Business and Human Rights for Lawyers
Under the UNGPs, law firms have a duty to avoid causing or contributing to adverse human rights impacts through their own activities. Lawyers must prevent or mitigate adverse business-related human rights impacts linked to the legal services they provide their clients, even if they have not themselves contributed to those impacts.
What do these obligations mean, in practical terms, for lawyers discharging their professional responsibilities?
The UNGPs do not change or impede the professional responsibilities of lawyers. The UNGPs are reconciled with a lawyer’s role to defend their client against claims that it may have caused adverse human rights impacts, their entitlement to seek judicial determination of human rights issues and to seek legal advice on them. For example, the International Bar Association (IBA) Practical Guide on Business and Human Rights for Business Lawyers confirms that its code of conduct, the IBA International Principles, does not conflict with the UNGPs.
The UNGPs add content and context to the nature of the advice lawyers give their clients. The UNGPs inform what is required of lawyers to discharge their obligations to act in the best interests of their clients while promoting the legitimacy of the legal profession by maintaining public confidence in the administration of justice.
From the IBA Practical Guide on Business and Human Rights for Business Lawyers:
- The UNGPs do not seek to restrict the right of effective access by clients to legal services provided by independent lawyers.
- The UNGPs do not restrict the obligation of lawyers to provide independent services to their clients without being identified with their client or the client’s causes or deemed complicit in their client’s activities.
- The UNGPs do not restrict the representation of clients who may be highly unpopular (including those who have been accused of engaging in human rights harm).
- The UNGPs do not restrict the rights of clients to secure a robust defence against such claims or to seek judicial determination of human rights related issues.
- The UNGPs do not restrict the rights of clients to seek, and for lawyers to provide, independent legal advice on human rights issues or matters that have potential impacts on human rights.
- The UNGPs do not define the facts that lawyers must, should, or are expected to, consider in their independent judgment, when providing advice or services to a client.
This part seeks to clarify the role of Canadian lawyers in advancing the objectives of the UNGPs in accordance with their professional responsibilities as set out in the Model Code of Professional Conduct established by the Federation of Law Societies of Canada (FLSC Model Code). The FLSC Model Code was adopted in 2009 and has been implemented has been implemented in whole or in part by all law societies in Canada except the Chambre des notaires in Quebec.
In Part III, Section (a) focuses on the implications of the UNGPs on the professional obligations of lawyers when advising corporate clients.
Section (b) highlights the role of the law firm as a business with obligations under the UNGPs.
Section (c) considers the implications of the UNGPs on both lawyer-client confidentiality, and the circumstances for withdrawal from representation in cases of a persistent failure by a client to respect human rights.