Wednesday, April 23, 2014
For the past few years, I’ve devoted a session of my Professional Responsibility course to the Guiding Principles on Business and Human Rights and their application to lawyers. It has been a hit with my students and, I think, helps better prepare them for the practice of law. So far as I know, this material is not currently included in any of the usual Legal Ethics textbooks, but I've reached out to a couple of the textbook authors so I hope that will change soon.
The Guiding Principles on Business and Human Rights were unanimously endorsed by the U.N. Human Rights Council in 2011. The Guidelines set out a “respect, protect and remedy” framework for businesses as they address human rights issues in their internal and external business operations. While many advocates continue to call for a binding treaty on business and human rights to amplify the guidelines, considerable work has gone into developing monitoring platforms for business and human rights issues in the interim.
Like other businesses, law firms come within the scope of the Guidelines. To conform to human rights norms, law firms should not only advise their business clients about human rights obligations, but must also examine their own business practices. Two organizations have taken a lead in translating the Guiding Principles for the law practice context: Advocates for International Development (A4D) in London; and Shift, a New York-based project where General Counsel John Sherman is leading the effort. A4D's initial report on law firm implementation of the Guiding Principles is here. A number of leading U.K. firms have taken this issue seriously and in March 2014, the Law Society of the U.K. issued a set of recommendations on how members might integrate the Guiding Principles into their practices. According to the Law Society Report,
Utilising the UNGPs, which reflect existing norms, will ensure our profession retains a
competitive advantage in what is an increasingly globalised marketplace. More importantly,
promoting business respect for human rights is the right thing to do. Particularly so for a
profession like ours, which has a deep and abiding commitment to human rights, equality
before the law and justice.
One of the Law Society's recommendations is that business and human rights be a required course of study for law students.
In the U.S., the ABA has endorsed the Guiding Principles, noting in its report that the Principles implicate lawyers' advice offered under Model Rule of Professional Conduct 2.1 and its state analogues. Rule 2.1 requires lawyers to exercise “independent professional judgment and render candid advice” and permits them to “refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation.” This reference to the Model Rules as well as A4D's exploration of how law firms can implement the Guiding Principles provide a strong link tying this directly back to the traditional Professional Responsibility curriculum.