Do England & Wales Qualified Solicitors Have a Legal Duty to Advise Their Clients on Climate-Related Risks?

11 Pages Posted: 24 Aug 2022

See all articles by Sarah de Gay

Sarah de Gay

University College London - Faculty of Laws

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

de Gay, Sarah, Do England & Wales Qualified Solicitors Have a Legal Duty to Advise Their Clients on Climate-Related Risks? (August 8, 2022). Faculty of Laws University College London Law Research Paper No. 7/22, Available at SSRN: https://ssrn.com/abstract=4184766 or http://dx.doi.org/10.2139/ssrn.4184766

Sarah De Gay (Contact Author)

University College London - Faculty of Laws ( email )

Bentham House
4-8 Endsleigh Gardens
London, WC1E OEG
United Kingdom

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