In a discussion held at University College London on if law firms can have values, a partner at a large law firm in London reflected on his initial desire to become a lawyer, namely, a strong sense of and interest in justice. Instead, as he started as a junior lawyer in a large law firm, he was incentivized to “refine the ability to deliver a service” as a procedural ambition rather than view his work in a substantive way, noting that large law firms have “forgotten the idea of justice and purpose”.

This blog is the first part of a four-part series titled From Business of Human Rights to Business for Human Rights, where we will examine the role of legal counsel within the Business and Human Rights (BHR) field. With human rights and environmental due diligence laws increasingly being enacted around the world, this topic is both timely and significant. Given the integral role of advisors – particularly lawyers – in translating human rights to businesses, this blog series seeks to spark dialogue on how BHR should not remain a niche area of legal advice but should be integrated into the myriad of issues that advisors routinely discuss with their clients. At the same time, as an industry around BHR compliance and advisory work continues to grow, we aim to reflect on this “professionalization” of BHR advisory services  and emphasize the importance of keeping the fundamental principles of BHR at the core of any professional practice.

In upcoming blog posts, we will look at the practical considerations of the legal practice in the context of BHR, attempt to map the landscape of the BHR advisory industry, and in the final blog, offer some reflections on potential institutional, regulatory and professional shifts that may be needed to embed BHR more substantively into professional practice. In this first blog post, we aim to set the theoretical context by asking:

How does BHR fit within the professional obligations of the legal profession?

The International Bar Association in 2023 released an Updated Guidance Note on Business and Human Rights highlighting what international BHR frameworks and recent BHR legislation means for the legal practice. In this note, it highlights that lawyers can both “enable their clients to meet their sustainable business interest” as well as “face the risk of enabling the human rights abuse of their clients”. This explicit recognition of the ways in which a lawyer can have a direct impact on companies respecting human rights signals an important change in reflecting not just how lawyers should incorporate BHR into their practice but also how lawyers should be seen as accountable for their role in human rights impacts.

Yet, lawyers also have core professional duties that are important for their role in society. As BHR becomes a more established and focused practice area in corporate law firms, it is relevant to reflect on how it aligns with the perceived role of the lawyer. Should we assume that BHR fits naturally into the lawyer’s professed duties? Or as lawyers are increasingly expected to consider the human rights risks of a client’s business, could there be potential conflicts between their obligations to clients and their obligations to society? To start answering these questions, it is worth taking a step back to look at the fundamental duties of the lawyer as discussed in legal ethics and reflect on how these duties can be interpreted to include BHR considerations.

The Standard Conception of Legal Ethics

The professional duties traditionally associated with how lawyers are expected to interact with and represent their clients as discussed in the legal ethics literature are commonly referred to as the standard conception of legal ethics. These duties are discussed as general obligations that transcend geographical boundaries and have wide acceptance, informing codes of conduct in different jurisdictions. This standard conceptionis based on three foundational principles: partisanship, neutrality, and non-accountability.

●      Partisanship requires that lawyers remain loyal to their clients and act in their best interests while remaining within legal boundaries.

●      Neutrality obliges lawyers to refrain from making moral judgments about their clients’ goals.

●      Non-accountability holds that lawyers are not morally responsible for the actions or motives of their clients, as long as they act within the purview of the law.

These professional obligations have been interpreted and applied in different ways, especially where they need to be balanced against other responsibilities lawyers hold – most importantly, their duty to the public. One of the most prominent translations of the standard conception prioritizes client obligations above other obligations, as long as the client interests are not illegal, and incentivizes unwavering loyalty to the client (often described as adversarial or zealous advocacy). Others argue for more of a balance between lawyers’ obligation to their client and to society, which may include considering a spectrum of obligations – from protecting the integrity of the laws and of the legal system to broader ethical and relational considerations beyond the legality of the client’s interests. While ethical dilemmas can be wide-ranging, including questions of representation or advising when national policy conflicts with international human rights law, this blog aims to invite a conversation of what BHR considerations would be relevant for lawyers in their professional practice. This would mean moving away from the more traditional view of legal ethics where client interest is supreme.

Applying the Standard Conception to Business and Human Rights

Now, let’s consider the three principles of the standard conception through the lens of BHR in particular.

When analyzing partisanship, distinct ethical approaches offer different interpretations of a lawyer’s ‘duty of loyalty’ to the client. Zealous advocates uphold the strongest loyalty to clients’ interests, for example, by opposing regulations that might limit confidentiality or require disclosures. They would also focus strictly on applying the letter of the law and potentially exploit legal ambiguities in favor of their client, whenever possible.  In contrast, a broader consideration of how a lawyer’s loyalty to the client intertwines with other professional obligations would have lawyers seek a balance between client loyalty and upholding legal integrity. This would mean advising a client on holistically reacting to a law rather than aspiring for minimal compliance, such as advising a company to conduct meaningful stakeholder engagement and take into account the voices of rightsholders in a land acquisition case even when there is no explicit legal requirement to do so.  Rethinking partisanship in the context of BHR, could help lawyers honor both the letter and spirit of the law as well as advocate for challenging or reforming laws to promote justice. Partisanship needs to be rethought in terms of considering what the right balance is between advancing client interests and their other ethical duties. Detailing what this balance looks like for the aspiring responsible lawyer is still nebulous though, as there is little practical guidance or training for an aspiring lawyer on how to maintain this balance. This is a key concern in effectively translating BHR considerations into practical guidance for corporate lawyers.

Neutrality suggests that lawyers should not morally judge their clients or their goals, focusing solely on legal entitlements. This principle is particularly important in adversarial criminal contexts, where it helps safeguard access to justice. In transactional work, however, a lawyer’s proximity to the client’s goals raises questions about the ethical implications of their involvement. For instance, when considering how the United Nations Guiding Principles apply to law firms as commercial actors themselves, it becomes relevant to ask if a lawyer’s advice is in any way contributing to or facilitating an adverse human rights impact. Within the BHR framework, lawyers are expected to incorporate broader social and reputational concerns and soft law guidance into their advice and use the leverage to steer the client towards adopting better practices. Difficult questions also arise regarding the extent to which a lawyer is able to decline representation, when, depending on the context, this could potentially limit access to justice (although not to the extent to consider access to justice as a reason entirely against incorporating BHR and environmental considerations).

Finally, non-accountability posits that lawyers should not be morally judged for fulfilling their professional duties. This principle is also important for safeguarding access to justice by insulating the lawyer from public condemnation for representing a wide range of clients. However, critics argue that lawyers should bear some sort of responsibility in certain situations, especially in transactional contexts where their actions may facilitate unethical corporate behaviour. Similar to the discussion of neutrality, the principle of non-accountability might have to be reconsidered in the context of BHR. This requires reflection at the institutional level – for example, by bar associations or law societies, on how to hold lawyers accountable for their advice while still considering that lawyers should not be the sole arbiters for ethical business conduct (hence, the need for better regulatory measures to hold companies themselves accountable).

While the zealous advocate, with its strong prioritization of duty to the client above most other duties, dominates traditional legal ethics and the modern ethos of a lawyer, a more nuanced understanding of legal ethics can recognize incorporating other ethical, relational, and systemic considerations into legal practice through relevant institutions. This discussion of rebalancing duties broadly as a part of lawyer’s professional obligations is an important topic (as shown by recent reflections from the International Bar Association on the role of lawyers as ethical gatekeepers and the Taskforce on Business Ethics in the Legal Profession) and is crucial to consider in how lawyers should be expected to act in light of the many ways their role has an impact on human rights through the clients they advise.

We would like to acknowledge and thank Stéphane Brabant, Senior Partner at Trinity International LLP, and Daniel Schönfelder, Lead European Legal Advisor at the Responsible Contracting Project, for sharing valuable feedback and insight in relation to this blog.