A HUMAN RIGHTS PERSPECTIVE ON PROFESSIONAL RESPONSIBILITY IN GLOBAL CORPORATE PRACTICE.

Author:Nersessian, David
Position::Corporations on Trial: International Criminal and Civil Liability for Corporations for Human Rights Violations
 
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The direct applicability of human rights law to the attorney-client relationship has serious implications for ethical corporate governance. In addition to creating criminal and civil risks for lawyer and client alike, the specter of human rights violations in business dealings gives rise to myriad ethical questions for corporate lawyers to consider and resolve. These include matters such as the legitimate object and scope of corporate representation, conflicts of interest, duties to withdraw, and matters of competence and communication in corporate governance. They also raise questions of professional secrecy and whether ethical codes permit (or even require) lawyers to reveal confidential information, either to prevent harm or to protect the corporate client from its own malfeasant employees. These ethical concerns also affect supervisory relationships and duties to report misconduct by other lawyers.

  1. INTRODUCTION II. CORPORATE LAWYERS AND HUMAN RIGHTS III. THE ETHICAL IMPLICATIONS OF HUMAN RIGHTS VIOLATIONS A. Conflicts of Interest and Mandatory Withdrawal B. Exceptions to Professional Secrecy C. Ethical Risks Created by Other Lawyers IV. CONCLUDING THOUGHTS I. INTRODUCTION

    The interplay between business and human rights presents a complex set of challenges for corporate lawyers. As business becomes increasingly global, often through a lengthening supply chain and a widening range of outsourced functions, the risk of a corporation directly or indirectly violating human rights continues to grow as well. (1) The international community continues to debate the optimal intersection of business and human rights; although some consensus exists, (2) many of the norms in question have yet to develop into firm rules of international law. (3)

    Corporate lawyers can play a key role in this area by working with business clients to develop standards and appropriate compliance frameworks to address the unique global risks that human rights present to the business sector. But certain risks for lawyers have grown as well, and corporate counsel increasingly must manage new and shifting dimensions of ethical risk as they practice law in rapidly-globalizing business environments. This includes not only personal hazards (an individual lawyer's compliance with ethical rules) but also ethical risks at the enterprise level for organizations--law firms and legal departments--that serve clients in this area.

  2. CORPORATE LAWYERS AND HUMAN RIGHTS

    At the outset, it is worth noting an important parallel between legal ethics and human rights law. Like the principles underlying human rights, the professional frameworks governing lawyers reflect a mixture of normative value statements and pragmatic conduct regulation. The ABA Model Rules (4) and similar codes (5) juxtapose the profession's highest aspirations with detailed requirements on how law must be practiced. The legal profession "operationalizes" ethics through a self-regulatory regime incorporating the traditional compliance strategies of bounded professional discretion, safe harbors, and significant penalties for breach.

    Although human rights encompass a wide range of human endeavors and issues, this article focuses more narrowly on the unique implications of serious human rights violations for corporate practitioners--the collateral impacts on the ethical regulation of lawyers in private practice. It argues that human rights law directly impacts the attorney-client relationship. Human rights violations thus subject corporate lawyers to a set of liability risks that do not exist for other corporate officers and employees: the potential for disciplinary sanctions arising out of breaches of the rules of professional conduct governing the legal profession.

    At the outset, it is important to note that corporate lawyers are hardly the only legal practitioners interacting with human rights. Government lawyers arguably have far more regularized day-to-day interaction with human rights issues.7 Indeed, the most high-profile examples of lawyers becoming embroiled in human rights violations have involved government attorneys.

    The most notorious example is that of the Nazi lawyers who contributed to genocide and other human rights violations in the Third Reich. (6) More recently, the so-called "torture memos" drafted by White House lawyers implicated serious human rights issues. These memos authorized severe interrogation policies toward detainees, applying a highly questionable definition of torture. (7) There has been vigorous debate over whether these memoranda authorized torture in violation of international law or violated the professional obligations of their authors. (8) Although the Justice Department's Office of Professional Responsibility determined that the authors committed professional misconduct by failing to provide competent, objective, and comprehensive advice, (9) the OPR's findings were overturned on the grounds that OPR had failed to identify any meaningful standard against which to assess the legal analysis provided. (10) The role of the government lawyers in this context has been studied extensively in scholarship addressing criminal (11) and civil (12) liability, legal ethics, (13) moral wrongfulness, (14) social science, (15) prosecution in overseas jurisdictions, (16) and the domestic (17) and foreign (18) policies of the United States, and there remains little to add to that debate.

    The role of government lawyers differs sharply in many respects from that of corporate counsel operating in the private sector. Judicial officials and prosecutors, for example, have duties extending beyond merely facilitating the government's interest in advocacy and other settings. (19) Special rules that aim to account for the public's interest in legal work, (20) as well as additional specialized rules of practice for certain governmental agencies, reflect these obligations. (21)

    Government lawyers also have differing obligations to the organizational client itself. (22) Indeed, it can be difficult to sort out the actual identity of the lawyer's "client" in the first place. Although like corporate lawyers--government lawyers represent an abstract entity with legal personality, serious questions can arise about which of multiple interlocking entities is the "real" client (for corporate lawyers, subsidiary, parent, or both, versus branch office or division of the US Attorney's office, the Department of Justice, or the United States government as a whole for government lawyers). (23) Government lawyers have broader "responsibilities and obligations of loyalty that go beyond those of private attorneys ... [to encompass] the American public and its collective interests and values." (24) They also face far greater political repercussions and concerns about external influence in legal matters than private sector attorneys, particularly when foreign relations are involved. (25) Given these many differences, this article excludes public sector lawyers from further discussion here.

    The context in which corporate practitioners operate also bears consideration. Although this writing focuses on the ethical duties of corporate counsel, it does not distinguish between in-house versus external counsel and law firms. It focuses on ethical obligations stemming from the corporate legal work itself, rather than the setting in which lawyers perform it. This is not to say that there are not practical differences between in-house and outside counsel. In-house lawyers, for example, most likely would have greater access to information about the true nature of corporate transactions that violate human rights. They also may be more culpable by virtue of holding a position of greater influence over the company than outside lawyers. Significant legal consequences also may stem from a lawyer's employment status, such as markedly different confidentiality protections for in-house versus outside lawyers between the United States and Europe. (26)

    In-house counsel also face liability in their capacity as members of senior management, where they often must meet more rigorous standards in corporate governance than non-lawyers. (27) This turns on important--yet here extraneous--questions of whether the inside lawyer operated in a business capacity or a legal one. Despite their importance, this article puts aside such questions in favor of a sharper focus on the ethical implications of counsel's work as legal advisor and facilitator. The various benefits, (28) drawbacks, (29) and special challenges (30) to lawyers who serve as corporate directors also are not discussed.

  3. THE ETHICAL IMPLICATIONS OF HUMAN RIGHTS VIOLATIONS

    This article now will consider three specific categories of ethical rules implicated by human rights violations. The first of these is the conflicts of interest that can arise when a corporate client violates human rights. These in turn relate to the legitimate object of legal representation and also implicate the lawyer's obligation to withdraw from the representation.

    Second is the lawyer's duty of confidentiality. Does, for example, the crime/fraud exception to the attorney-client privilege apply to conduct that is illegal under international law? The article also discusses the role of human rights in broader duties of professional secrecy--whether those duties permit (or even require) lawyers to reveal confidential information, either to prevent crimes or serious injury or to protect a corporate client from its own malfeasant employees.

    Third, human rights have the potential to impact professional relationships existing between lawyers, which are governed by special ethical rules. Specifically, lawyers have duties to supervise other lawyers and non-lawyer professionals to ensure ethical compliance. They also must report ethical breaches by other attorneys to the appropriate disciplinary authorities.

    1. Conflicts of Interest and Mandatory Withdrawal

      Lawyers have a conflict of interest...

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