Integrating the UNGPs into Law Firm Practice: A BHRLA Members’ Discussion of Incentives, Lessons Learned, and Opportunities and Challenges

The Business and Human Rights Lawyers Association hosted this member-only event to discuss the integration of UNGPs on business and human rights into law firms’ practice. John Sherman started by emphasizing the critical role lawyers play in business and human rights, involved in areas such as supply chains, mineral extraction, waste management, etc. Both soft laws like the UNGPs and current hard laws in EU nations in managing human rights risks are crucial regulations for law firms to comply with.

On the 2023 update to the International Bar Association (IBA) guidance, John Sherman highlights that the current legal environment sees states moving beyond mere disclosure to implementing mandatory human rights laws. Institutions are also increasingly adopting ESG policies. He points to external drivers like the Corporate Sustainability Due Diligence Directive (CSDDD) and the Corporate Sustainability Reporting Directive (CSRD) in the EU, which mandate human rights due diligence and enforce compliance through civil remedies and legislative sanctions. Moreover, the private commercial law for business and human rights is also developing. Therefore, for law firms, client representation becomes a delicate issue. Sherman stresses the importance of transparency and the need to balance client confidentiality with the duty to disclose human rights impacts.

Rae Lindsay discusses the 2016 initiative where nine international law firms began a peer-learning process to share knowledge and collaborate on human rights issues. This led to workshops supported by external consultants from 2017-2018, helping law firms implement their own human rights due diligence processes. Lindsay highlights Clifford Chance’s journey, noting their adoption of human rights policies in 2013, driven by leadership commitment and a proactive approach to learning by practicing. She emphasizes that having a clear human rights policy, conducting risk assessments, and ensuring compliance with the legal framework are essential for law firm operations. She also highlights the importance of internal capacity building, demystifying human rights policies, and fostering a collective benefit through education provided by the Business and Human Rights Lawyers Association (BHRLA).

Both Sherman and Lindsay address the challenges of client representation and screening. Sherman advises lawyers to conduct risk-based assessments to ensure their services do not facilitate human rights abuses and to engage clients on potential human rights risks. Lindsay emphasizes the need for law firms to develop clear processes and governance in dealing with human rights issues, suggesting that contracts should include terms for potential human rights concerns. She acknowledges the competitive nature of law firms and the importance of reputation risk management, advocating for transparency and client agreements on necessary disclosures. Both experts underline the need for lawfirms to integrate human rights considerations into their practices and to support clients in understanding and implementing human rights due diligence.

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Speakers

‍John Sherman is former deputy general counsel to National Grid, former senior legal advisor to UN Special Representative on Business and Human Rights
John Ruggie, and a principal drafter of both the 2016 version and the 2023 update of the IBA Guidance Note on Business and Human Rights.
Rae Lindsay is the Co-Chair of the BHRLA and a Partner at Clifford Chance.

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