Respecting business and human rights: IBA's guidance on applying the UN Guiding Principles

The IBA provides for three scenarios where lawyers will wish to be aware of how the UNGPs intersect with their legal practice:

The IBA notes that the law is not static, but is dynamic and evolving. What is considered unethical and a reputational risk today may well be unlawful tomorrow. The IBA recognizes that a firm's ability to engage in this area, where the human rights impacts are not explicitly addressed by hard law, may be limited: this possibility will depend on whether the client sees the lawyer as a wise professional counsellor or trusted advisor. This status of wise counsellor is not automatically granted by the client, who may instead be solely seeking advice on compliance with the law. Accordingly, the IBA provides a number of steps that law firms can take to help it be viewed as a counsellor on business and human rights issues and therefore include consideration of soft law in the advice its lawyers provide:

Considering the implications of the UNGPs for lawyer's day-to-day legal practice does not necessarily mean advising clients on the implementation of the UNGPs, such as the drafting of a human rights policy and conducting human rights due diligence. Rather, this entails considering how legal advice can be provided in a way that will assist clients in their respect for human rights. The IBA notes that the UNGPs are relevant to many different areas of legal practice, and lists the following practice areas as particularly relevant:

The IBA provides general reflections on these practice areas, such as noting that the insertion of boilerplate human rights provisions into contracts, which the parties do not understand and regard as formality, will likely not lead by themselves to improved human rights performance. Additional guidance for lawyers on how the UNGPs apply to these legal practices will be contained in the Reference Annex, which is being drafted by the Working Group that prepared the IBA Practical Guide, and is scheduled to be published in August.

The IBA makes it clear that law firms, as business enterprises, have their own responsibility to respect human rights. In a similar manner to the companies they advise, law firms are asked to commit to respecting internationally recognized human rights, assess the firm's potential human rights impacts (including the firm's employment practices, supply chain, and the legal advice and services it renders), and take action to limit its involvement in human rights impacts. The law firm's employment and supply chain practices, which can include, for instance, sourcing office supplies, back office support, cleaning staff, canteen workers and client entertainment, is therefore treated no differently to the employment and supply chain practices of other companies subject to the UNGPs. The IBA focuses in this Practical Guide on how the law firm can seek to avoid being connected to human rights impacts through its provision of legal services.

Influencing the client to avoid or mitigate human rights impacts could be seen as infringing on the lawyers' independence. The IBA notes that care must be taken not to inhibit the exercise of the lawyers' professional responsibilities. The IBA makes it clear that the UNGPs require neither lawyers nor law firms to implement them in a manner that restricts the right of access to legal counsel for independent advice and services. They do not infringe on the right of businesses to undertake, and the obligation of legal counsel to provide, a robust defence to allegations that the business engaged in conduct that violates human rights, to seek judicial determination of human rights issues, and to provide legal advice, even where the issue is highly controversial.

This has been a question of much concern to law firms, with a number mistakenly believing that implementing the UNGPs automatically entails the obligation to stop advising clients that violate human rights. This is not the case and the IBA makes it clear that although the UNGPs suggest the law firm consider withdrawing from a client relationship if the client persists in infringing on human rights (notwithstanding the firm's advice), withdrawal is a last resort, and may not be legally permitted in any event. The IBA further indicates that staying in the relationship and continuing to try to persuade the client to prevent and mitigate human rights impacts may serve the purposes of the UNGPs better than withdrawal.

The UNGPs encourage business enterprises to communicate externally how they address their human rights impacts. This can be problematic for a law firm where its advice to clients is typically covered by attorney-client confidentiality. The IBA recognizes this conundrum and states that although a firm may not disclose the specifics of its legal services, it should be able to provide anonymised and aggregated information to explain generally how it is implementing its commitment to respect human rights. Indeed, law firms are increasingly seeking ways to communicate their seriousness in approach to the UNGPs. The IBA adds that the purposes of the UNGPs are better served if the firm focuses on whether the client is prepared to communicate its approach on human rights where appropriate and necessary.

The UNGPs state that a business enterprise has the responsibility to provide remedy for a human rights impact that it caused or contributed to. The IBA positions that when it comes to the services and advice it renders, the provision of remedy by a law firm for an adverse human rights impact by a client that the firm contributed to, is highly problematic. Other than in cases of illegal or unprofessional conduct by the firm resulting in a human rights violation arising from its legal services and advice, the IBA states that the purposes of the UNGPs would be better served by making the business case to the client to provide or co-operate in legitimate processes to remedy human rights impacts that the client caused or contributed to. The IBA specifically pronounces itself on remedy involving impacts tied to the advice provided to clients. The UNGPs' expectation of remedy beyond this, for instance in the law firm's work force or supply chain practices, would be similar to that of a company.