The following text was prepared for a launch of the IBA’s Annex on Business and Human Rights, which provides very useful guidance to lawyers on how to implement the UN Guiding principles on Business and Human Rights. I talked to an abridged version of this last night.
I was asked to address the question of whether and why should lawyers pay attention to the UNGPs? My first response is many will not but some will want to lead. They will want to lead their area of law and lead their professional group. My own research on legal risk management, with Steven Vaughan, shows some in-house lawyers much more engaged in proactive leadership than others.
Proactive leadership involves horizon scanning for legal risk, and thinking much more broadly about the competencies involved in legal risk operations. These competencies involve lawyers thinking behaviourally and managerially about their jobs: how do they advise and manage complex organisations towards understanding, avoiding, and mitigating legal risk.
Put another way, a lawyer’s job is deeply contextual. Law is global, and law is human. That’s what makes legal risk so messy. And, if I can borrow from Ben Heineman’s books– Ben is a leading commentator as ex GC of GE – on the partnership guardian tension: Leading lawyers see the need for financial, technological, ethical, societal, and political knowledge either personally or within their teams. This includes skills in institutional design and “global understanding” of the kind the IBA’s guidance promotes. The guiding principles and the IBA’s guide reinforce and support leading lawyers in thinking forward in this way and thinking in a multidisciplinary way about what they do.
These leaders – and those advising the leaders – will increasingly ask their colleagues and the law firms they instruct to take this seriously: they will expect them to demonstrate both the competence (legal and other competences) and commitment to respecting human rights and minimising harm. These leaders and advisers may seek to influence but also contract in a broader group over time: through codes for external counsel, developing best practice, peer learning initiatives, and the like. So the second reason for paying attention is, if lawyers are not going to lead, there is a decent chance they will be led and will have to get to grips with it that way. Although Robert McCorquodale’s research with Norton Rose Fulbright research and the Eversheds/RSG research suggests there is some way to go here.
And whilst this broader competence can be seen as part of the lawyer’s role as wise counselor, there is also a sense – rather underplayed in the document – that lawyers must also be responsible actors. I understand why the IBA is treading gently here –to lead the professional flotilla, it also needs to bring with it some of the slower boats. The basic model emphasised is that the lawyer advises, and the client decides, and human rights concerns should not inhibit the ability of clients to get advice.
It is a limited vision.
The idea that the lawyer advises and the client decides is not wholly wrong, but it does not always reflect what lawyers really do. Lawyers advise but they also shape the questions on which they advise, they shape the options which are given, they implement advice, and they take decisions which they – not their client – or not just the client – are responsible for.
Even advising can present problems. If we think of the Global Witness investigation into US lawyers, lawyers were seen to be willingly giving advice about how to obscure the origin of assets. The Global Witness ‘client’s’ story could have had human rights dimensions to it. And we can see clearly how simply giving advice has a dimension of professional responsibility to it.
But also imagine this…You think of an arguably lawful way of discouraging the regulatory and reputational scrutiny of a client’s supply chain – contrary to the the UN Guiding Principles: should you market this idea to would-be clients?
The idea that you would be advising and it would only be the client taking a decision is – in this case – an exercise in responsibility shifting. It is not about independence nor is it about effective access to justice. It is about a lawyer’s own moral agency.
Often in-house lawyers get this. In our mapping the moral compass work, we looked at the orientations of in-house lawyers. We found that the more strongly they saw their role as the lawyer advises and the client decides the more diminished was their moral compass. But we also saw that in general in-house lawyers saw a stronger responsibility to lead where the law is uncertain and to lead and influence their organisations towards an ethical orientation, doing the right thing, looking to the long-term sustainability of the business. This attitude is present but it needs strengthening with practical tools. The IBA’s work will help here too: embattled, time poor in-house lawyers can look to the advice and tools being developed as a way of taking the lead. [See here for a report by BT on privacy as an example offered at last night’s seminar]
For now, business clients and in-house lawyers- rather than bar associations – will have to lead but I hope this document will help lawyers so inclined, or told by their clients to get with the programme, and will provide them with some tools to help. But because the ‘mere advisor’ view of the lawyer is inaccurate factually, and legally, professional reputation and leadership require, I think, a more rounded view of role and responsibilities.