Do England & Wales Qualified Solicitors Have a Legal Duty to Advise Their Clients on Climate-Related Risks?
11 Pages Posted: 24 Aug 2022
Date Written: August 8, 2022
Abstract
Whilst practising solicitors in England and Wales are largely familiar with their duty of disclosure, they are less familiar with their duty to warn. Their duty to disclose, to their client, information of which they are actually aware and which is material in the context of the matter they have been retained to advise on is codified in the SRA’s Code of Conduct for Solicitors, whilst their duty to warn their client, again in the context of a retainer, of obvious legal and commercial risks which they can reasonably assume their client has not spotted is derived from case law alone. This paper examines the nature of the duty to warn and specifically whether it might extend to include any climate-related risks a solicitor spots, or ought to spot. Given that the duty to warn is very fact-dependent, the paper also examines how the legal standard of competence, in relation to warning of climate-related risks, is affected when the client is sophisticated and the solicitor works at a City law firm. It moves onto consider who determines and should determine what that standard of competence is and how this fits with the independence of the profession and the rule of law, taking into account the potential views and roles of various “backdoor regulators” (such as insurers, clients, competitors and a law firm’s own lawyers) as well as the profession’s direct regulator and representative body (the SRA and Law Society respectively). It concludes that, notwithstanding any limitations and exclusions in their retainer terms, any solicitor (not just environmental specialists) should not risk neglecting to advise their clients on climate-related risks on a retainer-specific basis.
Keywords: climate change law, public law, rule of law, legal professional ethics, legal profession
JEL Classification: K32
Suggested Citation: Suggested Citation