Should lawyers have a duty to ensure human rights are respected in the matters on which they advise?

Is considering human rights part of a solicitor’s role?

What does considering human rights when advising clients mean in practice?

Whose role is it to ensure that lawyers are equipped to weave this into their legal advice?

What are the challenges in moving this forward?

What are two immediate steps law firm lawyers can take?

 “Lawyers are present everywhere – behind everything that happens in the world, there is a lawyer. We owe it to our profession to take a pro-active approach to human rights as we advise clients.”

Sophia Adams-Bhatti, Law Society of England and Wales

18 September 2018 | Anna Triponel

On 18 September 2018, Advocates for International Development (A4ID) brought a group of practising City solicitors together to discuss “The Relevance of Business and Human Rights to Professional Ethics.” I had the pleasure of being part of the panel, alongside colleagues Sophia Adams-Bhatti (Director of Legal and Regulatory Policy at The Law Society of England and Wales), Nicole Bigby (Partner and Director of Risk at Bryan Cave Leighton Paisner) and Clare Connellan (Partner at White & Case).

We polled the audience on whether lawyers should have an actual duty to ensure human rights are respected in the matters they advise on, and 94% of the lawyers present said yes. A slightly lower number (86%) proceeded to say that competence in business and human rights should be required to hold a solicitor’s practising certificate. Granted, the room was full of lawyers who were particularly interested in the area — I nonetheless found these statistics astounding. We have come a long way since the UN Guiding Principles on Business and Human Rights (the Guiding Principles) were first endorsed in 2011.

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We had a vibrant discussion on the role of lawyers in business and human rights, as a panel as well as with the audience. Key points to capture for lawyers who were unable to join us are as follows:

Is considering human rights part of a solicitor’s role?

  • Solicitors have a duty to uphold the rule of law and the proper administration of justice, to act with integrity and to act in the best interests of each client. One can argue that considering human rights risks as part of legal advice falls squarely within these Solicitors Regulation Authority (SRA) principles;
  • Companies increasingly have a moral compass. They are asking themselves where their ethics should lie, and this is where lawyers can provide guidance: this distinguishes lawyers from other advisers. Solicitors have a certain responsibility and “privileged” position, as compared to other advisers;
  • We have a principles-based approach to corporate governance in the UK, as confirmed by recent changes to the UK Corporate Governance Code. Accordingly, it is only natural for lawyers to seek to use the Guiding Principles as guidance to interpret this principles-based approach when advising companies;
  • There is a growing regulatory expectation of companies to manage their human rights risks. The regulatory landscape is very different today as compared to when many lawyers went to law school. It is only natural for the role of external lawyers to evolve to reflect this;
  • Companies themselves are increasingly seeking to build and exercise leverage to influence legislative change where the laws are seen as inconsistent with their human rights responsibilities. If in-house lawyers are starting to ask themselves whether applicable laws are helping or hindering their ability to respect human rights, why wouldn’t their external lawyers?
  • Forward-looking in-house legal teams are increasingly asking themselves the following two questions when faced with a human rights-related allegation: (i) could we be considered legally liable (looking at applicable laws and contractual provisions) and (ii) could we be considered responsible (looking at the soft law contained in the Guiding Principles and the OECD Guidelines on Multinational Enterprises). This is now particularly relevant since companies can now be “sued” using this soft law (before the OECD National Contact Points). So if in-house lawyers are building their expertise in this field, why wouldn’t their external lawyers?

What does considering human rights when advising clients mean in practice?

  • There is significant confusion on this question. This does not mean that lawyers are expected to go out on the ground to help assess their clients’ human rights risks. Neither does this mean that lawyers are expected to become human rights lawyers and experts, in addition to counselling on their specialty;
  • What this means in practice is considering how the legal advice you are providing, and the transaction you are advising on, could inadvertently cause, contribute or be linked to adverse human rights impacts, and support the client in structuring the transaction in such a way as to avoid these impacts;
  • This could entail for instance advising a client to conduct a more robust community consultation for land acquisition than that required by law, suggesting a governance change to a joint venture that would ensure social issues get identified and addressed or counselling a client to push its suppliers on the creation of worker grievance mechanisms rather than pushing a no tolerance compliance-driven approach to modern slavery;
  • This ultimately is about the lawyer considering whether legal compliance and the corresponding legal advice provided will support or hinder the client’s ability to respect human rights, and building the client’s ability to identify and manage human rights risks as they arise.

Whose role is it to ensure that lawyers are equipped to weave this into their legal advice?

  • Responsibility does not lie with one entity – rather, a number of different actors should play a complementary role to ensure the legal profession has the relevant expertise. First and foremost, the SRA has a particular role to play to ensure that there is a basic level of understanding of these topics throughout the legal profession. Law schools can support this through their academic qualifications. Nonetheless, to ensure tailored expertise, firms should be in a position to provide practice-specific training;
  • The key to the success of any legal training is that this be tailored to the specific advice the solicitor will be providing within his or her legal practice. To do this, it is particularly helpful for training to be co-developed with the lawyers receiving it, keeping in mind the clients the lawyers typically advise.

What are the challenges in moving this forward?

  • Including human rights in legal advice is largely down to culture: for real change to happen, we need to change the culture of our firms and the people within them. Role-modelling and peer-to-peer learning play an important role: the “power brokers” within firms will be able to create change by having others follow their lead, while peer-to-peer learning and educating colleagues helps build the general level of awareness. It can be challenging to change law firm culture, especially where considering human rights is seen as going way above and beyond what lawyers are expected to advise on;
  • Lawyers are very seldom made aware after the fact of how their legal advice contributed to or was linked to adverse human rights impacts. Coming back to our examples discussed earlier, a lawyer who advises a client to follow a flawed land acquisition process, to structure a joint venture that is not equipped to consider social issues or to follow a compliance approach to procurement will typically not find out whether this resulted in adverse impacts on the ground, to neighbouring communities or to the workforce. Therefore, it can be difficult in practice to understand how legal advice should be changed;
  • Lawyers are experts in their practice area. It can feel daunting to consider that we are not fully aware of the impact our legal advice and the transaction can have on the ground. These ‘shades of grey’ happen frequently in the human rights arena. We did not know that modern slavery was present in the electronics sector in Malaysia or in the seafood sector in Thailand before investigative research was conducted. So what are the other issues we do not yet know about? This lack of certainty can feel particularly uncomfortable for lawyers.

So, what are two immediate steps law firm lawyers can take?

  • Speak to your client’s sustainability team/ corporate responsibility team/ communications teams about the company’s human rights risks and how they could manifest in the matter you are advising the company on. There is a good chance that they will have insights that would be beneficial to you, as well as to your counter-parts in the legal team. This can in turn help lawyers in the firm understand the broader context within which their legal advice sits;
  • Speak to your client about the processes they have in place for the matter at hand to identify issues as they arise on an ongoing basis. Even if you are not aware of any possible human rights issues now, you can at the very least play an important role in preventing them from happening moving forward. This will not only help your client hear from workers and communities, but may also help avoid a law suit, an NCP instance or a front page news story.

I’ll conclude by giving the last word to my colleague Sophia Adams-Bhatti from the Law Society of England and Wales: “Lawyers are present everywhere – behind everything that happens in the world, there is a lawyer. We owe it to our profession to take a pro-active approach to human rights as we advise clients.”

 

 

 

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