It is becoming increasingly difficult to practice law without some knowledge of climate change as well as the law related to climate change. Irma Russell, Matt Bogoshian, and I recently published an article making the case that climate competence is required for competent lawyering.
My purposes here are 1) to briefly explain the article, 2) show how lawyers are increasingly scrutinized for their work related to climate change, and 3) suggest that bar associations at all levels host conversations about what climate-competent lawyering means for their members.
Our article first describes the lawyer’s duty of competence, set forth in Model Rule 1.1 of the ABA Model Rules of Professional Conduct and every state’s rules of conduct. While the rule does not change, its meaning evolves as the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation” evolve.
Not so long ago, climate change was mostly of interest to attorneys who practice environmental and energy law. Now it affects nearly every area of law practice: business and corporate law; real estate law; insurance law, tort law, contract law, property law, and immigration law. The list could go on and on.
Using numerous examples from current law practice, we suggest that a lawyer should:
- understand enough about the changes in climate-related physical risks facing his or her client’s activities to advise the client about those risks and how the client can mitigate or adapt to them.
- anticipate that climate change risks will alter the way existing laws and regulations apply (e.g., force majeure, negligence), and advise the client about how to mitigate and adapt to these risks.
- consider the risk that counterparties to transactions may change their customary ways of doing business with one’s client as those counterparties adapt to risks of climate change (e.g., property insurers in coastal areas vulnerable to climate change), and advise the client about how to mitigate or adapt to these risks.
- understand what a just and equitable transition to decarbonization means for his or her clients, and advise the client about the risks and opportunities that entails.
This suggested set of principles is part of a conversation that is already well underway, as lawyers and law firms are increasingly scrutinized for the climate impacts of their legal work. In the U.S., Law Students for Climate Accountability publishes an annual scorecard that assigns a letter grade to each of the Vault 100 law firms based on “how much fossil fuels work they have engaged in over a five-year period.”
In the United Kingdom, the Law Society of England and Wales has published guidance for solicitors on advising clients concerning climate change. The guidance covers the duty of care solicitors may have in advising on climate risks, “advised emissions” (emissions associated with matters on which solicitors advise), the ethical implications when advising a client in the context of climate change, and greenwashing implications for law firms.
Other nongovernmental organizations, including UN Race to Zero and the Net Zero Lawyers Alliance, have put forth even more ambitious proposals for aligning legal advice with the Paris Agreement goal of limiting warming to 1.5º C. All this is why lawyers need to discuss amongst themselves what climate-competent lawyering means.
That conversation began earlier this year. David Mandelbaum, a partner at Greenberg Traurig in Philadelphia, organized an excellent one-hour panel discussion at the state’s annual environmental law conference about our article, and prepared a thoughtful commentary on what our article means for environmental lawyers.
Although leadership is not part of the lawyer’s duty of competence, our article argues that lawyers need to play a leadership role in addressing climate change. Whatever else leadership entails, we need more conversations like this one.
