4. Conclusion
This chapter considers the role that lawyers can play in addressing the climate crisis. The responsibilities attending this role arise from both general ethical and moral obligations inherent in being a profession and also from the conduct rules, in particular lawyers’ duties to the administration of justice. How lawyers exercise their role in day-to-day practice is an open question, and we note particularly:
- the recent NSW Guidance that directly addresses how lawyers might approach their professional duties in the context of climate change;
- the ongoing debate about the professional ‘ethics’ of representing fossil fuel interests; and
- the obligation on lawyers, as a matter of competence, to be informed about developments in their practice area in response to climate change as well as the likely impact of climate change on their clients’ present and future activities.
To conclude, consider the following case studies, which directly raise some of the issues discussed in this chapter.
Case Study 1
Read this article concerning the tactics adopted by the lawyers acting for the mining company Adani. At the time the article was written, Adani was proceeding, against a lot of opposition, to develop the Carmichael coalmine.
Consider the following questions:
- Mr Moriarty is quoted as believing that aspects of the firm’s strategy ‘tend to bring the legal profession into disrepute’. Do you agree? If so, what specific aspect(s) of the strategy do you think might have that effect? Alternatively, if you disagree, can you explain why?
In examining the scope of ‘disrepute’, you might find it helpful to read the following cases:- Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 [101]-[105]
- Clyne v NSW Bar Association [1960] HCA 40 [1]-[25]
- If you were to adopt the stance of Chief Judge Brian Preston’s ‘climate conscious’ lawyer, how would you advise changing the firm’s proposed litigation strategy, without undermining your duty to act in the best interests of the client?
- If the law firm was to align its presentation to Adani more closely with the NSW Guidance, part 5.1, what changes would you advise them to make?
Case Study 2
In 2020, law student Katta O’Donnell sued the Australian government for failing to disclose the climate risk associated with government bonds. The action was successful in the sense that the government agreed to publish a disclosure about climate risk on the Treasury website. However, in O’Donnell’s view, the government has not taken take any further action to address those risks. So, in 2024, as a recent graduate, she turned to direct action, joining ‘Blockade Australia’ and attaching herself to a structure over the railway line used by trains taking coal to the Newcastle coal port. She was arrested and sentenced with two convictions, which she is appealing. In an article explaining her actions, O’Donnell says:
I have a law degree. I studied law because I wanted to make a positive difference in the world, but the closer I get to the legal system, the more I understand why my grandfather, who was also a lawyer, used to say ‘there is no justice within the law’ …
… In some ways, moving from legal action to direct action is a big decision, but in others it seems like a natural evolution. The time for indirectness is over. I have come to realise that the current political and legal systems do not have the ability to make the changes necessary. And I have found no space within the legal system to talk about the climate crisis. There is no space to say that I am protesting to make the world a healthier place to stop the harm occurring so that we can create sustainable systems and actually think about a future without dread.’[1]
Having read this chapter, and O’Donnell’s statement, critically reflect on these questions:
- Is Katta O’Donnell right to suggest that there is little or no scope to engage in direct action from within the legal profession/system? Could engaging in direct action or civil disobedience in relation to climate change mean that a person is not ‘fit and proper’ to be a lawyer, and so should be denied admission (or, if already admitted, struck off the roll)? You might want to consider the court’s observations on suitability for admission and political activism in Re B [1981] 2 NSWLR 372.
- In light of Katta O’Donnell’s views, do you consider that Chief Judge Preston’s proposals offer a sufficiently strong blueprint for ‘climate conscious lawyering’? If yes, explain why. If not, what else do you think is required?
- Should individual lawyers be permitted on conscience grounds to refuse to work for (i) new or (ii) established clients on matters which they consider insufficiently mitigate or exacerbate climate harms? Could/would you argue that such refusal is (i) inconsistent with the lawyer’s paramount duties to the law and the administration of justice and/or (ii) an abnegation of professional responsibility to work with clients to reduce climate harms?
- Katta O’Donnell, ‘The Step From Legal Action to Direct Action’ The Saturday Paper (20–26 July, 2024) 11. ↵
An energy source formed in the Earth’s crust from decayed organic material. The common fossil fuels are petroleum, coal, and natural gas.[1]
[1] U.S. Energy Information Administration (EIA), Glossary <https://www.eia.gov/tools/glossary/index.php?id=Fossil%20fuel#:~:text=Fossil%20fuel%3A%20An%20energy%20source,%2C%20coal%2C%20and%20natural%20gas>.
Breaking the law with the aim of persuading the authorities to change the law or government policy; the ‘civility’ of such law-breaking is usually seen as requiring that it be done in public, in good conscience, with a preparedness to be arrested, and without violence.
