Net zero and the next steps for the legal profession - practical guidance

The climate emergency has led many nations to take steps to reduce carbon emissions and promote environmental protection and integrity. Scotland is no different.

In view of the drive towards net zero, we consider some of the practical risk management considerations for lawyers in this age of environmental conscience and sustainable drafting.

What is net zero?

‘Net zero’ describes the reduction of greenhouse gases emitted into the atmosphere to a very small amount which can be absorbed naturally into the environment. Scientists suggest that to ensure Earth remains a ‘liveable planet’, global temperatures must be limited to 1.5°C above pre-industrial levels – and by many calculations, we are almost at that threshold. These findings by the Intergovernmental Panel on Climate Change were adopted in the 2015 United Nations Paris Agreement, an international treaty which is the result of decades of scientific and political discussion around the climate crisis.

The Climate Change (Emissions Reduction Targets) (Scotland) Act 2019 is Scotland’s answer to meeting its obligations around climate and environmental preservation. The Scottish ministers have committed to achieving net zero by 2045. The First Minister’s Programme for Government 2025-2026 includes a number of measures to reduce carbon emissions in Scotland including improving public transport and infrastructure for electric vehicles; providing funding for renewable energy solutions; and restoring and preserving woodland and peatland.

What does net zero mean for solicitors in Scotland?

As projects, governance and regulation are increasingly influenced by the drive for net zero, solicitors will likely see an increased impact on a wide spectrum of legal disciplines and areas of practice. We consider some of the key risks likely to be faced by the legal profession with some practical guidance around risk management.

Limiting your scope of duty and dabbling

We’ve been cautioning for a great many years around the risks of solicitors straying beyond their area of expertise to advise on an area in which they are inadequately skilled or experienced (known colloquially as ‘dabbling’). The wide-ranging impact of environmental concerns and climate change may mean more practitioners will be asked to consider these issues without having the required skillset to do so.

With a range of environmental professionals available to advise on projects and to provide input at decision-making level for corporate clients, solicitors must recognise their limitations and feel empowered to step back and counsel their clients to consult such specialists for input.

The Law Society of England and Wales encourages this cautious approach and we recommend a measured and careful approach to limiting the scope of your remit in your letters of engagement to your client. Ensure you set out in clear terms both the work you will do as well as work you specifically exclude.

Advising on net zero and climate obligations

Certain solicitors will almost certainly be unable to avoid the impact of climate change on their daily practice and the likelihood is that those advising on property, construction, finance and corporate and commercial issues will be expected to consider climate risk as part of their professional obligations of competence, diligence and good delivery of service. Indeed, the Chancery Lane Project reports that recent guidance from the Law Society of England and Wales indicates practitioners may face negligence claims for failure to advise on climate risks where pertinent.

The Law Society of Scotland is presently considering whether published conveyancing guidance may require amendment. In the interim, practitioners should remain up to speed on developments in climate change and legal risks which may flow from it. Solicitors should ensure they identify and review appropriate resources relative to their area(s) of practice.

Firms may find that restrictions or exclusions of cover come to be applied by professional indemnity insurers providing coverage for climate and environment-adjacent advice where relevant knowledge and awareness cannot be demonstrated. Ensuring adequate and appropriate professional indemnity cover is itself also an essential step for practitioners diving into the world of net zero.

Drafting for net zero

The widespread and rapid drive for net zero has led to a desire for industry-standard ‘boilerplate’ clauses in environmentally conscious language for use in drafting. These boilerplate clauses may assist in bringing contractual obligations, commercial considerations and potential climate-related risks into alignment.

The Chancery Lane Project provides invaluable resources for firms and solicitors looking to bring their practice in line with climate-related goals. Initially a collective of legal professionals, the Project launched its Net Zero Toolkit and Net Zero Clauses in 2021 and has transformed into a movement with global reach. Its website provides numerous ‘climate-aligned’ draft clauses for inclusion in commercial agreements.

As with any boilerplate or industry-standard template, practitioners must be acutely alert to considering styles in the wider commercial context of the contract or their client’s goals. Careful regard must also be given to climate-related styles and templates – consider, for example, whether climate targets are achievable or overly aspirational in the context of each project and engage with clients to confirm.

As template banks (such as the resources provided by the Chancery Lane Project) have global application, ensure jurisdictional differences are always considered.

Conclusions

Scotland’s legal profession must continue to adapt in line with the rapidly developing and evolving law, regulation and governance around climate change risks and the net zero target. Consider guidance and resources specific to your location from Brodies’ real estate team.

Written by Rachael Jane Ruth, associate, and Alan Calvert, partner and head of Brodies’ professional risk team.

This is an article provided by Lockton, the official insurance broker responsible for placing and administer the Master Policy of the Law Society of Scotland. Lockton is the direct point of contact for anything related to the Master Policy, including claims, practice changes and general enquiries.