Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Ethical and Practical Challenges for Corporate Lawyers Advising Clients on Human Rights

Academic journal article Proceedings of the Annual Meeting-American Society of International Law

Ethical and Practical Challenges for Corporate Lawyers Advising Clients on Human Rights

Article excerpt

This panel was convened at 9:00 a.m., Friday, March 25, by its moderator, David Nersessian of Boston University School of Law, who introduced the panelists: Sarah Altschuller of Foley Hoag LLP; Rachel Davis of the Harvard Kennedy School and the Office of the UN Special Representative for Business and Human Rights; Alexandra Guaqueta of Flinders University, School of International Studies; and Patrick Keenan of the University of Illinois School of Law.

ETHICAL RISKS, CORPORATE LAWYERS, AND HUMAN RIGHTS

By David Nersessian

INTRODUCTION

The interplay between business and human rights presents a complex mixture of challenges for corporate lawyers. Human rights law is premised on fundamental questions of morality and the highest aspirations of human endeavor. But such aspirations mean little unless they actually are implemented in day-to-day affairs. The "operationalization" of human rights principles in the commercial realm requires a pragmatic distillation of broad normative statements into manageable (and observable) business conduct.

Corporate lawyers can play a key role in this process, helping business clients to develop standards and create appropriate compliance frameworks to address the unique global risks that human rights present. But they must continue to meet their ethical obligations as legal professionals when they do so. Since the UN Special Representative's recent guidelines on business and human rights (1) concentrate largely on operational issues, my remarks as moderator today focus on these challenges as well.

Corporate lawyers increasingly are called upon to manage new dimensions of ethical risk in a rapidly globalizing business environment. This applies not only to personal risk (an individual lawyer's compliance with ethical rules), but also to ethical risks at the enterprise-level for organizations--law firms and legal departments that serve clients in this area. While hardly comprehensive, the topics covered today relate to three distinct areas:

(1) ethical risks inherent in the object of the legal representation itself.

(2) ethical risks to the lawyer's obligations of professional secrecy.

(3) ethical risks arising from the conduct of other lawyers.

The Object of Representation

The first area of ethical risk derives from the fundamental principle that lawyers cannot assist clients in crimes or fraud. (2) Human rights violations unquestionably constitute serious crimes. Acts of torture, war crimes, genocide, and the like violate both international and domestic law whether committed by public or private actors. Ironically, allegations of corporate interests perpetrating such crimes often arise in civil claims under the Alien Tort Statute. (3) However, apart from ATS liability, the Nuremberg progeny make clear that lawyers and corporate officials are subject to individual criminal prosecution when legal frameworks (4) or commercial endeavors (5) become instruments of international crimes. (6)

Apart from the risks of civil liability and criminal prosecution, however, criminal conduct also provides grounds for professional discipline. (7) Lawyers also must withdraw immediately upon learning that continuing legal representation would result in a crime or in professional misconduct. (8)

Confidentiality and Professional Secrecy

The second dimension of ethical risk relates to professional secrecy. The lawyer-client relationship includes special protections for communications (the attorney-client privilege), (9) documentation (work product immunity), (10) and other forms of information relating to the representation. (11) But such protections do not apply to illegal or fraudulent conduct. Special rules require lawyers to disclose confidences to prevent or rectify fraud on a tribunal (12) and in some other situations to avoid assisting a client's crime or fraud. (13) The attorney-client privilege also does not attach to communications where clients seek to further criminal ends through the lawyer's services, even when the lawyer is unaware of the client's intentions. …

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