As co-chairs of the Corporate Social Responsibility Committee of the International Bar Association, we would like to address Jonathan Goldsmith’s blog of 9 May, ‘Business, human rights and lawyers’. Mr Goldsmith states that as applied to the legal profession, the ‘knowing and showing’ feature of the UN Guiding Principles on Business and Human Rights may somehow compromise the secrecy of attorney-client communications.
This concern is not warranted. Guiding principle 21 states: ‘Business enterprises whose operations or operating contexts pose risks of severe human rights impacts should report formally on how they address them.’ It says further that: ‘In all instances, communications should… not pose risks to affected stakeholders, personnel or to legitimate requirements of commercial confidentiality.’
The underlined language covers confidential attorney-client communications and excludes them from the requirement to communicate to third parties.
The Corporate Responsibility to Respect Human Rights: An Interpretive Guide, prepared by the UN Office of the High Commissioner on Human Rights with the full approval of the special representative to the secretary general, states this explicitly: ‘The legitimate requirements of commercial confidentiality… would also include information legally protected against disclosure to third parties.’
In a nutshell, the guiding principles do not void the confidential nature of attorney-client communications.
Stephane Brabant and Peter Stern, co-chairs, International Bar Association CSR Committee