and omissions from increasing climate change, which already has significantly contributed to drastic human rights deprivations. The application of human rights principles to challenge the legality of government and business enterprise conduct or inaction is currently a hot aspect of climate litigation in many countries, including Canada.
Climate conscious lawyers should advise on how their clients, and society more generally, can uphold or better protect the integrity of the climate system as necessary to preserve fundamental rights, such as the right to life and the right to a healthy and safe environment, which are key aspects of achieving justice, including climate justice. Conversely, climate conscious lawyers will not use loopholes, procedural rules or arguments without legal prospects of success to frustrate the substance and spirit of the law and the legal system.
Ways in which lawyers may integrate ethical thinking and ethical action into their day-to-day practice on this issue include:
In counseling clients, lawyers may be able to discuss optional approaches to an issue, plan, decision or other matter affecting the client, so that the client can consider whether it may be advantageous to use an optional approach to mitigate the climate change consequences of its way of proceeding. Practicing lawyers know that many clients are amenable to such persuasion and are prepared to modify their behavior to lessen environmental and social impacts of their projects and activities.
In providing advice to clients, or as a corporate director or officer, referencing the human rights duties and responsibilities of business to take due diligence and proactive measures to avoid and prevent environmental degradation that could affect human rights, pursuant to the UN Guiding Principles on Business and Human Rights,[7] the Climate Principles for Enterprises[8] as well as similar duties embodied in the Right to Life under s. 7 of the Charter. As pointed out, actions or inactions by the business sector, including lenders and investors, that can affect or exacerbate climate-related human rights impacts are now being litigated in courts in many countries. This could lead to actual impacts on business operations and profitability, as well as potential liability for the corporation, its directors, and even possibly for investors and lenders.
Encourage industry actors to engage in advanced efforts towards sustainable business models that mitigate their contributions to climate change and adapt to the consequences of climate change.
Encourage action by the executive, legislative and judicial branches of government to address the climate crisis. This can include recommending, reviewing or supporting effective laws and policies that mitigate climate change by reducing greenhouse gas emissions to achieve carbon neutrality as soon as possible and ensure adaptation to the consequences of climate change. It could also include supporting a just transition towards carbon neutrality in a fair, sustainable and inclusive manner.
Practitioners and legal scholars can engage in intellectual activism to build climate consciousness and reform the law, legal systems and the legal profession to better address the climate crisis. Specific Articles for reforms to litigation rules to achieve equal access to justice for all as well as lower barriers in public interest climate litigation, based on advice from international legal experts, are contained in the 2020 IBA “Model Statute For Proceedings Challenging Government Failure To Act On Climate Change”.[9]
Lawyers can provide volunteer, pro bono or reduced fee services for those negatively affected by the climate crisis. In fact, both the ABA and the IBA have recognized the importance of pro bono work related to climate change, with the ABA urging lawyers to “engage in pro bono activities to aid efforts to reduce greenhouse gas emissions and adapt to climate change”. Communities threatened by climate change, including Indigenous communities, require legal advice, and possibly litigation support, but often lack access to the financial means ordinarily needed to obtain legal advice, let alone take legal action. Offering pro bono services can assist to provide access to justice consistent with the lawyer’s duty to the administration of justice and their personal ethical values.
So… how does all of this relate to the proposed CBA Climate Leadership Resolution?
Our former Chief Justice has eloquently articulated a compelling rationale as to why there is an imperative for lawyers to engage in efforts to deal with climate change and why the proposed Climate Leadership Resolution is one part of an apt response: “Dealing with climate change is among the most important challenges that will face Canada and the world in the 21st century. The impact of climate change will be especially felt by already vulnerable people, exacerbating the social and legal difficulties they face. It is imperative that lawyers and justice actors who desire a just society engage pro-actively in curbing climate change and mediating its impacts.”
There are at least two more reasons to support the Climate Leadership Resolution:
It’s clearly in our clients’ interests that we be climate conscious to counsel them as to why and how climate change could impact their family and business affairs, so they can make more informed decisions, not only in their own interests, but also for their family, the society in which they function, and future generations.
It’s in the self-interest of lawyers as professionals: we have ethical and professional duties to provide competent advice to clients, and that requires us to be climate competent.
Look closely at the three short components in the operative part of the proposed Climate Leadership Resolution. They are hardly radical. But by voting to pass this resolution, the CBA will be recognized for at least helping to wake up the entire Canadian legal community to their need to become climate conscious; and the Resolution may also encourage lawyers to help in other ways on this existential issue. Finally, when the Resolution is passed, Canadian lawyers may take comfort in recognizing that the legal profession will join with others in recognizing the need for all segments of society to take steps to turn down the heat and avoid climate chaos.
Footnotes:
[1] See for example, the following excerpt from the Law Society of Ontario’s Rules of Professional Conduct, online: <lso.ca/about-lso/legislation-rules/rules-of-professional-conduct>.
Competence
3.1-2 A lawyer shall perform any legal services undertaken on a client's behalf to the standard of a competent lawyer.
Commentary
[1] As a member of the legal profession, a lawyer is held out as knowledgeable, skilled, and capable in the practice of law. Accordingly, the client is entitled to assume that the lawyer has the ability and capacity to deal adequately with all legal matters to be undertaken on the client's behalf.
[2] Competence is founded upon both ethical and legal principles. This rule addresses the ethical principles. Competence involves more than an understanding of legal principles; it involves an adequate knowledge of the practice and procedures by which such principles can be effectively applied. To accomplish this, the lawyer should keep abreast of developments in all areas of law in which the lawyer practises. [emphasis added]
Quality of Service
3.2-1 A lawyer has a duty to provide courteous, thorough and prompt service to clients. The quality of service required of a lawyer is service that is competent, timely, conscientious, diligent, efficient and civil. [emphasis added]
Honesty and Candour
3.2-2 When advising clients, a lawyer shall be honest and candid.
Commentary
[2] The lawyer's duty to the client who seeks legal advice is to give the client a competent opinion based on a sufficient knowledge of the relevant facts, an adequate consideration of the applicable law, and the lawyer's own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results. [emphasis added]
Encouraging Respect for the Administration of Justice
5.6-1 A lawyer shall encourage public respect for and try to improve the administration of justice.
Commentary
[1] The obligation set out in the rule is not restricted to the lawyer's professional activities but is a general responsibility resulting from the lawyer's position in the community….
[4] A lawyer, by training, opportunity, and experience is in a position to observe the workings and discover the strengths and weaknesses of laws, legal institutions, and public authorities. A lawyer should, therefore, lead in seeking improvements in the legal system, but any criticisms and proposals should be bona fide and reasoned. [emphasis added]
[2] See note 3.
[3] “International Bar Association Climate Crisis Statement” (5 May 2020), online: <www.ibanet.org/Article/NewDetail.aspx?ArticleUid=cac6e15d-ec80-4669-9025-2773e9019519>. See also the International Bar Association report, “Achieving Justice and Human Rights in an Era of Climate Disruption” (2014), online: <www.ibanet.org/PresidentialTaskForceClimateChangeJustice2014Report.aspx>; and the 2019 ABA Resolution on climate change that was adopted on August 12-13, 2019, available for download: <www.americanbar.org/content/dam/aba/directories/policy/annual-2019/111-annual-2019.pdf>.
[4] The 2020 updated Climate Principles for Enterprises have been endorsed by numerous eminent experts, including prominent judges and lawyers, from all continents. See “Climate Principles for Enterprises”, online: <climateprinciplesforenterprises.org/> [Climate Principles]. To view the full list of endorsers, see “Endorsers”, online: <climateprinciplesforenterprises.org/endorsers-2/>. Lord Carnwath, former Justice of the UK Supreme Court, has acknowledged the Principles’ importance, stating that: “The principles, as now updated, can be taken as a fair indication as to how the law stands or is likely to develop.”
[5] Climate Principles supra note 4 at 50.
[6] See for example, Gloucester Resources v Minister for Planning, (2019) 234 LGERA 257 (NSW Land and Environment Court). In this decision, the Court refused to overturn the state government’s denial of a planning approval for a proposed new coal mine.
[7] “Guiding Principles on Business and Human Rights” (2011), online: <UN Guiding Principles on Business and Human Rights>.
[8] See Climate Principles, supra note 4.
[9] “Model Statute for Proceedings Challenging Government Failure to Act on Climate Change” (2020), online: <www.ibanet.org/Climate-Change-Model-Statute.aspx>.