Discussion Paper
www.a4id.org
Law Firms’ Implementation of the Guiding Principles on Business & Human Rights
November 2011
© 2011 Advocates for International Development.
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Foreword Foreword Foreword Foreword
Advocates for International Development (A4ID) believes that the law is a vital tool for international development and that lawyers have a crucial role to play in the fight against poverty as gatekeepers to the institutions and processes of justice.
One important role that lawyers have is as advisors to big business. When businesses fail to protect human rights they also prevent progress towards development. But a world where human rights are protected for all is also a world where people enjoy the conditions, and have access to the resources, necessary for sustainable development.
We see the 2011 Guiding Principles on Business and Human Rights as important in encouraging businesses to take their responsibility towards the developing world seriously and help foster an environment where progress towards the Millennium Development Goals is supported. We believe that it is vital for law firms to play their part in this process, both through the advice they give their clients but also through their actions as responsible businesses.
Many law firms – including A4ID legal partners – have shown their support for the UN Guiding Principles on Business and Human Rights and are already advising clients on their implementation, demonstrating their commitment to respect human rights. However, it is also necessary for firms to show this same commitment in their own business practices.
It is for this reason that A4ID brought together representatives from eight leading law firms in September 2011 to discuss their responsibility to respect human rights through their own business relationships and operations, looking closely at their practices in relation to employees, supply chains and clients.
The questions they tackled during the meeting and the recommendations drawn out go beyond the easy and the obvious, and tackle the unique challenges faced by law firms and lawyers. This paper aims to provide an overview of what was discussed at that meeting, the conclusions that were drawn and the steps that will come next.
At A4ID we are proud to be working with firms who are helping to set the agenda in this area and look forward to taking the recommendations of this paper forward with them in the future.
A4ID would also like to sincerely thank John Sherman for his role as Chair of the meeting and for his considerable contribution towards preparing this paper.
Yasmin Batliwala Yasmin Batliwala Yasmin Batliwala Yasmin Batliwala JP JP JP JP
Chief Executive, A4ID
Executive summary Executive summary Executive summary Executive summary
As businesses, law firms have the responsibility to “know and show” that they are respecting human rights.
This is a core component of the Guiding Principles on Business and Human Rights recently endorsed by the UN Human Rights Council. These principles implement the authoritative Protect, Respect and Remedy Framework developed by Professor John Ruggie, the Special Representative of the UN Secretary-General for Business and Human Rights, and follow six years of research, consultation and road testing. They, and the Framework they implement, have enjoyed wide uptake worldwide, as seen in their application by businesses, trade associations, governments, national human rights institutions, international standard setting organisations, investor benchmarks, multi-stakeholder initiatives and NGO advocates.
Law firms have played an active role in supporting the development of the Guiding Principles and are advising companies on their application. Counselling clients on their need to take effective steps to prevent and remediate negative human rights impacts is a key means through which law firms can meet their own responsibility to respect human rights. This can be a win-win-win for firms, their clients, and society.
However, it does not appear that any of the world’s largest law firms has a publicly available, high-level policy commitment to respect human rights in the management of its business, and very few firms meaningfully communicate their impacts on human rights to affected stakeholders. Firms are just beginning to grapple with the fact that, as businesses, they have their own responsibilities not to infringe on human rights through their own operations and through their business relationships. This requires a close look at law firms’ practices with respect to employees, supply chains and clients.
In meeting their responsibility to respect, meaning to avoid infringing on human rights and to address negative impacts with which they are involved: Guiding Principle 11, law firms face unique challenges, particularly in relation to how they deal with clients that have not respected human rights, given the longstanding tradition of lawyers adopting a position of neutrality, advocating zealously for their clients, and operating within a framework of legal privilege and confidentiality, which are embedded in legal codes of conduct that lawyers must adhere to.
However, if law firms are truly committed to operating in line with the Guiding Principles, they must be prepared to seek answers to difficult questions, related not only to client engagement, but also to their employment practices and their supply chains, including:
Law Firms’ I Law Firms’ I Law Firms’ I
Law Firms’ Implementation of the Guiding mplementation of the Guiding mplementation of the Guiding mplementation of the Guiding Principles on Business & Human Rights Principles on Business & Human Rights Principles on Business & Human Rights Principles on Business & Human Rights
Discussion Paper
• How can law firms respect human rights relating to favourable work conditions, while operating on a billable hours working structure?
• How can a law firm avoid being deemed complicit in the human rights impacts of a supplier or client?
• Under what circumstances should a law firm terminate its relationship with a supplier or client?
• How can law firms show that they are respecting human rights?
• How can a law firm align itself with the Guiding Principles while also being consistent with the requirements of legal professional codes?
These were a few of the questions that some of the world’s leading law firms grappled with when they came together for a roundtable event organised by Advocates for International Development (A4ID) to discuss the ways in which the Guiding Principles apply to them as businesses.
The meeting was chaired by John Sherman, Secretary, General Counsel and Senior Advisor to Shift, an independent, non-profit centre for business and human rights practice, staffed by a team that was centrally involved in writing and shaping the Guiding Principles and chaired by Professor Ruggie.
By discussing concrete issues related to law firms’ practices, the meeting was able to draw out areas of consensus, and issues that require further work. These included:
• The need for high-level human rights policy commitments by law firms that are fully integrated into the firm’s corporate governance structure.
• The need to fill gaps in law firms’ human rights due diligence processes.
• The need for guidance regarding the steps that firms should take to avoid being deemed complicit in any adverse human rights impacts of suppliers and clients.
• The need to address the relationship between the Guiding Principles and the professional legal standards of conduct to which lawyers must adhere.
These issues will be covered in more detail in the following discussion paper.
Background to the Guidi Background to the Guidi Background to the Guidi
Background to the Guiding Principles ng Principles ng Principles ng Principles
Law firms, like all other business enterprises worldwide, have a responsibility to respect human rights, in alignment with guidance recently endorsed by the United Nations. On 16 June 2011, the UN Human Rights Council unanimously endorsed the Guiding Principles drafted by the Special Representative of the UN Secretary-General for Business and Human Rights, Harvard Kennedy School Professor John Ruggie, for the implementation of the UN’s Protect, Respect and Remedy policy framework on Business and Human
Rights.1 Such robust backing is unprecedented. The Council endorsed the resolution package without a vote, marking the first time that the Council has unanimously passed a set of normative principles that member states had not negotiated themselves.
The Guiding Principles are the product of six years of research led by Professor Ruggie and his team, involving site visits, pilot programmes, 47 international consultations with governments, companies, business associations, civil society, affected individuals and groups, investors, and an online consultation with thousands of participants from 120 countries. They respond to the impact of globalisation and an era in which multinational businesses have increasingly been accused of human rights abuses linked to their overseas operations – e.g. Shell in Nigeria, Nike in Indonesia, and Yahoo! in China, to name a few.2 The initial response by many companies to these controversies was to adopt voluntary corporate social responsibility initiatives, which were laudatory first steps, but were often not strategic or well integrated into company operations and, in many cases, were treated as market driven and discretionary.
In 2005, the UN asked Professor Ruggie to identify and clarify standards related to business and human rights – and not just in relation to a few, but to all business enterprises, wherever located and however structured. In 2008, he presented his Protect, Respect, and Remedy Framework, explaining what needs to be done and, in 2011, he presented the Guiding Principles, explaining how to do it.3 The Framework rests on three pillars – the state duty to protect human rights, the corporate responsibility to respect human rights, and the need for greater access to remedy.
Under the first pillar, states are the primary duty bearers under international human rights law, and have the duty to protect against human rights abuses by any third party, including business, through regulation, legislation, investigation, and adjudication aimed at preventing, punishing and redressing human rights violations, and to set out the clear expectation that businesses domiciled in their jurisdiction respect human rights wherever they operate.
Under the second pillar – which is the primary focus of this paper – businesses have a responsibility to respect human rights. Respecting human rights means not infringing them. To avoid being “named and shamed” for their involvement in human rights violations, respecting human rights requires businesses to
“know and show” that they are preventing and addressing negative human rights impacts with which they may be involved, as follows:
1Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy”
Framework (June 2011), http://www.business-humanrights.org/Documents/UNGuidingPrinciples.
2 See press reports on Shell (http://wiwavshell.org); Nike (http://www.albionmonitor.com/9606a/nikelabor.html); and Yahoo!
(http://nyti.ms/rq7ziY).
3 The UN “Protect, Respect and Remedy Framework for Business and Human Rights,” http://www.reports-and- materials.org/Ruggie-protect-respect-remedy-framework.pdf.
• Adopting and embedding throughout the organisation a policy commitment, at the highest organisational level, to respect human rights, informed by engagement with stakeholders, supported by operational level policies, and widely communicated.
• Engaging in a human rights due diligence process to assess and identify actual and potential human rights impacts, to integrate their assessment findings into relevant functions and processes, and to track and communicate how they are addressing their impacts.
• Engaging or participating in legitimate processes – including non-judicial grievance mechanisms – to remediate negative impacts that it has caused or contributed to.
There are a number of things that the business responsibility to respect human rights is not:
• It is not a passive duty, but a proactive one, requiring the business to take each of the steps described above.
• It is not limited by the laws of individual states, and applies whether or not the state where the human rights infringement takes place has enacted or enforced laws that protect human rights.
However, the responsibility to respect human rights does not exist in a law free zone, since it is reflected in many jurisdictions in laws that correspond to international human rights standards; e.g.
workplace standards in line with core ILO conventions; safeguards against discrimination;
protections from contaminated food etc.
• It is not a discretionary and market driven standard, to be applied only where the business will likely gain maximum reputational benefit, but is a minimum global standard that applies wherever and however the business actually or potentially affects human rights.
• It is not a voluntary sign-up standard; businesses will be judged by their lack of respect for human rights whether or not they have elected to follow the steps outlined in the Guiding Principles.
• Without denigrating the value of pro bono services provided by lawyers to the most vulnerable in society, respecting human rights is not satisfied by philanthropy. A business cannot offset its involvement in human rights abuses through charity.
• It does not entail the application of subjective moral judgments, but is grounded in internationally recognised human rights, as expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work.
There has been an extraordinary global convergence by other standard-setting bodies on the Guiding Principles. Their substance has been integrated into ISO 26000 (the new Corporate Social Responsibility standard promulgated by the International Organization for Standardization), the revised OECD Guidelines for Multinational Enterprises, and the updated Performance Standards of the International Finance
Corporation.4 In addition, the Protect, Respect and Remedy Framework has been applied in government policies, business practices, corporate law firm memos, multi-stakeholder initiatives, investor benchmarks and NGO advocacy.5 Very recently, the European Commission announced its intention to develop policy based on a new definition of Corporate Social Responsibility, which recognises the responsibility of enterprises for their impacts on society, including human rights impacts, and requires due diligence and integration to address adverse impacts and maximise shareholder value. It further sets out, in Section 4.8.2, the specific expectation that all European enterprises will "meet the corporate responsibility to respect human rights, as defined in the UN Guiding Principles".6
The International Bar Association, which is the global voice of the legal profession, has strongly supported the application of the Framework.7 Many large law firms advised Professor Ruggie and his team over their years of engagement, analysis and consultation. Hundreds of lawyers provided pro bono assistance, including through A4ID, in the development of Baseswiki, a web based, interactive learning centre on human rights grievance mechanisms, and in the Corporate Law Tools Project, a review by close to 20 international law firms of the impact of corporate law in over 40 jurisdictions on the responsibility to respect human rights.8 Professor Ruggie has cited the importance of these contributions and the role that lawyers can play in advancing the Framework and Guiding Principles.9
Law Firms as Business Enterprises Law Firms as Business Enterprises Law Firms as Business Enterprises Law Firms as Business Enterprises
The responsibility to “respect” applies to all businesses, “regardless of their size, sector, operational context, ownership and structure”: Guiding Principle 14. This includes law firms, many of which are large business enterprises by any standard. The 100 largest law firms in the world collectively had revenues of over USD
$74 billion in 2010, which is probably a small fraction of the value of the transactions that they helped to shape worldwide.10 Of these firms, 77 are based in the US and 12 are based in the UK; the rest are based in Australia, Europe and Canada. Most if not all of these firms practice in multiple countries, and lawyers
4 ISO 26000—Social Responsibility (http://www.iso.org/iso/social_responsibility); OECD Guidelines for Multinational Enterprises (http://bit.ly/nKnjm1); IFC’s Updated Sustainability Framework (http://www.ifc.org/policyreview).
5 Applications of the Framework, http://www.business-humanrights.org/SpecialRepPortal/Home/Protect-Respect-Remedy- Framework.
6 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A renewed EU strategy 2011-14 for Corporate Social Responsibility (October 25, 2011);
http://ec.europa.eu/enterprise/policies/sustainable-business/corporate-social-responsibility/index_en.htm.
7 E.g. IBA-WG Response to the OECD Consultation on an Update of the Guidelines for Multinational Enterprises, http://bit.ly/9mrGpS; in addition, the IBA CSR Committee urged the UN Human Rights Council to endorse the Guiding Principles.
8 Baseswiki.org (http://baseswiki.org); Corporate Law Project (http://www.business- humanrights.org/Links/Repository/1001537).
9 Interview with Professor John Ruggie, Special Representative of UN Secretary-General on business and human rights (April 10, 2010), http://bit.ly/rqILE5.
10 American Lawyer.com, The Global 100 2010: The World’s Highest Grossing Law Firms, http://www.law.com/jsp/tal/PubArticleTAL.jsp?id=1202472338838&slreturn=1.
move back and forth between them. The 100 largest law firms in the US alone employed over 46,000 lawyers in 2010, and presumably large numbers of support staff.11 Yet despite their size and influence, law firms have not been at the forefront of demonstrating a commitment to manage their own business in accordance with the Guiding Principles.
There is not a great deal of publicly available information because law firms are not publicly traded institutions and have limited reporting responsibilities, and because most client-lawyer communications are confidential. In 2005, attention began to be paid to the role of law firms, as business enterprises, with respect to the concept of social responsibility, including a report by the International Institute for Environment and Development12 and a report by managers in a major London law firm.13 These papers are quite prescient, but predated the Framework and the Guiding Principles.
Regarding law firms and human rights, a review of the largest 100 law firms in the world indicates the following:
• None appear to have published a high-level policy statement committing them to respect human rights in the management of their business.14
• A tiny handful of these firms have signed up to the UN Global Compact, whose first two principles relate specifically to human rights.15
• Only two of these firms have published corporate responsibility reports in accordance with the Global Reporting Initiative (GRI) Guidelines, which contains key performance indicators relating to human rights.16
• Only one law firm appears to have published its policy with respect to client selection and supply chains.17
11 Internet Legal Research Group, America’s Largest 250 Law Firms (January 2011), http://www.ilrg.com/nlj250.
12 Halina Ward, Corporate Responsibility and the Business of Law (2005), http://pubs.iied.org/search.php?k=lawyers&z=Search.
13 Richard Taylor and Richard Brophy, Corporate Social Responsibility in Lawyers’ Firms, in Mullerat, ed., Corporate Social Responsibility – The Corporate Governance of the 21st Century (Kluwer Law Intl, 2005).
14 Company policy statements on human rights, http://www.business-humanrights.org/Documents/Policies.
15 UN Global Compact Participants, http://www.unglobalcompact.org/ParticipantsAndStakeholders/index.html.
16 Global Reporting Initiative, G3 Guidelines, http://www.globalreporting.org/reportingframework/g3guidelines/.
17 Freshfields Bruckhaus Deringer, CSR 2009/10 Report, http://www.freshfields.com/aboutus/csr/.
The Business Case for The Business Case for The Business Case for
The Business Case for Law Firm Alignment with the UN Guiding Principles Law Firm Alignment with the UN Guiding Principles Law Firm Alignment with the UN Guiding Principles Law Firm Alignment with the UN Guiding Principles
Notwithstanding this evidence, there is a strong business case for law firms, as business enterprises, to follow the Guiding Principles. First, advising clients on the Guiding Principles is an opportunity for firms.
Lawyers are well positioned to advise corporations on the application of the responsibility to respect human rights, which, as noted above, does not exist in a law free zone.18 Professor Ruggie has submitted to the Human Rights Council a separate set of principles for responsible contracting, to enable lawyers and others in the front line of drafting long term investment contracts with potential human rights impacts to negotiate provisions that will prevent and address these impacts in order to make these contracts sustainable over the life of the investment.19 Such advice not only presents an opportunity for firms, but also constitutes a key means through which law firms can meet their own responsibility to respect human rights, as discussed in further detail later in this report.
Second, over 291 businesses worldwide have adopted human rights policy statements, and expect that their suppliers – including law firms – adhere to similar standards of conduct.20
Third, the reputational impacts on law firms from involvement in the human rights impacts of their clients can be severe, resulting in loss of clients, distraction of attention of senior firm management, lost opportunities to expand and pursue new areas of business, and decreased ability to attract and retain top legal talent.
Lawyers have been criticised by some for becoming creative but amoral legal engineers whose primary goal is to enable clients to circumvent regulation intended to protect the public good.21 This is contrary to the independent gatekeeper role envisioned by the legal codes of professional responsibility of various countries.
For example:
• The European Bar’s Code of Conduct for Lawyers in the European Community, which has been implemented in every EU country, states in its preamble at Rule 1.1 that lawyers’ moral and ethical obligations include those that they owe to “the public for whom a free and independent profession
… is an essential means of safeguarding human rights in the face of the power of the state and other interests in society.”22
18 IBA/UN Global Compact “Lawyers as Leaders—Human Rights” video, http://www.ibanet.org/lawyersasleaders_hr.aspx.
19Principles for responsible contracting: integrating the management of human rights risks into State-investor contract negotiations: guidance for negotiators (May 2011); http://www.ohchr.org/Documents/Issues/Business/A.HRC.17.31.Add.3.pdf.
20 Company human rights policies, http://www.business-humanrights.org/Documents/Policies.
21 McBarnet, Financial Engineering or Legal Engineering? Legal Work, Legal Integrity and the Banking Crisis (February 2010), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1546486.
22Code of Conduct For European Lawyers (May 19, 2006),
http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/2006_code_enpdf1_1228 293527.pdf., quoted in Davis, Human Rights and the Model Rules of Professional Conduct: Intersection and Integration, 42 Colum. L. Rev. 157, 182 (2010).
• Japan's Basic Rules on the Duties of Practising Attorneys provide in Article 1 that “An attorney shall be aware that his or her basic mission is to protect fundamental human rights and realise social justice and shall strive to attain this mission.”23
• The preamble to the American Bar Association Model Rules of Professional Conduct (which most US States have adopted, in whole or in part), acknowledges the lawyer’s dual role as client representative and social gatekeeper by stating that a lawyer is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”24 With this background in mind, this paper now turns to the meeting convened by A4ID.
A4ID Meeting on 16 A4ID Meeting on 16 A4ID Meeting on 16
A4ID Meeting on 16 September 2011 September 2011 September 2011 September 2011
A4ID’s legal partners – providing access to over 34,000 lawyers worldwide – have declared their commitment to using their professional skills to help eradicate poverty and achieve the United Nations’
Millennium Development Goals (MDGs). The eighth MDG aims to create a global partnership for development. The Guiding Principles are one way that the world community is putting in place standards through which business can play its role in enabling such a global partnership to be realised.
The services provided by law firms are fundamental to ensuring the rule of law, which is essential to the protection and fulfilment of human rights, and enables companies to respect human rights in their business.
Moreover, law firms are critical to the development of the global economy, which has created jobs and raised the standard of living for many in developing economies, but also resulted in or contributed to human rights violations, particularly in areas of conflict and weak governance.
Law firms have much in common with other businesses, with substantial revenues, many employees and lengthy supply chains. The Guiding Principles apply to their employees and their supply chains the same as they would to any other business. However, the role of law firms as impartial advisers and advocates, and the professional standards to which they are required to adhere, makes them unique in certain respects. It may be easier for firms to focus on their important role of advising clients on their obligations under the Guiding Principles, than on their own responsibilities to respect human rights. Although many law firms have publicly supported the Guiding Principles and have already begun advising clients on their interpretation, discussions with A4ID indicate that to date, few have analysed their own business practices and governance in line with this new standard.
Recognising its legal partners’ desire to take the lead in the area of corporate responsibility, as well as the critical interaction of the Guiding Principles with its mission of engaging lawyers in eradicating poverty, A4ID
23 Id., at 183; Japan Federation of Bar Associations, Basic Rules (preliminary provision, adopted Nov. 10, 2004) art. 1 available at http://www.nichibenren.or.jp/en/about/regulations.html (last visited Sept. 30, 2010), quoted in Davis, supra, at 183.
24 ABA Model Rules of Professional Conduct: Preamble and Scope,
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model_rul es_of_professional_conduct_preamble_scope.html.
invited senior leaders from its legal partners to discuss how to embed and ‘operationalise’ their firms’
respect for human rights. This select group was invited to ask hard, but necessary, questions of the legal profession and to propose realistic and practical ways for them to implement the Guiding Principles.
This paper records the discussions that took place, under the Chatham House Rule, and is the first stage in a process of sharing learning and developing best practice in this area.
Participants Participants Participants Participants
We acknowledge and thank the following law firms whose partners and corporate social responsibility managers participated in the meeting:
• Allen & Overy
• Clifford Chance (host)
• Herbert Smith
• Hogan Lovells
• Kirkland & Ellis
• Reed Smith
• Simmons & Simmons
• White & Case
Chair Chair Chair Chair
The meeting was chaired by John Sherman. He is Secretary, General Counsel and Senior Advisor to Shift, an independent non-profit centre for business and human rights practice, staffed by a team that was centrally involved in writing and shaping the UN Guiding Principles and chaired by Professor Ruggie. John is also a Senior Fellow at the Mossavar-Rahmani Center for Business and Government at the John F. Kennedy School of Government at Harvard University.
Following 30 years of legal practice, John joined Professor Ruggie’s UN mandate team from 2008 to 2011.
Drawing on his legal and business experience, John concentrated on developing the integration of human rights due diligence into existing corporate governance, enterprise risk management, compliance and ethics, safety and environmental management, and dispute resolution systems.
Meeting parameters Meeting parameters Meeting parameters Meeting parameters
As business enterprises, law firms are not exempt from the responsibility to respect human rights. Yet, lawyers and law firms occupy a unique role in society and thus confront specific challenges in the implementation of human rights principles that are different to other businesses.
As the purpose of this meeting was to consider how the Guiding Principles apply to law firms, the scope of the discussion was focused around three central themes. These were:
1. Employees,
2. Supply chains and other business activities, and 3. Clients.
For each issue, the meeting sought to answer the question: ‘what do we expect of the legal profession in ‘what do we expect of the legal profession in ‘what do we expect of the legal profession in ‘what do we expect of the legal profession in this area?’
this area?’
this area?’
this area?’
Application of the Guiding Principles to Law Firms Application of the Guiding Principles to Law Firms Application of the Guiding Principles to Law Firms Application of the Guiding Principles to Law Firms
At the outset, we identified what any business – including a law firm – needs to do in order to align itself with the Guiding Principles. That is, it must adopt, communicate and embed a high level commitment to respect human rights; it must engage in a process of human rights due diligence to assess, integrate, track and communicate about its actual and potential human rights impacts; and it must remediate negative human rights impacts that it has caused or contributed to.
Participants saw a critical need for each firm to have an overarching, high level human rights policy, strongly supported by senior management, since without the right “tone from the top”, the firm would not take respect for human rights as seriously, and the various actions of the law firm to respect human rights would become fragmented. There was also recognition that since many of the firms’ operational policies – such as those promoting workplace safety and inclusion and diversity – may already address human rights, a high level commitment to respect human rights may act as a guide to align these separate policies in the same direction. However, there was also concern expressed that hiving off human rights into a separate, stand alone policy commitment – compared to integrating it into existing high level policies – would result in putting human rights in a silo that would have little impact on day to day operations, a result that is not compatible with the Guiding Principles (e.g. Guiding Principle 19).
1) 1) 1)
1) EMPLOYMENT ISSUES EMPLOYMENT ISSUES EMPLOYMENT ISSUES EMPLOYMENT ISSUES
Since a law firm’s most valuable assets are people – partners, associates and other staff – it has a particularly strong interest in respecting their human rights. Under Guiding Principle 12, law firms must respect the human rights of employees “as expressed in the International Bill of Human Rights and the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work”.
Most law firms have promulgated policies that promote diversity and inclusion, prohibit discrimination and harassment, and some have policies that promote work/life balance. Indeed, respect for diversity in a firm’s relationship with staff and clients is increasingly a requirement imposed by lawyers’ regulatory authorities, such as Chapter 2 of the Code of Conduct 2011 of the Solicitors Regulation Authority of England and Wales.
However, given the limited CSR reporting by law firms (as noted earlier, only two major laws firm attempt to report in accordance with the GRI Guidelines), it is difficult to know the extent to which firms in fact follow up on these policies to determine their effectiveness. As noted earlier, respecting human rights under the Guiding Principles is a “knowing and showing” standard. As part of the “knowing” process, one participant suggested that law firms could use independent surveys of its employees to assess the types of issues that are important to them and use that as a start in assessing how well the firm is addressing its employee human rights impacts. Such a step – which could be supplemented with face to face conversations – would
be consistent with the requirement of the Guiding Principles that human rights impact assessments be conducted in consultation with affected stakeholders (e.g. Guiding Principle 18).
Operational Level Grievance Mechanisms Operational Level Grievance Mechanisms Operational Level Grievance Mechanisms Operational Level Grievance Mechanisms
Although there was insufficient time to discuss this at the meeting, it does not appear that law firms have developed “operational level grievance mechanisms” for their employees to resolve human rights-related complaints; these are non-judicial dispute resolution methods that provide a critical means for companies to track the effectiveness of their responses to their impacts and to address problems before they escalate (e.g.
Guiding Principles 29 and 31). The Guiding Principles suggest that such mechanisms should be more than one-way hotlines through which employees can raise anonymous complaints regarding violations of firm policy. Rather, they are processes through which employees can talk directly to firm management to resolve any legitimate grievance, not just those that readily fit into predefined “human rights” buckets. In this way, they enable firms to address grievances early and directly, before they accumulate and become intractable.
The use of such grievance mechanisms by law firms is a matter for further discussion, and is addressed as a
“Next Step” at the end of the report.
Cross Cultural Challenges Cross Cultural Challenges Cross Cultural Challenges Cross Cultural Challenges
One potential challenge to the implementation of a uniform human rights policy on employment is the cultural diversity and differing work practices across the many offices of a global law firm. However, the movement of lawyers in a multinational firm from country to country increases the need for a uniform policy, supported by senior management. The Guiding Principles provide that the responsibility to respect internationally recognised human rights applies wherever businesses operate, and that businesses should seek ways to honour the principles of such rights when faced with conflicting requirements (Guiding Principle 23(a)).
Work Life Balance and Collective Bargaining Work Life Balance and Collective Bargaining Work Life Balance and Collective Bargaining Work Life Balance and Collective Bargaining
The participants also discussed the adverse impact of demanding excessive working hours from employees on the human right to a family and to marry, and on the right of women to be free from discrimination on grounds of marital or reproductive status.25 This is of particular concern in law firms due to a business model based on high billable hours and the fact that employment contracts for lawyers typically opt out of such protective instruments as the EU Working Time Directive. Some firms – including at least one represented at the meeting – have alternative working structures available for associates and partners that are not as closely tied to billable hours. Some participants expressed the concern that committing to take steps to provide such alternative structures could increase the risk of litigation if firms did not honour those
25 Monash University, International Business Leaders Forum, UN Global Compact, Human Rights Translated: A Business Reference Guide (2008), p. 67, http://bit.ly/bYGnXw.
commitments. However, it was noted that the Guiding Principles apply whether or not a business commits to adhere to them, and firms that fail to take reasonable steps to respect the right to work and have a family, and not discriminate against women on grounds of reproductive or marital status, may have to answer to the consequences of not doing so in public and in court.
Finally, most of the participants felt that issues relating to staff joining trade unions are rare, since those at the firms represented receive better pay and benefits compared to similar employees in other sectors. The meeting was not able to explore in depth whether law firms had fully assessed the alignment of their employment practices with the provisions of the ILO Declaration on Fundamental Principles and Rights at Work, as required by the Guiding Principles. This is a topic for further discussion.
2) 2)
2) 2) SUPPLY CHAIN ISSUES SUPPLY CHAIN ISSUES SUPPLY CHAIN ISSUES SUPPLY CHAIN ISSUES
Under the Guiding Principles, a business is responsible for addressing all of the human rights impacts in which it is involved, both through its own operations (e.g. its treatment of employees) and through its business relationships (e.g. with suppliers and with customers or clients) where the negative impact is directly linked to its products, operations or services. We discuss a law firm’s relationships with its suppliers first.
Participants agreed that large multinational law firms have lengthy supply chains for goods and services, and that these relationships can have negative human rights impacts. For example, law firms enter into contracts with companies to outsource back office work in countries with cheaper costs, to perform lower paid jobs (e.g. catering and cleaning), to provide staff benefits such as pensions and medical insurance, to recruit staff, and to buy office furniture and computing equipment, to name but a few. These companies can be engaged in workplace and other human rights abuses. In addition, firms providing corporate travel and entertainment could potentially be linked to human trafficking and the sex industry; trade industries that the firm belongs to may take positions that derogate from respect for human rights; companies in which the firm may invest its pension funds may be engaged in human rights abuses; and the firm may enter into relationships with foreign law firms and hire private investigators that have the potential to be involved in human rights abuses.
Supply Chain Decisions under the Guiding Principles Supply Chain Decisions under the Guiding Principles Supply Chain Decisions under the Guiding Principles Supply Chain Decisions under the Guiding Principles
To enable businesses to sort through the appropriate actions that they should take in these relationships, Guiding Principle 19(b) asks two questions:
(1) Did the business cause or contribute to the impact and, if not,
2) Is the business involved in the impact solely because the impact is directly linked to the business’
operations, products or services by a business relationship?
If the business caused or contributed to the impact, then the business should change or cease the activity that caused or contributed to the impact and it should use its leverage with the third party to mitigate any remaining impact. It should also provide for or cooperate in the remedy of the harm.
Example of Supply Chain Impact Example of Supply Chain Impact Example of Supply Chain Impact Example of Supply Chain Impact
The classic example of a harm contributed to by a business through its relationships is in the clothing industry where for example, a buyer changes its specifications mid-contract without changing the delivery deadline, and where the buyer knows that the supplier will require its employees to work excessive overtime and/or engage in unsafe practices in order to meet the deadline and keep the contract, leading to human rights abuses. Law firms have changing deadlines as well, imposed by courts and clients, and it is not fanciful to expect that such changes could put some of its suppliers under similar pressure with similar consequences; e.g. outsourcing document scanning work to a foreign company, knowing that the company will do whatever it takes to meet the firm’s deadlines, including requiring its employees to work around the clock without rest.
Firms wishing to apply the Guiding Principles can avoid causing or contributing to these kinds of negative impacts by taking steps to prevent or mitigate them, such as communicating to the supplier that such abuses are not acceptable, seeking reporting and verification, providing assurance that in the event of deadline changes the implications will be discussed in order to find a workable solution, making clear that future contracts depend on meeting these standards, and so on.
The more difficult issue is the appropriate action to take when the law firm does not cause or contribute to the abuse, but is directly linked to the impact solely because of the connection between the goods and services provided by the supplier and the firm’s operations. An example for a law firm would be hiring a company to perform back office administrative functions which subjects its employees to excessive overtime and discrimination, underpays them, and discourages them from joining trade unions. In such a case, the firm does not cause or contribute to the impact, but is obliged under the Guiding Principles to exercise its leverage with respect to the supplier to seek to influence it to change its wrongful conduct.
Where the firm’s efforts to influence the supplier’s conduct do not succeed, or the firm does not have, or cannot increase, its leverage, the firm should consider taking steps to terminate the relationship. The firm will need to consider various factors, including how crucial the relationship with the particular supplier is, and whether the negative impacts are severe (e.g. lives are at risk from unsafe operations). The analysis should also take into account credible assessments of any potential additional harm to human rights from termination (e.g. causing the company to shut down and people to lose their jobs). If the firm decides not to terminate the relationship, it must be prepared to demonstrate the steps that it took to prevent the abuse, and face the reputational and other adverse consequences of remaining in the relationship....
Supply Chain Due Diligence Supply Chain Due Diligence Supply Chain Due Diligence Supply Chain Due Diligence
In order to avoid getting into these difficulties in the first place, law firms, like other business enterprises, must engage in human rights due diligence processes for their entire supply chains, i.e. assess and map risks, act on findings in an integrated fashion, track and monitor the effectiveness of their responses, and be prepared to communicate about these issues to stakeholders. This is where a public, high-level commitment to respect human rights by the firm is a critical first step. Many companies have incorporated their standards of business conduct as mandatory requirements in their contracts with suppliers. If those codes affirm the company’s respect for human rights, the company’s suppliers will be contractually bound to the company’s code.
Although law firms do not conduct human rights due diligence on their supply chains on a uniform basis, there are practices that can be built upon. For example:
• The Law Society of England and Wales’ Protocol on Legal Procurement, in its Diversity and Inclusion Charter, sets forth standards on recruitment and hiring that align with human rights standards.26
• One firm mentioned that it already uses questionnaires with its suppliers, requesting information on areas such as diversity, environment, anti-bribery, child labour, health and safety. In the tender process for new suppliers, human rights impacts are identified. A further process of capturing, recording and analysing data takes place before procuring goods and services and this information is reviewed when suppliers’ services are renewed.
• Many law firm suppliers already have human rights policies and several law firms reported that they are very willing to discuss human rights issues with the firms. In fact, firms have found that inviting discussion has built stronger partnerships with suppliers, encouraging mutual understanding to develop, as the supplier and law firm work toward the same goals.
Compared to other sectors, law firm profit margins – while under pressure – do not drive them to race to the bottom in an effort to force their suppliers to reduce costs by violating the rights of their employees. For example, one firm reported that it ensured that its catering company raised its wages to the optional London Living Wage in order to be in line with the firm’s own commitments.
Contracting for Professional and Legal Services Contracting for Professional and Legal Services Contracting for Professional and Legal Services Contracting for Professional and Legal Services
In addition to outsourcing of non-professional services, law firms also engage foreign lawyers on multijurisdictional matters and instruct counsel. According to the participants, little has been done to examine the terms and conditions for the retention of barristers and foreign firms, as well as professional non-legal staff such as private investigators. These arrangements are often the result of personal
26 http://www.lawsociety.org.uk/practicesupport/equalitydiversity/inclusioncharter.page.
connections, but they are business relationships for the law firm and their actions can have significant impacts on human rights. Thus they should be included in the human rights due diligence process as well.
3) 3) 3)
3) CLIENT I CLIENT I CLIENT I CLIENT ISSUES SSUES SSUES SSUES
The most significant challenge discussed during the meeting was the potential direct adverse impact on human rights by law firms as a result of the services that they provide to clients.
Increasingly, law firms are being “named and shamed” for whom they represent and advise. A recent example is the controversy around distressed sovereign debt or ‘vulture funds’, which target poor countries who are receiving international debt relief, buy their debt, often just before those debts are to be written off, and then sue the country for the full amount.
The UN Independent Expert on Foreign Debt has said that these suits can have major adverse impacts on human rights in poor countries, because they divert funds that could otherwise be spent on health, water and sanitation, food, housing and education.27 Several major London law firms received negative publicity for pursuing such collection claims in court28 and some have since publicly stated that they will not act for these entities when they are engaging in these criticised transactions. In response to the controversy, the UK has recently enacted legislation that restricts the availability of its courts for vulture fund collection suits.29 Yet it is a core principle of the legal profession that all clients are entitled to legal advice and representation, whether or not the lawyer personally agrees with their objectives. This is central to most notions of access to justice and the rule of law, which is a foundation for the corporate responsibility to respect human rights.
Moreover, the obligations of a law firm to serve the interests of its clients faithfully, and to maintain the confidentiality of lawyer-client communications, are embedded in the professional legal standards that lawyers are sworn to observe. In order to understand the responsibilities that the Guiding Principles place on firm-client relationships, the participants looked at the potential impacts of Guiding Principles 17 and 19.
Guiding Principle 17: Complicity Guiding Principle 17: Complicity Guiding Principle 17: Complicity Guiding Principle 17: Complicity
The commentary to Guiding Principle 17 provides that “[q]uestions of complicity may arise when a business enterprise contributes to, or is seen as contributing to, adverse human rights impacts caused by other parties. Complicity has both non-legal and legal meanings. As a non-legal matter, business enterprises may be perceived as being ‘complicit’ in the acts of another party where, for example, they are seen to benefit from an abuse by another party.”
27UN News Service, UN human rights expert welcomes British law to stop predatory funds.
http://www.un.org/apps/news/printnewsAr.asp?nid=34423.
28 For example, http://www.guardian.co.uk/business/2007/oct/17/debt.law.
29 BBC News, UK stops ‘vulture funds picking on poor (April 8, 2010), http://news.bbc.co.uk/2/hi/programmes/newsnight/8610062.stm.
There was much discussion at the meeting about the meaning of non-legal complicity and its application to law firms. The commentary language makes the observation that, in the court of public opinion, where standards of proof are looser than in court, a law firm may be seen as complicit in the human rights impacts of a client as a result of the fees it collects to enable the client’s conduct, regardless of whether the firm is legally responsible for the client’s conduct. This was the central thrust of the criticism of law firms for litigating to collect distressed sovereign debt from impoverished countries.
Guiding Principle 19: Identifying and Addressing Involvement in Client Impacts on Human Guiding Principle 19: Identifying and Addressing Involvement in Client Impacts on Human Guiding Principle 19: Identifying and Addressing Involvement in Client Impacts on Human Guiding Principle 19: Identifying and Addressing Involvement in Client Impacts on Human Rights
Rights Rights Rights
In order to avoid being named and shamed as in the example of the ‘vulture funds’, Guiding Principle 19 expects that firms should first understand the human rights impacts related to the services they perform for their clients. This is the “knowing” part of the “knowing and showing” standard of the Guiding Principles and it is therefore necessary that a law firm conducts its own human rights investigation before committing to represent a client, or at the earliest stages of the representation. As participants recognised, the earlier this is done, the better, since it is much harder later on for the law firm to withdraw or to persuade the client not to engage in conduct that infringes human rights.30
This is another area where a pre-existing, high-level commitment by the law firm to respect internationally recognised human rights, supported by an operational level policy demonstrating how it will address such issues with clients, can be of huge assistance, since it communicates the firm’s expectations to clients clearly and avoids potential misunderstandings later. n addition, such a commitment minimises the likelihood of being drawn into subjective debates over what is morally right and wrong, or the extent to which damage to a firm’s reputation will be offset by the revenues from the representation, since the Guiding Principles are grounded in internationally recognised human rights and provide an authoritative framework for resolving issues.
30 We discuss the right to withdraw from the perspective of professional codes of conduct infra.
Discussion point: Government Discussion point: Government Discussion point: Government
Discussion point: Government clients clients clients clients
One issue raised at the meeting was whether lawyers working on government bond issuances are required, under the Guiding Principles, to analyse how and by whom the resulting funds may be used. As an example, participants considered funds that are raised in part to pay for ‘legitimate’ development programmes within a country such as the construction of schools, and in part to support activities that infringe human rights such as the suppression of civilians by armed force.
One of the practical concerns that participants raised was how to carry out effective due diligence to be able to accurately assess the impact that raising these bonds may have on human rights as part of the
‘knowing and showing’ requirement. Although some tools do exist, this is a topic for future further exploration and discussion.
To recap, Guiding Principle 19 requires a firm to address whether it caused or contributed to the client’s impact, or is directly linked to the impact solely by virtue of services it provides to the client. Where the law firm causes or contributes to the impact, it should stop doing so. Where it is directly linked to the impact solely by virtue of the services it provides, it should use its leverage to prevent or mitigate the impact, and failing that, should consider termination, taking into account the crucial nature of the business relationship, the severity of the impact and any other additional adverse human rights consequences of doing so.
The Relationship between the Guiding Principles and The Relationship between the Guiding Principles and The Relationship between the Guiding Principles and
The Relationship between the Guiding Principles and Legal Professional Codes of Conduct Legal Professional Codes of Conduct Legal Professional Codes of Conduct Legal Professional Codes of Conduct
It was beyond the scope of the meeting to examine in any detail the specific codes of professional responsibility in different countries that may facilitate or impinge on a firm’s ability to discharge its responsibility to respect human rights in their representation of clients. However, this clearly must be done if firms are to have greater clarity and guidance on how to approach this area. In order to provide direction for that further analysis, this paper offers some initial thoughts.
The Guiding Principles apply globally, wherever businesses operate. Since there are law firms in every country, and multinational firms practise in many of them on a daily basis, lawyers are subject to many different codes of professional responsibility, and firms must be diligent to ensure that their lawyers comply with each country’s code. It is therefore critical to understand how these various codes may apply to a firm’s ability to align itself with the Guiding Principles. This will require a comprehensive survey of the professional legal codes of each country, particularly with respect to:
(a) whether, and the extent to which, professional codes prevent, permit, encourage or require lawyers to take human rights impacts into account in their client advice,
(b) the ability of the firm to get factual information about human rights impacts from the client,
(c) the circumstances under which the law firm would be permitted to withdraw in order to avoid involvement in human rights violations, and
(d) the ability of firms to demonstrate that they have taken appropriate steps to advise their clients not to become involved in human rights impacts.
Some observations can be made based on key code provisions of several countries.
(a) A (a) A (a) A
(a) Advising Clients on Human Rights Impacts dvising Clients on Human Rights Impacts dvising Clients on Human Rights Impacts dvising Clients on Human Rights Impacts
The Guiding Principles provide law firms with challenges as well as opportunities in advising their clients to prevent and address adverse human rights impacts, to the benefit of the firm, the client and society. A fair question is whether professional legal codes of conduct restrict, permit, encourage or require law firms to do so. A starting point as noted earlier may be the explicit acknowledgement by lawyers’ regulatory bodies of the gatekeeper role that lawyers play for society. The European Bar’s Code of Conduct and the Japanese Basic Rules on the Duties of Practising Attorneys explicitly recognise the role that lawyers play with respect to human rights. The International Bar Association’s aspirational Principles for the Conduct of the Legal Profession are similarly grounded in the Universal Declaration of Human Rights, which is the touchstone for the Guiding Principles.31
Although the American Bar Association’s Model Rules of Professional Conduct do not mention human rights explicitly,32 their provisions are quite important to the worldwide practice of law, since US firms account for more than 75% of the world’s largest law firms. In that regard, ABA Model Rule 2.1 requires lawyers to exercise “independent professional judgment and render candid advice” and permits them to “refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation”.33 The commentary to Rule 2.1 provides further that, “Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.”
While there are few reported bar association decisions interpreting the rule, one commentator has argued – prior to the development of the UN Protect, Respect and Remedy Framework and the Guiding Principles –
31 IBA International Principles on Conduct for the Legal Profession (May 28, 2011),
http://www.ibanet.org/Article/Detail.aspx?ArticleUid=bc99fd2c-d253-4bfe-a3b9-c13f196d9e60.
32 Davis, supra.
33 http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_
conduct/rule_2_1_advisor.html.
The Corporate Law Tools Project as Precedent The Corporate Law Tools Project as Precedent The Corporate Law Tools Project as Precedent The Corporate Law Tools Project as Precedent
As noted earlier, Professor Ruggie asked close to 20 international law firms, with the assistance of A4ID, to survey the corporate law of over 40 jurisdictions in order to determine the extent to which those laws
facilitated or impinged on the ability of businesses incorporated in their jurisdictions to respect human rights.
A similar survey of professional legal codes would be a useful complement with respect to the ability of law firms in particular to meet their responsibility to respect human rights.
that Model Rule 2.1 should have applied to the advice given by Yahoo!’s lawyer to turn over the identity of a dissident to Chinese authorities in order to comply with local law, which resulted in his imprisonment.34 While at the A4ID meeting, participants discussed the published client policy of one UK law firm, which is consistent with ABA Model Rule 2.1.35
Now that the Guiding Principles have been endorsed and applied so broadly, they pour significant content into the economic, political, social and moral factors that should form a lawyer’s candid and independent advice to a client, particularly where the client’s actions will be likely to have an impact on human rights.
Guiding Principle 23 provides that businesses should “comply with all applicable laws and respect internationally recognised human rights wherever they operate”, but that they should “seek ways to honour the principles of internationally recognised human rights when faced with conflicting requirements”.
This Guiding Principle is therefore highly relevant to the candid and independent advice that a lawyer should give a client faced with a Yahoo!-like situation. Such advice is also critical to the firm’s ability to influence a client not to engage in an abuse of human rights under Guiding Principle 19. A multinational law firm, armed with an appreciation of the laws of many countries, and an understanding of the Guiding Principles, is well positioned to help a client navigate the dilemma posed by complying with a local law that may be in tension with internationally recognised human rights.
(b) Requesting Information on Human Rights Impacts (b) Requesting Information on Human Rights Impacts (b) Requesting Information on Human Rights Impacts (b) Requesting Information on Human Rights Impacts
It is important for a firm to understand its potential for involvement in the human rights impacts of its client before accepting the representation, since it may be difficult, as well as embarrassing, to withdraw later on.
However, getting sufficient information up front may not always be easy.
A client may for example instruct a lawyer simply to do the paperwork for a transaction, and provide little background on its business purpose, let alone its potential to impact human rights, and may decline the lawyer’s request for more facts in seeking to expand the scope of the advice.36 This is a highly sensitive and delicate issue for client-lawyer relationships, and requires careful balancing of the need to represent the client’s interest and the need to provide candid and independent advice regarding potential human rights impacts, consistent with the requirements of local bar regulations. Again, a human rights policy widely disseminated by a law firm may prove quite useful in communicating the firm’s expectations that its lawyers need to properly understand the human rights impacts of their work for clients.
34 “Overall, the lawyer should be candid to her client about the economic, political and moral effects of the client's actions when following a local law that may violate human rights. In advising a corporate client in a situation similar to Yahoo's, a lawyer's duty under Model Rule 2.1 to be candid with the client should be broadly interpreted to require advising the client about the economic risk of legal liability in the U.S., as well as the possible public and political ramifications that may result from cooperation with a repressive regime.” Heffernan, An American in Beijing: An Attorney's Ethical Considerations Abroad with a Client Doing Business with a Repressive Government, 19 Geo. J. Legal Ethics 721, 728-9 (2006).
35 Freshfields Bruckhaus Deringer CSR 2009/2010 Report, http://www.freshfields.com/aboutus/csr/.
36 Michels, Lawyer Independence: From Ideal to Viable Legal Standard, 61 Case Western L. Rev. 85, 89 (2010).
(c) Withdrawing from representation (c) Withdrawing from representation (c) Withdrawing from representation (c) Withdrawing from representation
A third practical issue relates to the circumstances under which a lawyer can withdraw from acting for a client, where for example, the client declines to follow the lawyer’s advice not to engage in conduct that will have an adverse human rights impact.
Lawyer withdrawals are regulated by local law societies and bar associations. For example, Section 3.14 of the European Bar’s Code provides that lawyers may not withdraw from representation where there is insufficient time for the client to obtain alternative legal representation in order to avoid prejudice. Section IB(1.26) of the Code of Conduct 2011 of the Solicitors Regulation Authority of England and Wales provides that a solicitor may not cease to act for a client “without good reason and without providing reasonable notice”. The American Bar Association Model Rule 1.6 permits a lawyer to withdraw from representation where, among other things:
• “(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.”
• “(3) the client has used the lawyer’s services to perpetuate a crime or fraud.”
• “(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”
• “(7) other good cause for withdrawal exists.”
Even in such cases, Rule 1.6 requires a lawyer to take reasonably practical steps to protect the client’s interests upon termination, such as providing reasonable notice to the client to enable the client to hire alternative lawyers and cooperating with them in transferring the case.
One can envision situations under which rules like these would sanction the withdrawal by lawyers based on the failure by a client to heed the lawyers’ advice not to engage in conduct that would potentially lead to the abuse of internationally recognised human rights, or its concerns about the severe, negative human rights impacts of a client’s conduct. For example, a prominent US law firm, citing its commitment to diversity, withdrew its representation of Republican Congressmen seeking to compel enforcement of the Defense of Marriage Act, which President Obama had refused to enforce on the ground that it discriminated against the rights of gay and lesbian citizens, in violation of the U.S. Constitution. The partner representing the Congressmen kept the case and went to another firm.37 However, the circumstances justifying withdrawal and its timing will be highly fact specific and should be viewed through the lens of the regulations of the legal profession in each country.
37King & Spalding to withdraw from defending DOMA; Clement Resigns, Atlanta Constitution (April 25, 2011), http://www.ajc.com/news/georgia-politics-elections/king-clement-resigns-923921.html.
