The role of law: an emergency service for the 21st century?

Last month, Jeremy Nicholls highlighted how the role of accountancy is so often overlooked in discussions on the climate crisis. Now, solicitor David Hunter applies a similar lens to the legal profession – one that has been ‘slow to acknowledge’ the gravity of climate change, despite having the tools at hand to be part of today's emergency response. What needs to change? And what can law firms and individual lawyers do now to deploy their influence and skills – before it's too late?

David Hunter“Context is all,” as novelist Margaret Atwood reminds us in The Handmaid’s Tale. For us, in 2021, the context is one in which the United Nations has just published Making Peace with Nature, describing the “senseless and suicidal” war on nature that is causing human suffering, enormous economic losses and the “triple emergency” of climate heating, wildlife devastation and pollution accelerating the destruction of life on Earth. The UN report also notes we’re currently on track for a 3°C temperature rise this century.

Meanwhile, American author David Wallace-Wells describes what a mere 2⁰C rise will mean compared to an increase of 1.5⁰C (the aspiration the world agreed upon in Paris in 2015). “It’s expected that 150 million additional people would die from air pollution, that storms and flooding events that used to hit once a century would hit every year, and that many cities in south Asia and the Middle East that are today home to many millions would become so hot during summer that it often wouldn’t be possible to walk around outside without risking death by heatstroke,” he writes.

Pause a moment. Let that sink in.

It is not just more background noise to our busy daily lives. It is an overwhelming imperative to ensure that every decision we take, as governments or regulators, investors or business leaders, communities or individuals, citizens or consumers, and, yes, accountants or lawyers, must be made in the context of asking: does this create unacceptable levels of emissions, or lead to destruction of nature, or material harm to others? If the answer is yes, why are we doing it?

There is a service that lawyers can provide in addressing this emergency. It will, though, require a dramatic cultural shift

As Social Value International co-founder Jeremy Nicholls pointed out in these pages last month, “It has increasingly dawned on those responsible for managing the global economy that the scale of the challenges of climate change and rising inequality is going to need some fundamental changes.” Even if those in power are reluctant to invite ethics into the room when money is present, there are strong financial reasons why they need to be taking these issues seriously. If they do not – as the likes of former Bank of England Governor Mark Carney and Environment Agency CEO Sir James Bevan have warned – there will not be markets for businesses such as insurance to operate in and many assets held by investors will become worthless.

In other words, Extinction Rebellion campaigners are right: we are in an emergency. It is one which affects us all and which we can all contribute to addressing. This applies to lawyers as much as anyone else, although to date we have been slow as a profession to acknowledge this. The biggest firms are wealthier than some nations. They advise clients who are part of that conversation around what the global economy must look like. They have considerable power and influence (which they are not slow to use or to promote when it serves their interests) and have the potential to be significant actors in our collective endeavour to avert the slow-motion apocalypse afflicting the planet and its occupants. There may not be any flashing blue lights or blaring sirens, but there is a service that lawyers can provide in addressing this emergency. It will, though, require a dramatic cultural shift.

Nicholls also identified the importance of measuring the right things, providing the right incentives and the effect rewards and measures of success can have on behaviours. To a significant degree, lawyers are assessed by the number of billable hours they record. This is unsurprising when the profession still largely charges on the basis of hourly fees. It mirrors the problem Nicholls and many others have identified with reliance on gross domestic product as the measure of economic success, in that it is a quantitative indication of busy-ness, with no qualitative assessment of the impact of that work, or reflection of responsibility for it.

Similarly, success between law firms is typically gauged by the profits-per-partner generated. There is a live debate about whether corporations should be exclusively profit-driven, or be required to take their social and environmental impacts into account, or have to identify the purpose for which they exist and be measured against delivery on it. Yet it is as if law firms are exempt from this, there has been so little discussion of its application to the profession.

There is a live debate about whether corporations should be required to take their social and environmental impacts into account... yet it is as if law firms are exempt from this

Nicholls talks of the need for fundamental changes generally. Lawyers leading by example in placing a greater focus on the impact of their work, earning less (compared to today, but still more than most of society), but working fewer hours and having more time for other pleasures in life, could show their clients and society more broadly an appropriate way to approach the scale of change required to address today’s challenges.

 

The relevance of law to emissions

The latest novel by science fiction writer Kim Stanley Robinson, The Ministry of the Future, relates one vision of how the next 30 or 40 years may play out for humanity and the rest of planet Earth. It is a well-researched, well-written, ultimately optimistic stab at predicting how events may unfold. Repeatedly, Robinson comes back to the importance of both the power of laws to influence behaviours and the rule of law to provide some justice for those who play by the rules. He acknowledges that making and enforcing laws can be painstaking work, and that the output can be fragile:

“The world runs by laws and treaties, or so it seems; so one can hope; the granite of the careening world, held in gossamer nets. And if one were to argue that the world actually runs by way of guns in your face, as Mao so trenchantly pointed out, still, the guns often get aimed by way of laws and treaties. If you give up on words, you end up in a world of gangsters and thieves and naked force, hauled into the street at night, to be clubbed or shot or jailed.”

Most lawyers may argue they don’t write the laws – although there are a disproportionate number of lawyers in the UK Parliament and many more influencing them from the shadows. The Law Society, which represents the profession in the UK, could do more to convene and harness the expertise among its members to develop proposals and could be more vocal in advocating for the sorts of changes necessary to tackle climate change.

Lawyers often advise their clients based on what they think the client wants to hear

Lawyers are listened to. I have lost count of the times I have heard people say they have received advice from their lawyer and cannot or will not deviate from it. Lawyers, for their part, often advise their clients based on what they think the client wants to hear, or what they assume is consistent with their interests or motivation, or what is most economical to provide. So it is that self-perpetuating practices can develop whereby lawyers assume a client wants to adopt the conventional position and that is what they provide. This is how, each time it happens, the perception that a director’s duty is to maximise profits, or a pension trustee’s role is to optimise financial returns is absolutely the law solidifies a little more. The options – and, increasingly, the need – to consider impacts on other stakeholders and the longer-term ramifications of the corporate or investment decisions being taken, for the future of the company or the long-term wellbeing of the pensioner, are not contemplated, never mind discussed.

This has, in no small part, led us to the context we find ourselves in, and is just one area where change would be welcome.

 

 

Systemic change and law

In her seminal work, Thinking in Systems, environmental scientist Donella Meadows identified levers for change with different capacities for impact. Those leverage points with the greatest potential for impact are ones which the law can play a material role in influencing. Rules, goals, how to self-organise and shifts in mindset can all make a massive difference – both in terms of how law and lawyers can influence society and how these issues may change legal practice itself: one of many examples of interdependence underpinning, well, pretty much everything, although often hitherto ignored.

Just some of the big picture issues that lawyers could engage with proactively in the coming months and years include:

The evolution of the concept of a duty of care

There are three requirements for a duty of care to be established: a reasonably foreseeable claimant, proximity and that it is fair, just and reasonable for a claim to exist. When David Wallace-Wells tells us that, “simply running the cars and furnaces and fossil-fuel infrastructure that already exists to its expected retirement date would push the world past 1.5 degrees — without a single new gasoline SUV hitting the road, or a single new oil-heated home being built, or a single new coal plant opened,” it is reasonably foreseeable that any activities which are sure to increase carbon emissions beyond what we are already committed to are going to cause harm. What comprises proximity and what is fair, just and reasonable in such circumstances feels ripe for re-evaluation.

The evolution of the concept of fiduciary duty

Similarly, how we interpret the proper discharge of fiduciary duty is open to reappraisal. A fiduciary relationship arises where two parties agree that one shall act on behalf of the other. Directors of companies, trustees of pension funds and advisors (including lawyers) representing clients all exercise a fiduciary duty. Whereas this has traditionally been perceived, in many cases, in terms of a singular function to further their financial interests, it is becoming increasingly nuanced. It is not just that other factors may need to be taken into account (such as impacts on other stakeholders, or negative external impacts of the decisions being taken by the fiduciary) but that these in turn, given the interconnectedness of the world in which we live, have both a financial and non-financial impact, over time, for the beneficiary of the fiduciary relationship which must also be taken into account. The fact it often has not, so far, does not mean it should not in the future.

The question of legal standing

This is also relevant to the question of proximity mentioned above. Claims can only be brought in law by those that have legal standing to bring them – that is, sufficient connection to the matter in hand to merit engaging the judicial system to resolve it. While there may be circumstances in which it is appropriate to restrict standing to avoid the volume of potential claims becoming unmanageable, there is growing recognition that it may be appropriate to allow the interests of the natural world and of future generations, for instance, to be represented where those interests are clearly being disregarded and drastically harmed by decisions taken today. There are various mechanisms available which may enable some levels of standing to be recognised without a free-for-all and in terms both of natural justice and practical constraints on current actors, developments in this aspect of the law may be timely.

These are big questions which will need to be worked through at a national level to achieve meaningful change and relatively few lawyers may feel they are likely to have significant involvement in that process (although many may be able to express views and respond to consultations). There are, however, several other levels at which they may more directly engage in related issues.

 

Things law firms can do

There is no excuse for law firms not to be net zero now. Rigorous carbon offsetting can achieve this and should be a given. More than this, law firms should be committing to reducing their actual emissions as far as practicable, including addressing their Scope 3 emissions (these are indirect emissions from things an organisation does not own or directly control but which relate to its business activities, such as its supply chain, employees’ commute to work, business travel, waste and water).

There are many direct benefits to businesses in doing the right thing in this regard. Reducing energy and resource usage delivers cost savings; introducing policies around the type of travel, and catering and energy used can deliver positive benefits in emissions terms. They can also contribute to meeting the changing expectations of clients and colleagues and positively influencing their own supply chains.

We are increasingly seeing both public sector and commercial clients asking more of their suppliers (including lawyers), who contribute to their Scope 3 emissions, with the prospect of value chains becoming virtuous circles.  

Law firms can support colleagues who wish to learn and do more on this agenda. They can help them use their technical skills to positive effect (see below) and leverage their networks to change what is perceived to be standard and best practice in this changing field. Again, this is not unique to lawyers and law firms but something any business can be doing, including demanding this of their legal and other advisors.

 

Things individual lawyers can do 

While changes in day-to-day practice within law firms are still limited, there are lots of initiatives offering interested lawyers opportunities to engage with this agenda, including:

  • Projects seeking support to promote particular reforms, such as the CEE Bill Alliance advocating for legislation to ensure the UK delivers on its Paris Agreement commitments; the Better Business Act proposing company law reform and the Stop Ecocide campaign proposing the introduction of ecocide as an international crime;
  • Projects creating opportunities for direct application of legal skills, such as the Chancery Lane Project crowdsourcing climate-friendly drafting to be made available for all, Lawyers for the Future which is looking to create a space for lawyers to align their skills and their values, and Esela, a global network of lawyers committed to positive impact;
  • Non-profit legal practices such as Client Earth, Good Law Project and the Environmental Law Foundation dedicated to addressing particular shortcomings in governmental and corporate practice; and
  • Opportunities to engage through The Law Society, whether at national or local levels, to leverage influence within and without the profession.

 

Less recording of time, more making a positive difference

Many will be familiar with the Edmund Burke quote, “All that is necessary for evil to succeed is that good men do nothing”, or Hannah Arendt’s perspective on this, that “The sad truth is that most evil is done by people who never make up their minds to be good or evil”. Dan Gretton has recently demonstrated in his book, I You We Them, the seemingly innocuous steps by which this can arise, identifying the likes of incrementalism; normalisation; the language used; ‘abstractifying’ victims; distancing; compartmentalism; workaholism (the ‘narcissism of frenzy’); prioritisation of abstract systems over human beings; and wilful ignorance. While these are by no means unique to lawyers, many of us will feel a chill of recognition reading this list and will hopefully feel a sense of resolve to ensure we do not allow these tendencies to blind us to the context of our daily work over the coming months and years.

We cannot pretend not to know the murderous consequences of emissions exceeding the 1.5⁰C threshold, as outlined by Wallace-Wells. We need to act on this knowledge if we wish to stay on the right side of history and avert the worst of what may await our descendants, rather than exacerbating it – passively or otherwise.

  • David Hunter is a solicitor with Bates Wells and writes in a personal capacity. More examples of what law firms can do (and already are doing) can be found in the Bates Wells annual report.

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