The Role of Lawyers under the United Nations Guiding Principles on Business and Human Rights

1. The Role of Lawyers under the United Nations Guiding Principles on Business and Human Rights Stephen G.A. Pitel and Sara L. Seck Faculty of Law, Western University London, Ontario, Canada

2. Overview • What are the UN Guiding Principles for Business and Human Rights and why should lawyers know something about them? • What is the relationship between the UNGP and the professional responsibilities and ethical duties of Canadian lawyers? • Conclude: future research questions

3. International CSR “Law”? • Domestic law: mandatory • Corporate Social Responsibility: (voluntary?) • International Human Rights Law: (mandatory?) International CSR “Law”? • Business strategy • Business ethics • International law?

4. UNGP “polycentric governance”

5. Responsibility To Respect (RTR): Principle 11 “Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.” Commentary: • global standard of expected conduct UN Guiding Principles

6. RTR: Commentary P11: RTR: • is independent of a state’s abilities/willingness to fulfill their own obligations; • means not undermining the ability of a state to meet its own HR obligations • is above compliance with national laws • requires “adequate measures” to prevent, mitigate and remediate harm • and • cannot be offset by contributing to the enjoyment of other rights (philanthropy) UN Guiding Principles

7. RTR: Scope? Principle 13 Business enterprises must: Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts…and Seek to prevent or mitigate adverse impacts directly linked to operations, products or services by their business relationships, even if they have not contributed to those impacts. UN Guiding Principles

8. RTR: Principle 14: Which businesses? “… applies to all enterprises regardless of their size, sector, operational context, ownership and structure. Nevertheless, the scale and complexity of the means through which enterprises meet that responsibility may vary according to these factors and with the severity of the enterprise’s adverse human rights impacts.” UN Guiding Principles

9. RTR: How to make RTR operational? • P16 Policy commitment • P17-21 Human Rights due diligence – beyond material risks to company, to include risks to rights-holders; Principle 23: All business enterprises should: • Comply with all laws and respect IHRL • Seek ways to honour IHRL if conflict • Treat risk as a legal compliance issue. UN Guiding Principles

10. UNGP embedded in… • International CSR law frameworks • OECD MNE Guidelines; IFC Sustainability; Equator Principles; ISO 26000; GRI; Voluntary Principles SHR; industry codes; … • Global Compact – learning network • Global law firms • International Bar Association • Law societies

11. Professional Conduct Code • Federation of Law Societies of Canada has produced the Model Code of Professional Conduct (adopted 2009; amended going forward) • Aim: (relative) uniformity across all provinces and territories • Has been or will be implemented in provinces and territories

12. Competence • R. 3.1-1: “Competent lawyer” means a lawyer who has and applies relevant knowledge, skills and attributes in a manner appropriate to each matter undertaken on behalf of a client and the nature and terms of the lawyer’s engagement, including … investigating facts, identifying issues, ascertaining client objectives, considering possible options and developing and advising the client on appropriate courses of action …

13. Competence • R. 3.1-2: A lawyer must perform all legal services undertaken on a client’s behalf to the standard of a competent lawyer.

14. Assisting and Advising • R. 3.2-7: When acting for a client, a lawyer must never knowingly assist in or encourage any dishonesty, fraud, crime or illegal conduct, or instruct the client on how to violate the law and avoid punishment.

15. Assisting and Advising • R. 3.7-2: If there has been a serious loss of confidence between the lawyer and the client, the lawyer may withdraw.

16. Assisting and Advising • R. 3.2-8: A lawyer who is employed or retained by an organization to act in a matter in which the lawyer knows that the organization has acted, is acting or intends to act dishonestly, fraudulently, criminally, or illegally, must do the following …

17. Assisting and Advising • R. 3.2-8, Comm. 5: A lawyer acting for an organization who learns that the organization has acted, is acting, or intends to act in a wrongful manner, may advise the chief executive officer and must advise the chief legal officer of the misconduct. If the wrongful conduct is not abandoned or stopped, the lawyer must report the matter “up the ladder” of responsibility within the organization until the matter is dealt with appropriately. If the organization, despite the lawyer’s advice, continues with the wrongful conduct, the lawyer must withdraw from acting in the particular matter …

18. Conclusions and Future Research • What kind of risks might increasingly arise due to the growth of international CSR law? • Risks for business clients • Do rules of professional conduct in Canada adequately address risk to clients arising from a lawyer’s failure to consider ICSR standards/law? • Failure to prevent harm • How can law firms as businesses comply with their own responsibility to respect rights?