Existential Ethics: Thinking Hard About Lawyer Responsibility for Clients’ Environmental Harms

Abstract

This paper challenges the conventional understanding among many legal ethicists that environmental harm can be a necessary, if regrettable, collateral effect of lawyerly work. It argues that lawyers sometimes do things that cost society too much and that legal ethics (being the rules of ethical conduct set out by regulators of lawyers and broader theories of ‘good’ lawyering) has the potential to act as a mediator on lawyers’ environmental harm-causing action. The paper begins by examining lawyers’ formal rules of professional conduct in England & Wales, showing how those rules require lawyers to provide active counselling to clients but do not fully address clients’ legally permissible choices that may result in environmental harm. The paper then turns to theories of legal ethics that go beyond these baseline rules. Here, I argue that the dominant ‘Standard Conception’ of lawyers as neutral technicians is not only implausible in the context of environmental law but also fundamentally incomplete. The paper also considers the ethical implications of a lawyer’s initial decision to represent a client. The commonly held belief that ‘Everyone deserves legal advice’ often masks a simple ethical choice, where lawyers prioritise commercial concerns over environmental considerations, unburdened by more complex ethical constraints. However, this rationalisation rests on unsound premises and frequently clashes with lawyers’ personal moral boundaries; a problem I label ‘Meatloaf Lawyering’. Ultimately, I argue that lawyers have significant ethical agency and that their professional obligations do not impede (and sometimes require) an active, ethically responsible stance towards environmental harms.