Event Summary: Practicing Law with Respect for Human Rights: Opportunities and Challenges - Perspectives from Law Firm and In-House Counsel
On July 11, the Business and Human Rights Lawyers Association convened a panel of in-house and law firm counsel to consider the integration of the UN Guiding Principles, and associated legal and regulatory developments, into practice. The discussion was grounded in the draft Guidance Note recently issued by the International Bar Association. Stephane Brabant, chair of the Drafting Group, moderated this discussion, which included John Sherman, former General Counsel to Shift Project, Sarah Altschuller, Business and Human Rights Counsel, Verizon, and BHRLA Board Member Helene Bogen, Senior Associate, Wiersholm.
Among key observations of the panel:
The UNGPs apply to law firms in respect of both the counsel provided to clients and the firm’s own business practices, from client intake and scope of representation to supplier and business relationships. The Norwegian Transparency Act prompted Wiersholm to strengthen procedures and tools for supply chain due diligence. In light of the developments in the BHR field, procedures and tools for new matter intake were also strengthened, including heightened review of specific sectors and matters.
The “hardening” of human rights due diligence expectations has created greater opportunities for external counsel, and opportunities for pro-active engagement. As an example, panelists cited the ABA model contract clause project and its emphasis on collaborative approaches to responsible sourcing, and away from top-down audit-based responses. Panelists acknowledged the risk that due diligence regulations prompt narrow, “tick box” or compliance-based approaches.
The draft IBA Guidance recognizes the importance of taking the long view.: “what is considered merely unethical today may well be unlawful tomorrow.” The “wise counselor” looks at where the law is headed, aware that the company will live with the choices made today. The wise counselor can help to foster a corporate culture of openness and curiosity that will enable pro-active rather than re-active approaches to human rights risk. At the same time, the lawyer can help “translate” and navigate the often confusing and unfamiliar international and national human rights laws into operational guidance. All panelists stressed the value of dedicated inter-disciplinary teams.
While the current US political climate is prompting corporate caution with respect to ESG related policies and reporting, there is no turning back. Lawyers can advise companies on the longer-term risk of failing to meet expectations, within their industry and operating climate.