Bar Association Resolution Calls for ‘Climate-Conscious Lawyering’
The Canadian Bar Association is expected to vote on a climate leadership resolution at its annual meeting later today. In this guest post, an excerpt from a longer analysis for Lawyers for Climate Justice, Canadian environmental law pioneer David Estrin talks about what’s at stake.
The climate crisis and its increasing impacts have altered expectations, raising the bar as to who is a competent and careful lawyer. Just as lawyers play a role in upholding human rights throughout their practices, the profession must now recognize the reality of climate change.
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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-centred approach in their daily legal practice.
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”. The 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’ important role in addressing the climate crisis and its consequences.
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 notes “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.”
So there can be no doubt that an ordinarily competent, 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 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 projects which could result in new GHG emissions, or in simply maintaining current emission levels.
All of this means that a lawyer’s failure to provide relevant advice on the implication and impacts of climate change to the standard expected of a reasonably competent lawyer may not only be professional misconduct, but may also amount to professional negligence. That’s because, as succinctly stated in 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.”
The commentary to these Principles is even clearer. “Attorneys are under an obligation to deliver proper advice,” it states. “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.”
Competent lawyers need to advise clients of the potential risks, liability, and reputational damage arising from activity or inaction that 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 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.
Climate-conscious lawyers will recognize and counsel clients whose businesses activities significantly contribute to climate change, such as major carbon extractors, producers, emitters, and transporters. While those clients might have or expect to obtain legal licences for such activities, they may lack a social licence. Recent cases show that they, as well as project lenders or other funders, are increasingly exposed to significant business risk by facets of society seeking to protest against and interfere with the business and its activities.
Climate-conscious lawyers will also 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.
The full text of this post elaborates on six ways in which lawyers can integrate ethical thinking and ethical action in their day-to-day practice on this issue.
The arguments for the CBA’s proposed Climate Leadership Resolution are compelling.
As former Supreme Court Chief Justice Beverly McLachlin writes, “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 other reasons for the CBA to support the Climate Leadership Resolution:
• It’s clearly in our clients’ interests that we be climate-conscious to counsel them as to the impact climate change could have on their family and business affairs. Our timely advice can enable them to make more informed decisions, not only in their own interests, but also for their families, 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 the need to become climate-conscious. The resolution may also encourage lawyers to help in other ways on this existential issue.
And finally, when the resolution is passed, Canadian lawyers may take comfort in seeing their profession join with others in recognizing the need for all segments of society to take steps to turn down the heat and avoid climate chaos.
David Estrin is a Certified Environmental Law Specialist, Co-Chair of the International Bar Association Task Force on Climate Change Justice and Human Rights and Co-Director of the University of Windsor’s Climate Litigation and Policy Clinical Program. This post is excerpted from Estrin’s adaptation of Climate Conscious Lawyering, a 2021 publication by Justice Brian J. Preston, Chief Judge of the Land and Environment Court in New South Wales, Australia.