On June 27, the Law Society of BC will vote on a member resolution on Lawyers and Climate Change (Resolution 4) at their Annual General Meeting.
The resolution, brought forward by members Hasan Alam and Terri-Lynn Williams-Davidson, KC, affirms that lawyers have an important role to play in addressing climate change.
With advance voting opening on June 9, Dr. Carol Liao, Allard Law Professor and Principal Co-Investigator of the Canada Climate Law Initiative, has just released a working paper that she hopes will shed light on why this resolution is important. Titled “Lawyers in a Warming World: Climate Resolutions, Climate Action, and the Role of the Legal Profession,” her paper makes the case that the duty of law societies to uphold and protect the public interest also means ensuring their members are climate competent.
Dr. Liao took time to discuss her recent paper.
Your paper argues that lawyers cannot ignore the climate crisis. What does the legal profession have to do with climate change?
Climate change impacts all areas of the law in different ways, across jurisdictions. Lawyers need to understand how this fast-moving climate crisis and energy transition to net zero is impacting their area of practice, the business of law and the delivery of legal services. In fact, the Canadian Bar Association BC Branch President, Aleem Bharmal, KC, recently discussed the surprisingly pervasive impacts of climate change across practice areas in the April issue of BarTalk.
Whether lawyers take an active role in Canada’s transition to net zero or not, the transition is happening. Lawyers need to stay up to date on rapidly evolving laws, regulations, litigation strategies, contractual provisions, new contracts and financial instruments, as well as advise clients on climate-related legal risks and opportunities in the transition to a decarbonized economy.
Lawyers will be key drafters in facilitating the transactions, resource development projects, and renewable energy projects that are vital in a just transition to net zero. They will be the ones upholding human rights, engaging with Indigenous rightsholders, and representing those seeking accountability for greenwashing or defending against such claims. Lawyers will increasingly need to understand greenhouse gas (GHG) emissions and climate mitigation, and that means upskilling and reskilling to be able to help their clients understand shifting legal and regulatory demands and how to adapt.
In some cases, lawyers will be at risk of breaching their duties to their clients if they don’t consider and inform their clients about climate-related risks and opportunities.
What is this Member Resolution trying to accomplish? What’s at stake here?
Across Canada, the legal profession is self-regulated through law societies. This privilege is couched in the belief that self-regulation of the profession serves the public interest, and that law societies are the best equipped to establish standards to ensure all lawyers are competent and uphold that public interest mandate.
Not only do lawyers need to understand evolving climate-related risks and opportunities, they have a duty to give clients truthful advice – even if the clients don’t want to hear it.
With that in mind, we know that GHG emissions contribute to global warming and have disproportionate impacts on Indigenous peoples and their territories. The extent of climate mitigation today will determine the legacy we leave behind for future generations. Putting climate change on the Law Society’s agenda fits squarely within its mandate to uphold the public interest and its commitments to reconciliation.
Legal and regulatory frameworks are rapidly changing, and according to the codes of conduct of any law society, lawyers need to be able to competently advise their clients. Lawyers can’t ignore climate change and willfully refuse to see it. We are all increasingly going to be climate lawyers now, whether we want to be or not. Not only do lawyers need to understand evolving climate-related risks and opportunities, they have a duty to give clients truthful advice – even if the clients don’t want to hear it.
All this means it is essential that lawyers have an adequate level of understanding of the risks that climate change poses and the actions that need to be taken to help preserve the planet. The Federation of Asian Canadian Lawyers BC and the Canada Climate Law Initiative have provided resource lists for lawyers wanting to learn more.
What are other law societies doing to address climate change?
Many professional law societies and associations around the world have already passed climate resolutions. Fifteen bars, societies, and associations representing millions of lawyers around the world, including the American Bar Association, International Bar Association, Law Council of Australia, the Council of Bars and Law Societies of Europe, and the Law Society of England and Wales, have passed climate resolutions, adopted climate statements, created special committees and task forces and/or issued climate change guidelines for their members.
Law societies in Canada are lagging behind the rest of the world in this regard. However, last year in Canada, the Barreau du Québec and the Law Society of New Brunswick both adopted a form of climate resolution, inspired by the 2022 resolution put forth in BC that failed. They have also established task forces to develop climate-related materials for lawyers.
What happens next if this resolution is adopted?
The resolution is put in terms of positive action and providing support for minimum competencies that lawyers in this day and age need to know as part of their ethical duties. It encourages the Law Society to strike a task force to look at the role of lawyers in both advising clients on climate-related risks and opportunities and addressing climate change mitigation in their own practice, as well as developing materials and programming to educate and guide lawyers and articled students.
At COP27, it was acknowledged that the legal profession is in a moment of collective learning. Climate resolutions passed by an electorate signal to an organization the importance of having climate change on the agenda, and they embolden the organization to move forward with a certain course of action. Right now, it's just important to put climate change on the agenda.
Dr. Carol Liao, Terri-Lynn Williams-Davidson, KC, and Bruno Caron discussed Resolution 4 in a recent panel discussion hosted by the Federation of Asian Canadian Lawyers BC.