1. Professional Ethics and Climate Change

1.1 A ‘Special Role’?

Chief Judge Brian Preston reminds us that a profession is more than an occupation or a business, and that the legal profession’s claim to its special status in our society involves an obligation to abide by moral and ethical principles’,^[1] not just the conduct rules. Preston quotes Justice Spigelman, who emphasises that the profession ‘has an ethical dimension and values justice, truth and fairness’.^[2] These professional obligations lead some lawyers, including Preston, to argue that lawyers have a particular responsibility to address climate change in their work. Dr David Boyd, UN Special Rapporteur on Human Rights and the Environment, reminds us that climate change raises issues of justice, and consequently ‘the legal profession has a moral obligation to stand up and join the movement for a cleaner, greener, healthier future’.^[3] John Dernbach, an authority on sustainable development, climate change and environmental law, likewise contends that all lawyers ‘have a unique and important role to play in protecting life on earth’.^[4] He argues that

[l]awyers matter here because of the special role they play in advocating, drafting, implementing, and litigating over the meaning of laws. Law is a necessary means of addressing climate change, although certainly not the only one. And because climate change is also about justice, it is particularly within the purview of lawyers.^[5]

So how does the regulation of lawyers facilitate or impede lawyers playing this ‘special role’?

1.2 Regulation of Lawyers in Australia

Australian lawyers are regulated by state and territory legislation. The Legal Profession Uniform Law (in NSW, Victoria and WA) and the Legal Profession Acts (Qld, SA, NT, ACT, Tasmania) set up the legislative framework that governs legal practice in each jurisdiction. While there are jurisdictional differences, the framework is similar enough for present purposes to discuss as one. We reference the Legal Profession Uniform Law (‘LPUL’) and the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules (‘LPUL ASCR’) because they cover the majority of lawyers in Australia (about 80%).

The head legislation (the LPUL) regulates admission as a lawyer. As well as gaining the appropriate educational qualifications, an applicant for admission must be a ‘fit and proper’ person to be a lawyer (s 17, LPUL). A myriad of factors are relevant to whether a person is ‘fit and proper’, including whether they have a criminal conviction. We suggest you have a look at the Victorian Guidelines for Applicants for Admission. The onus is on the applicant to disclose all relevant matters to the admitting authorities. Once a person has been admitted as a lawyer, they become an officer of the Supreme Court of the jurisdiction in which they are admitted (s 25 LPUL) and as such subject to professional disciplinary standards and potential sanctions.

The conduct rules (LPUL ASCR) provide a guide as to the conduct expected of lawyers. The rules are detailed in places (eg concerning duties in relation to litigation) but provide limited guidance in relation to many aspects of legal practice. We turn to discuss those rules now.

1.3 LPUL ASCR

It is very clear in Australia that a lawyer’s paramount duty is to the court and the administration of justice (rule 3.1). In a litigious context, the rules and case law flesh out what this duty means; see rules 17–29. Outside of litigation (90% of lawyers are not litigators), the duty is just as important, but more amorphous. Some legal ethicists use terms such as ‘fidelity to the law’ or ‘duty to the law’ rather than duty to the administration of justice. In the United Kingdom, the wording of the duty requires lawyers to act ‘in a way that upholds the constitutional principle of the rule of law and the proper administration of justice’.^[6] There is general agreement among legal ethicists that this duty includes both obeying the law and counselling clients to comply with the law, and contributing to the proper and efficient administration of justice by the courts and the legal system generally.^[7] Rules 4 and 5 add some detail to the duty. For example, rule 4 requires a solicitor to ‘avoid any compromise to their integrity and professional independence’, and to comply with the rules and the law. Rule 5 provides that a lawyer must not engage in conduct that is likely to either (i) be prejudicial to, or diminish the public confidence in, the administration of justice, or (ii) bring the legal profession into disrepute. In sum, lawyers have an overriding duty to uphold and maintain our legal system, the administration of justice and the rule of law.

Climate change threatens the administration of justice in a myriad of ways. More frequent and severe weather events disrupt the day-to-day administration of justice. More significantly, as chapter 2 explains, climate change causes irreparable harm to natural systems, which leads to food, water and energy insecurity, widespread poverty and increased volume and intensity of disputes, which in turn presents fundamental challenges to economic, governmental and legal systems.^[8] Justice Francois Kunc warns that ‘[i]nadequately mitigated climate change could undo our social order and the rule of law itself’.^[9] Thus, there is a clear link between lawyers taking a climate conscious approach in their businesses and in advising clients, and support for the administration of justice and the rule of law.

Lawyers’ duties to their clients are also relevant here. Subject always to the paramount duty (rule 3), a lawyer must act in the best interests of their client. This principle is captured in rule 4.1.1 and the lawyer’s related duty to provide competent advice under rule 4.1.3.

A client’s best interests are determined by the client, not the lawyer: rule 8 provides that ‘a solicitor must follow a client’s lawful, proper and competent instructions’. However, rule 7 requires a lawyer to advise the client about the risks and benefits of their proposed course of action and any alternatives the lawyer considers appropriate to the client’s situation. Looking out for the best interests of a client in the context of climate change means being alert to the many ways climate change may affect a client’s situation. Climate change is affecting almost every area of practice — it is as much ‘a small scale, local and immediate issue as it is a global issue.’^[10] It affects individual clients looking to purchase a house (flood zones, bushfire risk, sea level rise, insurance) through to global corporate clients required to comply with increasing regulation of carbon emissions. The populations served by Legal Aid and community legal centres are particularly vulnerable to the effects of climate change because they may not have the financial capacity to relocate or adapt their day-to-day practices. ^[11]

Competence is a fundamental professional duty,^[12] and an aspect of a lawyer’s contractual obligations and tortious duty of care to a client. Dernbach argues that competence requires lawyers to have a basic understanding of climate change science and how climate change will affect their clients in the short and longer term.^[13] As well as understanding the impact of climate change on a client’s activities, competence also requires a lawyer to be across climate-related legal changes in the areas in which they practise. Guidance from the Law Society of NSW (‘NSW Guidance’) recognises that competence now incorporates:

• a duty to warn a client of potential legal risks; and
• a duty to disclose any climate legal risks of which the lawyer is aware.

The NSW Guidance contains a useful table of climate-related legal risks in specific areas of practice. For example, corporate clients require advice on the ‘rapidly evolving international and national policy and regulatory regimes’ which require disclosure of carbon emissions etc. We would add that a corporation’s social licence is likely to be increasingly linked to its environmental credentials, so reputational risk is something lawyers should consider when giving advice. The NSW Guidance also notes the increase in climate-related litigation and the need to advise clients on ‘developing appropriate mitigation and oversight mechanisms and avoiding misrepresentation’ (ie climate greenwashing).

1.4 Choice of Client

Choice of client is also addressed in the NSW Guidance. Solicitors are not required to act for any person/corporation seeking their services and the Guidance notes that ‘climate-related issues may be valid considerations in determining whether to act’. Those considerations include:

• the client’s willingness to engage on climate-related issues;
• any potential impact on the firm’s reputation; and
• any apparent conflict with the client organisation’s stated values.

The NSW Guidance treats client choice as ‘a matter for individual solicitors and law firms, recognising solicitors’ professional obligations’. Some lawyers acting for fossil fuel interests argue that those ‘professional obligations’ translate to ‘everyone deserves legal advice’ and there is consequently a professional obligation to act for such clients. In contrast, Steven Vaughan wonders ‘whether, or how often, we see the vice of environmental harms and associated law firm profits dressed up by lawyers in large firms as the professional virtue of providing neutral legal advice’.^[14] With this concern in mind, the group Lawyers Are Responsible invites lawyers to sign a pledge (Declaration of Conscience) not to act on any new fossil fuel projects (nor to prosecute environmental protestors).

It is important to keep in mind that if you are a litigator, common law and civil procedural rules impose what might be considered ethically inspired obligations on parties, witnesses (especially expert witnesses) and lawyers to conduct the litigation in ways that enable the just, efficient and timely resolution of disputes.^[15] Bringing claims for collateral or improper purposes, or without a proper basis in law, or using tactics that cause undue cost or delay such as misuse of the discovery process, are all behaviours that can be sanctioned by the court and may leave lawyers open to disciplinary charges, particularly if the lawyer’s behaviour is inconsistent with the duty to the court, or otherwise constitutes disreputable conduct. (Remember that rule 5 proscribes conduct that is likely to ‘bring the profession into disrepute’.) We look at litigation conduct further in Case Study 1 at the end of this chapter. If you have already studied or are currently studying civil procedural law, you might want to consider whether tactics such as writing letters with the express intention of intimidating recipients in circumstances where any subsequent action would be ‘doomed to fail’ or pursuing security for costs against representatives of the Indigenous community or other public interest groups are also procedurally appropriate.

1.6 Gaps

While it is unlikely that climate change creates unique legal ethical challenges, issues may arise for the climate conscious lawyer in terms of scoping their duty to advise, disclosing to authorities any significant climate harms by the client, and withdrawing from the retainer.

Rule 7 requires a solicitor ‘to provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter …’ When an existing client proposes action that would harm the environment, it is open to the lawyer to advise against such action, citing the various risks that may arise.^[16] But if a client does not accept advice, and the client’s instructions are lawful, neither the conduct rules nor the NSW Guidance provide practical guidelines for the lawyer who does not want to facilitate environmental harm.

Unless the lawyer is expressly under a ‘gatekeeper’ obligation to disclose client wrongdoing (see rule 9.2.2),^[17] rule 9’s requirement that lawyers maintain strict confidence in client matters leaves lawyers with little discretion to disclose actual or anticipated client-caused or client-facilitated climate harms. Rule 9.2 permits lawyers to disclose confidential information ‘for the sole purpose of avoiding the probable commission of a serious criminal offence’ or ‘for the purpose of preventing imminent serious physical harm to [a] person’, but if the environmental damage caused by the client’s actions is not caught by these (discretionary) exceptions, the lawyer must remain silent.

It follows that a lawyer who is personally conflicted about acting for a client who engages in environmentally harmful activity should carefully consider whether or not to accept the client in the first place. While it is acceptable as a solicitor to decline representation (as we have discussed), it is likely more difficult to withdraw from the retainer once established. While the solicitor might arguably have a ‘just cause’ to terminate the retainer, with notice, under rule 13, the scope of ‘just cause’ is imprecise. It clearly permits withdrawal in some circumstances — for example, where a solicitor cannot act without breaching other professional obligations, or possibly where the client refuses to follow advice — but the scope of conscientious objection as a ground for withdrawal has not been tested. The lawyer might argue that there is a breakdown in the relationship between the solicitor and client in these circumstances,^[18] but if the personal conflict was foreseeable at the point of entering into the retainer, then withdrawing later could be problematic, unless the client’s conduct crosses some unanticipated boundary.

Similar issues in relation to the American Bar Association Model Rules have led United States lawyer and scholar Tom Lininger to argue that lawyers’ positive ethical duties should include environmental protection. In his view, the purpose of a professional ethics code ‘is to ensure that practitioners attend to issues of transcendent importance’,^[19] and environmental protection is one such issue. Lininger proposes several options for reforming the rules, ranging from a new discretion to breach confidentiality ‘to prevent imminent, substantial and irremediable environmental harm’^[20] through to a new duty to inform the court of environmental risks (if a witness gives contrary evidence).^[21]