Yesterday, the European Court of Human Rights delivered judgment in three climate change cases. In one, the claimants were partially successful; a finding that there had been a violation of Article 8 (right to respect for private and family life) of the ECHR. Legal Twitterati, as they often do, immediately came to the conclusions that the ruling was going too far and not far enough as well as being both obviously correct and obviously incorrect.
It’s the other two cases that I am more interested in today. In one, Duarte Agostinho, a group of young people from Portugal claimed that climate change had been impacting their “lives, well-being, mental health and the peaceful enjoyment of their homes”. Their claims failed, largely because they had not pursued any legal action in the Portuguese courts before going to the ECtHR. In the second, Carême, the applicant was found not to have standing to bring his claim.
My concern is not so much with whether the Court’s reasoning in these two failed cases was correct, but in the conduct of the lawyers bringing those cases. When do we think it is ‘right’ to bring a novel case like this that fails? Are there situations in which we might be concerned – in terms of professional conduct – about these sorts of novel claims being brought?
I’ve been thinking about these sort of questions – that do not have easy answers – for a while, and wrote about them recently in a different climate litigation context:
Think also of those ClientEarth in-house lawyers involved in the purported derivative claim against Shell where Trower J, as he was required to do under the Companies Act 2006, engaged in reflection on whether ClientEarth had brought the claim in ‘good faith’, coming to the view that Client Earth’s ‘motivation in bringing the claim is ulterior to the purpose for which a claim could properly be continued.’ Was this simply a difference of opinion, especially in a legally-novel climate change arena (where we know courts are often initially resistant to change), or a situation in which the claimants were not best using the court’s time and expertise? There is something interesting in professional ethics terms, and worth further thought, about being a lawyer in an environmental NGO whose sole purpose is to advance positive environmental change.
Since I wrote that piece, Client Earth has made public a wealth of materials relating to the Shell claim. I’ve not read those materials yet (but will!), although I do want to say that I the find the disclosure genuinely admirable.
When clients (and lawyers) want to shape or change the law through litigation there will be moments of legal success and moments of legal failure. There may also be (and often are) moments of success and failure outside of the courts that come from such litigation: media engagement, public legal education, winning ‘hearts and minds’ and shaping the narrative, engaging with policy makers, and so on. What’s much less clear is how a story of success for one group (a lawyer brings a claim for a client that results in a wanted and novel outcome) is built upon the foundations of a series of unsuccessful claims and other moments. Each of these wins is likely to be highly fact dependent. Equally, unpacking the narrative of success through connection to moments of failure is likely to be more subjective than objective. Can we really (really) tell that the failure in Case A was critical for the success in Case B? Sometimes maybe, at best?
At the same time, success in Case X for Client Y may be great news for Client Y. But how do all the other clients, whose claims led to failure, feel about this? Might they feel used or left behind? Or maybe they are simply happy the overall goal was reached, even if not in their own litigation? Was the cause offered up in service of their individual interests? And did they consent to this? Maybe they did? Is a client happy that political or social goals are being won (or developed) even if legal goals are not? And what does that mean for lawyers as agents of systems of justice?
It might be different of course if a lawyer says, ‘We think we have a good chance of winning’ and then a judge rules differently. That must happen a lot. Equally, where the lawyer says ‘We are not sure this has much chance of success but we will run the argument if you want us to do so’ and the client wants the case to proceed. We also all have examples of unlikely wins for one group or another.
This might feel like I am writing one of those awful ‘On the on hand… On the other hand’ essays. I guess I am. If I am, it’s because the conduct of lawyers in these sorts of novel cases is hard to unpick; and because there are a whole range of factors which might make us think about whether the outcomes (successful or not) are good or bad outcomes (and for whom and when). These sorts of cases raise interesting issues of what it means to act in a client’s best interests; on how lawyers see their place in systems of justice (that are open to abuse); and of how professional independence and integrity play out in practice. I am left wondering how often the lawyers in these sorts of cases are sitting back and reflecting on these interesting and important issues (and what are they drawing on to do that sort of reflection)? Maybe they do this all the time. I’d be keen to know, and plan to get further into existing studies of ’cause lawyering’ over the coming months.
These reflections, of course, say nothing about and are not directed at the individual lawyers in Carême and Duarte Agostinho. Yesterday’s decisions are simply prompts for a discussion on how high stakes and novel litigation often does not succeed on its first attempt. And that we are seeing broader issues with these sorts of novel cases (like crowd funding and third party litigation funding) that are being added into the mix. Difficult issues worth thinking further about; and where the simple fact of failure cannot be (in and of itself) enough to be concerned.
Lawyer Watch 