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A duty to warn of climate-related risks?

There is a considerable level of activity surrounding the question of whether solicitors in England and Wales owe a duty to clients to warn of climate-related risks. Having propounded a Climate Change Resolution in October 2021, the Law Society is currently preparing a practice note to provide guidance to all practitioners on how best to advise clients about the significant impacts threatened by climate change. As a company and as a signatory to the Pledge to Net Zero Initiative, we at Landmark applaud the lead of the Law Society in ensuring that solicitors should play their part in addressing the climate crisis.

This is an obligation that falls on the whole of society, but solicitors are well-placed to take a leading role. Any practice note in this area may constitute a game-changer, since it will lay down guidance from an independent professional association of what constitutes good and effective practice on the part of the profession. As such, in any dispute as to what the role of a solicitor ought to have been in advising on climate risk, a practice note would undoubtedly be called upon as a statement of the standard to be met by a solicitor.

Recently, however, there have been assertions that a duty to warn of climate risk already exists and this has led to a widespread discussion by many environmental and property lawyers.

Landmark has been involved in the climate change debate for many years and in the wider sustainability field, particularly with the launch of our Risk Horizon ESG due diligence reports. On the question of climate change reports we have actively engaged with many of our clients and through our Landmark Academy, we will play an active role to help upskill the profession in this area and to provide data to meet the needs of solicitors and their clients. We will play our part in addressing matters relating to climate mitigation and adaptation – not least by addressing these topics in our October 2022 publication, Climate Change Reports: The New Frontier of Real Estate Due Diligence alongside a selection of climate risk experts.

Nevertheless, we have no wish to drive the market by the provision of data which presents great difficulties to the profession in terms of both disclosure and, beyond that, how to fulfill a duty to warn.  That a duty of care is owed by solicitors to clients to inform and warn of risks even beyond the scope of the immediate retainer is well established. The trickier questions concern the scope of that duty and in particular, what might amount to its breach. This is made more difficult in the absence of any real lead in statute or common law as to the application of a duty relating to climate risk. In addition, in the absence of professional guidance, it is also difficult to assert a standard of care across practice areas across law firms and very different bases of clients.

Ultimately, however, the standard of care applicable to any duty to warn will be that of a reasonably competent solicitor in the relevant practice area. This is an objective standard set according, to conduct accepted as proper by a responsible body of professional practice. This objective standard is something different to best practice and is not set by reference to the highest, or indeed the lowest quality of practice. It really amounts to what the majority of solicitors are doing in practice at a particular point in time.

The standard of care will of course evolve over time with changing practices and we are approaching a point where solicitors should be making every effort to inform themselves of climate risks. Those risks will be both physical (such as flooding or subsidence) and transitional (such as the likely decline in petro-diesel filling stations or other hydrocarbon-based infrastructure) and disclosing, warning, and helping mitigate such risks will prove challenging. Whether or not such work is proceeding at a level such that it presently represents an accepted body of practice may be better judged by solicitors reading this.

In discussions that we have held recently with a good number of law firms, we have been informed that it is not currently the practice to advise clients on climate change risks in the context of standard property transactions. Depending on the outcome of the Law Society practice note, that may well change. However, if a duty of care to warn of climate change risks is to develop, then a great deal of upskilling of the profession in this area will be necessary.

Written by Simon Boyle, Solicitor, Landmark Information Group