3. Future Trajectories for Professional Ethics

The environmental regulatory framework significantly influences the extent to which businesses take responsibility and are held accountable for their contribution to climate harms, and consequently shapes lawyers’ advice. As other chapters in this book demonstrate, climate change law in Australia remains underdeveloped relative to other, climate-leading, jurisdictions. Whether and when there will be an appetite for increased and more effective regulation of greenhouse gas emitting activities is a political question that is beyond the scope of the book, but any such changes would strengthen lawyers’ duties to the law and would make advising clients against climate harms more straightforward.

It is uncertain as to how far the courts in Australia will permit the common law on negligence and public nuisance to evolve to better address large-scale climate harms.^[1] Any such changes to the common law would obviously be important in shaping lawyers’ duties of competence and care, and also their duty to the law.

The passing of a federal human rights act, and of additional state human rights legislation, would likewise be significant, imposing specific obligations on a broader range of Australian governments and their lawyers to (re)assess the risks represented by their climate mitigation policies, or lack thereof. For private and in-house legal practice, however, the likely continuing constraints on human rights enforcement by private citizens limit, but do not wholly obviate, the need to engage substantively with human rights. Indeed, it is likely that the burden on lawyers to advise on the human rights impacts of climate change will grow, rather than diminish.

One reason for this may be an increasing emphasis on ‘human rights due diligence’ in corporate regulation. National compliance regimes are at very different stages on the HRDD journey; much corporate compliance remains voluntary or only partially mandated — for example, in the context of modern slavery laws, but not climate harms. Where broad mandatory standards (‘mHRDD’) exist under national legislation, these impose enforceable obligations on businesses to identify, assess and manage a range of human rights risks and impacts, including those arising from climate harm. Such mHRDD regimes are in place in several major trading nations, including France, Germany and South Korea, and are under development in others, most notably the United Kingdom and the European Union, where the Corporate Sustainability Due Diligence Directive has been signed into law. Compliance under the latter will be required from 2027, and will impose duties on large businesses formed in, or generating significant revenue within, the EU to address actual and potential human rights and environmental impacts, and to have in place a Paris Agreement–aligned climate transition plan. Although this will directly affect only the largest commercial entities, law firms are advising out-of-scope clients to consider ways to enhance their processes in anticipation of heightened stakeholder expectations and future regulatory extension.^[2] As the IBA’s guidelines affirm, lawyers need to take a proactive approach in advising clients about the strategic, reputational and ultimately legal risks they may face if they do not address their HRDD:

The law is dynamic; what is considered merely unethical today may be unlawful tomorrow. This is particularly true in the business and human rights context. As companies increasingly see the identification and management of human rights risk as a key strategic goal, they expect that their lawyers will act not only as technical legal experts, but also as wise counsellors in identifying and advising on human rights impacts, based on the hard and soft law of human rights.^[3]

Even though Australia currently lacks mHRDD obligations, the UNGPs are still relevant to Australian businesses. Moreover, the trend towards HRDD means not only that law firms operating in the corporate sector must stay abreast of their clients’ human rights risks and responsibilities but also that the firms themselves, and particularly those operating in a transnational context, may need to ensure that they have their own HRDD processes in place, if they are to satisfy potential clients’ expectations.

By contrast to this dynamic picture, in terms of the substantive law on lawyering, significant change seems unlikely in the short term. The Law Council of Australia, in its Climate Change Policy, has clearly expressed the view that the ASCR are adequate to deal with the demands climate change imposes on lawyers’ ethics. The preference in the ASCR for broad, generic principles also makes it less likely that climate-specific regulations would be considered necessary or desirable as part of the conduct rules. It is conceivable, however, that other state and territory regulators will follow the lead of New South Wales, either adopting or referencing the NSW Guidance, or issuing guidance of their own. It is likely that any such guidance will need ongoing updating as the scope of a solicitor’s duty to provide advice on climate change continues to evolve.

This chapter has focused on solicitors’ duties, as these are ‘at the sharp end’ of most climate advisory work. Australian federal and state bar associations have not yet weighed in with any specific advice or guidance to member barristers engaging in climate-related advice or litigation. There is a separate challenge for barristers in Australia insofar as the so-called cab rank principle^[4] seems to restrict them from denying representation to specific clients on the basis of a perceived risk of climate harm. The Declaration of Conscience provoked significant debate about the ambit of this rule in the United Kingdom, and it is conceivable that the issue could arise here. Interestingly, the Chair of the English Bar Council’s Ethics Committee has reportedly opined that another rule permitting barristers to refuse instructions where ‘there is a real prospect that you are not going to be able to maintain your independence’^[5] could allow those genuinely objecting to representation on conscience grounds to refuse a brief.^[6] However, there is no clearly equivalent provision in the Uniform Bar Rules.