1) Solicitors have a general legal duty to exercise reasonable skill and care. The standard is that of a reasonably competent practitioner (see Oliver J in Midland Bank Trust Co Ltd v Hett Stubbs and Kemp [1979] Ch384 at 403).
Courts have been inclined to find that a solicitor is obliged to warn their client of a risk associated with a transaction. These include where a solicitor is aware of information pertinent to their client’s interest and /or is aware of obvious risks. In Provident Capital Ltd v Papa [2013] NSWCA 36; (2013) 84 NSWLR 231, Macfarlan JA (Allsop P and Sackville AJA agreeing) said (at [80]): “A solicitor’s obligation is not simply to explain the legal effect of documents but to advise his or her client of the obvious practical implications of the client’s entry into a transaction the subject of advice.”
2) Therefore, solicitors should carefully consider whether excluding climate risks from the retainer is wise. This may extend to information obtained while fulfilling the solicitor’s retainer, whether the matter in question is strictly within the scope of the retainer or not (see, for example, Kumar v Western Sydney Realty Pty Ltd v Anor (No 2) [2021] NSWDC 446). The duty to warn should be addressed at all stages of giving advice to a client. A solicitor may have a greater obligation, where the solicitor is aware that the client is particularly vulnerable, whether from lack of information or otherwise, to offer warnings or information that is incidental to the legal work being carried out to ensure that the client understands the full ramifications of the undertaking.
3) Solicitors have a duty to disclose to their client all information material to that matter of which they have actual knowledge. In the context of climate change, this means that where a solicitor becomes aware, while acting in a matter, that there are climate risks which might impact the client’s interests in-scope of the retainer, the solicitor should disclose such risks to their client in a clear and understandable way.
It also quotes rule 7.1 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 which provides: “A solicitor must provide clear and timely advice to assist a client to understand relevant legal issues and to make informed choices about action to be taken during the course of a matter, consistent with the terms of the engagement.”
4) Maintain the level of competence and legal knowledge needed to practise effectively, considering changes in practice context and developments in the law, including in relation to climate risks. The Guidance states that “A solicitor who does not have the relevant knowledge of the impact of climate change on the legal area they are advising on should not provide advice if it is outside their knowledge or competence. When a solicitor identifies a legal risk but considers they are unable to advise, the solicitor should liaise with their client about seeking specialist third-party assistance, such as technical consultants.”
5) Inform clients, in a timely way, of key facts and issues, including risks and mitigation strategies. “Solicitors….must advise their client of the obvious practical implications of the client entering into the transaction the subject of the advice, but should not, however, provide opinions which they are not qualified to give.”
