i) Withdrawal from representation

Withdrawal from representation is a last resort if a client is unwilling to take legal advice on necessary steps to address clear human rights violations, or otherwise unwilling to pursue remediation in line with UNGPs 22-24.

Where a lawyer-client relationship is already established, in accordance with the Commentary to Rule 3.2-2 of the FLSC Model Code, a lawyer’s discussions with their client may involve reconsidering and clarifying the client’s instructions in the context of the client’s best interests. This may require drawing on external commitments made by the client to international human rights standards contained in its publications, policies, or adherence to industry standards.

As a last resort, Guiding Principle 19 calls on a lawyer to terminate the client retainer and withdraw from the lawyer-client relationship. Commentary to UNGP 19 requires consideration of whether the lawyer-client relationship is “crucial”, or the human rights impacts are “severe.” The following factors should be considered:

• Analysis of the severity of harm.
• How crucial the relationship is to the business.
• Constraints imposed by law or contract on termination.
• Potential adverse impacts on human rights flowing from the termination of retainer itself. 

Withdrawal from a client is a last resort measure under both the FLSC Model Code and the UNGPs and requires a fact-based justification under both. A lawyer might consider whether staying in the client relationship and continuing to persuade the client to prevent and mitigate human rights impacts may serve the purposes of the UNGPs and interests of justice better than withdrawal. The IBA observes that if a lawyer decides to remain in the lawyer-client relationship, they should be prepared to demonstrate their ongoing efforts to prevent or mitigate the harm and be prepared to accept any legal, financial or reputational consequences, of doing so, noting that termination is highly problematic if a relationship is crucial to business.

ii) Duties of confidentiality and exceptions in situations where human rights are at issue

Confidentiality, codified under Rule 3.3 of the FLSC Model Code, is the bedrock of any lawyer-client relationship.

In practice, maintaining lawyer-client confidentiality is a recognized source of tension with the UNGPs. For example, UNGP 21 contemplates a lawyer openly engaging with external stakeholders or communicating a client’s human rights policy. Generally, the objectives of the UNGPs are best met where the focus is on the client communicating its human rights commitments in a manner consistent with the requirements of the UNGPs.

The ethical obligation of confidentiality is wider in scope than the evidentiary rule of lawyer and client privilege, though the latter is constitutionally protected under the Charter. To help ensure that advice given to a client on international human rights law attracts the highest standard of confidentiality through lawyer-client privilege, a lawyer advising on international human rights law should couch their opinions as a legal compliance issue in line with UNGP 23.

Exceptions to confidentiality – public safety

Rule 3.3-3 of the FLSC Model Code establishes a public safety exception where a lawyer has reasonable grounds to believe there is an imminent risk of death or serious bodily or psychological harm. To the extent that this harm arises in association with an adverse human rights impact (e.g., grievous violations that threaten an individual’s right to life, prohibition on torture or slavery) a lawyer may have ethical grounds to prevent the harm even where client confidentiality may be affected.

Where there is a risk of causing or contributing to gross human rights abuses, the lawyer should view the problem as a serious legal compliance matter and seek to prevent the harm itself. Any incidental withdrawal of confidentiality may be required to serve the best interests of the client under the identification and remediation provisions of UNGP 22. 

Where the scope of harm is less immediate or direct, Commentary to Rule 3.33-3 of the FLSC Model Code identifies three factors where professional responsibility justifies a withdrawal of confidentiality:

• The likelihood and imminence of potential injury.
• The lack of other feasible ways to prevent potential injury.
• The circumstances under which lawyer acquired this information.

In each instance where a public safety disclosure is made, the lawyer should prepare a memo to file outlining the details of a public safety disclosure, which may guard against future allegations of misconduct by the client.

Exceptions to confidentiality – public reporting

A client’s public disclosures through its corporate governance practices, or a public commitment to a public reporting practice, may amount to an implied waiver to a breach of confidentiality – particularly if this information is already in the public domain. Businesses make regular disclosures pursuant to securities laws, industry codes of conduct, and investment fund requirements (e.g., ESG reports). For example, Canadian securities law requires companies to conduct regular external reporting through continuous disclosure obligations specified in provincial securities regulations.

Industry codes of conduct may also require member companies to make pro forma disclosures, or require other periodic disclosures (e.g., Global Reporting Initiative). Socially responsible investment funds may also impose reporting obligations on client organizations. They may also expect clients to take visible measures to address allegations of adverse human rights allegations to avoid divestment, which leads to severe and long term financial and reputational consequences.

A lawyer developing a plan that balances the UNGPs with confidentiality requirements under the FLSC Model Code should first assess what information is already in the public domain before deferring to lawyer-client privilege. Lawyers should recognize where their mandate may require direct and open engagement with external stakeholders as contemplated under UNGP 21.