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Activist lawyers: heroic prophets or unprofessional moral absolutists?

12 May 2023

| Author: Warren Pyke

On 29 March 2023, a group of 140 lawyers calling themselves “Lawyers are responsible” issued a press release titled: A Declaration of Conscience for the Legal Profession. This encyclical conveyed their collective judgment that the climate crisis poses an existential risk to humanity. They pronounced that, by way of affirmative action, they intend to withdraw legal services from businesses and presumably governments that promote new fossil fuel projects, and they eschew acting in criminal or civil proceedings against peaceful climate protesters. Some of the signatories to this declaration included certain King’s Counsel (for the declaration and the list of signatories go here).

A lawyer from Guyana is quoted as begging her legal colleagues to join in the “frontline” fight to uphold the rule of law and protect the planet from the “killing effects” of fossil fuels; she implores lawyers to take a stand against “ecocide”; a barrister says humanity has reached the point of no return and lawyers brokering “these deals” fail to protect the rights of the marginalised, adding that the rule of law is subverted “when those causing the harm go unchallenged but those raising the alarm were criminalised”.

‘Undesirable’ clients

The declaration has been the subject of critical comment in England (see comment of John Gould in The Law Society Gazette, 21 April 2023). As the gazette writer observes, the denial of legal representation by the signatories is premised on individual conscience. He adds that it is an essential principle that people are not denied legal representation just because lawyers regard them as undesirable or morally reprehensible. This ought to go without saying in an open society. Despotic statist regimes deny representation to those deemed to be odious but these progressive activist lawyers can’t wait for free and democratic governments to get with that program, so they have invented a novel scheme of partisanship.

The threat to justice is always greatest when there are powerful moral beliefs in play. The rule of law guarantees due process to everyone, not just those approved by lawyers. The signatories eschew acting for those who they consider to be heavy with the mephitic odours of moral putrefaction, while celebrating their stance of not acting as counsel in proceedings against those who peacefully tilt at windmills.

The fundamental obligation on lawyers to be independent cannot be casually cast aside by the artifice of conscience. Fortunately, most lawyers are not easily led astray from their professional obligations. The practical effect of the declaration on clients will be negligible, if not invisible. Only a few of the current signatories appear to be practising barristers in England, eight of whom appear to come from the same chambers. The author of the gazette piece likens the gesture made by the declaration to a sit-in on a road where there is no traffic to obstruct (glue or no glue being applied).

An iniquitous effect of the declaration is the signal it sends to the public. A significant number of the public is already cynical about the motivations of lawyers, and suspect partisan or selfserving behaviour. Lawyers can become targets for public dislike of their clients. The message from the profession and its leaders must be that lawyers do not choose their clients, and they are not to be aligned with their clients’ behaviours or interests. A further troubling aspect of the declaration is that it appears to ignore a live public debate about climate change. There are many sources of information: a recent authoritative source is Steven E Koonin’s book, Unsettled? What Climate Science tells us, what it doesn’t, and why it matters (BenBella Books, Inc Dallas, 2021).

Koonin was a former Under-Secretary for Science in the Obama administration, is a former professor of physics and astrophysics at Caltech and is a professor at New York University, among other prestigious posts. He is not the only highly qualified scientist who makes a persuasive case, based on data and evidence, that the alleged climate crisis may not be as imminent or as severe as some people and politicians are being led to believe. However, the main point of this article is not to comment on the shallowness of single-minded extremists.

Serious breach

Lawyers may freely participate in public causes or debates, but when doing so they act as citizens, not lawyers. The lawyers who signed the declaration seek to bring the weight of their professional status to bear upon the public interest issue they champion. This is a mistake. They grievously add to their error by expressly excluding persons or corporations from access to legal representation in a free and democratic society, which is a serious breach of the obligation on lawyers to be independent.

The declaration does not uphold the rule of law, it is corrosive of it and of the administration of justice. It attempts to drum up support for the denial of due process to an identifiable group, and in doing so it is discriminatory. If you are a barrister, adopting the declaration makes a dead letter of the cab-rank rule. Moreover, the declaration perversely appears to hold that only those who peacefully protest are deserving of inclusion in this discriminatory scheme. Apparently, according to these modern-day gatekeepers, a lawyer must first adjudge if the protester was peaceful before deciding whether to accept or decline instructions. It is not clear whether those who favour gluing themselves to roads and bridges will find themselves on a sticky wicket by failing to meet the non-violent test.

We must presumably await delivery of the next edict to clarify this point.The guiding notion of this secular clergy appears to be that the moral high ground can never be surrendered. This sorry state of affairs brings to mind the words of Lord Peter Rawlinson when he appeared for the unpopular late UN Secretary General Kurt Waldheim in a mock trial. He made it clear that he didn’t ‘’care a fig’’ for Waldheim as a person, but he took on his defence because he was passionately interested in justice being done (Waldheim was ‘acquitted’ of ‘charges’ of being implicated in Nazi crimes).

The logical extension of this zealotry is to exclude as clients all those who invest in or promote fossil fuels, and to accept as clients only those who ride bikes, drive electric vehicles and use solar heating. Cattle beast and dairy farmers can also get lost, as can petrol station proprietors, international travellers, wood fire burners and gas stove users. Hemp sandal wearers are allowed, but only if they swear off using plastics. All clients must promise to recycle. The list can go on. Only in this way can lawyers save the planet.

One hopes that such a facile declaration finds no home in New Zealand. ■

Warren Pyke is an Auckland barrister ■

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