Everyone wants to be friends with CSR. But how do its principles conflict with lawyer-client confidentiality?
Corporate social responsibility (aka CSR, aka business and human rights) continues to be the coolest kid in town. Everyone wants to be friends with it. Solicitors will soon have guidance at every level: national – the Law Society issued guidance on CSR earlier this year; European – my own organisation, the Council of Bars and Law Societies of Europe (CCBE) has similarly issued new guidance a few months ago (after previous guidelines over the last few years); and now, at international level, the International Bar Association (IBA) is getting in on the act.
The buzz arises out of the UN Guiding Principles on Business and Human Rights, about which I have written before. I mentioned last time that, although there are individuals and organisations vigorously promoting the principles to the legal profession, there are special problems for us as lawyers. In brief, this is one of those areas where human rights (as represented by CSR) conflict with clients’ rights. Specifically, the clients’ rights affected are the rights to legal representation and to lawyer-client confidentiality.
The principles say that: ‘Business enterprises need to know and show that they respect human rights.’ But the showing part might cause problems if strictly applied, since clients might go unrepresented or their secrets somehow compromised. So let us see how the various levels of bars have been coping.
Before we begin, here is some brief background. The principles were endorsed unanimously by the UN Human Rights Council on 16 June 2011. The work behind them was undertaken by the special representative of the UN secretary-general for business and human rights, John Ruggie (a Harvard professor).
John Ruggie is now Chair of the Board of Trustees of an organisation called Shift, which helps governments, businesses and their stakeholders put the principles into practice. The professor devised them, and is now promoting their adoption.
At national level, the Law Society’s guidance rightly steers clear of the main problem of CSR when applied to lawyers. There is much talk about ensuring training, issuing guidance to lawyers, and other general wording. But when it comes to the core difficulties I have mentioned, Recommendation 4 says that: ‘…The Law Society should undertake further work on areas such as: confidentiality, retainers, due diligence and what leverage means in the context of legal services provision, in order to be able to provide practical guidance to its members.’
The CCBE’s new guidance (which follows previous guidelines) has a similar provision: ‘CSR claims regarding the client relationship have to take into consideration the specific role of the lawyer in the administration of justice.’
There are other interesting cautions from the CCBE, too. One of the duties of the guiding principles is to be sure that your supplier chain – for carpets, computers, whatever – is also compliant with CSR, such as ensuring that there is no slave labour involved.
But, given that law firms might have many clients with different CSR policies, the CCBE points out: ‘The lawyer as supplier of services may be confronted with various dilemmas, in particular, a multiplicity of potentially conflicting policies of various clients, client’s requests to audit its books and records and to comply with barely defined standards, and client’s requests (e.g. concerning intensive working hours) conflicting with its own supplier policy.’
And then we come to the IBA. The IBA has just announced a new Business and Human Rights Working Group, chaired by the General Counsel and Senior Advisor to Shift. It is currently discussing guidance for bar associations (yes, more!). The guidance will cover the usual territory: understanding the relevance and applicability of business and human rights principles; developing an overall strategy for integrating the principles into the practice of law; heightening awareness of the implications of the principles; serving as a training tool; and representing the legal profession in the design of business and human rights policies to policy makers, governments and legislatures.
There is nothing said about how the obstacles I have mentioned will be overcome. I await the outcome with interest.
If you have not yet had enough CSR, the European Commission has just launched a consultation (deadline 15 August 2014) on the topic. More specifically, it wants to hear your views on its own CSR activities, as outlined in the its 2011 Communication on A renewed EU strategy 2011-14 for Corporate Social Responsibility (COM (2011) 681).
So, be cool, get with it, bone up on CSR – it is here to stay.
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
In January 2014 The Law Society of England and Wales launched a report from its practitioners’ advisory group which contained a number of recommendations for how the Society could assist the legal sector on issues around business and human rights. In line with other sectors which are increasingly developing specific guidance on the UNGPs - an approach endorsed by the Government’s National Action Plan on business and human rights - the Society has examined how, as a representative body, it can best assist the profession to consider the human rights implications both in the advice they provide, and in law firms’ activities as business enterprises. The report can be read here.