The incidence of claims against lawyers in relation to climate related advice is likely to increase unless firms and in house legal teams support their colleagues to upskill in this area.
In October 2023 the Law Society issued guidance to the profession on climate change, governance and the risks associated with greenwashing.
The purpose of the guidance is twofold. First, it helpfully identifies the issues that lawyers should be focusing on and identifies the relevant legislation in this area, highlighting the need for training if claims are to be avoided. Second, it reminds the profession that we play a key role in promoting climate risk governance.
In its guidance the Law Society distinguishes between the advice that in house lawyers may be under a duty to provide to their company's Board and the advice provided to clients by solicitors in private practice.
The Law Society believes that in house counsel should not only have regard to the legislation in this area when advising their Board, for example the obligation to make climate related financial disclosures under the Companies Act 2006, but that they should also seek to generally raise awareness with the Board of the need to develop "sound management" of climate related risks.
For in house counsel therefore there are clearly also issues of corporate governance to bear in mind.
For solicitors in private practice similar considerations apply in terms of the need for training in this critical but newly emerging area. It is also important to ensure that the client retainer is scoped out accurately so that the client is clear about the issues on which they will receive advice. This is a highly specialised area and clients need to understand when they should obtain additional advice on technical issues such as environmental concerns. We predict that solicitors who assume responsibility to advise on these issues when they are ill equipped to do so or those who fail to scope out their retainer will inevitably be the subject of claims in the future.
The message is clear: training in this area is key to ensure that solicitors are either competent to give advice or at least able to recognise when specialist input is required.
