I have just sent off the written paper of my 2022 inaugural lecture – ‘The Unethical Environmental Lawyer’ – to the publishers of Current Legal Problems. With a new title – ‘Existential Ethics: Thinking Hard About Lawyer Responsibility for Clients’ Environmental Harms’ – it should be available online over the summer to read.
One of the challenges in writing a paper like this is sticking to the brief in terms of length. One early draft had over 40,000 words, when I needed it to be no more than 15,000. And so lots of things got cut. In the paper, I look in one section at the SRA’s Principles and ask what they might mean in the context of the solicitors and firms who help their clients bring about (legally permitted) environmental harms. I had wanted to say something about the Principles on trust in the profession and on equality, but in the end chopped them from the final draft. So I thought I would publish this blog with the early draft sections on those Principles instead, and with a bit of introductory framing about how the Principles work.
The SRA’s Principles
When it comes to legal ethics written down in England & Wales for solicitors, the Solicitors Regulation Authority (SRA) takes a three-pronged approach to standard setting: (1) it sets out high-level ‘Principles’; (2) it gives a series of detailed, topic specific rules on conduct; and (3) it promulgates a statement on the competence of qualified solicitors (which includes, among other things, ethical competence). The regulator also produces guidance on key issues.
The starting point of the Principles is in the Legal Services Act 2007 and they are then given life in the SRA’s STaRs (its ‘Standards and Regulations’), which are in turn based on previous professional codes of conduct. The SRA says that its Principles, ‘comprise the fundamental tenets of ethical behaviour that we expect all those that we regulate to uphold’. Or, as the Chair of the SRA Board put it in 2007, the Principles ‘set out what should be at the heart of what it means to be a solicitor’.
One of the many things that is striking about the Principles is that they apply to everything a solicitor does. They are pervasive and mandatory. They are also not ranked. The current Principles say that solicitors should act:
- in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice.
- in a way that upholds public trust and confidence in the solicitors‘ profession and in legal services provided by authorised persons.
- with independence.
- with honesty.
- with integrity.
- in a way that encourages equality, diversity and inclusion.
- in the best interests of each client.
Let’s think about Principles 2 and 6 in the context of environmental harms.
Public Trust and Confidence
Q: What’s the difference between a lawyer and a vampire?
A: A vampire only sucks blood at night
Only 59% of the public expects lawyers to tell the truth. This is better than for politicians (19%) but worse than for professors (81%) or nurses (94%). What does this mean, in the context of climate and other environmental harms, where the regulator of solicitors puts a positive obligation on solicitors to act in a way that upholds public trust and confidence in the solicitors’ profession? Might we imagine an argument which runs along the lines that, ‘The public has lost trust and confidence in the profession because of the environmental harms the profession has brought about, even though those harms are legal’? Does the public expect better in how the solicitor’s branch of the profession chooses to deploy its expertise?
What might shore up such an argument is: (a) solicitors have complete agency over their choice of clients, and choosing clients is just that: exercising a choice (in these situations) to help clients (legally) harm the environment; (b) ongoing lawyer activity in relation to environmental and climate harms (especially in lawyers helping with new fossil fuel plants, new oil and gas licensing rounds etc); and (c) increasing concern by the public about environmental harms. Government data from November 2021 shows that three-quarters of UK adults are worried about climate change and two-thirds feel “negative” about the future of the environment. This is not a view confined to the left of politics, with polling by the Conservative Environment Network showing that three-quarters of Conservative ‘red wall’ voters are similarly concerned. What we might also draw on is increasing public scrutiny of ‘the legal profession’: claims that lawyers are professional enablers of various forms of harm (including, but not limited to, climate change).
Despite this, what would be hard to prove, I think, is any sort of shared public sense about the function of lawyering and the place of lawyers in society (both generally and in relation to the environment); which would in turn help found a claim that trust had been lost in the profession. This is a perennial challenge when, in regulatory situations, we are asked to reflect on ‘the public’ and what they think, what interests they have, and so on.
At the same time, reflect on how many lawyer jokes you know. Does this – plus the data noted above on trust in the profession – suggest that the starting point for how ‘the public’ feels about the profession is already pretty low (and so not much is really required to uphold a baseline that is not very high)? An added gloss is that while ‘the public’ is very concerned about climate change and environmental harms, they are also concerned about lots of other things too. YouGov’s tracker shows, as of 1 May 2023, the public putting the environment behind the economy, health, and immigration as the most important issue facing the country.
Equality, Diversity, and Inclusion
As set out above, the SRA’s Principles require solicitors to act ‘in a way that encourages equality, diversity and inclusion.’ This is of interest given we know (really, really well) how environmental harms – here and there; now and then – consistently and repeatedly negatively impact on some groups more than others: think about climate justice and the global North/Global South divide; think about air pollution and the impacts on BAME communities in London; think about ‘Cancer Alley’ and how certain groups (primarily Black communities) in the US deep South have been repeatedly treated, and so on.
Imagine a client comes to a lawyer based in England & Wales and asks for their help with the permitting of new coal-fired powered plants in a country where such development is legal and encouraged. Given the lawyer knows, or should know, about how climate harms globally impact women and people of colour much worse than other groups (plus the inter-generational impacts on young people, and the impacts on those with a disability etc etc), are they encouraging equality, diversity, and inclusion when they give life to their client’s instructions?
While this might seem somewhat of a stretch (given the principle was initially designed to help improve the EDI profile of the profession), and while there are often complex trade offs in and nuances to these sorts of issues, work by the Sabin Centre for Climate Change makes plain how human rights-based climate litigation is on the rise, including a large number of cases across the world brought by young people, women, and indigenous groups who claim they are being, and will be, particularly impacted. Here, it is important for lawyers to remember that the climate crisis is a human rights crisis, not just an issue of emissions.
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