According to Milieudefensie, ING fails to act in accordance with the Paris Climate Agreement. Although no ruling has been made yet, the case reflects an expectation in society: organizations that, according to groups like Milieudefensie, hinder the climate transition must be held accountable. This raises a fundamental question for the legal profession and other business service providers: can you still provide (legal) assistance to major polluters? We discuss this with two experts: Jasper Teulings, Director of Strategic Litigation at CIFF Climate and former General Counsel of Greenpeace, and Jan Broekhuizen, member of the General Council (the board) of the Dutch Bar Association and partner at Kennedy Van der Laan.
Jasper Teulings, together with Danny Hoekzema, wrote an article in the FD in response to the ING case. This raises the question of whether law firms also have an obligation to act in accordance with the Climate Agreement. Should they not also move toward an advised emission stack? The background is clear: there is a polycrisis. Six of the nine planetary boundaries are already being structurally exceeded. Climate change is leading to large-scale human rights violations. There are only six years left to halve global emissions, and this can only be achieved if everyone contributes.
There is now also a legal standard for governments and businesses to take action: the Corporate Sustainability Due Diligence Directive (CSDDD). Students—the future workforce—are asking critical questions, London law firms have taken action themselves, and the European Bar Association has established climate guidelines.
Social value
Within the Dutch Bar Association, Jan Broekhuizen is responsible for this topic, among others. He recognizes the necessity to act. The time when “what is not prohibited by law is acceptable” has passed. There is an ongoing discussion about rules versus social value. What do we, as a society, consider important, and how should we conduct ourselves? Climate change is real, fundamental human rights are under threat, and the transition is absolutely necessary.
The specific question for the legal profession is: how do we position ourselves in the interplay between social values, rights, regulations, and the private interests of our clients?
Broekhuizen believes it is important to make distinctions within this discussion. There are both constitutional principles and societal views on what we collectively consider important.
The statement “every suspect has the right to a lawyer” is, for example, an important principle but also a platitude. There is more behind it. The principle itself does not provide a criterion for making choices in the positioning debate. A lawyer can and must make their own considerations in this regard.
If this does not happen sufficiently, should the legal profession then be regulated for societal reasons? And how? The risk of paternalism is significant here. The fundamental premise should be that no one, including the state, has a monopoly on determining which interests may be recognized or defended in the public sphere. In a constitutional state with an independent legal profession, all interests deserve to be weighed.
Additionally, there is the question of whom any regulation should target. Should it apply to the lawyer as a professional or to the law firm as an organization? Law firms are businesses like any other and must adhere to regulations. At the same time, they employ individuals who hold a specific role within the legal system.
Broekhuizen emphasizes that the Dutch Bar Association, as a national public law professional organization, sets policies for the lawyer—not for the law firm.
Doing nothing is not an option.
The legal profession itself is now also developing methodologies to find answers, such as Legal Charter 1.5. This initiative, created by several international law firms, is based on eight principles to which participating firms publicly commit.
Under this framework, a law firm’s portfolio is assessed through a climate lens, with a focus on emissions and transition plans. This results in a rating with a specific color code: red represents a new fossil fuel project, orange includes cases such as livestock and dairy farming projects, and yellow applies to clients in transition. This creates a prism effect, where all colors gradually shift with the help of existing transition plans.
For a law firm, engaging with such initiatives can be not only a principled choice but also a strategic business advantage, as a legal standard is emerging that all (large) companies will need to comply with.
There is still a long way to go in this area. It is important to recognize that the legal profession is a different entity compared to, for example, pension funds, which can enforce transition plans by threatening to withdraw funding.
Additionally, there is the question of whether the safeguards for the legal profession in litigation practice are being extended too far into commercial advisory practice, where the Legal Charter 1.5 approach could be an interesting alternative.
Another key point is that only recently have soft laws been replaced by a mandatory form of regulation applicable to larger law firms. This regulation does not target individual lawyers, reducing the risk of paternalism.
That is not a comparison, but the legal profession also sometimes needs a wake-up call.
Curious about our next Good Morning Legal People? Sign up here for our next online session.