So there are things that can really make you feel small. And there are things that can really lead to despair and a feeling of helplessness. Fortunately, there are few things that do both at once. The report from the Intergovernmental Panel on Climate Change can do both of those things pretty simply. If you haven’t read it, or at least parts of it, you can do so at this link. If you don’t want to read the report itself (or parts of it), then you can go read one of the many articles discussing at length its sobering warnings of what the future (the close-enough-future that we can imagine ourselves in it pretty easily) here or here or here for example.
You really ought to read as much about it as you can because, to a pretty significant extent, whether we have a habitable planet is just about all that really matters. And, though the more you digest the news about the situation the easier it is to feel small and helpless, the reaction needs to be significantly different from that.
Why am I writing about this at a legal ethics blog? (Beyond the cop-out sort of reason in which I would tell you it feels a bit petty to write about anything else given the stakes, of course.) Well, it isn’t because lawyers are somehow going to save us from this outcome. For every lawyer out there who lobbies a state legislature to impose some new regulation to try to reduce carbon emissions, there will be another lawyer who ends up representing the industry that seeks to challenge that legislation in court. That’s the nature of our profession.
But, our profession can try to do a few things to not be part of making the problem worse.
A lot of the discussion about what the future of the practice of law is going to look like involves embracing technology and regulatory questions about ways in which the traditional approach to lawyer regulation may be stifling innovation that would ultimately benefit consumers of legal services. In my opinion, all of that should continue as quickly as we can move the conversation forward. But, as we try to talk about what the future of the profession should look like, we ought to be bearing in mind many of these much larger issues.
What can we do to make sure that technological solutions are used so that people in the court system do not have to make multiple, ultimately unnecessary, trips across town for court when nothing happens that couldn’t be handled over the telephone or by video conference or web stream if courts would permit that to occur?
What options should we be considering empowering so that fewer disputes go into the traditional court system at all if they could be resolved through online dispute resolution? What can we do to try to better fashion courts into places that can themselves be resolving disputes online?
What can we do to persuade those remaining jurisdictions that have been unwilling to move to electronic filing to give up the fight and swiftly enact electronic filing?
Pursuit of these sorts of initiatives can save an incremental number of natural resources.
And, why can our profession readily get comfortable with relaxing the artificial barriers we impose on the ability of a lawyer licensed in one state to actively practice law in another state only in the aftermath of disasters? Many states have issued ethics opinions in the wake of various weather disasters or passed court rules to permit flexibility for out-of-state lawyers to go to the disaster area and render legal assistance without fear of being accused of unauthorized practice of law. My own state did so a few years back.
The ABA very recently just issued Formal Ethics Opinion 482 encouraging lawyers to be ready for disasters and to plan ahead to protect their own practice and protect their clients’ cases and matters from adverse impact in the wake of disasters. The ethics opinion gives very good guidance and, perhaps, it gave that guidance far enough in advance of the devastating impact that Hurricane Michael is currently inflicting on a part of the world where my family has vacationed every summer for the last almost 20 years, Apalachicola and St. George Island, Florida, so that lawyers in that part of the world knew enough to have been prepared in advance.
The IPCC report presents a pretty clear indication of the coming disaster if radical change is not undertaken. Overhauling the regulation of the legal system to remove artificial barriers to cross-border practice and barriers that prevent technology from making it easier for clients to find lawyers and for lawyers to practice law without unnecessarily wasting resources seem like some things that amount to the least our profession can do to not be part of making worst-case scenarios even more likely to come to pass.