Publication date: February 27, 2023
On Monday, February 27, 2023 our law firm had the pleasure to take active part in the webinar devoted to Climate change and how it affects legal practices, organized by the European Lawyers Foundation. The experts that formed the roundtable were Dominique Attias from the ELF, Jean-Marc Gollier from CCBE, Vesselina Haralampieva from the European Bank of Reconstruction and Development, Tiffanie Chan from the Grantham Research Institute on Climate Change and the Environment; and Jonathan Goldsmith from ELF.
The webinar was focused on how climate change affects lawyers’ work and how lawyers should have to face legal situation when the climate could be negatively affected. At the beginning of the session there was made the introduction to the impact of climate change. As we know, the industrial revolution brought an exponential increase in production and consumption of goods. In addition, it produced the secondary effect of increasing greenhouses gases and, in consequence of that, incentivized climate change to a warmer weather. To fight these effects, International Organizations and Countries around the world have agreed to reduce the emissions of greenhouse gases and other types of activities. They have signed multiple agreements, like the Sustainable Development Goals or the Paris Agreement.
However, it looks like either the agreements aren’t very ambitious or the countries and the companies aren’t doing their part or maybe, and most probably – both. The data shows us that the emissions of greenhouse gases are being increasing over the last decades, only suffering decreasing on times of crisis like in 2008 or the Covid Pandemic. At this rate, objectives will not be achieved and the consequences will be hardly remediable or impossible to. For this reason, the experts consider, and think that is happening now, that a transformational shift must be done in capital, business and society. This change must be boosted not only by voluntary willingness but also by mandatory actions and regulations. For example, some legal professionals organisations urge lawyers to take a climate conscious approach to problems encountered in daily legal practice and also research for ways to make our profession more climate responsible.
At this point there arose the ethical questions about our practice. How ethical it is for a lawyer to help his client to climate-laundering his data and company? There are a few examples, like the case of Volkswagen and the emissions of their diesel cars a couple years ago. A great debate about so-called “professional enablement” must be made. This issue has already reached the public authorities and legislator in other legal sectors such as the tax avoidance and SLAPPs (Commission Recommendation (EU) 2022/758 of 27 April 2022).
So, if clients’ interests conflict with the public interest, what are lawyers to do? In general, lawyers’ duty does not interfere with public interest, but there are parts of lawyers’ professional obligations which overlap with parts of the public interest. The expert highlighted CCBE Charter of Core Principles of the European Legal Profession: “the role of the lawyer as acting as a participant in the fair administration of justice. A lawyer must never knowingly give false or misleading information to the court or lie to third parties. These prohibitions frequently run counter to the immediate interest of the client and the interest of justice presents delicate problems that the lawyer is professionally trained to solve. The lawyer is entitled to look to his or her bar association for assistance with such problems. But in the last analysis the lawyer can only successfully represent his or her client if the lawyer can be relied on by the courts and by third parties as a trusted intermediary and as a participant in the fair administration of justice”. The question is not simple.
Some law firms and young lawyers have decided to move away from matters that present climate risk, to the point of deciding whether to take on such clients at all, or they start saying the they do not want to work on files in which client actions will damage the climate. It is a complex debate that just started no so far ago. It needs to be discussed in all ways to get to know the right choices to make. Perhaps there may be necessary to implement a deontological codex or code of ethics in the matter.
With the increasing importance and regulation of climate protection, there has consequently been an increase in the number of climate protection disputes. Although the concept of climate litigation has not yet been clarified by the doctrine on what to include and what not to include in this category, one can be sure that the number of cases is growing. The data shows three stages in climate litigation with a great increase in number of lawsuits since the Paris Agreement. They are mainly divided from the 1980s to 2007, from 2007 to 2015, and from 2015 onwards. These stages are not watertight compartments. A society can move from one to the other. In the first stage there are administrative challenges to process, for example, Massachusetts v. Environmental Protection Agency (2003). In the second, public concern grows, new regulations lead to increased litigation over their application, like Cemex Polska sp. z.o.o. v. Commission of the European Communities (2008). In the third stage there is strategic litigation on climate change: inaction by governments and business, a shift towards litigation focused on climate rights, for example, Urgenda Foundation v. State of the Netherlands (2013).
It should be noted that such litigation is not always brought by groups, states or lobbies with the intention of protecting the environment. There is also a growing number of cases of companies or groups trying to hinder or delay the transition process for their own benefit, even if this is to the detriment of the environment and therefore fails to achieve agreed climate goals.
In conclusion, the climate change matter is one of the major issues that are going to run our course of action in the near future. The European Union and its member states are working hard to make the necessary legislative reforms to combat it and to bring about a clean transition to a green society and green industries on the European continent. Companies will have to adapt to these changes either voluntarily or mandatorily if they want to continue to operate in the old continent. This will require a wide range of legal services in order to adapt to the changes in a way that is appropriate to a changing and greener environment.
The ethical dilemma remains to be resolved, from our law firm we hope that this important debate will continue to develop so that we can carry out our work in the best possible way and be able to provide our clients with ethical work when resolving their issues.