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New guidance on legal consideration arising from climate change for solicitors and law firms

New guidance on legal consideration arising from climate change for solicitors and law firms

 

The Law Society of England and Wales (TLS) published its  Guidance on the Impact of Climate Change on Solicitors on 19th April 2023. This guidance is a milestone for law associations in the UK and internationally as it is the first of its kind. It provides guidance on solicitors regulatory and legislative responsibilities in the context of climate change. The guidance was approved by the Solicitors Regulatory Authority (SRA).

 

The guidance applies to all solicitors in England and Wales, and is relevant to almost every practice area of law to varying degrees. The guidance specifically addresses in-house solicitors who are advised to be proactive in raising questions about the sustainability of business models and alignment to any climate pledges made by their organisations.

 

The guidance covers solicitors and law firms responsibilities separately.

 

Guidance for law firms

 

Part A of the guidance covers law firms operational considerations for carbon reductions, including science based target setting and advised emissions and will predominantly be of interest to managing and senior partners, as well as risk and compliance teams within firms.

 

It also covers greenwashing and the risk of overstating practices, policies and competences in relation to ESG, climate, sustainability and environmental matters, for example, on firms’ websites and in marketing, pitch and other materials.

 

Firms are also advised not to mischaracterise or overstate climate targets, or progress made against them, in the context of regulatory responsibilities (CMA’s Green Claims Code and/or SRA’s Standards and Regulations) For example, overstating practices, policies and competences in relation to ESG, climate, sustainability and environmental matters, for example, on firms’ websites and in marketing, pitch and other materials.

 

Solicitors' duties

Part B covers how climate change is creating climate related legal risks that should form part of a solicitors advice in certain circumstances. It links this to solicitors duties (common law and the SRA Code of Conduct) when advising clients in the context of climate change.

 

  1. a duty of care to exercise reasonable care and skill in the provision of legal advice and uphold competency requirements which can include climate related legal risks; and

 

  1. a duty to warn and disclose climate legal risks to clients. The extent of this duty depends on the character and experience of the client and the law firm’s expertise; and

 

  1. Considerations for a solicitors retainer and whether it is feasible to carve out advice on climate related risks.

   

The guidance also covers solicitors Principles under the SRA Code of Conduct in the context of climate change including the duties to uphold service and competence levels, maintain public trust and confidence and to act with integrity.

 

Next Steps

 

The guidance flags that sector specific guidance will be published covering certain practice areas in due course to provide further detail on how to discharge these duties.

 

The Law Society will also be running training sessions on the guidance which members can sign up to here: Introduction to Guidance on the Impact of Climate Change on Solicitors (Wednesday 14 June 2023) | Law Society LMS

 

The Law Society will also be providing guidance for small/medium sized law firms on how to set and implement robust net zero strategies in line with existing standards. 

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