Ethical lawyering in the Anthropocene

ABSTRACT

Law must evolve to play its part in addressing the anthropogenic threats of climate change and biodiversity loss. Lawyers have a key role to play in assisting that evolution, and the ethics that govern lawyers’ work will play a large part in determining its success. This article explains how four core approaches to legal ethics support lawyers in their work to address climate change and to facilitate more sustainable ways of living.

KEYWORDS:

• Legal profession
• legal ethics
• climate change
• Anthropocene

Introduction

Lawyers take different approaches to their ethical responsibilities. As Christine Parker has theorised, these approaches reflect different perspectives on the role of lawyers in society, on the lawyer-client relationship and on the extent to which lawyers in their daily work prioritise caring for people and relationships.¹ Parker suggests that the different approaches comprise four main categories: moral activism, responsible lawyering, adversarial advocacy and ethic of care. These categories are not exclusionary; a lawyer may adopt one approach in one area of practice and a different approach in another, or a combination of approaches throughout a matter. The categories are archetypes, and as such are a useful analytical and reflective tool, encouraging lawyers to consider the different ways they address, or could address, ethical challenges.

In this article, I suggest that Parker’s archetypes assist us to think through the differing contributions the legal profession and individual lawyers can and must make if we are to address the existential environmental challenges confronting humanity. First, I outline the broad context in which human society and the law now operates: the Anthropocene. I then explain each ethical approach and how it can inform lawyers’ actions on behalf of humanity and the planet. Finally, I consider law reform; all four approaches support efforts at the law reform needed to move humanity to sustainable ways of living.

The Anthropocene and law

We are now in ‘the Anthropocene’, a time in Earth’s four-billion-year history when human activities are affecting the planet to such an extent that humans have become a ‘significant geological force’.² The burning of fossil fuels, deforestation and land use changes have combined to cause dangerous climate change.³ Alongside climate change, humanity faces several other significant threats, including environmental degradation and food insecurity.⁴

These challenges intersect and compound. Climate change leads to more frequent wildfires, longer droughts, and an increase in the number, duration and severity of tropical storms.⁵ This in turn worsens food insecurity and biodiversity loss, which leads to economic downturn: a healthy economy is underpinned by healthy ecosystems.⁶ Economic downturn results in widespread poverty. The UN Special Rapporteur on Extreme Poverty and Human Rights warns that climate change will have devastating consequences for people in poverty.⁷ Climate change will also contribute to serious human rights abuses,⁸ and will threaten the rule of law. While law ideally operates to help keep a society stable, peaceful and ordered, its ‘rule’ is challenged by social breakdown – a likely result of the threats listed above. As Justice Francoise Kunc notes, ‘[i]nadequately mitigated climate change could undo our social order and the rule of law.⁹

These interconnected risks and their solutions pose huge public policy questions, and, since law is ‘the principal means of implementing public policy,’¹⁰ law must evolve to play its part. Lawyers have a key role to play in assisting that evolution, as the International Bar Association recognises:

The legal profession must be prepared to play a leading role in maintaining and strengthening the rule of law and supporting responsible, enlightened governance in an era marked by a climate crisis.¹¹

The ethical approach lawyers take to their work will influence whether and how they play this ‘leading role’. In the next section I discuss the ethical approaches available to lawyers.

Four approaches to lawyering in the Anthropocene

Moral activism

Moral activism calls on lawyers to do good according to their own general ethical/ moral beliefs, with a strong focus on justice, broadly defined. The moral activist approach contemplates that the law and legal system may require reform to be more ‘just’ and that lawyers have a responsibility to work for that reform. Further, and unlike adversarial advocates and lawyers who adopt a responsible lawyering approach (see below), moral activist lawyers hold themselves morally accountable for their actions as lawyers on behalf of clients. Thus, moral activists will both refuse instructions that they consider immoral (even if they are legal) and discuss with clients the moral aspects of a client’s matter, just as they would the legal aspects of the matter.¹² There is a long tradition of moral activism in the legal profession, including both disobedience to laws seen as unjust (Ghandi and Mandela),¹³ and the use of legal and other strategies to promote the goals of social movements.¹⁴

Moral Activism is perhaps the approach most likely to spring to mind when considering lawyers and climate change/biodiversity loss. Moral activists are driven by a concern for justice and there are multiple issues of justice involved in addressing climate change: intergenerational justice, racial justice, gender justice, human rights, other species’ rights and the fact that climate change and environmental degradation disproportionately affect developing nations and poor communities.¹⁵ In light of the ‘business as usual’ approach by many governments and corporations,¹⁶ it is no surprise that some lawyers adopt a moral activist approach to addressing climate change, applying legal pressure in an attempt to impel the evolution of policy and law to fill the gap left by inaction.

One of the most high-profile avenues for moral activist legal work is strategic litigation, which employs existing law in an attempt to raise public consciousness of climate change and to force governments and corporations to take stronger action.¹⁷ Justice Rachel Pepper describes three ‘waves’ of climate litigation, the first wave comprising cases seeking compliance with exiting environmental and planning legislation; the second based on arguments about constitutional or human rights and the third using corporate law to hold corporate players to account for failure to avoid or mitigate the ‘transactional’ risks of climate change.¹⁸ This litigation has traditionally been undertaken by the classic moral activist lawyer/ legal practices, such as environmental NGOs.¹⁹ But some private lawyers are also energised by the moral activist approach. One example is the Australian firm Equity Generation Lawyers.⁠²⁰ Lawyer David Barnden, who established Equity Generation Lawyers in 2019, is inspired by his clients, most of whom are young:

They are incredibly aware, intelligent, articulate and passionate. … It is easy to be despondent about climate change, to feel helpless … But we pride ourselves on offering our clients the chance to make a difference. It is a privilege be able to do this work.²¹

Lawyers in the ‘Global South’ have been active in climate litigation.²² Jolene Lin and Jacqueline Peel describe the legal actor in this litigation as the ‘hero litigator’- that is, a moral activist. The legal actor may be a local or foreign lawyer, who

is passionate about the use of litigation and other legal tools to champion for climate justice. She is a dominant figure who has a high-profile role in relation to the litigation, often raising publicity for the case (and climate litigation more broadly), through press conferences and media appearances. The hero litigator drives the litigation strategy and process.²³

Climate litigation remains a key legal tool to promote greater action on climate change and ‘is increasing and broadening in geographical reach’.²⁴ But litigation involves cost and risk. The Law Council of Australia’s (LCA) Climate Change Policy Statement notes that ‘[l]itigation should not be relied on as the primary tool for resolving emerging gaps, uncertainties and inconsistencies in the law as litigation is an imperfect, costly and time-consuming method of driving a response to climate change.’²⁵ Further, the role of courts is to consider and rule on the particular facts of the case before them, not broad policy questions; courts are ‘followers, not leaders, of broader social movements.’²⁶

Litigation is just one of many tools in the moral activist, ‘movement’ lawyer’s toolbox. Movement lawyers help design campaigns for grassroots social movements, campaigns which use multiple strategies to achieve the movement’s political and social goals.²⁷ Moral activism reminds climate movement lawyers to keep ‘justice’ in mind, so as to ensure that the strategies adopted to address climate change ‘do not amplify the racial, economic, and social inequalities that exist.²⁸ Mary Kelly suggests that

[m]ovement lawyers working for climate justice are not recreating the wheel; they can and should tackle the threat posed by climate change with the resources and techniques that have

evolved through the interconnected movements for environmental, housing, and economic justice.²⁹

Strategic Litigation and movement lawyering aside, moral activism can empower lawyers to organise themselves collectively. While the individual lawyers involved in the following developments may adopt other ethical approaches to perform specific legal work, collectively, lawyers are organising for climate action and climate justice.³⁰ Examples include the World Lawyers Pledge on Climate Action, its signatories promising to ‘initiate, foster, and sustain the change necessary to avert climate catastrophe, and transition our societies and laws towards a sustainable future’.³¹ A group of lawyers in the UK, Lawyers Are Responsible (LAR), ‘aims to align the UK legal system with planetary conditions that are liveable for current and future generations’ and invites lawyers to sign a ‘Declaration of Conscience’ which commits them to withholding their services in respect of: ‘(i) supporting new fossil fuel projects; and (ii) action against climate protesters exercising their democratic right of peaceful protest.’³² This commitment is particularly notable because, while solicitors can choose to not work for any client, barristers in the UK are bound by the ‘cab rank rule’ to work for any client who requests their services. The barristers who have signed this commitment, including several Kings Counsel, consider the demands of the planet (and their conscience) override this professional ethical obligation.³³

A group of US Law students has likewise focussed on the role of lawyers in the fossil fuel economy. Law Students for Climate Accountability (LSCA) works to publicise the complicity of some law firms in the fossil fuel industry, so as to both stimulate discussion of this issue within the profession and inform law graduates about the work in which their prospective employers are engaged.³⁴ To this end, LSCA publishes an annual Climate Score Card which ranks the US top 100 firms ‘according to how much fossil fuels work they have engaged in over a five-year period’.³⁵ LSCA hopes, in the long term, to ‘push firms to move away from the fossil fuel industry and toward a liveable future’.³⁶ This student-led work has expanded to the UK, Canada,³⁷ and Australia.³⁸

These actions by practising lawyers and law students have been controversial. Some lawyers have accused the barristers who have signed LAR’s Declaration of Conscience, of ‘professional vandalism’ for their disregard of the cab rank rule.³⁹ Likewise, some law firms argue that their work for fossil fuel clients is justified because ‘everyone deserves legal representation’.⁴⁰ But the lawyers and law students drawing attention to the central role that the legal profession plays in exacerbating the climate crisis are acting in the tradition of moral activist lawyers and reminding the profession of an inconvenient truth. As former barrister Tim Crosland says in a LAR video projected onto the Royal Courts of Justice in London in March 2023, ‘behind every new oil and gas deal sits a lawyer, and behind that lawyer sits a law firm getting rich on those profits while other people die’.⁴¹

‘Encouraged’ by constituent lawyers concerned about the profession’s role in the climate crisis,⁴² the Law Society of England and Wales (LS) has gone some way to grappling with the challenges arising from fossil fuel legal representation. In April 2023, it issued a Guide which explicitly recognises that ‘[s]olicitors have wide discretion in choosing whether to accept instructions’ and that ‘[c]limate-related issues may be valid considerations in determining whether to act’.⁴³ Considerations include ‘any potential impact on your own organisation’s reputation and any apparent conflict with the client organisation’s stated values and the potential impact on climate change generally.’⁴⁴ The Guide notes that some law firms ‘are placing limitations on the instructions they will accept, citing their own organisation's climate change commitments.’⁴⁵ It also notes that ‘young lawyers and law students increasingly consider the stance taken by firms on climate change when choosing where to work’ and that legal practices should consider whether they will accommodate employees who do not wish to work for certain clients because of climate change concerns.⁴⁶

While some members of the profession view this Guide as ‘woke’, ‘political’ and ‘out of touch’,⁴⁷ climate change is increasingly a business risk for lawyers. As Paul Rogerson, writing in the Law Society Gazette, opines: [s]olicitors and firms need to reappraise how they practise, in order to pre-empt the headaches that may arise from fast-evolving attitudes to climate change in business and wider society. They risk losing good business – and good staff – if they fail’.⁴⁸ Moral activist lawyers are successfully pushing this issue from the fringes to the centre of professional responsibility and business considerations, as I discuss in the next section.

Responsible lawyering

The moral activist approach to lawyering encourages critique of the law, by reference to social justice standards external to the law. In contrast, the primary focus of the responsible lawyer approach is on the lawyer’s role as an officer of the court and guardian of the legal system. This means that, in ‘grey areas’ of legal practice, the responsible lawyer will interpret the law (and ethics rules) in a way that facilitates the effectiveness of the law, based on the law’s internal values and norms. They will not frustrate the substance and spirit of the law by using loopholes or spurious arguments. The responsible lawyer is still an advocate for the client, but they understand their paramount duty as being to the integrity of the legal system. Given that climate change and biodiversity loss threaten that integrity (by threatening the rule of law), the ‘responsible lawyering’ approach has an important role to play in the climate crisis, a role that differs from, but complements, that of the moral activist lawyer. One way responsible lawyers are playing their part is by mastering the aspects of sustainability relevant to their clients’ businesses,⁴⁹ as I discuss in the next section.

Sustainable development and law

In 1987, the UN Report ‘Our Common Future’⁵⁰ placed ‘sustainable development’ on the global political agenda. The Report argued that economic and social development must be ‘sustainable development’, that is, it must meet ‘the needs of the present without compromising the ability of future generations to meet their own needs’.⁵¹ In 2015, the American Bar Association’s (ABA) Task Force on Sustainable Development recognised that ‘[t]he transition to sustainability in both governmental and private sector decision making is inevitable, and will profoundly affect the legal profession’.⁵² Sustainable development principles are increasingly important in, and relevant to, numerous areas of law and legal practice.

US lawyer and scholar John Dernbach has reflected extensively on a ‘sustainable development’ approach to legal practice. Dernbach understands ‘sustainable development’ as a decision-making framework for the promotion of environmental protection, social justice and economic/financial responsibility, with the ultimate goal of promoting human wellbeing in both the present and future.⁵³ The framework can be applied to a wide variety of legal matters, as is borne out by his interviews with 26 US lawyers who bring a sustainable development perspective to their work.⁵⁴ The interviewees worked in a variety of legal fields, ranging from land law, corporate law and finance through to corporate social responsibility and human rights. Their clients ranged from global corporations, banks and developers to governments and NGOs,⁵⁵ and their work involved counselling, litigating, transactions and drafting. The interviewees understood sustainability ‘as a lens for productively addressing all legal problems and for helping clients make better decisions.’⁵⁶ Dernbach notes that the results of the lawyers’ work are sometimes modest, sometimes far-reaching: assisting clients to achieve their sustainability goals, or ‘nudging them to understand how a sustainability perspective can reduce the environmental and social harms they would otherwise create and even create economic, environmental, and social benefits.’⁵⁷

An understanding of sustainable development principles is central to ‘climate conscious lawyering’ as defined by Brian Preston, Chief Judge of the Land and Environment Court in the Australian state of New South Wales.⁵⁸ Preston calls for a ‘climate conscious’ rather than ‘climate blind’ approach to daily legal practice. He encourages lawyers to provide ‘holistic’ legal advice which addresses not just legal issues, but also many non-legal consequences of different courses of action⁵⁹ and to interpret laws and legal rules in a way that ‘promotes or better implements climate change goals,’⁶⁰ where such an interpretation is consistent with established principles of interpretation. Preston argues that these practices are consistent with ‘responsible lawyering’ as defined by Parker, because they ‘uphold and advance the fundamental values and integrity of the legal system, including climate justice’.⁶¹ Preston also calls on lawyers to adopt the following approaches:

1. Moral counselling with clients, including the climate change consequences of the client’s proposed activity.

2. Promoting human rights in business.

3. Encouraging clients to adopt sustainable business models.

4. Encouraging action by government and the judiciary to address the climate crisis.

5. Engaging in intellectual activism, including law reform.

6. Working pro bono or at a reduced fee in climate change matters.⁶²

This list is more reminiscent of moral activist lawyering than responsible lawyering, as defined in this article. But, as noted, Parker’s categories can overlap. Further, and as noted above, behaviour that was once considered moral activist can in time be accepted as mainstream. As law evolves to meet the challenges of climate change, climate conscious lawyering will become more strongly associated with the rule of law and will likely be seen as more akin to ‘responsible lawyering’, reflecting the internal norms and values of the legal system. In 2021, environmental lawyer David Morris compared the increase in climate litigation with the rise of tobacco litigation as the health effects of smoking became more widely known:

Ten years ago, these sorts of [climate] cases seemed wild. People would have thought “how can you possibly have a case like that”… Now, I think it’s going to become increasingly normal.⁶³

Thus, strategic climate litigation, once considered predominantly the domain of moral activist lawyers, might in time be reframed as an activity for responsible lawyering. In fact, this is starting to happen as some governments (served by government lawyers engaging in responsible lawyering)⁶⁴ use strategic litigation to hold fossil fuel companies to account.⁶⁵ And, as discussed below, the incorporation of environmental, social and governance (ESG) factors into corporate regulatory regimes has moved concerns such as human rights into the purview of ‘responsible lawyers’, not just moral activists.⁶⁶

I discuss Preston’s call for lawyers to engage in law reform below, but next I consider his call for lawyers to offer ‘moral counselling’ as part of responsible lawyering, and to encourage the adoption of sustainable business models.

Moral counselling and sustainable business models

The ABA Model Rules explicitly permit lawyers to ‘counsel’ clients on the ‘moral, economic, social and political factors’⁶⁷ that the lawyer believes are relevant to the client’s situation. This type of ‘counselling’ in the context of business exposure to climate and biodiversity risk is increasingly simply an aspect of competent, responsible lawyering.⁶⁸ While climate change and environmental concerns were once considered a niche area of practice, today, lawyers in many areas of practice need to keep up to date with developments in climate-related law (and, I would argue, the social and political context of those developments) in order to give competent advice. The LS’ Guide (discussed above) and the LCA’s Climate Change Policy Statement underline the need for lawyers to be aware of the many impacts climate change is having across multiple practice areas and to understand the context in which to their advice will be applied. While the LCA Statement stops short of endorsing ‘moral counselling’, it impliedly recognises that moral issues relevant to ‘reputation’ can have significant implications for legal advice.⁶⁹ The LS’ Climate Change Resolution has a wider purview, covering education, law firm targets and pro bono work. It urges solicitors, to engage in climate conscious legal practice, ‘always in a way which is compatible with their professional duties and the administration of justice’.⁷⁰

The guidance from these professional bodies makes it very clear that lawyers need to keep climate change and its consequences front of mind, in order to give competent legal advice. This is particularly so in the corporate sphere and especially for inhouse counsel. The LS Guide notes the challenges and opportunities for inhouse counsel advising on climate change and climate risk, and suggests general counsel will likely ‘need to develop a broad understanding of climate risks and climate legal risks to provide holistic advice to the organisation.’⁷¹

Many corporate leaders rate climate change as a top priority for their organisation.⁷² There is increasing pressure from regulators, investors, employees and the public for the corporate sector to take account of sustainability (ESG) concerns, including climate.⁷³ If corporate boards are increasingly required to adopt a broader environmental, social and governance focus, their legal advisors need to be cognisant of those concerns and advise their clients accordingly. This means taking a broader view, both of what is ethically required from responsible lawyers and of what clients’ ‘best interests’ might entail. As Donald Langevoort comments, ‘the corporate social licence … is increasingly difficult to earn and easily put at risk. A good general counsel is a prized commodity in managing that risk’.⁷⁴

There has been pushback against ESG, particularly in the US, where an anti – ESG movement, largely instigated and financed by the fossil fuel industry,⁷⁵ has convinced some Republican State governments to enact legislation which prohibits state retirement funds from considering ESG factors when investing.⁷⁶ Republican State Attorneys-General have also launched ‘anti-trust’ investigations into alliances of companies that have committed to climate goals.⁷⁷ The legal basis of the anti-trust claims is questionable,⁷⁸ but the threat has led several corporations to pull out of such alliances.⁷⁹ As Leah Malone notes:

The surge of anti-ESG measures poses significant legal, operational, reputational, political and financial concerns for funds, asset managers and companies that integrate ESG investment into their policies, procedures and disclosures … Monitoring these measures and understanding the nature of conflicting requirements and associated risk will be essential.⁸⁰

General Counsel will have a key role advising on ‘conflicting requirements and associated risk’ and will need to keep front of mind the increasing requirements across the globe for sustainability reporting by corporations.⁸¹ Writing in the Harvard Business Review, Andrew Winston notes ‘[c]ompanies can’t sit on the sidelines anymore because, well, there are no sidelines … Roughly 70–90% of respondents in the 2023 Edelman Trust Barometer⁸² said they ‘expect CEOs to take a public stand on issues’ such as climate change, discrimination, and the wealth gap’.⁸³ While Winston calls for corporate leaders to develop ‘moral courage’, he also notes that the companies pushing back on anti-ESG laws are often doing so, not from the higher moral ground, but because ESG is good for business.⁸⁴ Likewise, John Dernbach reminds lawyers that ‘the pressures of a changing climate and public recognition of the need to operate more sustainably are not going away; they will almost certainly intensify … Clients who get ahead of the curve are more likely to prosper than those who fall behind.’⁸⁵ Here we see moral activist virtues (moral courage) siting alongside and complementing a more ‘mainstream’ responsible lawyering’s concern for the client’s interests.

Government lawyers

All levels of government are key players in the face of the climate and ecological crises. National governments negotiate international agreements, and legislate to incorporate new standards into national law. Regional governments decide which industries to promote and which wild areas to protect. Local governments zone land for different uses and manage waste. Government lawyers advise on and facilitate all these activities. They negotiate on the international stage and draft legislation to enact policy into law. They advise on compliance, transact with the private sector and prosecute offences.

In liberal democracies, government lawyering is often understood as the archetypal responsible lawyering – government lawyers are required to advise their client to act in accordance with the spirit of the law and not be party to technically permissible government action that undermines the public interest purpose of the law.⁸⁶ This follows from the constitutional requirement that the government (client) act lawfully and in line with the broad public interest. Gino Dal Pont considers that Australian government lawyers ‘have a greater responsibility than their private sector counterparts to foster integrity, for they are custodians of the public trust not only in the legal profession and the administration of justice, but also in the administration of government.’⁸⁷

As the destructive effects of climate change become more apparent across the globe, pressure on governments to take action will continue to build.⁸⁸ Governments alone can change the regulatory environment so as to secure greater environmental protection. Government lawyers will play a key role in ensuring that shifts in government policy are translated into workable laws and rules. Government lawyers will prosecute environmental crimes and litigate to hold fossil fuel interests to account.⁸⁹ They will determine contractual requirements for government work. It is crucial that these lawyers develop an understanding of sustainable development principles and the legal tools necessary to make sustainability a reality. To fulfil their duty to the legal system and their client, they must both act with the integrity expected of responsible lawyers and master the particular aspects of sustainability most relevant to the area in which they work.⁹⁰

Adversarial advocate

Adversarial advocacy is arguably the predominant approach to lawyers’ ethical responsibilities in the common law world. It holds that a lawyer’s responsibility is to further their client’s interests with the maximum zeal permitted by law. The adversarial advocate understands their role in the system as being an agent for the client – doing what the client would do for themselves, if they had legal skill and knowledge. So, while an adversarial advocate will not act on instructions that are illegal – they still owe a paramount duty to the court and the integrity of the legal system – they do not consider it their role to assess the morality of a client’s legal instructions, because the law in a democratic society is understood to reflect morality.⁹¹ Nor do they consider themselves morally accountable for actions they take as the client’s lawyer.

Sometimes lawyers rely on the adversarial advocate approach to justify a ‘win at all costs’ strategy. But defenders of the approach are clear that it does not excuse behaviour that is destructive of the legal system.⁹² In his call for lawyers to be ‘climate conscious’, Brian Preston CJ counsels against such behaviour,⁹³ and I suggest such conduct would be suspect under conventional ethical rules. For instance, in England and Wales, the Solicitors Regulation Authority’s (SRA) Principles require solicitors to act ‘in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice’.⁹⁴ Australian conduct rules make it clear that the lawyer’s paramount duty is to the court and the administration of justice.⁹⁵ Of course, what these principles/rules mean in practice is often contested, but it is important to note that there is an ethical line, even if where we draw it is open to debate.

The context in which the adversarial advocate approach is most easily justified is criminal defence work, where the lawyer’s role is to resolutely assert the accused’s rights in the face of the state’s superior power and resources. Some lawyers will find adversarial advocacy an empowering approach when defending clients charged with offences related to peaceful environmental protests, offences which are increasing in number and severity in several countries.⁹⁶ Several Australian states have legislated anti-protest laws with ‘broad police powers, vague offences and severe penalties’⁹⁷ that, according to Benjamin Richardson, ‘signal the prioritization of business operations over the rights of individuals to peacefully protest’.⁹⁸ Such legislation has been critiqued as in breach of Australia’s obligations under the International Covenant on Civil and Political Rights⁹⁹ and inconsistent with the Constitution’s implied freedom of political communication.¹⁰⁰ In the UK, the Police, Crime, Sentencing and Courts Act (2022) and the Public Order Act 2023 restrict rights to peaceful protest and make prison sentences more likely.¹⁰¹ This legislation has been strongly critiqued by the UN Commissioner for Human Rights.¹⁰² In the US, a wave of recent laws target environmental and social justice protests.¹⁰³

As the impacts of climate change become more apparent, it is likely that civil disobedience in relation to environmental concerns will increase. This means that defendants charged with ‘public order’ offences will require lawyers willing, in the noble tradition of the bar, to zealously advocate on their behalf in the face of increasingly authoritarian laws. Zealous advocates will likely find common ground with moral activist lawyers in challenging the legitimacy of such laws.¹⁰⁴

Ethic of care

The fourth approach identified by Parker is one informed by an ethic of care. This approach focuses on trying to serve the best interests of both clients and others in a way that incorporates the moral, emotional and relational dimensions of a problem into the legal solution. This approach is particularly concerned with preserving or restoring (even reconciling) relationships and avoiding harm. Brian Preston writes that ‘climate conscious lawyers have compassion for people and planet wounded by climate change and are, in their daily legal practice providing advice and taking action to heal these wounds’.¹⁰⁵ He is suggesting that, as well as being ‘responsible lawyers’, climate conscious lawyers are alert to an ethic of care which prioritises relationships between people, and between people and planet.

An ethic of care informs the restorative justice and therapeutic jurisprudence movements, as well as collaborative lawyering and mediation. As noted, litigation is often not the best way to address environmental concerns. Rather, extensive and careful consultation with a community, and negotiation with government and other land/resources users may be the most productive approach. For example, given the importance of relationship to Australian Aboriginal communities (both relationships between people and with ‘Country’), lawyers working with these communities to assist them to ‘care for Country’ would be wise to adopt an ethic of care approach to their work. I note the Australian Environmental Defenders Office’s commitment to its Aboriginal clients: ‘[w]e will use our expertise, professionalism and deep commitment to assist and stand with our Aboriginal clients as they protect and promote their Country, culture and heritage through law.’¹⁰⁶ The verbs ‘assist’ and ‘stand with’ are important. Marianne Endgleman Lado and Kenneth Rumelt’s analysis of the work of lawyers involved in campaigns against fossil fuel pipelines in the US emphasises the importance of lawyers supporting, rather than supplanting, community-led action on environmental issues.¹⁰⁷

Ethic of care lawyering also supports a restorative justice approach to environmental offending on a local scale. Restorative justice involves a conferencing process between the offender, the victim(s) and any other relevant stakeholders (supported by a trained facilitator) with the aim of reaching a mutually acceptable resolution. Haneed Al-Alosi and Mark Hamilton describe its many benefits: it ‘provides a forum for the participants to discuss the offence, its impact, and allow the parties to provide input into formulating ways to remedy the harm caused to the environment.’¹⁰⁸ The process can empower victims and heal broken relationships.

Law reform

Reform of legal ethics rules

As discussed above, the LS Guide has gone some way to addressing the issue of professional responsibility and choice of client in the context of climate change for solicitors in England and Wales. Also in that jurisdiction, the SRA Principles specifically privilege the public interest over client interests when the two principles conflict. However, as Steven Vaughan notes, ‘when it comes to the perfectly legal, properly lawyered environmental harm-causing matters’,¹⁰⁹ the most the Principles require is counselling. No guidance is offered by the SRA (or the LS) if advice against harm is ignored. The situation is similar in Australia.

Some lawyers argue that the profession’s ethical rules should more clearly support lawyers advising existing clients against (any) environmental harm and in favour of a healthy environment. One such lawyer is Tom Lininger, who makes the case that the ABA Model Rules should explicitly require lawyers to promote environmental health. He notes that the ethical codes of other professions, such as doctors and engineers, address the importance of ‘environmental stewardship’ and that lawyers’ professional code should do likewise.¹¹⁰ Lininger lists the inroads made over recent years into the partisan (adversarial advocate) model behind the US Model Rules,¹¹¹ and argues that it is time for ethics rules to take into account non-human interests and to include the environment as a third party whose interests must be protected.¹¹² In doing so, he draws attention to the purpose of a professional ethical code, which he sees as ensuring that practitioners ‘attend to issues of transcendent importance’,¹¹³ such as the urgent challenge of environmental degradation/protection.

I agree with Lininger that regulators in all jurisdictions would do well to explicitly address lawyers’ responsibilities in relation to environmental harm in their ethical codes. Empowering lawyers to better attend to ‘issues of transcendent importance’ is becoming more urgent as the time in which to act on climate change and biodiversity loss slips away.¹¹⁴

‘Law reform’ generally

Brian Preston rightly calls for climate conscious lawyers to be involved in intellectual activism and law reform.¹¹⁵ As the LCA observes in its Climate Change Policy Statement, ‘law reforms will increasingly be required to respond to climate-related gaps, uncertainties and unfolding novel situations’.¹¹⁶ Many lawyers are stepping up to this task. I note several examples:

• The Legal Pathways to Deep Decarbonisation Project has involved teams of pro bono lawyers in drafting model laws to facilitate rapid decarbonisation of the US economy. These laws are now available for adoption by all levels of US Government. The Project involves lawyers in working with NGOs, state and local government and industry to respond to issues,¹¹⁷ and with researchers in other countries interested in doing similar work.¹¹⁸

• The Chancery Lane Project has brought together thousands of legal professionals from many countries to draft contractual clauses, designed to ‘encourage rapid decarbonisation and reduce climate impact’.¹¹⁹ These clauses can be incorporated into law firm precedents and commercial agreements. The Project has developed a ‘Net Zero Toolkit’ which includes clauses and tools which enable lawyers to ‘align their work with a decarbonised economy, and a safe and habitable planet for us all.’¹²⁰

• A campaign for the reform of international law seeks to have ecocide (destruction of large areas of the natural environment as a consequence of human activity) recognised as a crime at international law. This campaign builds on the work of UK barrister Polly Higgins, who was the archetypal moral activist – she gave up her high-flying job and sold her house to finance her life’s work on ecocide.¹²¹ Since her untimely death, many lawyers and activists have continued Higgins’ work: Stop Ecocide International is now an international NGO, working to establish ecocide as an international crime.¹²² An expert panel of international lawyers has drafted a definition of ecocide for incorporation in the Statute of Rome.¹²³ If incorporated, the provision will allow for the prosecution of individuals (corporate executives and government ministers) before the International Criminal Court for widespread damage to eco systems. The campaign has gained widespread support, including from the Pope, the UN Secretary General, and the Parliamentary Assembly of the Organisation for Security and Cooperation in Europe,¹²⁴ thus becoming a more mainstream responsible lawyering campaign.

• Legal scholars across the globe are re-examining legal doctrines that inhibit efforts towards decarbonisation and sustainable development.¹²⁵ An ethic of care is at the heart of some of the more radical approaches.¹²⁶ In his book Wild Law, governing people for earth,¹²⁷ the South African lawyer Cormac Cullinan draws attention to the anthropocentricism of the western common law system, which treats the non-human world as a resource to be exploited, rather than understanding humans as part of the whole web of life. Cullinan calls for a new vision of Law – ‘Wild Law’ or ‘Earth Jurisprudence’- which understands the purpose of law and legal systems as supporting mutually beneficial relationships between humans and ‘other members of the Earth Community’.¹²⁸ Earth jurisprudence proposes that we rethink our legal, political, economic and governance systems so that they support, rather than undermine, the integrity and health of all living beings. Of course, in many ways this is an old vision of law and society, reflecting the legal systems of many First Peoples, which have underpinned the sustainable custodianship of land and seas for thousands of years.¹²⁹ The theory of earth jurisprudence has become all the more compelling as scientific research continues to emphasise the fact that human thriving depends on a healthy biosphere.¹³⁰

Conclusion

As law evolves to address the challenges of the Anthropocene, the advice lawyers give clients will change. Eventually, it is hoped, lawyers will be advising even recalcitrant clients that to act legally they must act in ways that do not harm the environment. Until such time, a lawyer’s ethical approach will influence the extent to which their advice takes account earth’s ecosystems. The work of lawyers with an ethical commitment to law’s potential in this area is crucial to a successful transition to a sustainable economy and liveable planet. Lawyers can draw on the strengths of one or several of the ethical approaches discussed in this article to empower them to step up to the task ahead, a task that must not be avoided. As the US Special Presidential Envoy for Climate, John Kerry, told the General Assembly of the ABA in 2021 ‘you’re all climate lawyers now’.¹³¹ And as John Dernbach reminds us

[c]hanging legal practice to combat climate change takes dedication, perseverance, tact, hard work, and patience. But it can be done. And it needs to be done – by as many lawyers as possible. Our lives and the lives of those who follow us, depend on it.¹³²

Acknowledgements

The author would like to thank anonymous reviewers, Dr Susan Bartie and Professor Stephen Bottomley for their helpful comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Christine Parker, ‘A Critical Morality For Lawyers: Four Approaches to Lawyers’ Ethics’ (2004) 30 Monash University Law Review 49. The approaches proposed in Parker’s article are discussed at length Vivien Holmes and Francesca Bartlett Parker and Evans’s Inside Lawyers’ Ethics (4th Edn, Cambridge University Press, 2023).

2 Paul J Crutzen, ‘The “Anthropocene”’ in Eckart Ehlers and Thomas Krafft (eds), Earth System Science in the Anthropocene (Springer-Verlag 2006) 13.

3 ‘Causes and Effects of Climate Change’ United Nations <www.un.org/en/climatechange/science/causes-effects-climate-change> accessed 17 August 2023

4 Corey JA Bradshaw and others, ‘Underestimating the Challenges of Avoiding a Ghastly Future’ (2021) 1 Frontiers in Conservation Science 615419. See also Toby Ord, The Precipice: Existential Risk and the Future of Humanity (Bloomsbury Academic 2020).

5 IPCC, 2021: Climate Change 2021: ‘The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change’ Masson-Delmotte et al, Cambridge University Press 2021; Michael Lawrence et al ‘Global Polycrisis: The causal mechanisms of crisis entanglement.’ Version 1.1. Pre-print. Cascade Institute. https://cascadeinstitute.org/technical-paper/global-polycrisis-the-causal-mechanisms-of-crisis-entanglement/ accessed 17 January 2024.

6 OECD, Biodiversity: Finance and the Economic and Business Case for Action (2019) <https://www.oecd-ilibrary.org/content/publication/a3147942-en> accessed 23 January 2024. See also Anna Retsa and others, ‘Biodiversity and Ecosystem Services’ (Swiss Re Management Ltd 2020).

7 Human Rights Council, United Nations General Assembly, Climate Change and Poverty (Report of the UN Special Rapporteur on Extreme Poverty and Human Rights, 17 July 2019)

8 Human Rights Council, United Nations General Assembly, Report of the Special Rapporteur on the Promotion and Protection of Human Rights in the Context of Climate Change (United Nations, 2022)

9 Francois Kunc, ‘Current Issues. Climate Change and the Law’ [2018] (92) Australian Law Journal 745, 745. Christina Voigt, ‘ANZSIL Conference Keynote 2019: Climate Change, the Critical Decade and the Rule of Law’ (2020) 37 The Australian Year Book of International Law Online 50, 61.

10 Kunc (n 9) 745.

11 ‘Climate Crisis Statement’ (International Bar Association, 5 May 2020) <www.ibanet.org/document?id=822C1967-F851-4819-8200-2FE298164922> accessed 23 January 2024.

12 David Luban, Lawyers and Justice: An Ethical Study (Princeton University Press, 1988) 173–74.

13 Le Roux W., ‘Conscience against the Law : Mahatma Gandhi, Nelson Mandela and Bram Fischer as Practising Lawyers during the Struggle’ (2001) 42 Codicillus 20.

14 Scott L Cummings, ‘Movement Lawyering’ (2020) 27 Indiana Journal of Global Legal Studies 87.

15 Sarah Krakoff, ‘Parenting the Planet’ in Denis G Editor Arnold (ed), The Ethics of Global Climate Change (Cambridge University Press 2011) 152.

16 Gaya Herrington, ‘Update to Limits to Growth: Comparing the World3 Model with Empirical Data’ (2021) 25 Journal of Industrial Ecology 614.

17 The Sabin Centre for Climate Change Law at Columbia Law School maintains a data base of climate change litigation. The Centre tracks cases against governments and corporations around the world. Sabine Centre for Climate Change Law (Columbia Law School) <https://climate.law.columbia.edu/> accessed 23 January 2024. See also ‘Australia and Pacific Climate Change Litigation’ (University of Melbourne) <https://law.app.unimelb.edu.au/climate-change/index.php> accessed 23 January 2024

18 Rachel J Pepper, ‘Turning a Ripple into a Torrent: Riding the Waves of Climate Change Litigation.’ (Clayton Utz seminar, Climate Change Litigation, Sydney, 16 March 2021) 2 <https://www.lec.nsw.gov.au/lec/publications-and-resources/judicial-speeches-and-papers.html#Current1> accessed 24 January 2024. See also Corey Byrne ‘Environmental Class Actions in Australia: A Coming Storm?’ (2020) 37 Environmental and Planning Law Journal 186; United Nations Environment Programme ‘Global Climate Litigation Report: 2023 Status Review’ (2023) UN Environment Program

19 For example, the international NGO, Client Earth ‘About’(Client Earth) <https://www.clientearth.org/about/> accessed 23 January 2024.

20 Equity Generation Lawyers ‘About Us’ <https://equitygenerationlawyers.com/about/> This firm has run several ground breaking cases, including Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560 and its appeal Minister for the Environment v Sharma [2022] FCAFC 35

21 Quoted in Kieran Pender ‘Suing for climate action: can the courts save us from the black hole of political inaction?’ (The Guardian 15 November 2020) <https://www.theguardian.com/australia-news/2020/nov/15/suing-for-climate-action-can-the-courts-save-us-from-the-black-hole-of-political-inaction accessed 24 January 2024.

22 Jacqueline Peel and Jolene Lin, ‘Transnational Climate Litigation: The Contribution of the Global South’ (2019) 113 American Journal of International Law 679. The authors note that the term ‘Global South’ is contested. They use the term to denote the ‘developed/ developing country divide that is widely applied in international environmental and climate law scholarship, and which underpins the UNFCCC’s differentiation between Annex I (developed countries and former Soviet Union states) and non-Annex I (developing country) parties’.(682)

23 Joelene Lin and Jacqueline Peel ‘The farmer or the hero litigator? Modes of climate litigation in the global South’ (Open Global Rights 28 June 2020) <https://www.openglobalrights.org/farmer-or-hero-litigator-modes-of-climate-litigation-in-global-south/>

24 United Nations Environment Programme ‘Global Climate Litigation Report: 2023 Status Review’ (2023) UN Environment Program XIV

25 ‘Climate Change Policy Statement’ Law Council of Australia (2021) [48].

26 Jacqueline Peel ‘Can legal action force governments and businesses to respond to climate change? (ABC News,13 February 2020) <https://www.abc.net.au/news/2020-02-13/climate-change-legal-action-solve-global-warming/11943146> accessed 24 January 2024. For examples, see North East Forest Alliance v Commonwealth of Australia [2024] FCA 5 in which the court held that ‘the question of whether or not to enter into or vary an intergovernmental agreement [relating to the logging of native forests] is essentially a political one, the merits of which are matters for the government parties, and not the Courts, to determine.’[6]

27 Cummings (n 14) 97.

28 Mary Claire Kelly, ‘“Ready for the Phone Booth”: Strategizing Movement Lawyering for Local Climate Justice Policy’ (2021) 78 National Lawyers Guild Review 30, 49.

29 ibid 33.

30 See, for example, ‘Using the law to ensure a better future’(Lawyers for Climate Action, NZ, Inc) <https://www.lawyersforclimateaction.nz/> accessed 24 January 2024

31 ‘World Lawyers’ Pledge on Climate Action’ <https://lawyersclimatepledge.org/> accessed 24 January 2024. See also ‘Our Work’(Net Zero Lawyers Alliance) <https://www.netzerolawyers.com/our-work> accessed 24 January 2024.

32 ‘Declaration of Conscience’, (Lawyers Are Responsible) <https://www.lar.earth/sign/> accessed 24 January 2024.

33 LAR aims to delegitimise ‘legal and judicial support for acts which, according to the best available science, jeopardise the conditions which make the planet liveable’: ‘Purpose’ (Lawyers Are Responsible) <www.lar.earth/principles-and-values/> accessed 24 January 2024.

34 The Law Firm Climate Change Scorecard’(Law Students for Climate Accountability) <www.ls4ca.org/scorecard> accessed 24 January 2024

35 Ibid.

36 Ibid.

37 ‘The Carbon Circle: The UK Legal Industry’s Ties to Fossil Fuel Companies’ (2023) and University of Toronto Law Union ‘Canadian Law Firm Climate Impact Report’ (2023) both available at (Law Students for Climate Accountability) <https://www.ls4ca.org/blog-show-all?category=Reports> accessed 24 January 2024.

38 Correspondence on file with author.

39 Victoria Basham & John Malpas ‘Professional vandalism or conscientious objection: UK lawyers' eco-declaration sparks national debate over 'cab-rank' rule’ The Global Legal Post (28 March 2023) <www.globallegalpost.com/news/professional-vandalism-or-conscientious-objection-uk-lawyers-eco-declaration-sparks-national-debate-over-cab-rank-rule-2125452824> accessed 29 June 2023. Several barristers who signed the Declaration of Conscience ‘self-reported’ themselves to the Bar Council. LAR submitted a response to concerns about the Cab Rank Rule to the Bar Council: <www.lar.earth/wp-content/uploads/2023/04/LAR-Bar-Council-CRR-debate-response.docx.> The Bar Council subsequently released a statement regarding the cab-rank rule, Nick Vineall KC, ‘The Cab Rank Rule is a Bedrock Obligation’ (The Bar Council,28 April 2023) <https://www.barcouncil.org.uk/resource/the-cab-rank-rule-is-abedrock-obligation.html> accessed 24 January 2024.

40 For a strong critique of this justification, see Steven Vaughan, ‘Existential Ethics: Thinking Hard About Lawyer Responsibility for Clients’ Environmental Harms’ [2023] Current Legal Problems cuad005.

41 Lawyers Are Responsible. What will you do? | Royal Courts of Justice, London | 28 March 2023(youtube) <https://www.youtube.com/watch?v=i8gyWa3T1LQ> accessed 24 January 2024. See also ibid.

42 For example, the work of LAR. See also Peter Kellet, ‘A Changing Climate for In-House Lawyers? What Should They Really Say to Clients?’ (2022) 7.7.

43 ‘The impact of climate change on solicitors’ (The Law Society,19 April 2023) 4.3 <https://www.lawsociety.org.uk/topics/climate-change/impact-of-climate-change-on-solicitors#h4-heading3-5> accessed 24 January 2024.

44 Ibid.

45 Ibid.

46 Ibid 1.7.

47 Paul Rogerson ‘News focus: Critics of 'woke' climate guidance are missing the point’ (The Law Society Gazette, 21 April 2023) <www.lawgazette.co.uk/news-focus/news-focus-critics-of-woke-climate-guidance-are-missing-the-point/5115808.article#commentsJump> accessed 24 January 2024.

48 Paul Rogerson ‘A change in the weather’ (Law Society Gazette, 27 April 2023) <https://www.lawgazette.co.uk/news-focus/news-focus-critics-of-woke-climate-guidance-are-missing-the-point/5115808.article>accessed 24 January 2024.

49 John C Dernbach, Irman Russell and Matt Bogoshian, ‘Lawyering to Make a Difference: Ethics and Leadership for a Sustainable Society’ (2022) 23 Wake Forest Journal of Business and Intellectual Property Law 19, 32–33.

50 Gro Harlem Brundtland, Report of the World Commission on Environment and Development: Our Common Future (United Nations, 1987).

51 ibid [27].

52 American Bar Association, ‘Final Report of the ABA Task Force on Sustainable Development’ (2015) 4 <http://greentrack.com/wp-content/uploads/2016/02/ABA_sd_Task-Force-Final-Report_08-2015.authcheckdam.pdf>. accessed 24 January 2024. See also, ‘Policy on Sustainable Development’ (2019) (Law Council of Australia) <https://www.lawcouncil.asn.au/media/news/sustainable-development-policy> accessed 24 January 2024. See also United Nations Department of Economic and Social Affairs, Sustainable Development, ‘The 17 Goals’ (United Nations) <https://sdgs.un.org/goals> accessed 24 January 2024; Margaret A Young, ‘Climate Change and Law: A Global Challenge for Legal Education’ (2021) 40 The University of Queensland Law Journal 351.

53 John C Dernbach, ‘Sustainable Development in Law Practice: A Lens for Addressing All Legal Problems’ (2017) 95 Denver Law Review 123, 125.

54 Ibid.

55 Dernbach (n 53) 132.

56 ibid 123.

57 ibid 189.

58 Noting, though, that the sustainable development framework is not limited to matters involving climate change.

59 Brian Preston, ‘Climate Conscious Lawyering’ (2021) 95 Australian Law Journal 51, 52.

60 ibid 56.

61 ibid 61–62.

62 ibid 63–64.

63 Adam Morton ‘‘A duty of care’: Australian teenagers take their climate crisis plea to court’ (The Guardian, Australia 2 March 2021) <https://www.theguardian.com/environment/2021/mar/02/a-duty-of-care-australian-teenagers-take-their-climate-crisis-plea-to-court> accessed 24 January 2024

64 I discuss government lawyers below.

65 For example, Commonwealth vs. Exxon Mobil Corporation SJC-13211, an action by Massachusetts Attorney- General claiming that Exxon Mobil Corporation committed deceptive practices against Massachusetts investors and consumers, including by failing to disclose climate change risks. See ‘Climate Change Litigation Database’ (Sabin Center for Climate Change Law, 2024) <http://climatecasechart.com/case/commonwealth-v-exxon-mobil-corp/> accessed 24 January 2024.

66 Noting, though, the many critiques of ‘ESG. See for example, Kenneth P Pucker & Andrew King ‘ESG Investing Isn’t Designed to Save the Planet’ Harvard Business Review (1 August 2022) <https://hbr.org/2022/08/esg-investing-isnt-designed-to-save-the-planet?ab=at_art_art_1×4_s03> accessed 24 August 2023.

67 American Bar Association, Model Rules, Rule 2.1.

68 Olivia Walker, ‘Impacts of Climate Change on Legal Professional Ethics: Creating Climate Conscious Lawyers’ (2023) 37 AUSTRALIAN ENVIRONMENT REVIEW 183.

69 Law Council of Australia (n 25).

70 The Law Society of England and Wales, Climate Change Resolution, Law Society (2021) [3].

71 Above n42 [4.6].

72 Joe Ucuzoglu and Jennifer Steinmann ‘Deloitte 2023 CxO Sustainability Report’ (Deloitte,2023) <https://www.deloitte.com/content/dam/assets-shared/legacy/docs/2023-deloitte-cxo-sustainability-report.pdf> accessed 17 January 2024.

73 Ibid; See also Jennifer Steinmann et al ‘Engaged employees are asking their leaders to take climate Action’ (Harvard Law School Forum on Corporate Governance, 6 January 2024) <https://corpgov.law.harvard.edu/2024/01/06/engaged-employees-are-asking-their-leaders-to-take-climate-action/> and Matteo Tonello, ‘ ESG Performance Metrics in Executive Pay’ (Harvard Law School Forum on Corporate Governance, 15 January 2024) <https://corpgov.law.harvard.edu/2024/01/15/esg-performance-metrics-in-executive-pay/> both accessed 24 January 2024;

74 Donald C Langevoort, ‘Gatekeepers, Cultural Captives, or Knaves?: Corporate Lawyers through Different Lenses Colloquium: Corporate Lawyers’ (2020) 88 Fordham Law Review 1683, 1698.

75 Saul Elbein ‘Documents reveal how fossil fuel industry created, pushed anti-ESG campaign’ The Hill (18 May 2023) <https://thehill.com/policy/equilibrium-sustainability/4010800-documents-fossil-fuel-anti-esg-campaign/> accessed 24 August 2023

76 Leah Malone and others ‘ESG Battlegrounds: How the States Are Shaping the Regulatory Landscape in the US’ (Harvard Law School Forum on Corporate Governance, 11 March 2023) <https://corpgov.law.harvard.edu/2023/03/11/esg-battlegrounds-how-the-states-are-shaping-the-regulatory-landscape-in-the-u-s/> accessed 17 March 2023

77 Ibid.

78 Anti-trust expert Maurits Dolmans expressed this view in an interview: ‘Tom Foolery! Red Herrings!’ Outrage & Optimism (8 June 2023) <www.outrageandoptimism.org/episodes/tomfoolery-red-herrings?hsLang=en> accessed 24 August 2023.

79 Mike Scott ‘ESG Watch: Is it curtains for Mark Carney's green alliance, or just teething problems?’ Reuters (26 April 2023) <www.reuters.com/business/sustainable-business/esg-watch-is-it-curtains-mark-carneys-green-alliance-or-just-teething-problems-2023-04-26/> accessed 17 August 2023.

80 Malone (n76).

81 David A. Cifrino ‘The Rise of International ESG Disclosure Standards’ (Harvard Law School Forum on Corporate Governance, 29 June 2023) <https://corpgov.law.harvard.edu/2023/06/29/the-rise-of-international-esg-disclosure-standards/> accessed 17 August 2023/ For example, The European Commission’s Corporate Sustainability Reporting Directive (Directive (EU) 2022/2464); The Companies (Strategic Report) (Climate-related Financial Disclosure) Regulations 2022 (UK), the Treasury Laws Amendment Bill 2024: Climate-Related Financial Disclosure, Exposure Draft (Australia).

82 The 2023 Edelman Trust Barometer online survey sampled more than 32,000 respondents across 28 countries: Methodology’ (Elderman) <https://www.edelman.com/trust/2023/trust-barometer> accessed 24 August 2023.

83 Andrew Winston, ‘Why Business Leaders Must Resist the Anti-ESG Movement’ [2023] Harvard Business Review <https://hbr.org/2023/04/why-business-leaders-must-resist-the-anti-esg-movement> accessed 24 August 2023. For a discussion of the risks of corporate governing, see Matteo Gatti ‘Corporate Governing: Promises and Risks of Corporations as Socio-Economic Reformers’ (August 3, 2023). European Corporate Governance Institute - Law Working Paper No. 730/2023, Available at SSRN: <https://ssrn.com/abstract=4530776 or https://doi.org/10.2139/ssrn.4530776> accessed 30 January 2024.

84 For example, one study estimated that a Texas anti-ESG law had cost the state $532 million in higher interest payments on municipal bonds. ibid. See also Ross Kerber ‘Anti-ESG bill could cut Indiana pension returns by $6.7 bln –analysis’ (Reuters, 8 Feb 2023) <https://www.reuters.com/business/sustainable-business/anti-esg-bill-could-cut-indiana-pension-returns-by-67-bln-analysis-2023-02-07/> accessed 24 August 2023

85 Dernbach, Russell and Bogoshian (n 49) 32–33.

86 Margaret Tarkington, ‘Introduction: The Ethics of Lawyers in Government’ (2019) 52 Ind. L. Rev. 265, 267.

87 GE Dal Pont, Lawyers’ Professional Responsibility (2021) [13.80]. Brad Wendell has a contrary view in relation to US lawyers: W Bradley Wendel, ‘Government Lawyers in the Trump Administration’ (2017) 69 Hastings Law Journal 275, 332.

88 See, for example Jacob Poushter et al, ‘Climate Change Remains Top Global Threat Across 19-Country Survey’(Pew Research Centre, 31 August 2022) <https://www.pewresearch.org/global/2022/08/31/climate-change-remains-top-global-threat-across-19-country-survey/> accessed 23 August 2023

89 See above n65.

90 Dernbach, Russell and Bogoshian (n 49) 32.

91 Alice Woolley, ‘Is Positivist Legal Ethics an Oxymoron’ (2019) 32 Georgetown Journal of Legal Ethics 77, 89–90. In relation to this approach in jurisdictions without a robust rule of law, see César S Arjona, ‘The Usage of What Country: A Critical Analysis of Legal Ethics in Transnational Legal Practice’ (2019) 32 Canadian Journal of Law & Jurisprudence 259.

92 For example, Tim Dare, ‘Mere-Zeal, Hyper-Zeal and the Ethical Obligations of Lawyers’ (2004) 7 Legal Ethics 24.

93 Preston (n 59) 62.

94 Solicitors Regulation Authority, ‘SRA Principles’ Principle 1.

95 For example, Legal Profession Uniform Law Australian Solicitors’ Conduct Rules, Rule 3.

96 In relation to anti protest laws generally see Jeff Sparrow ‘As resistance grows to the fossil fuel regime, laws are springing up everywhere to suppress climate activists’(The Guardian, 19 September 2022 <www.theguardian.com/commentisfree/2022/sep/19/as-resistance-grows-to-the-fossil-fuel-regime-laws-are-springing-up-everywhere-to-suppress-climate-activists?utm_term=63291ea464b7ade91f8cd44891058d0e&utm_campaign=GuardianTodayAUS&utm_source=esp&utm_medium=Email&CMP=GTAU_email> accessed 24 August 2023; Kristoffer Tigue ‘Bold Climate Protests Are Triggering Even Bolder Anti-Protest Laws’ Inside Climate News (23 November 2022) <https://us2.campaign-archive.com/?e=dbdcf844ff&u=7c733794100bcc7e083a163f0&id=3b07418607> accessed 23 August 2023

97 Benjamin J Richardson, ‘Editorial: Climate Strikes to Extinction Rebellion: Environmental Activism Shaping Our Future’ (2020) 11 Journal of Human Rights and the Environment 1, 2.

98 ibid 2. In 2022, NSW passed the Roads and Crimes Legislation Amendment Bill against fierce opposition from civil society organisations. The legislation expanded the reach of provisions relating to obstruction of facilities and increased penalties for breach. In December 2023, the NSW Supreme Court ruled that sections of the new law were invalid because they were inconsistent with the Constitution’s implied freedom of political communication: Kvelde v State of New South Wales [2023] NSWSC 1560. The Australian state of Victoria has similarly draconian legislation: The Sustainable Forests Timber Amendment (Timber Harvesting Safety Zones) Act 2022. And see Summary Offences Act 2005 (Qld), inserting a new section 14C(1).

99 Toby Hemmings and Azadeh Dastyari, ‘A Danger to Protest: The Freedom of Peaceful Assembly and Disruptive Protest under the Summary Offences and Other Legislation Amendment Act 2019 (Qld)’ [2021] Australian Journal of Human Rights 1.

100 See FN 98.

101 ‘The Public Order Bill: Explained’ (Amnesty International UK, 26 April 2023) <https://www.amnesty.org.uk/blogs/campaigns-blog/public-order-bill-explained> accessed 23 August 2023

102 ‘UN Human Rights Chief urges UK to reverse ‘deeply troubling’ Public Order Bill’ UNHR Office of the High Commissioner, Press Release, 27 April 2023 <https://www.ohchr.org/en/press-releases/2023/04/un-human-rights-chief-urges-uk-reverse-deeply-troubling-public-order-bill> accessed 18 January 2024.

103 Amber Baylor, ‘Unexceptional Protest’ (2023) 70 UCLA Law Review 716; Dana McClure, ‘Sleep Now in the Fire: Anti-Protest Laws and the Environmental Movement’ (2020) 11 Arizona Journal of Environmental Law and Policy 209. See also Kristoffer Tigue ‘Bold Climate Protests are Triggering Even Bolder Anti-Protest Laws’ Inside Climate News (22 November 2022) https://insideclimatenews.org/news/22112022/bold-climate-protests-are-triggering-even-bolder-anti-protest-laws/ accessed 23 August 2023

104 See Royce Kurmelovs ‘Extinction Rebellion activist has chalk message case thrown out by Perth magistrate’ (The Guardian,12 January 2022) <www.theguardian.com/environment/2022/jan/12/extinction-rebellion-activist-has-chalk-message-case-thrown-out-by-perth-magistrate> accessed 24 August 2023.The defendant’s barrister, Anthony Eyers, said ‘ any prosecution would have set a bad precedent by criminalising the act of being near protest actions … ‘If these prosecutions are allowed to stand, they will invariably generate precedents affecting fundamental freedom of expression and freedom of movement, and association.’

105 Preston (n 59) 66.

106 ‘Aboriginal Engagement and Cultural Heritage’ (Environmental Defenders Office) <https://www.edo.org.au/aboriginal-engagement-cultural-heritage/> accessed 24 January 2024.

107 Marianne Engelman Lado and Kenneth Rumelt, ‘Pipeline Struggles: Case Studies in Ground up Lawyering Symposium’ (2021) 45 Harvard Environmental Law Review 377.

108 Hadeel Al-Alosi and Mark Hamilton, ‘The Ingredients of Success for Effective Restorative Justice Conferencing in an Environmental Offending Context’ (2019) 42 University of New South Wales Law Journal 1460, 1488. The authors cite Australian and New Zealand cases where this approach has been successfully used, and suggest that the process could be more widely adopted in cases involving environmental crimes: Hadeel Al-Alosi and Mark Hamilton, ‘The Potential of Restorative Justice in Promoting Environmental Offenders’ Acceptance of Responsibility’ (2021) 44 University of New South Wales Law Journal 487.

109 Vaughan (n 40) 20.

110 Tom Lininger, ‘Green Ethics for Lawyers’ (2016) 57 Boston College Law Review 61, 62.

111 ibid 70. The Australian rules have been reformed in a similar way, see, eg Legal Profession Uniform Law Australian Solicitors’ Conduct Rules, rule 9.2.

112 To this end, Lininger advances several both modest and more radical proposals for changes to the ABA Model Rules: ibid 77–82, 106. See also Joshua Gostel, ‘Ethics, Energy and the Environment: A Proposal to Hold Attorneys to Certain Standards in Protecting Our Planet’ (2017) 30 Georgetown Journal of Legal Ethics 819.

113 Lininger (n 110) 115.

114 ‘World headed for climate catastrophe without urgent action: UN Secretary-General’ (UN Environment Program, 27 October 2022) <https://www.unep.org/news-and-stories/story/world-headed-climate-catastrophe-without-urgent-action-un-secretary-general> accessed 17 August 2023

115 Preston (n 59) 62.

116 Law Council of Australia (above n26)[59]

117 ‘Model Laws for Deep Decarbonization in the United States’ (LPDD) <https://lpdd.org/about/> accessed 22 January 2024

118 ‘About’ (LPDD) <https://lpdd.org/about/>

119 ‘About the Chancery Lane Project’ (The Chancery Lane Project) <https://chancerylaneproject.org/about/> accessed 22 January 2024

120 ‘Net zero toolkit’ (Chancery Lane Project) <https://chancerylaneproject.org/net-zero-toolkit/> accessed 24 August 2023

121 Gloria Dickie, ‘Sustainability. Politicians And CEOs Could Face Criminal Charges For Environmental Destruction’(Huffpost, 12 April 2019 <https://www.huffpost.com/archive/au/entry/politicians-ceos-could-face-criminal-charges-environmental-destruction_au_5de860f8e4b0d50f32ae20dd> accessed 24 August 2023. Higgins conceptualised the legal mechanisms for holding to account perpetrators of widespread environmental damage. Polly Higgins, Eradicating Ecocide: Laws and Governance to Prevent the Destruction of Our Planet (Shepheard-Walwyn 2010).

122 ‘Who are we’ (Stop Ecocide International) <https://www.stopecocide.earth/who-we-are-> accessed 24 August 2023.

123 ‘Legal Definition of Ecocide Completed’ Stop Ecocide International (June 2021) <https://www.stopecocide.earth/legal-definition> accessed 22 January 2024

124 ‘Supporters of Ecocide Law’ Stop Ecocide International (website) <https://www.stopecocide.earth/supporters> accessed 22 January 2024; ‘Ordinary people who are just trying to make a living are not responsible for ecocide’ Stop Ecocide (website) < https://www.stopecocide.earth/>accessed 22 January 2024

125 See for example Cinnamon Carlarne and others, ‘The Quest to Close the Accountability Gap in Environmental Law’ (2023) 12 Transnational Environmental Law 461, 7–12.

126 Not all scholars agree that lawyers should be putting their energies into radical change. In his recent book, Towards an Environmental Minimum, Stefan Thiel argues that the urgency of action leaves little time for a fundamental rethink of our legal systems: Stefan Theil, Towards the Environmental Minimum: Environmental Protection through Human Rights (Cambridge University Press 2021) 288.

127 Cormac Cullinan, Wild Law: Governing People for Earth (Siber Ink in association with the Gaia Foundation & EnACT Intl; [Distributed by] Thorold’s Africana Books 2002).

128 ‘Cormac Cullinan’ Wild Law Institute <https://www.wildlaw.net/board-of-directors-and-team/cormac-cullinan> accessed 24 January 2024. See also Katie Surma’ A Thousand Miles in the Amazon, to Change the Way the World Works’ (Inside Climate News, 9 October 2022) <https://insideclimatenews.org/news/09102022/a-thousand-miles-in-the-amazon-to-change-the-way-the-world-works/?utm_source=InsideClimate±News&utm_campaign=b00e095376-&utm_medium=email&utm_term=0_29c928ffb5-b00e095376-329769350> accessed 23 August 2023. US environmental lawyer Dean Wallraff argues for a similar perspective in Earthling. A New Ethics for the Anthropocene (2023)

129 See also Jacqueline McGlade ‘A Just and Rights-Based Framework for Nature’ Gresham College, 27 April 2021 <https://www.gresham.ac.uk/lectures-and-events/nature-rights> accessed 24 January 2024. McGlade draws attention to the chthonic legal tradition, one of the oldest legal traditions, which situates people in nature.

130 One indication of changing norms is that several governments around the world have legislated to accord legal rights to Nature: Craig M Kauffman and Pamela L Martin, ‘Constructing Rights of Nature Norms in the US, Ecuador, and New Zealand’ (2018) 18 Global Environmental Politics 43.

131 ‘John Kerry to ABA: ‘You are all climate lawyers now’ ABA News (11 June 2021) <https://www.americanbar.org/news/abanews/aba-news-archives/2021/08/john-kerry-to-aba---you-are-all-climate-lawyers-now-/> accessed 24 January 2024.

132 Dernbach, Russell and Bogoshian (n 49) 36.