In late 2023, the University of Toronto Law Student Union (the "UTLU") published the groundbreaking Canadian Law Firm Climate Impact Report (the "Report"), calling out five of the most influential Toronto law firms for being "complicit in the climate crisis" by facilitating fossil-fuel transactions. Specifically, the Report states that energy-related transactions completed by Torys LLP, Fasken, McCarthy Tétrault LLP, Miller Thomson LLP, and Osler, Hoskin & Harcourt LLP from 2008 to and including March 2023, totalled over $618 billion.
The Report examined litigation and transactional data from self-reported firm websites, and focused on firms that met the following four criteria:
The largest employers of Canadian law students based on Toronto 2L summer job recruitment data collected by the independent student newspaper at the University of Toronto Faculty of Law, Ultra Vires;
The largest overall law firms in Canada based on the number of lawyers;
The firms with the most comprehensive websites of self-reported data; and
Canadian home-grown firms.
The authors of the Report note that it was subject to human error (including the limited understanding of law students as to what constitutes an energy-related business transaction), and that climate change is not solely driven by fossil fuels.
Some parties will take issue with the methodology used by the UTLU, such as the report’s definition of complicity with the climate crisis, and whether the files sampled were representative. A confidential source at one of the offending firms told me that the cited transactions failed to paint the full picture of said firm’s fossil fuel-related work. Regardless of these points, the Report is the first of its kind and represents a huge step in ethical legal discourse. The Report demonstrates that the ethical ramifications of a legal practice are both quantifiable and measurable, and that various firms can be compared to one another.
1. Should lawyers and law firms refuse clients on the basis of whether or not they are “exacerbating the climate crisis”?
First, there is the issue of whether law firms and individual lawyers should be refusing clients based on their alleged offences. My law school ethics course hammered home the idea that all clients, no matter how heinous their alleged or actual crimes, deserved equal representation. My instructor, Professor Allan Hutchinson, highlighted the "last lawyer in town problem" - even if one took ethical issue with representing a client, if there was no one else to represent them, one had an ethical duty to represent this client.
Practically speaking, few are under any illusion that lawyers will abandon their lucrative fossil fuel clients for the sole purpose of "divesting" themselves from fossil fuels. These clients represent billions of dollars in billings, which the Report itself recognizes. Law firms, however, have the opportunity to take on more environmentally-aligned clients. There is innovation in the private practice sphere - in 2015, Bates Wells, a firm located in London, UK implemented a client-screening process that accounts for environment and social governance (“ESG”) values. The firm is also a B Corporation, demonstrating high social and environmental performance according to the B Impact Assessment score attained by the firm.
Bates Wells raises three important points for ethics discussions. First, the ethics of taking on certain clients can be empirically measured based on existing tools, such as ESG metrics. It is unnecessary for firms to have internal debates every time a client is screened, unless the ESG metrics flag a client as a reputation risk. Second, an ethical practice can be synonymous with economic perspectives. Skeptics of an ethical, profitable model of a law firm would say otherwise, but Bates Wells is still in business in 2024 and boasts of their innovative approach to legal practice. Third, the process of screening clients can be undertaken simultaneously with the conflict check process, which is typically automated and done prior to taking on a certain file. This eliminates the need to bog down the client intake process further than necessary.
In addition to the idea of re-shaping a private law practice to screen clients for climate-related reputation risks, lawyers can also specifically seek to represent “greener” clients as a way to align their practice with their personal ethics. For example, West Coast Environmental Law ("WCEL"), based in Vancouver, BC, operates the Environmental Dispute Resolution Fund ("EDRF") - lawyers and experts are hired at reduced rates with the $150,000 grant fund disbursed by WCEL to represent individuals, community groups, non-profit organizations and First Nations across British Columbia who need financial help defending their communities and environment.
As of December 2023, the Law Society of BC acknowledges pro bono work as a way for lawyers to collect CPD credits. While this is a step in the right direction, the mandated 12 hours a year per lawyer also includes continuing education responsibilities. Further steps are needed to incorporate pro bono or reduced rate work into each lawyers’ practice.
Most firms use the billable target model to track lawyers' productivity and dedication to the firm. Such models usually don't incorporate work that is done pro-bono or treat reduced rate work as less valuable to the firm than full-rate work. In order to offset the simple fact that the overwhelming majority of fossil fuel companies legally outgun environmental initiatives, a re-work of the billable target model is needed. For example, such a model could credit lawyers for any time spent in service of environmental initiatives like the EDRF up to 50 hours a year. This would be a large step towards evening the playing ground for environmental organisations.
2. Can lawyers fairly be associated with their clients’ crimes in the context of a climate emergency?
Second, some lawyers may take offence with the Report conflating the "crimes" of fossil fuel companies with lawyers' and law firms' morality. Can a lawyer’s or firm’s decision to represent a certain “climate offending client” fairly be seen to reflect their personal ethics? As my memory of Professor Hutchinson would say, a lawyer is a neutral advocate - zealous, perhaps, but admirable nonetheless for their dedication to representing their client's best interests. The example always used is that of the appalling alleged serial killer, a person whose crimes fly in the face of human decency, but who is nonetheless deserving of full legal representation.
The answer to whether lawyers and law firms are morally complicit in the climate crisis is simple - of course we are. In addition to the unavoidable personal contribution of greenhouse gases into the environment, we are steeped in a legal system and operate within a society which struggle to address climate change. So what does the Report reveal? Does it truly hold a mirror up to the legal profession’s role in facilitating climate change or can we all go home with a clean ethical bill of health because we are “neutral advocates”?
In my opinion, the Report raises the question of how lawyers choose to exercise their personal ethics in the course of their professional practice. All lawyers are required to be competent, including climate competency, and to meet the minimum bar of the professional ethics standards as outlined by the law societies of various jurisdictions. However, the Report highlights the gap that this ethical regime leaves in an extractive and capitalist society. The Report calls on law students, lawyers, firms, and clients to fill this gap by exercising their personal ethics in their engagement with the legal profession. The conclusions and recommendations of the Report include a call to action for:
Law students - to consider how their employment at certain firms might exacerbate the climate crisis;
Offending law firms - to stop representing fossil fuel clients who are contributing to and profiting from the climate crisis; and
Clients - to consider whether they want to be represented by a law firm which also represents fossil fuel companies.
Fossil fuel companies have been able to buy the very best legal representation money can buy for decades. This is why the offending law firms are all firms a first-year law student would die to work for. From 1L, we are told that working for a big firm is the best way to get our feet wet in a variety of practice areas, to taste each area before we settle down and specialise. In reality, what happens is that we gain practice in commercially-viable practice areas with clients that are able and willing to pay (read: fossil fuel advocacy and other corporate interests), and causes "brain drain" for non-profits and other organisations that could use bright, enthusiastic legal representation. At best, social justice files are for when an associate has spare time, notwithstanding the 2,000 billable hour target set by upper management.
In reality, firms can and should invest more resources in diversifying their client bases. Having a portfolio of many clients builds one's professional network, leading to more work from different sources. A broad client base also provides a firm more economic stability - if one client leaves that firm, the sting won't be felt nearly as much as a firm who depends on only a few large clients to keep it afloat. From a social justice perspective, acting for both sides means that a firm's intellectual capital won't be spent solely on furthering the interests of the fossil fuel industry. Of course, there are bound to be conflicts of interest in any given legal practice, but this should not affect a majority of prospective clients.
3. Conclusion
The debate as to whether law firms and individual lawyers should be refusing clients based on their alleged offences offers the opportunity to examine the billable target model utilised by most firms. A revamp of the billable target model is needed in order to incorporate pro bono and reduced rate work, bringing lawyers recognition and career success in representing environmental non-profits, First Nations, and other environmentally-minded parties. Further, conflict checks should also include ethical concerns which are quantifiable and measurable.
As mentioned, the issue as to whether lawyers should be associated with their clients’ crimes obscures the fact that firms would do well to invest resources in diversifying their client bases to include “greener” clients. If lawyers and law firms are to be advocates for meaningful environmental change, this is going to require conscious effort from both individual lawyers and firms to ensure that the structures we use value efforts to combat the climate crisis and represent like-minded clients.