Anna Triponel and Catie Shavin
This article was first published by the Law Society Gazette on 5 April 2019, available here.
Law firms are increasingly intertwined with business and human rights developments. The International Bar Association (IBA) – which brings together 80,000 lawyers and 190 bar associations and law societies spanning more than 170 countries – has called on lawyers to consider their role as trusted advisors. Legislation increasingly encourages or requests firms’ clients to conduct human rights due diligence, and leading law firms have been changing their practice to integrate business and human rights. Since 2016 a number of these firms have been working together to consider practical approaches to meet their human rights responsibilities through the Law Firm Business and Human Rights Peer Learning Process (the Process).
Our experience as co-facilitators of the Process points to two overarching observations. First, real progress has been made by participating firms over the past three years. Firms are deepening their thinking about their human rights responsibilities and their role in advancing awareness and action within their own organisations and beyond. Second, there are major challenges to overcome – including the need to enhance awareness of what corporate responsibility to respect human rights means in practice for law firms and their clients.
Law firms have a responsibility to respect human rights. Meeting this responsibility goes beyond establishing a business and human rights practice. Like other business enterprises, law firms are expected to take proactive steps to learn how they could adversely impact people (including their employees, workers in their supply chain and those their clients could impact by acting on the law firm’s advice) and to respond to impacts they identify, prioritising those that may be the most harmful to people.
This is easier said than done – regardless of whether your firm is just getting started, or has been engaging with business and human rights-related developments for some time. However, our work with the Process shows that it can be done – with commitment, leadership and smart thinking. It also shows that there are significant benefits to firms in engaging in this process, for example, strengthening the advice provided to clients, attracting and retaining legal talent from the millennial world, and supporting clients to navigate the changing world.
Here are our top five recommendations for law firms looking to accelerate this work:
1. Translate the expectations into simple and practical questions. This in turn will support meaningful internal discussions. For instance:
- Does my firm know when it is advising clients in contexts where the law conflicts with, or sets a lower standard than, international standards? (This would be the case, for instance, where clients can legally access land where communities have been displaced, or where employment law is viewed as falling below International Labor Organisation standards). If so, are my firm’s lawyers equipped to signal the potential risks involved to the client and provide possible solutions?
- Does my firm know when it is advising clients that carry a greater risk of involvement with human rights violations? If so, does my firm have measures in place to mitigate these risks?
- Is my firm sourcing from suppliers that carry greater risk of poor working conditions? If so, what can my firm do to improve these working conditions?
- Is my firm supporting its lawyers’ wellbeing in traditionally fast-paced working environments? What more could my firm be doing to support this?
Start by asking yourself practical questions, and take it from there.
2. Find opportunities to create senior-level commitment and develop effective coordination across the firm. Business and human rights groups that bring together a range of functions and practice groups can be valuable to strengthen coordination and dialogue in the firm. Other opportunities include facilitating dialogue on business and human rights between managing partners and forward-looking clients, raising fee-earners’ awareness of the value they can bring to clients by considering these issues, and leveraging greater client demand for related services to raise the internal profile of business and human rights.
3. Develop smart approaches to build lawyers’ know-how and capacity. The key here is to develop lawyers’ ability to spot human rights issues early on, and to respond effectively – either through their own advice or by engaging the right expertise within the firm. In the words of one Process participant: ’Leverage is essentially about lawyers providing perspectives to their clients that enable them to have a holistic, rights-respecting view of how they will proceed; that enable them to take a balanced view of what is in their best interest. The decisions ultimately lie in the hands of the clients, but we help them see how respect for human rights provides relevant context to the legal advice they seek.’ One way to build lawyers’ ability to spot human rights issues and find appropriate ways to discuss these with a client is through specific training. More important than general business and human rights training is capacity building that is tailored for, and targeted at, key practice groups. What an M&A lawyer needs to know is very different from what a disputes lawyer needs to know. Your firm’s practice support lawyers can also play a valuable role in developing new thinking and raising awareness across the firm.
4. Integrate human rights considerations into new business acceptance processes. Consider what is different about human rights risks, as compared to compliance, reputational and other risks your firm already seeks to identify through business acceptance processes. It can be helpful to provide business acceptance teams with training and client risk calculators. General Counsels and senior leadership teams play a key role when considering sensitive situations: this is not about not taking on a matter (although this can be the case), but rather about understanding the human rights risks connected to it at the outset and exploring ways to support the client to address these. Identifying these risks enables the firm to meet its own responsibilities, and presents a powerful opportunity to engage clients about their human rights responsibilities, whilst delivering additional value to the client.
5. Build on lessons learned by leading companies regarding compliance with the UK Modern Slavery Act. Law firms’ value chains incorporate sectors where modern slavery is a high risk, and firms typically have less experience managing these challenges than many of their clients. A strong approach includes strengthening policies and supplier due diligence processes; establishing cross-functional groups to connect procurement teams with the General Counsels’ office and lawyers from relevant practice groups, and learning from the practices of leading companies in this field.
Looking forward, there is a pressing need to mainstream respect for human rights across the legal profession. In the 21st century, human rights and other areas of responsible business conduct are increasingly core to doing business – and we expect this trend to continue until respect for human rights is as fundamental as the implementation of strong health and safety standards. With increasing regulation in this area, the role of lawyers is becoming ever more crucial to ensuring that companies everywhere understand their responsibilities and get robust advice about how to meet these. As clients seek this advice, they will increasingly scrutinise a law firm’s own embedding processes to assess whether the firm is genuinely committed to this internally. This is the opportunity for law firms to know what they’re about – and that they walk the talk.
See the Summary Report from the Process’ most recent workshop for more.
Anna Triponel is a business and human rights advisor specialised in advising companies, their in-house legal departments, law firms and investors on what human rights mean for business on a day-to-day basis. Anna has been admitted to practise law in France, the UK and the US (currently non-practising).
Catie Shavin is a director of the Global Business Initiative on Human Rights (GBI). Catie is also an independent business and human rights advisor for clients including law firms, civil society organisations and academia.