Corporate social responsibility (CSR) is a fashionable concept. Big firms flaunt their CSR credentials, and no one knows whether it is a marketing strategy to make us buy their goods and services, or a serious attempt to promote a better society. It was only a matter of time before law firms came into the cross-hairs of the CSR industry.
However, there is a big, unresolved problem about lawyers and CSR. No one can complain about efforts to make law firms comply with CSR standards in relation, say, to employees. In other words, the rights of staff must be protected, and there should be policies in place, for instance in relation to diversity, discrimination and harassment.
But can CSR apply also to dealings with clients? It is no secret that there are seriously suspect clients out there, the most obvious being governments who flout even the most basic human rights principles. Are they to be denied access to legal advice and representation because of their actions?
A4ID (Advocates for International Development, which goes under the strapline of ‘Lawyers Eradicating Poverty’) addressed this issue in a seminar they held last year with eight leading Anglo-Saxon law firms. They published a report afterwards called Law Firms’ Implementation of the Guiding Principles on Business & Human Rights, which summarises the discussion on the client point.
For those who do not follow CSR closely, the special representative of the UN secretary-general for business and human rights, John Ruggie, prepared a Protect, Respect and Remedy policy framework on Business and Human Rights - essentially, the basic text on CSR at an international level - which was followed by the UN Human Rights Council unanimously endorsing the Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework on 16 June 2011. It is these guiding principles which the A4ID seminar was trying to fit to legal practice.
There are a number of problems around the issue of CSR and the client. First, no one disputes that even the most heinous criminal is entitled to a defence lawyer. But does the same principle apply to a heinous company which is not breaching the criminal law but is undertaking a transaction which most people think is wrong. The A4ID report gives the example of so-called ‘vulture funds’ that target poor countries which are receiving international debt relief, buy their debt, often just before those debts are to be written off, and then sue the country for the full amount. Shame! Horrible! But do ‘vulture funds’ deserve to receive legal advice and assistance if their actions are lawful?
Apparently some law firms have said that they will not act for them, and there has been naming and shaming in the press of those which have acted for them in the past. But would it be right if all lawyers said that they would not act for such funds (always on the basis that the funds’ actions are lawful)? What would that say about our legal system?
Then there is the problem of finding midway through the representation that a client has been abusing human rights. Again assuming that this does not involve a breach of the law, do you withdraw from representation? Under the Solicitors Regulation Authority rules, you cannot do this ‘without good reason and without providing reasonable notice’. The guiding principles include a human rights due diligence – rather like that undertaken for different reasons under anti-money laundering legislation – to be effected in advance of agreeing to represent a client. The range of due diligence is growing!
A core component of the guiding principles is that companies should both know and show that they are respecting human rights. The ‘know’ is covered by due diligence. But can law firms show that they have respected human rights matters in relation to clients without breaching client confidentiality?
These are serious matters. CSR is an important exercise to address corporate misbehaviour. Professional rules like client confidentiality are essential to the rule of law. What happens when the two conflict? At present, CSR is restricted to guidance, but we know that human nature often leads people to turn guidance into binding rules. It is for this reason that lawyers should watch these developments closely, and participate in them.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs