The two roles of running a business and giving legal advice need to be carefully separated.
The long debate within the legal profession about the impact of the growing topic of ‘business and human rights’ on the advice that lawyers give to their clients took a new twist a few days ago with the publication by the Council of Europe of its Recommendation CM/Rec(2016)3 on human rights and business.
Part of the debate has been about whether the United Nations Guiding Principles (UNGP) are the only ones to which we should all be paying attention when advising clients or thinking about our own businesses.
There are several other international guidelines which give advice to businesses on the same topic: the UN Global Compact, the OECD Guidelines for Multinational Enterprises (including OECD sector-specific guidelines), and the ISO 26000 Guidance on Social Responsibility. There are also other sectoral guidelines like the Thun Group for banks, the Equator Principles for financial institutions, and the International Finance Corporation’s Performance Standards.
They say different things, yet lawyers should know about them all.
Supporters of the UNGP have been pushing for the UNGP to be accepted as the principal global standard, and the Council of Europe now supports that line. It says clearly: ‘Member states should effectively implement the UN Guiding Principles on Business and Human Rights as the current globally agreed baseline in the field of business and human rights.’ The only problem is that it is not the current globally agreed baseline, although it might become so if more bodies like the Council of Europe give it backing.
Until then, presumably lawyers should be aware of the wider field.
The debate within the legal profession has been focused much more, however, on the specific impact of the guidelines on lawyers. The UNGP, when applied by some to the legal profession, are part of a wider development where policymakers have been trying to influence the behaviour of clients through their lawyers, breaching time-honoured rules of lawyers’ standards. The worst example of this has been in money-laundering legislation, but the UNGP supporters bring echoes of the same.
The debate began with impatience from UNGP supporters: why can’t lawyers just be like everyone else and simply adopt the UNGP? Leaving aside the point about which set of guidelines has precedence, it took a while to explain to such supporters that law firms are not like other businesses. Yes, they order pencils. But they are also part of the administration of justice, where they have a very specific role of both independence and yet partiality. The two roles of running a business and giving legal advice need to be carefully separated.
Its supporters say the UNGP have a role to play in supporting the provision of legal advice in a way that takes account of human rights impacts, and in supporting the realisation of the broader public interest objectives that lawyers are expected to uphold.
But, when giving advice and representing a client, a lawyer should not take into account interests that lie outside the mandate given by the client (and also outside binding law, since the UNGPs do not constitute binding law). To expect anything else means to attempt to bend a lawyer’s conduct beyond the function it has under the rule of law, where lawyers serve their client’s interests (within the limits of the law) and no other, unless advice on such matter is part of the mandate. The danger is that lawyers are being used as an instrument for other purposes, and that should be resisted.
Of course, the expectations here placed by some on lawyers are ones which many can see as serving the public interest. But that is irrelevant. Lawyers as an independent instrument of justice should be left to work free from any conflicts (including conflicts arising from the human rights expectations of the public).
The UNGPs may apply to lawyers in the ordering of pencils for the office. But they should not apply to the giving of legal advice, for the reasons stated. Further problems then arise at the borderline between the two areas. The managing partner of a law firm can issue instructions on which pencils to buy, but has no authority over the way legal services are rendered by the lawyer in charge of a particular case.
None of these nuances appear in the UNGPs themselves. They do not appear in the Council of Europe’s new recommendation, either. Of course not – they are both intended as a horizontal instrument to cover all. But if lawyers do not resist the impact on their own specific role, the dangers of our being used as an instrument for other purposes will expand to cover new areas in the future.
The Law Society is active in this area, and I hope that it takes note and resists all such expansion.
Jonathan Goldsmith is a consultant and former secretary-general at 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