Business Lawyers as Worldwide Moral Gatekeepers? Legal Ethics and Human Rights in Global Corporate Practice

This article explores the intersection of international human rights law, corporate law, and the ethical regulation of business lawyers engaged in global business transactions. At first blush, the risks posed by human rights law may seem remote – even fanciful – to American corporate practitioners. But serious implications exist for business lawyers who facilitate commercial endeavors that subsequently wind up violating human rights.Consider a corporate finance lawyer who represents a secured banking lender where the bank finances a brutal foreign government that uses slave labor to mine “blood” diamonds. Or in-house counsel for an internet service provider facing demands from a foreign government – pursuant to foreign law – to identify online “dissidents” so that the government can subject them to arrest and “enhanced” interrogation. These kinds of scenarios at the intersection of human rights and business can create criminal and civil liability for lawyer and client alike. They also render the lawyer subject to professional discipline.Corporate lawyers facilitating the massive growth of international business cannot resolve these kinds of challenges by reference to one narrow discipline alone. Accordingly, this article draws on principles of legal ethics, international human rights law, and corporate law to provide a comprehensive analysis and solutions for business lawyers engaging with human rights in a rapidly-changing global landscape.International law provides criminal liability for a wide range of human rights violations by individuals and groups. It also recognizes a broad understanding of the means by which international crimes may be perpetrated. Legal work and business activity can be as equal a means of violating human rights as direct personal violence. Corporate legal work that substantially contributes to serious human rights violations itself may constitute an international crime. It also likely violates federal criminal statutes that incorporate international prohibitions into domestic law.Many ethical duties are linked to “crimes” that trigger certain Model Rules incorporating these duties by reference (e.g., the ethical rules against lawyers helping clients break the law). The analysis becomes complex on the global scale because multiple sources of law apply simultaneously, raising serious questions about which rule predominates. The underlying conduct (e.g., an ISP’s lawyer identifying “criminal dissidents”) could be perfectly legal (or even required) under foreign law, illegal under international law (e.g., prohibitions on assisting or facilitating torture), and fall within a gray area in American law (e.g., where federal law on torture is narrower than international law). In such cases, the lawyer cannot comply with one rule without breaching another.The Model Rules normally resolve such “double deontology” conundrums by selecting ethical rules from a single jurisdiction to govern the lawyer’s obligations – usually where conduct occurs or has its predominant effect. But the transnational issues here are not easily reconciled with existing paradigms. International human rights law presents no “this-or-that” choice in this context. Rather, the international prohibition on serious human rights violations constrains domestic rules and creates universal duties that supersede all inconsistent domestic laws. The direct applicability of human rights law to the attorney-client relationship has serious implications for ethical corporate practice. Whether or not criminal prosecution or civil liability follow, human rights violations in business dealings gives rise to myriad professional complications for corporate lawyers to consider and resolve. Of particular concern are the lawyer’s duty not to assist in client crimes and questions of governance and the legitimate objectives of corporate legal representation.Modern corporate practitioners must account for human rights in order to practice ethically and competently in the rapidly-expanding world of global business. That said, treating human rights simply as risks to manage undermines the lawyer’s role as a moral agent and creates its own risk – that lawyers and the companies they represent will miss the forest for the trees, to the detriment of higher social aims to which both human rights law and the legal profession aspire. Corporate lawyers thus must walk a tight line that addresses criminal, civil, and ethical risk but also aligns compliance and decision making with the core ethical values underlying the legal profession itself.