Jan 10,2012 / News / Legal Brief

Law firms will need to consider diverse factors to achieve the precarious balance between their business models and their responsibility to uphold human rights.

There is no doubting the success of the country’s first bold steps towards encouraging private sector participation in energy investment. As South Africa’s Energy Minister announced at the recent Energy Indaba 2012 in Johannesburg, international investment worth about R50 billion has already been pledged for the Renewable Energy Independent Power Producers Bidding Programme.

On 16 June 2011, the United Nations Human Rights Council endorsed the Guiding Principles on Business and Human Rights as drafted by Special Representative of the UN Secretary General for Business and Human Rights, Professor John Ruggie.

The principles direct the implementation of the UN’s Protect, Respect and Remedy Policy Framework on business and human rights. These three pillars of “Protect, Respect and Remedy” are set out in the Introduction to the Guiding Principles as follows:
“The first is the State duty to protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation, and adjudication. The second is the corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved. The third is the need for greater access by victims to effective remedy, both judicial and non-judicial.”

Section I of the Guiding Principles deals with the duties of the State to protect human rights.

Corporate responsibility to respect human rights is set out in Section II, which includes the following responsibilities:

  • “To “respect human rights” and “avoid infringing on the human rights of others” and “address adverse human rights impacts with which they are involved” (Guiding Principle 11);
  • To “avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur” (Guiding Principle 13(a));
  • To “seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts” (Guiding Principle 13(b));
  • To have in place policies and processes including:
    • “a policy commitment to meet their responsibility to respect human rights” (Guiding Principle 15(a));
    • “a human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights” (Guiding Principle 15(b));
    • “processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute” (Guiding Principle 15(c))

The human rights referred to throughout the principles are “internationally recognized human rights ““ understood, at a minimum, as those expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.” (Guiding Principle 12)

These responsibilities apply to “all enterprises regardless of their size, sector, operational context, ownership and structure” (Guiding Principle 14) which includes law firms.

The question of the way that law firms should implement the Guiding Principles was canvassed at a meeting convened by Advocates for International Development (A4ID) in September 2011. The results were published by A4ID in a discussion paper entitled “Law Firms’ Implementation of the Guiding Principles on Business & Human Rights”. This discussion paper considers the following central issues that may arise from the implementation of the Guiding Principles by law firms:

EMPLOYMENT ISSUES

One of the concerns raised related to a possible infringement of the right of employees of law firms to marry and to found a family4 by the excessive work hours demanded in the law firm environment, and the question of whether law firms have mechanism for a grievance of this nature to be reported and resolved, as is required by the Guiding Principles. (Interestingly, the same issue of the role of business to promote family life was raised locally in the Green Paper on Families published by the Department of Social Development, which calls on business to “be mindful of the fact that every employee is part of a family”.)

SUPPLY CHAIN ISSUES

The Guiding Principles provide for a human rights due diligence process, to: “identify, prevent, mitigate and account for how they address their adverse human rights impacts” that the business “may cause or contribute to through its own activities or which may be directly linked to its operations, products or services by its business relationships” (Guiding Principle 17). Service providers to a law firm, such as couriers, office equipment providers, corporate gift and clothing suppliers would fall under this Guiding Principle.

The A4ID discussion paper identifies that the possibility exists for such suppliers of goods and services to law firms to impact negatively on human rights.

Guiding Principle 19 sets out that the appropriate action to be taken by a business that has ascertained such a negative impact by a supplier will vary based on:
“whether the business enterprise causes or contributes to an adverse impact, or whether it is involved solely because the impact is directly linked to its operations, products or services by a business relationship [and] the extent of its leverage in addressing the adverse impact.” (Guiding Principle 19(b)(i) and (ii))

Appropriate action suggested in the A4ID discussion paper include clear communication to the supplier of the firm’s policy on human rights, notice that its abusive conduct is not acceptable, and “making clear that future contracts depend on meeting these standards”.

CLIENT ISSUES

This theme promoted much debate, particularly around the “potential direct adverse impact on human rights by law firms as a result of the services that they provide to clients”.

The application of Guiding Principle 18 means that when providing legal services to a client, a law firm “should identify and assess any actual or potential adverse human rights impacts” as a result of its own activities, being the legal services provided.

The commentary to this Guiding Principle sets out that the business enterprise should conduct a human rights due diligence by understanding the impact and being aware of who may be affected, identifying the relevant human rights and “projecting how the proposed activity and associated business relationships could have adverse impacts on those identified”.

It is also recommend that such a due diligence be carried out “periodically throughout the life of an activity or relationship”9 due to changes in human rights situations.

When providing legal advice, law firms will also need to keep in mind Guiding Principle 23(b), which places the duty on business enterprise to, “seek ways to honour the principles of internationally recognized human rights when faced with conflicting requirements”.

Guiding Principle 19 also recognises the possibility of the business enterprise being linked to the human rights abuse solely by a business relationship, in this instance, that of attorney and client.

The commentary to this principle lists some factors to take into account when considering appropriate action to be taken, such as, “how crucial the relationship is to the enterprise, the severity of the abuse and whether terminating the relationship with the entity itself would have adverse human rights consequences.”

The A4ID discussion paper does take cognisance of the Legal Professional Codes of Conduct that would be applicable to the attorney-client relationship on an individual country basis, and in particular highlights the following factors for specific consideration:

i. “Whether, and the extent to which, professional codes prevent, permit, encourage or require lawyers to take human rights impacts into account in their client advice;
ii. The ability of the firm to get factual information about human rights impacts from the client;
iii. The circumstances under which the law firm would be permitted to withdraw in order to avoid involvement in human rights violations;
iv. The ability of firms to demonstrate that they have taken appropriate steps to advise their clients not to become involved in human rights impacts.”

Two essential points are canvassed by the A4ID discussion paper. These include the principle that all clients are entitled to legal advice, regardless of the attorney’s personal opinion on the client’s objectives; and secondly, the concept of attorney-client privilege which would safeguard any communications about the human rights impact of the client’s activities.

The A4ID discussion paper suggests that a law firm “conducts its own human rightsinvestigation before committing to represent a client, or at the early stage of representation.” The point of this would be to place the law firm in the position of having taken, “every reasonable step to avoid involvement with an alleged human rights abuse”.

Such an investigation also presents a possible area of difficulty, bearing in mind that a client may not appreciate an interrogation into its practices and may not even be prepared to provide more information than is required for the specific instruction. Again, this process will require sensitivity and consistent application, supported by a standard human rights policy that is well communicated to clients from the inception of the relationship.

The endorsement of the Guiding Principles by the UN, coupled with support by legal representative bodies such as the International Bar Association15, will inevitably have an impact on the manner in which law firms conduct themselves in relation to both their internal procedures and dealing with clients.

In his article “The Global Lawyer: How not to be an Evil Law Firm”16, Michael Goldhaber bluntly points out that the application of the Guiding Principles, “would jar many lawyers”.

Concepts such as law firms possibly having a duty to, “drop evil clients” may seem radical, but Goldhaber reports that a US-based law firm, Freshfields, has adopted the approach that it has the right to choose its clients based on whether they fit into their firm’s CSR commitments.

However, as Goldhaber rightly points out, “the devil is in identifying the devil”. At what point does a client have an adverse human rights impact? At what stage does an action constitute a human rights abuse? Is it when the perpetrator has been found guilty of such conduct in terms of the voluminous human rights legislation in force in South Africa? Or is it at the rumblings of rumours of foul play?

As the A4ID discussion paper demonstrates, there is a need for further discussion around the manner in which the Guiding Principles should apply to law firms and business enterprises in general. A local opportunity for this was the International Conference on The “Protect, Respect and Remedy” Framework: Charting a Future or Taking the Wrong Turn for Business and Human Rights?, that took place on 23 January 2012 in Johannesburg.

Despite the areas of contention, the Guiding Principles make it clear: “Business enterprises may undertake other commitments or activities to support and promote human rights, which may contribute to the enjoyment of rights; but this does not offset a failure to respect human rights throughout their operations”.

In the not too distant future, it may no longer be good enough for law firms, in particular those operating on a global scale, to merely rely on corporate social investment initiatives and pro bono programmes that secure the enjoyment of human rights.

Law firms are being called upon to lead by example – by adhering to a compliant human rights policy, due diligence process and grievance mechanism – and encouraging their business enterprise clients to follow suit.