By Professor Steven Vaughan, Professor of Law and Professional Ethics at UCL Laws
Lawyers are everywhere when it comes to climate change, whether they realise or not. They lubricate, lobby, legislate, and litigate. They make things happen (the buying and selling of fossil-fuel fired plants; the raising of finance for an energy-to-waste facility; and so on). They seek, in both the private and public sectors, to shape and negotiate future climate laws on their clients’ behalf. They engage in the drafting of climate laws, and also advance and agree legal meanings in relation to climate change in contracts and other non-legislative fora. They advise on how changing regulatory environments may impact on, and provide opportunities for, clients’ businesses and interests. They take part in the adjudication and arbitration of climate change disputes. In each of these ways, lawyers are acting for their clients and are also professionals with a commitment to the public interest and the rule of law, even if existing studies repeatedly show they focus more on the former and less on the latter. As Allan Hutchinson has argued,
What counts as the public interest and how it is translated into the more prosaic routines of practising lawyers will determine by and large the ethical reputation and worth of lawyers. Although there are different views about the nature of this public interest, there is a relatively clear and shared norm that underwrites the work and privileged position of lawyers in most societies – it is a commitment to the Rule of Law.
However, what constitutes a professional commitment to the rule of law opens space for more competing views. As Andy Boon has written, ‘It is highly debatable what falls within the scope of such an obligation [on lawyers to support and defend the rule of law].’ The legal services regulators in England & Wales, who include positive obligations as to the rule of law in their regulatory codes and handbooks, do not spell out what it actually means for lawyers to support, uphold, and defend the rule of law. Some norm-explanatory work has begun by the SRA (in relation to the conduct of litigation and on the use of NDAs) but much more is needed. Examining the implications of the rule of law matters for practising lawyers who need answers which give some practical content and guidance as to the way in which they are supposed to act.
Surprisingly little academic literature has been written specifically about lawyers and the rule of law (there is much more, for example, on judges and the rule of law and on lawyers and the administration of justice). I say surprising because, as Marc Galanter has put it, ‘lawyers are, after all, an incarnation of the law, its products and its agents’. In the academic accounts that do speak directly to lawyers and the rule of law, much of the focus is on independence, in the sense of lawyers protecting clients from unwarranted interference by the state. This reflects a certain liberal, ‘market’ conception of the rule of law (rule of law, rather than rule by law). But the idea of professional independence also works in the other direction, in lawyers saying to their clients ‘Thus far shall you go and no further’, acknowledging the potential scope and limiting function of the rule of law in an interconnected, highly-regulated world. This dualism highlights that lawyers can take on various, and quite contradictory, roles when it comes to the rule of law. As Bob Gordon reminds us, lawyers can either be ‘instruments of enhancing autocratic rule and extending the state’s authority, by lending it legitimacy and helping it secure the co-operation it needs’ or they can ‘serve as centres of resistance to novel impositions of authority’.
This finely balanced normative context for legal professionals raises important issues about how professional independence manifests in the context of climate change. As Emma Oakley and I have argued elsewhere, professional independence is thought to ensure that professionals exercise their professional judgement in individual cases in line with communal standards of competence and ethicality, and in a detached fashion. At least in theory, professionals and their specialist knowledge can simultaneously serve the wider public interest, as well as that of their clients. However, lawyers’ professional independence will likely look different depending on whether one adopts a thicker or thinner conception of the rule of law. In particular, questions arise about how much the focus should be for lawyers on the procedural aspects of the rule of law and how much they should be reflecting on, and then seeking to deliver, the values which might underpin the rule of law. It would be too easy to say that a thinner understanding of the rule of law sees lawyers do all that they can to advise on and enact the law as drafted; to give effect to rule of law ideas of legal certainty and legality. This is one thing when the law is settled and clear, but much less when, as is common, there is scope for interpretation and the exercise of discretion by a lawyer; or where the law is frequently changing, as it is in relation to climate change. The same is true in the situation where we do not (yet) have law on a particular topic and instead have soft norms or international laws not translated into local commitments. As Brian Preston puts these issues together in the context of climate change, ‘The rule of law values stability, certainty and predictability in the law. Yet, climate change law is evolving, uncertain and unpredictable.’
Reconciling this tension for professional lawyers requires some conceptual framing of the rule of law. As indicated above, lawyers upholding and defending the rule of law can protect or confront clients in relation to wider legal obligations. Let me give three illustrative examples of how this tension might manifest in practice.
Imagine first an in-house lawyer working for a future UK government. The government seeks that lawyer’s input to a series of legislative reforms the government intends to table, each of which will have the effect of increasing the UK’s contribution to climate change and which seek to undermine the Climate Change Act 2008. These reforms are tabled without the UK withdrawing from its international law commitments following the Paris Agreement.
Imagine next a litigation lawyer working for a large law firm. Their client is a fossil-fuel company currently being sued by an NGO in relation to the client’s current and historic greenhouse gas emissions. The client has instructed their lawyer to do ‘everything possible’ to put barriers in the way of the litigation: obstruction, confusion, costs and standing challenges and so on. The government has tweeted that the NGO’s litigators are “activist lawyers” seeking to undermine the legal operations of the fossil fuel company.
Finally, imagine a climate emissions trading regime established under the Paris Agreement. A lawyer realises that it would be possible to claim credits under that regime for an activity where it would be far, far cheaper to instead simply give the relevant emitters money to install the equipment needed to remove the particular greenhouse gas. A similar approach seen under the Kyoto Protocol’s CDM regime had been described as an ‘easy money’ loophole and ‘a major distortion of the market’. That lawyer’s firm prides itself on being entrepreneurial and offering its clients market-leading advice.
In each of these situations, what should the lawyers do? Or, put differently, what would lawyers bound and committed to supporting and upholding the rule of law do in these situations? What those possible or preferred actions might constitute will depend on what we, and the relevant lawyers, think the rule of law comprises and requires. And those actions which we think are more consistent with the rule of law may, in turn, confirm, confront, or contest the other obligations (in contract, tort, and via professional regulation) those lawyers have. As Richard Moorhead, Cristina Godinho and I have shown, professional independence is complicated, nuanced, and sometimes compromised, in practice. This is a complex normative space; and one deserving of further debate.
My thanks to Richard Moorhead and Weronika Chrzanowska for comments on an earlier draft.
This blog first appeared as part of a blog series created by the UCL Centre for Law and Environment. These blogs pave the way to a major international conference on climate change and the rule of law organised by UCL on 31 March – 1 April 2022. The conference includes a dedicated session on Climate Change, Rule of Law, Rule of Lawyers. The conference is free to attend and will be online as well as in person. You can see the full programme and sign up here.