UNGP implications on lawyers' obligations

The UNGPs are grounded in the professional responsibilities of Canadian lawyers.  Increasingly, the professional obligations of lawyers including Rules 3.1-2 (Competence) and 3.2-2 (Honesty and Candour) need to be read as requiring a lawyer to advise a client of all relevant human rights laws and industry standards, as well as the identification of facts and circumstances relevant to human rights obligations, and the adverse impacts that may not be immediately salient to a client.

When advising a client, a lawyer must be honest and candid and inform the client of any information the lawyer knows that may affect the client’s interests in the matter.  Commentary to Rule 3.2-8 clarifies that beyond hard law compliance, public relations and public policy concerns that motivate governments and regulators should be incorporated into client advice to allow for legal, ethical, reputable and consistent compliance with human rights law. 

BHR introduces obligations and expectations, both legal and non-legal, on Canadian companies. For example, the Canadian government, as a matter of government policy, expects Canadian companies to operate in a responsible manner consistent with international guidelines and instruments including the UNGPs. Courts have shown a willingness to consider claims of corporate human rights violations committed by subsidiaries of Canadian companies operating outside of Canada.

The American Bar Association has interpreted their rules of professional responsibility as requiring an expansive approach to advising clients on international human rights. The Commentary to ABA Model Rule 2.1 has been commonly cited as the basis for grounding the UNGPs in the professional responsibilities of lawyers in the United States:

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.

The Canadian lawyer’s duty of honesty and candour under Rule 3.2-2 parallels Rule 2.1 of the ABA Model Rules.

It is important that a lawyer’s advisory role goes beyond hard law compliance, as international human rights standards are not consistently ratified or implemented across operating jurisdictions. Not all human rights violations will be illegal in a given jurisdiction, but violation of international human rights law may still be wrongful behaviour considering the international commitments made by the host state.  All international human rights law applicable to a client requires compliance advice whether it takes the form of legal compliance or the risk of non-legal complications.

In effect, Rules 3.1-2 and 3.2-2 create a higher standard for Canadian lawyers, which includes considering international human rights law from a compliance perspective where possible, and educating a client on international human rights law where potential for adverse human rights impacts emerge.

The commentary to UNGP 19 offers guidance on what businesses must do where the adverse human rights impact is through a business relationship:

Where a business enterprise has not contributed to an adverse human rights impact, but that impact is nevertheless directly linked to its operations, products or services by its business relationship with another entity, the situation is more complex. Among the factors that will enter into the determination of the appropriate action in such situations are the enterprise’s leverage over the entity concerned, how crucial the relationship is to the enterprise, the severity of the abuse, and whether terminating the relationship with the entity itself would have adverse human rights consequences.” (emphasis added).