1 Introduction1
In a recent column from Kwame Anthony Appiah’s New York Times “The Ethicist,” a law student asks the philosopher if it is “ok to take a law-firm job defending climate villains.”2 The student fears that accepting an offer to work for a large corporate law firm with clients that are considered significant polluters would mean helping these clients exacerbate climate change. Appiah weighed the student’s considerations to find an answer, namely the student’s interest in social justice, need to pay back hefty student loans, and goal to become financially stable. His column also includes considerations of a lawyer’s role and what the student can do in that role. Appiah argued that a lawyer holds an essential role in society by representing and advising on the legal entitlements of all sorts of clients, even clients with which one may disagree. Even if the student feels uncomfortable with this justification, the column argued, he or she can still do pro bono work, advocate for social or climate justice initiatives in the law firm, or move on to a public interest role after working at the law firm. So, in the end, Appiah seems to suggest that it is ok to take a law firm job that involves representing “climate villains.”
Appiah’s column and the ensuing discussion highlight a fundamental question for the legal profession that should not only be addressed at the individual level. As other public responses to Appiah’s answer stress, the focus on the individual regurgitates shallow clichés about lawyers without engaging or challenging the systemic issues at hand.5 Specifically, issues of conflicting demands between the professional role of the lawyer and business and human rights obligations need to be primarily addressed at the institutional level.
This chapter aims to highlight some of these issues. After exploring how corporate lawyers can contribute to climate change, the overall considerations of professional ethics and business and human rights as they affect the legal
2 Corporate Lawyers and Their Impact on Climate Change
First, it is helpful to discuss how corporate lawyers can contribute to climate change in potentially significant ways through their actions. The most straightforward way is through the operation of the buildings they work in, the travel they take to see clients, and other direct emissions to which lawyers individually contribute. While these direct emissions are worth mitigating and controlling in their own right, they are not the most significant way corporate lawyers may contribute to climate change. Most of the discussion about lawyers’ contribution to climate change concerns their indirect emissions, namely the emissions their clients make using their legal guidance or advice.
But how exactly can lawyers’ actions contribute to client emissions? The legal profession has been publicly criticized for enabling various unethical practices like corruption, and this discussion has recently expanded to issues like respecting human rights and mitigating climate change. Ramasastry, for example, recognizes lawyers as a part of a group of professional service providers that have not fully implemented a human rights approach into their own business despite advising on human rights as a specialized practice.6 She goes on to highlight how lawyers can be connected to negative human rights impacts through the advice they provide to clients, and how regulations can further embed human rights in their business decisions. As human rights increasingly interlink with environmental rights and issues related to climate change, it is important for lawyers to understand both how they should advise companies and when they are potentially enabling a human rights harm.
Vaughan highlights four ways lawyers are integral to exacerbating (or mitigating) climate change: lubricating, lobbying, legislating, and litigating.7 First,
In The Code of Capital, Pistor famously focuses on the role of transaction lawyers, where she highlights their actions as integral to manipulating the system of legal protections in the interests of their clients.8 She notes that, based on the development of the United States and United Kingdom legal professions and New York and London as major financial centers, most global corporate law firms are now primarily based in these two countries. She focuses on how lawyers in such global law firms have been able to create and protect the value of capital. She argues that lawyers built a global code from complex state regulations where “[i]f certain financial assets face regulatory hurdles in one country, the intermediary … can be moved to a more accommodating jurisdiction; ditto with tax liabilities, and environmental or labor laws.”9 She calls lawyers the “masters” of this code; they have the knowledge and expertise to maneuver through multiple jurisdictions to protect client assets from legal risks and find opportunities for legal innovation. She argues that these two actions go beyond navigating and applying existing laws; lawyers instead push the boundaries of current law or effectively create new law through their implemented innovations which can only be potentially challenged in court after its implementation (or most likely settled without public scrutiny). While Pistor focuses on wealth inequality as a consequence of the lawyers’ practice, the actions she
3 Professional Ethics and the Legal Profession
The first perspective to introduce comes from a lawyer’s professional ethics. Professional legal ethics embody the specific principles and roles that govern the legal profession.10 This perspective highlights the legal profession’s special role, privileges, obligations, and how lawyers are expected to approach their work. To understand the special role that professional ethics plays in the lives of members of the legal profession (professionals henceforth), it is important first to examine the key characteristics of a profession.11
The first characteristic is that it has a specific function. For example, the medical profession’s social function is to provide health care, the accounting profession’s function is to provide assurance, and the legal profession’s function is, briefly put, to contribute to the rule of law. To fulfill this function, members of a profession must possess specific knowledge, skills, and expertise. A professional’s body of knowledge is highly domain specific. Where, say, a business economist possesses general knowledge about the economic aspects of running a business, accountants have skills targeted to the profession’s function, that is, to provide financial assurance. Such knowledge is continuously changing due to technological, legal, and social developments and is therefore in continuous need of being updated. In this regard, lifelong learning or permanent education programs are among the profession’s institutional mechanisms.
Another characteristic of professions involves motivation: professionals are not supposed to act primarily based on selfish reasons, but rather by a motivation to contribute to realizing the profession’s social function. It is admissible that professionals strive to earn a decent salary, which may be among the reasons why they chose this career. Still, the daily motivation of a professional must be to fulfill their social role by providing professional services to their clients.
Professions are also monopolies. Everyone can give business advice, but only chartered accountants can give assurance, and only lawyers can represent
Membership in a profession is voluntary. One is not forced to become a lawyer or an accountant, or to be registered as such; consequently, the obligations that come with professional membership are adopted voluntarily. For instance, a law student who believes that his or her values conflict with partisanship or partiality can avoid becoming bound by its demands by avoiding becoming a member of the bar. Yet, by not becoming a member of the bar, the student will not be able to act in the professional role of a lawyer, even if the student has the qualifying education and skills.
With this right to monopoly comes a second right: self-regulation. Professional bodies have the right to establish quality standards, procedures, processes, and codes of professional conduct. These instruments reflect technological, scientific, legal, and social developments and insights and guide professional behavior to provide a standard of what clients and other beneficiaries might expect. Disciplinary measures are often used as an instrument to enforce professional ethics. Typically, fundamental values form the core of self-regulation.
Professional ethics can be seen as the manifestation of the principles, values, and rules that professionals voluntarily assume upon entry into the profession. They are meant to foster the motivation and expertise necessary to serve a lawyer’s clients and fulfill a lawyer’s social function. They also reflect the responsibilities that come with the government-granted powers of monopoly and self-regulation. The existence of a power imbalance between a client who needs help and a professional with a specialized skill is characteristic of a profession. Professional ethics are then supposed to be a way to protect against exploitation of the client.12 For example, a professional code of conduct may
The principles of professional legal ethics are generally described as the “standard conception” of lawyers and lawyering. The standard conception is comprised of three principles: (1) partisanship with the client, (2) neutrality in moral judgment concerning client’s interests, and (3) non-accountability: a lawyer should not be judged morally because of the client, the client’s goals, or the lawyer’s assistance in fulfilling the client’s goals.13 Parker and Evans summarize four different approaches to professional legal ethics and the application of the standard conception.14 The first approach, adversarial advocacy, argues that the legal interests of the client are the only morally relevant considerations for the standard conception of a lawyer. Second, building on this approach, the responsible lawyering approach aims to include both the legal interests of the client and the public interest in the standard conception, because the lawyer is a representative of the law. Finally, there are the moral activism and ethics of care approaches, which argue against differentiated moral considerations for lawyers.
Adversarial advocacy is seen as the predominant, traditional approach to professional legal ethics, especially in common law jurisdictions. The other approaches are offered as challenges or alternatives to the adversarial advocacy approach, with responsible lawyering also reflected to a certain extent in the principles of lawyers’ codes of conduct. For example, to facilitate the proper administration of justice and adequate legal protection of their clients, members of the Dutch Bar must act in conformance with the following core values: independence (vis-à-vis their clients, third parties, and cases), partiality (looking after the justified interests of their clients), competence, integrity, and
To sum up, lawyering is an example of a profession based on several premises about the social function of the legal profession; through professional legal ethics, the profession aims to find the best ways to fulfill that function. This function is to contribute to the proper administration of justice and to provide effective legal protection for clients. Key principles and rules have been identified that lawyers are expected to fulfill as lawyers. Yet, when principles and rules are domain-dependent, friction may arise when they are activated outside the intended domain of application. This friction is discussed further in the chapter after introducing the second set of ethical considerations: business and human rights.
4 Business and Human Rights and the Legal Profession
Business and human rights is an umbrella term used to describe the norms guiding the way in which companies contribute to realizing or violating human rights. Unlike closely related initiatives of corporate social responsibility (which have been reliant on voluntariness), business and human rights discussions tend to focus on holding businesses accountable for the harms they have produced or contributed to.17 Furthermore, the literature on business and human rights has increasingly considered how climate change impacts various human rights. For example, climate change litigation targeting company harms have already invoked human rights considerations.18
Since its endorsement, the ungps have become the international standard of corporate human rights responsibility. The framework is split into three pillars: the state duty to protect human rights, the corporate responsibility to respect human rights, and access to remedy if rights are violated. Instead of outlining which human rights a corporate agent is obligated to protect (over or instead of a state obligation), the framework promotes the view that businesses influence the vast majority of human rights as defined by international law. Therefore, the ungps adopt a corporate context and focus on describing the kinds of obligations that businesses should assume, versus States. Principles 13 and 17 of the ungps consider how businesses are responsible for respecting human rights and carrying out human rights due diligence. While states have the ultimate obligation to protect human rights, corporate actors have a duty to respect human rights and “avoid causing or contributing to adverse human rights impacts” and “seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.”21 Based on these three levels of involvement, according to Principle 19, a business has varying obligations to remedy the adverse human rights impact.
The ungps are currently non-binding, but they have been incorporated into key policy frameworks and guidance, like the oecd Guidelines on Multinational Enterprises and the EU Corporate Sustainability Reporting and Due Diligence Directives, and have encouraged the development of laws like the UK Modern Slavery Act, France’s Corporate Duty of Vigilance Law, the
Business and human rights have been a focus of recent reports aimed at lawyers incorporating a human rights perspective in their advisory practice. For example, the International Bar Association has related human rights to various aspects of business law in its updated guidance note that explicitly states that “law firms face the risk of enabling the human rights abuse of their clients.”25 The Council of Europe has also funded a business and human rights practitioner’s handbook summarizing key concepts of business and human rights for lawyers.26 Furthermore, the Law Firm Business and Human Rights
5 Conflicts and Challenges between Professional Ethics and Business and Human Rights
As shown above, professional ethics and business and human rights are two ethical frameworks that lawyers are expected to consider in their daily work. Yet, questions have been raised regarding whether these standards can genuinely align with the profession’s obligations. Two of the most prominent conflicts against incorporating the ungps as a standard in lawyers’ professional ethics are that doing so could limit access to justice and sway a lawyer’s independence in giving advice. Both conflicts, while they may highlight issues in an extreme application of the ungps, have been generally exaggerated. Still, they point to other relevant challenges, like defining the parameters of “legal” advice and appropriately balancing various interests, which do not necessarily block the implementation of the ungps into professional advice but still need to be addressed.
5.1 Prominent Conflicts
The first proposed conflict is that the ungps are inappropriate for law firms because they lead to a situation where some clients may no longer be able to find lawyers willing to work with them. This would clash with the idea that lawyers are organs of the administration of justice which realizes the human
However, the argument is problematic in its application of the ungps. First, there is a certain disconnect between the examples adduced by skeptics such as Spiesshofer and the actual intended domain of application of the ungps. Skeptics tend to use examples that point to the risks of limiting lawyers’ freedom to advise and represent individual clients in criminal cases. It is agreed that the ungps should never lead lawyers to restrict access to justice for individuals, which is an enshrined human right in and of itself. Yet, as the ungps are directed at businesses, the examples given by skeptics don’t generally speak to how access to justice issues apply in business and human rights contexts. For example, as Wendel argues, it would be a category mistake or type fallacy to hold on to the view that legal persons, such as corporations, are owed the same protection as natural persons.29 Companies are not bearers of human rights, which may entail that the principles and rules governing the professional ethics of criminal defense lawyers vis-à-vis their clients are likely quite different from those governing corporate lawyers vis-à-vis the legal persons they work for. While businesses have a justified right in securing quality legal advice and representation, it is unclear if this right should be translated in the same way as the human right of access to justice. Furthermore, these arguments often make no distinction between the various types of services lawyers offer. Lawyers represent clients, advise them, are hired as consultants or internal investigators, and work in various legal and business contexts. It is not unqualifiedly true that access to justice concerns apply to everything that lawyers do for businesses.
In the second conflict, there is a fear that if a lawyer is forced to consider the human rights impacts of a client, the lawyer’s advice will be less independent. One way to understand independence as a core value of the legal profession interprets its essence along the following lines.30 It first involves the capacity and opportunity for autonomous decision-making. Second, it is a status that
Lawyers should ultimately provide independent, neutral legal advice, not moral advice. The argument is that the ungps add a layer of morality on top of a lawyer’s advice that is not warranted. Yet, corporate lawyers are already asked to consider several non-legal considerations in their advice to the client, like social, political, and economic issues.31 Depending on how much lawyers (particularly transaction or “in-house” lawyers) incorporate these non-legal considerations, they may be acting more like a business consultant at times, even in their professional role. The legal profession may resist the claim that in-house and transactional lawyering is akin to the role of a business consultant on the grounds that these types of lawyers are also tasked with facilitating the proper administration of justice by providing effective legal protection to their clients. As mentioned above, there is no dispute over whether businesses have a justified interest in quality legal advice. But the question is whether one needs a self-regulated monopolist to complete certain business activities, and it seems that corporate lawyers may be tempted to present principled arguments that, upon closer consideration, reflect only business economic interests. As Langevoort has argued, the core value of partisanship or partiality that legal professionals adhere to may even be an obstacle in this regard,32 and there is reason to suspect that a range of psychological factors explain how the judgments of legal professionals align with the role they play in their work environment.33 These factors have been amply documented by business ethicists.34
5.2 Reframed Challenges
While the first arguments underlying the conflicts mentioned above may be considered hyperbolic in their assessments against applying business and human rights considerations to the legal profession, they do point to two
Lawyers provide a range of services to their corporate clients. The most justified advice a lawyer could give based on their professional role is pure legal advice. But that is often not all that the client wants. To what extent should one consider a lawyer’s advice legal advice? To illustrate this confusion, let’s look at an example related to environmental regulations articulated by Pepper.35
Example 1. A lawyer is advising a client who owns a factory in a rural area that discharges environmentally hazardous waste as a byproduct. Regulations prohibit waste discharge over 0.05 grams per liter (the formal limit), and the client discharges more than the limit. She knows that the regulatory body, due to limited resources, generally does not inspect factories in rural areas and that sanctions for violating this regulation are usually a warning unless the violation is over 1.5 grams per liter (informal limit).
In this example, if a lawyer were consistent with her professional role in providing legal counsel, she would only state the formal limit to the client. That is what the law says, and her role is to uphold the law. Yet, she may be interested in advancing her client’s business interests, so she might tell the client all of the information, including the lower risk of inspection and the informal limit. By going beyond the formal limit in her advice, though, she is taking a step towards influencing the client in a business capacity that conflicts with the spirit of the law, potentially enabling the client to pollute and not comply with regulations.
The lawyer should recognize the impact of her advice (the client continues to pollute above legal limits) instead of assuming it is justified under the umbrella of legal advice. The non-accountability justification in the standard conception does not inherently translate to all activities in transactional work. Legal ethicists have argued that, absent better justifications, lawyers should be held accountable for corporate-transactional work to a larger extent than other legal practices.36 In this way, a lawyer’s advice needs to be clarified in the
This argument may seem somewhat counterintuitive to incorporating business and human rights considerations into the legal profession. After all, the considerations are still soft law in some contexts; therefore, they would not be considered legal advice. However, there is a clear trend toward these standards being incorporated into actual law, and the impacts of integrating human rights considerations into legal advice would ultimately be more morally defensible than disregarding them. Lawyers should therefore be encouraged to incorporate human rights considerations in their advice even if this advice would still be considered less legal and more consultant advice.
The second issue considers the balance of interests that lawyers are increasingly asked to consider. With the incorporation of human rights in their social role, a lawyer would understandably ask what to do when there is friction between serving a client’s interest and contributing to the profession’s social function. This friction can happen in all professions. For example, accountants provide assurance, which helps shareholders, creditors, and other interested parties gain a decent view of the financial situation of a business. This function is ultimately conducive to well-functioning financial markets and the economy. But in their daily interaction, accountants may be biased in favor of their clients, which reduces the value of their assurances. So, serving client interests may interfere with the social function of the accountancy profession. This friction applies to the legal profession as well. Consider the example below from Flatt.38
Example 2. After a shareholder victory, an oil and gas company must disclose financial risks related to greenhouse gas regulations. A lawyer working for the company receives a one-page statement of the company’s
draft disclosure stating that it does not expect significant greenhouse gas regulation in the future and therefore has no related financial risks. The lawyer knows that there have been a number of greenhouse gas-related regulations and proposed regulations in both the U.S. and the EU, jurisdictions that would affect the company. He is also aware that Intergovernmental Panel on Climate Change (ipcc) reports link the impacts of climate change and rising greenhouse gas emissions to specific deaths related to adverse weather events. The lawyer decides that the one-page statement does not have enough nuance in its discussion of risks and could therefore be misleading.
In this example, there are several conflicting interests that the lawyer is expected to balance: the company’s current interests in only disclosing certain information about climate-related risks, the company’s long-term interest in recognizing and adapting to current and upcoming regulations, the regulatory obligation to disclose these risks to a certain standard, and the public interest in avoiding climate-related deaths. To what extent does acting for one of these interests mean the lawyer fails to act on another? Furthermore, what if the lawyer raises concerns about the misleading statement, but the company refuses to update it? Disclosing to authorities the potentially misleading statement would fulfill the lawyer’s obligation to the public interest, but it would conflict with the lawyer’s obligation of confidentiality to the client. On the other hand, if the lawyer desperately tries to encourage the client to be truthful and comprehensive in its risk disclosure while maintaining confidentiality and the client does not listen, has the lawyer really fulfilled his duty to promote the rule of law or their duty to the public? As discussed above, the legal profession is moving towards promoting the responsible lawyer approach and deemphasizing the adversarial lawyer. Yet in this move, tensions between conflicting interests are more likely to arise, and it is still unclear how a lawyer should best attempt to weigh these conflicts. While context is critical in these evaluations, guidance on how to evaluate these conflicting interests and what to consider when deciding on a course of action is necessary for further implementation of a legal framework like the ungps into the legal profession.
Furthermore, the current structures that incentivize lawyers to favor certain interests over others must be recognized. For example, business ethics research suggests that the balancing of interests is more easily compromised when legal professionals operate outside their prototypical domain of operation. A large body of research attests to the fact that one’s work environment has a considerable effect on one’s behavior on the work floor. Two relevant notions here are ethical climate and ethical culture. Ethical climate captures the norms and
Ethical culture, by contrast, captures the organizational practices, procedures, and structures that embody and shape employee behavior.40 An important element of ethical culture is the degree of “congruence” between the norms and values that the organization is explicitly committed to and the actual behavior displayed by managers as well as the degree of “support” that compliant behavior receives in the organization. There is ample evidence that instrumental ethical climates and inferior ethical cultures are associated with unethical attitudes and behaviors at the individual employee level. Some research on lawyers suggests that this may be exacerbated by the degree to which lawyers depend on their clients (or employer, in the case of in-house lawyers) as well as the degree to which a lawyer’s primary identification is with the client rather than the legal profession.41 Pepper goes so far as to remark that corporate lawyers may become influenced by the “culture of greed and exploitation of the vulnerabilities of others.”42 This may be too strong, but from a business ethics point of view, it is unsurprising that legal professionals operating in a highly instrumental ethical climate, with low congruence and supportability, will generally be less concerned with their profession’s core values than those working in ethical climates and cultures that are more conducive to moral decision making. Recognizing the ethical cultures of the legal profession and to what extent they favor particular interests over others is critical in taking steps to creating a more aligned balance of interests for the legal profession.
6
In this final section, potential ways to address the issues above through proposed regulations and further guidance are highlighted. These proposals are not comprehensive but instead aim to show how these issues can be practically considered.
Scholars interested in incorporating climate considerations in the legal profession have proposed several regulations and updates to the professional codes of conduct.43 These proposals include updates that would explicitly allow or require lawyers to consider climate and environmental impacts in their advice, mandatory disclosures for extensive corporate carbon emissions or misleading representations, and disclosures from lawyers or law firms related to their target emissions and emissions relating to their clients. These kinds of rules would help to address cases like Example 2 above, especially in cases of fraudulent representation of the environment. They would set firm guidelines for lawyers to follow as a strong incentive to consider the public interest and the power imbalance between the public and powerful clients like large corporations.44 These rules are also further justified by the view that lawyers are increasingly seen as “gatekeepers.”45 Such amendments could lead to exceptions to principles like legal privilege in a way similar to how the EU Anti-Money Laundering Directive requires lawyers to disclose potential money laundering in clients.46 These exemptions can be seen as a changed conception of the responsibilities of lawyers, clarifying that lawyers shouldn’t facilitate illegal activities and should act to prevent (and sometimes disclose) suspected illegal activities. Legislation and subsequent related professional regulations could reinforce
Yet, rules and regulations can only go so far in mandating actions when the context is important to the situation. Therefore, further guidance on what should be considered legal advice and how to balance interests should be developed. Several statements and guidance documents published by various bar associations recognize the role the legal profession has in mitigating climate change and proposing ways lawyers could bring climate considerations into their work.47 For example, the Law Society of England and Wales recently published guidance recognizing lawyers’ impact on climate change (including their advised emissions and potential greenwashing concerns) and how lawyers should be considering climate risks when giving advice.48 This guidance directly addresses how discussing climate risks with clients aligns with a lawyer’s professional duties, which is helpful in showing that lawyers can incorporate these considerations in their advice. Yet, the scope of the professional duties discussed in this guidance still remains exclusively defined from the perspective of the relationship between the lawyer and the client. The document does not consider potential conflicts between lawyers’ duties to the client and their other duties to the public. The guidance notes that further sector-specific direction is being developed, and these concerns may be better addressed in future guidance. This need for further guidance is also present in the implementation of the ungps, where there is an increasing focus on determining how the ungps practically relate to professionals.49 For example, guidance from Advocates for International Development published shortly after the endorsement of the ungps provides many considerations for how the ungps might affect the legal profession.50 Yet in providing examples of how lawyers
An important way to develop this guidance is by further encouraging discussion about these issues among lawyers, business and human rights and climate advocates, businesses, and the general public. This brings us to a finance analogy. In the financial services industry, banks are increasingly considering their contributions to human rights impacts. For example, the Thun Group of Banks published two reports that outlined how a bank could be involved in a human rights harm based on the definitions in the ungps.51 While these reports were widely criticized for their approach,52 it is important to note that these banks were attempting to engage in public discussions about their role in respecting human rights. In light of the financial example, there may be an additional rebuttal against the position that lawyers should remain neutral vis-à-vis business and human rights-related issues. Banks could retort that as long as legislators allow fossil fuel companies to operate, it would be unfair to deny fossil fuel companies financial opportunities. In fact, to the extent that banks are seen as utility providers, one might even argue that they should remain neutral. However, that is not in line with how banks seem to be reacting or what society expects of them. Similarly, there should be a public discussion about these issues and how the legal profession should incorporate human rights considerations.
Furthermore, as it relates to balancing various interests, engaging the public in discussions provides more legitimacy to the legal profession and its
7 Conclusion
The introduction of this chapter started with the question – Is it morally okay for a lawyer to work for “climate villain” companies? But as this chapter demonstrated, this is the wrong question to put into focus. Instead of centering individual assessment of responsibility, this chapter concentrated on the ways the professional legal institution should be reflecting on and implementing human rights and climate considerations. It would benefit the corporate legal profession, and its regulators, to seriously consider and provide guidance for lawyers on how to balance both the professional and human rights considerations regarding climate change instead of ostracizing climate-conscious lawyers from their professional role. Just like accountancy and other professions, the legal profession must seriously consider the conflicting demands on lawyers in their professional obligations to their clients and other societal stakeholders. The climate-conscious law student asking New York Times’ “The Ethicist” about the responsibility of the individual lawyer concerning climate change highlights these conflicting demands, but resolving these tensions needs to be addressed at the institutional level.
In this chapter, overall considerations were summarized relating to professional legal ethics and business and human rights instruments that hold businesses (including law firms) accountable for their contributions to human rights harms, including climate change. Two commonly proposed conflicts in these two ethical viewpoints, namely access to justice and independence were
This chapter was presented at the 2023 Lausanne Business and Human Rights Conference, the 2023 University of Amsterdam Sustainable Global Economic Law Conference, and as a part of one of the author’s PhD defense. The authors are grateful to the audiences collectively for their feedback. In particular, we thank Jan Broekhuizen, Eric Brandstedt, Bengt Brülde, Joakim Sandberg, Steven Vaughan, Lina Eriksson, Erik Angner, Lena Halldenius and anonymous book reviewers for reading earlier versions of this chapter. All errors are attributable to the authors alone and not to these helpful commentators. This chapter was finished early 2024, and has not taken into account later developments.
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Robinson Meyer, “Think Twice About Working for a ‘Climate Villain’,” The Atlantic, September 14, 2022,
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Anita Ramasastry, “Advisors or Enablers? Bringing Professional Service Providers into the Guiding Principles’ Fold,” Business and Human Rights Journal 6, no. 2 (June 2021): 293–311.
Steven Vaughan, “Climate Change and the Rule of Law(yers): What Thinner and Thicker Accounts Might Require of Those in Practice,” Faculty of Laws University College London Law Research Paper No. 11/22, August 2022.
Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (Princeton University Press, 2019).
Id. at 159.
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Stephen L. Pepper, “Three Dichotomies in Lawyers’ Ethics (With Particular Attention to the Corporation as Client),” Georgetown Journal of Legal Ethics 28, no. 4 (2015): 1069–1134. Pepper goes on to say that while this traditional professional paradigm is strongest in relation to individual clients or small business owners, the power imbalance is less active or even reversed when an entity like a large corporation is the client. In this case, Pepper argues that the professional ethics should be able to protect third parties from this power imbalance.
Tim Dare, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role (Routledge, 2009).
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Id. at 14–15.
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W. Bradley Wendel, Ethics and Law: An Introduction (Cambridge: Cambridge University Press, 2014).
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Donald C. Langevoort, “Where Were the Lawyers? A Behavioral Inquiry Into Lawyers’ Responsibility for Clients’ Fraud,” Vanderbilt Law Review 46, no. 1 (1993): 76–119.
David Luban, “Integrity: Its Causes and Cures,” Fordham Law Review 72 (2003): 279–310.
Andrew Crane et al., Business Ethics: Managing Corporate Citizenship and Sustainability in the Age of Globalization (Oxford University Press, 2019).
Pepper, “Three Dichotomies,” supra note 12., at 1123.
Judith A. McMorrow and Luke M. Scheuer, “The Moral Responsibility of the Corporate Lawyer,” Catholic University Law Review 60, no. 2 (2011): 275–310; David Kershaw and Richard Moorhead, “Consequential Responsibility for Client Wrongs: Lehman Brothers and the Regulation of the Legal Profession,” The Modern Law Review 76, no. 1 (2013): 26–61.
Matthew A. Smith, “Advice and Complicity,” Duke Law Journal 60, no. 2 (2010): 532.
Victor Byers Flatt, “Disclosing the Danger: State Attorney Ethics Rules Meet Climate Change,” Utah Law Review 3 (2019): 570–571.
Bart Victor and John B. Cullen, “The Organizational Bases of Ethical Work Climates,” Administrative Science Quarterly 33, no. 1 (1988): 101.
Muel Kaptein, “Developing and Testing a Measure for the Ethical Culture of Organizations: The Corporate Ethical Virtues Model,” Journal of Organizational Behavior 29, no. 7 (2008): 923–47.
Trevor Clark et al., “Agency over Technocracy: How Lawyer Archetypes Infect Regulatory Approaches: The fca Example,” Legal Ethics 24, no. 2 (July 3, 2021): 91–110; Sung Hui Kim, “The Banality of Fraud: Re-Situating the Inside Counsel as Gatekeeper,” Fordham Law Review 74 (2005): 983–1077; Cassandra Burke Robertson, “Judgment Identity and Independence,” Connecticut Law Review 42, no. 1 (2009): 1–48.
Pepper, “Three Dichotomies,” supra note 12, at 1106.
Flatt, “Disclosing the Danger,” supra note 38; Joshua Gostel, “Ethics, Energy, and the Environment: A Proposal to Hold Attorneys to Certain Standards in Protecting Our Planet,” Georgetown Journal of Legal Ethics 30 (2017): 819–36; Kim, “The Banality of Fraud,” supra note 41; Katie Kouchakji, “How the Climate Crisis Is Changing the Legal Profession,” International Bar Association, September 28, 2021,
Pepper, “Three Dichotomies,” supra note 12.
Stéphane Rousseau, Julie Biron, and Ejan MacKaay, “Lawyers as Gatekeepers,” in Company Lawyers Independent by Design: An ecla White Paper, eds. Philippe Coen and Christophe Roquilly (Paris: LexisNexis, 2014).
Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018 amending Directive (EU) 2015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, and amending Directives 2009/138/ec and 2013/36/EU (Text with eea relevance), oj l 156, June 19, 2018.
“Resolution 111,” American Bar Association House of Delegates, 2019,
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Ramasastry, “Advisors or Enablers?,” supra note 6.
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Robertson, “Judgment Identity and Independence,” supra note 41, at 46.