Human Rights On Hold

Michael D. Goldhaber

Corporate Counsel

03-01-2013

About a year ago, I reported on a new movement that would hold law firms to the U.N. Guiding Principles on Business and Human Rights, and I promised to track the trend. In February 2012 the American Bar Association's House of Delegates endorsed the Ruggie principles, as they are also known, and urged the legal community to integrate them into their operations and practices.

With its president and president-elect attending this December's U.N. Forum on Business and Human Rights, the ABA is leading from the front on this issue. But where is the legal community's response to the ABA's clarion call? Many law firms advise clients to embrace business human rights, and no one denies that law firms are businesses. Yet in my perusal of leading law firm reports on corporate social responsibility (CSR), I have been unable to find any discussion of the Ruggie principles.

"A lot of people haven't even started talking about it yet," says Rae Lindsay, a Clifford Chance partner who heads that firm's business and human rights practice.?Clifford Chance is an honorable exception. It's among three firms—DLA Piper and Herbert Smith Freehills are the others that I found—to convene task forces that will develop a policy on the applicability of the U.N. Guiding Principles to their own law firms.

U.S. firms are generally a step behind. But Foley Hoag—where former U.N. special representative John Ruggie is a senior adviser—says that it is evaluating "how best to incorporate human rights due diligence into the firm's operations."

Conscientious law firms already grapple with work/life balance and procurement policies. What's provocative about the Guiding Principles is that they may call on law firms to examine the advice offered to clients. "Ruggie provides a useful framework for thinking about client relations and the practice of law," says Lindsay. "That's a challenge unique to law firms. And it's an area where there are no black and whites."

The companion report to the ABA's Ruggie resolution notes in a footnote that ABA Model Rule of Professional Conduct 2.1—which "permits" lawyers giving legal advice to account for moral and social factors—may "well" extend to the Guiding Principles. Some observers see in this footnote the early stages of soft law evolving into hard law.

If so, it's still highly viscous primordial ooze: We're talking about a footnote to a document with no authority speculating that a permissive provision in a model legal ethics code may reference the Ruggie framework. But hey, evolution has to start somewhere. The Ruggie faithful believe that over time, universally accepted norms will influence, shape, and be reflected in binding regulations.

Some might resist incorporating human rights considerations into legal advice. Responding to an internal Freshfields survey about CSR obligations in 2010, one lawyer wrote that the firm has "a right to choose clients after considering whether they fit within our commitments to CSR, but once they are clients we must give advice on the basis of the law and not our own views about CSR."

Others think enlightened legal advice is essential. "The greatest impact we can have [on human rights] is through the advice we provide to our clients," emailed DLA head of corporate responsibility Nicolas Patrick, writing on his own behalf.

Although Linklaters's CSR report uses some of the same words, it misses the full implications. It starts by proclaiming: "By far, the firm's greatest impact on the wider world is through the advice we provide to our clients." And it makes the same point about the environment. Yet the potential to improve human rights through good legal advice is ignored.

While the boldest lawyers are only starting to ponder how their advice may help (or hurt) human rights, John Ruggie himself has offered a breathtaking example by citing Kiobel v. Royal Dutch Shell , in which Shell is hoping to persuade the U.S. Supreme Court that it's immune from alien tort liability for alleged complicity in torture and killings by Nigeria. In an issues paper on Kiobel , Ruggie queries whether the responsibility to respect human rights called for Shell, if possible, to avoid a broad attack on extraterritorial application of the Alien Tort Statute.

"Should the litigation strategy aim to destroy an entire juridical edifice for redressing gross violations of human rights," questions Ruggie, "particularly where other legal grounds exist to protect the company's interests?" As for the law firm's responsibilities, Ruggie asks: "Would they encompass laying out for their client the entire range of risks entailed by the litigation strategy and tactics, including concern for their client's commitments, reputation, and the collateral damage to a wide range of third parties?" Ruggie's apostle, John Sherman of the nonprofit Shift, puts it this way: "Just because you can make an argument doesn't mean you should."

I'm not sure that Shell's counsel, Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan, had any choice but to run with it when Justice Anthony Kennedy redirected the argument in Kiobel to extraterritoriality. And it remains possible (indeed, Kennedy seems to prefer) that the final ruling in Kiobel will preserve some noncorporate human rights liability under the ATS. But I love the way that Ruggie thinks. And the ABA would like all lawyers to adopt his mentality.