Reposted from the American Bar Association
By: Catherine Rocchi and Camila Bustos
We are living through an unprecedented planetary crisis. Climate change has already caused immense human suffering and governments around the world have yet to deliver on their Paris Agreement commitments. But we do not have the luxury of giving up. “Every fraction of a degree matters,” a lead Intergovernmental Panel on Climate Change scientist recently stated. “Even if we go beyond 1.5, that doesn’t mean we throw up our hands and despair.” Law firms and law schools can take concrete actions to transform themselves into leaders of a just transition.
Moral nonaccountability is a climate problem
Model Rule of Professional Responsibility 1.2(b) states that representing a client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” This narrative casts lawyers as neutral service providers who need not consider the economic, political, or ethical implications of their actions. Despite robust arguments to the contrary, many attorneys remain unreceptive to the idea that their duty to the public interest extends to their choice of cases and clients. Moral nonaccountability enables most law schools and firms to assign prestige to careers that damage society.
But tides are shifting in the legal profession, and law students—arguably the members of the legal community with the least power—have taken a stand. In September 2020, a group of students founded Law Students for Climate Accountability (LSCA), an advocacy network that has expanded to law schools across the country. LSCA ranks law firms according to their litigation, lobbying, and transactional work for fossil fuel companies. Over the last two years, more than 200 students have signed LSCA’s Law Student Climate Pledge. Signatories commit to “stigmatize and ultimately eliminate the legal industry’s complicity in perpetuating climate change” by refusing to work for firms that represent fossil fuel industry clients, financial circumstances permitting.
This trend of renewed moral accountability for one’s work extends beyond the legal profession. For example, Clean Creatives connects public relations and advertising professionals who refuse to serve clients that cause social harm. For more than a decade, Rainforest Action Network has shed light on the role of big banks in financing fossil fuel projects. Even the United Nations secretary general recently issued a plea to young people: “Don’t work for climate wreckers.”
BigLaw is in bad shape
Between 2017 and 2021, top law firms took on 420 lawsuits on behalf of fossil fuel companies and facilitated a stunning $1.62 trillion in fossil fuel transactions. Moreover, according to the Corporate Pro Bono Institute, “the percentage of pro bono environmental law work within corporate law departments dropped from a paltry 6% in 2012 to an even more startling 2% in 2020.”
Yet law firms have a range of opportunities to correct this pattern. At a minimum, firms could adhere to a “do no harm” principle. Such a commitment would require firms to develop transparent standards used to reject cases or clients with legal goals that exacerbate climate change. The nuances of an ethics screen should be the subject of debate, but any filter would be an improvement over the status quo.
Functionally, as we explain in an op-ed in Law 360, the rules of professional responsibility permit lawyers to drop clients that insist upon destructive behavior. Under the American Bar Association’s Model Rule 1.16(b)(4), lawyers may withdraw from representation if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” There is precedent for firms ending representation of a specific client or moving away from a practice area. Kirkland & Ellis, for example, recently announcedthat it would no longer handle Second Amendment litigation after a wave of mass shootings across the United States. Firms also have another, less controversial lever at their disposal: simply choosing to avoid new clients and matters that involve destructive climate behavior.
Additionally, firms can support climate resilience by taking on new clients that protect the climate or strengthening a pro bono practice that supports climate change adaptation. These paid and pro bono clients need not be limited to conspicuous renewable-energy companies. Climate change stands to wreak havoc on myriad economic sectors. A corresponding range of legal strategies—ranging from zoning to antitrust—can expedite a clean energy transition and foster local resilience to climate stress.
While law firm associates can develop a substantial pro bono practice or push their firm to discontinue fossil fuel representation, law firm partners are ultimately responsible for a firm’s choices. Partners have the power to turn down lucrative contracts that undermine the possibility of a livable future.
Dismantling the school-to-firm pipeline
Most law schools funnel students toward corporate law firms. By easing financial burdens and enabling students to imagine alternative careers, law schools can both empower graduates to make positive change and pressure firms to offer more ethically compelling work to their associates.
The most important aspects of the school-to-firm pipeline are financial. The escalating cost of law school requires many students to take on massive debt. For example, between 2008 and 2021, the annual cost of attendance at Stanford Law School rocketed from $60,616 to $107,055 per year. Students from disadvantaged backgrounds tend to shoulder the additional burdens of supporting family members and building generational wealth.
Law schools could ameliorate these burdens by offering more generous aid packages and financial incentives to pursue public interest work. Stanford Law School, for example, recently upgraded its loan assistance repayment program, which forgives student loans for some public interest graduates. Between 2008 and 2022, Stanford Law School graduates who earned an annual salary that exceeded $50,000 in public interest careers were required to at least partially repay their student loans. While the program’s recent salary floor increase to $75,000 is a substantial improvement, these changes have not kept pace with the increases in inflation, cost of living, and firm salaries over the same period.
Law schools can also support climate work by narrowing the gap between the support and programming available to students entering law firms and those pursuing public-interest goals. The private sector career centers at many law schools—usually called simply “career services”—often employ numerous staff to guide students through structured firm recruitment programs on campus. Yet, at Yale Law School, one full-time staff member advises public interest students through disaggregated application timelines and across a wide range of interest areas. These students often rely on their classmates and alumni to navigate a competitive public-interest market. Providing more robust career counseling for jobs outside the private sector would help give students more opportunities to engage in climate-forward (or at least climate-neutral) work. This effort might be especially important at law schools that lack the resources to provide direct financial assistance to public-interest students.
Law schools should also increase the number of opportunities available to pursue climate work after graduation. For example, schools could expand institution-specific fellowships that support students and graduates interested in systemic advocacy. Law firms bankroll most public-interest fellowships. It may not be a coincidence that these fellowships tend to focus on direct services rather than impact litigation; direct services are less likely to undermine firms’ corporate clients than systemic change. New fellowships focusing on environmental and climate justice would go a long way toward expanding professional opportunities for public-interest graduates. Law firms, law schools, companies, and foundations should support these fellowships with a generosity that parallels the scale of the challenges we face.
Moving forward with integrity
Creating a legal profession that stands on the right side of history will require many institutions—and the individuals at the heads of those institutions—to buck financial incentives and settled practices in favor of doing the right thing. This responsibility does not rest with law students, and especially not with students from low-income and first-generation backgrounds, who must contend with unreasonable and escalating student debt. Instead, law firm partners and university administrators must align their actions with the urgency and existential severity of the climate crisis.