Together, We Can Change the World: Lawyers as ESG Allies

Together, We Can Change the World

Lawyers as ESG Allies

Jeffrey B. Gracer
Principal at Sive, Paget & Riesel
Chair, NYC Climate Action Alliance
US & UK Board Member, The Climate Group

NOVEMBER 2020

One of Shakespeare’s best-known quotes is “first thing we do, let’s kill all the lawyers.” Many forget that these words were spoken in Henry VI by a tyrant seeking to impose his will on a subjugated populace. A less well-known passage, but one that more aptly describes the role lawyers play as trusted advisors, is from Measure for Measure: “Come; fear not you; good counselors lack no clients; though you change your place, you need not change your trade.” That positive view of a lawyer’s role is particularly useful in the environmental, social and governance (ESG) arena, where lawyers are increasingly called upon to help clients navigate and solve complex challenges in a way that not only meets legal requirements but also advances broader societal goals. Helping clients advance their ESG agenda is a pretty great way to make a living while making a difference.

The core role lawyers play as trusted advisors is embedded in our code of ethics. Model Rule 2.1 of the American Bar Association’s Model Rules of Professional Conduct requires us to exercise independent professional judgment and render candid advice to clients; in so doing, we are encouraged to look beyond the four corners of the law to consider moral, economic, social and political factors that may be relevant to a client’s situation. In my firm’s environmental and renewable energy practice, most clients demand and value advice that goes beyond a narrow reading of the law. Indeed, environmental law recognizes that social and governance issues must be carefully considered to ensure that decisions about major projects appropriately avoid, minimize or mitigate adverse impacts.

The COVID pandemic has heightened our society’s awareness that the private sector can and must play a role in addressing the climate crisis, and that the corrosive effects of racial discrimination and gender inequity continue to plague us. And there is a growing cohort of activists within the private sector (especially younger people) that are committed to advancing these ESG issues. In our firm, for example, these efforts are extending well beyond traditional pro bono work and charitable donations, and are driving the creation of new practice areas that align with the progressive missions of our clients. For example, we are helping clients remediate and redevelop contaminated properties, accelerate the construction of wind and solar projects, build affordable housing, mitigate carbon emissions from buildings, bring clean energy jobs to disadvantaged communities, and create waterfront parks that integrate climate resiliency into their design. These developments are not unique to law firms; other professional service firms are following suit. The rising demand for ESG solutions is creating new opportunities for lawyers and other professionals to forge alliances in service of the public good. We can all be allies in that movement. And most of us want to be.

Lawyers bring certain useful skills to ESG matters. We are trained to find ways to make things happen. We help clients navigate their way through a thicket of complex and sometimes vexing regulations and standards. We break issues down into their component parts and put them back together in a way that fits within a client’s corporate culture and the applicable legal framework. We press regulators to say yes when they may be inclined to say no. We help companies finance solutions to environmental and other challenges. And through the exercise of what one of my law professors called “moral suasion,” we press clients to take a broader view of their interests and consider alternate ways of doing things that will result in better outcomes. It is exciting to have the opportunity to use these skills in the dynamic and evolving ESG field.

In 1965, just after the Selma march, Dr. Martin Luther King, Jr. spoke to an overflow audience of lawyers at the NYC Bar Association. Thanking attorneys for their support of the civil rights movement, Dr. King noted that “the road to freedom is now a highway because lawyers throughout the land, yesterday and today, have helped to clear the obstructions, have helped to eliminate roadblocks, by their selfless, courageous espousal of difficult and unpopular causes.” Today, although ESG professionals do not face the overt hostility faced by civil rights workers at Selma, they can still use the help of lawyers and other allies to clear obstacles and forge a path forward.