South Africa: The Application Of The UN Guiding Principles On Business And Human Rights To Law Firms

Last Updated: 26 January 2012
Article by Louise Bick

Law firms will need to consider diverse factors to achieve the precarious balance between their business models and their responsibility to uphold human rights.

On 16 June 2011, the United Nations Human Rights Council endorsed the Guiding Principles on Business and Human Rights as drafted by Special Representative of the UN Secretary General for Business and Human Rights, Professor John Ruggie1.

The principles direct the implementation of the UN's Protect, Respect and Remedy Policy Framework on business and human rights. These three pillars of "Protect, Respect and Remedy" are set out in the Introduction to the Guiding Principles as follows:

"The first is the State duty to protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation, and adjudication. The second is the corporate responsibility to respect human rights, which means that business enterprises should act with due diligence to avoid infringing on the rights of others and to address adverse impacts with which they are involved. The third is the need for greater access by victims to effective remedy, both judicial and non-judicial."2

Section I of the Guiding Principles deals with the duties of the State to protect human rights.

Corporate responsibility to respect human rights is set out in Section II, which includes the following responsibilities:

  • To "respect human rights" and "avoid infringing on the human rights of others" and "address adverse human rights impacts with which they are involved" (Guiding Principle 11);
  • To "avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur" (Guiding Principle 13(a));
  • To "seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts" (Guiding Principle 13(b));
  • To have in place policies and processes including:
    • "a policy commitment to meet their responsibility to respect human rights" (Guiding Principle 15(a));
    • "a human rights due diligence process to identify, prevent, mitigate and account for how they address their impacts on human rights" (Guiding Principle 15(b));
    • "processes to enable the remediation of any adverse human rights impacts they cause or to which they contribute" (Guiding Principle 15(c))

The human rights referred to throughout the principles are "internationally recognized human rights – understood, at a minimum, as those 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." (Guiding Principle 12)

These responsibilities apply to "all enterprises regardless of their size, sector, operational context, ownership and structure" (Guiding Principle 14) which includes law firms.

The question of the way that law firms should implement the Guiding Principles was canvassed at a meeting convened by Advocates for International Development (A4ID) in September 2011. The results were published by A4ID in a discussion paper entitled "Law Firms' Implementation of the Guiding Principles on Business & Human Rights"3. This discussion paper considers the following central issues that may arise from the implementation of the Guiding Principles by law firms:

Employment issues

One of the concerns raised related to a possible infringement of the right of employees of law firms to marry and to found a family4 by the excessive work hours demanded in the law firm environment, and the question of whether law firms have mechanism for a grievance of this nature to be reported and resolved, as is required by the Guiding Principles. (Interestingly, the same issue of the role of business to promote family life was raised locally in the Green Paper on Families published by the Department of Social Development, which calls on business to "be mindful of the fact that every employee is part of a family"5.)

Supply chain issues

The Guiding Principles provide for a human rights due diligence process, to: "identify, prevent, mitigate and account for how they address their adverse human rights impacts" that the business "may cause or contribute to through its own activities or which may be directly linked to its operations, products or services by its business relationships" (Guiding Principle 17). Service providers to a law firm, such as couriers, office equipment providers, corporate gift and clothing suppliers would fall under this Guiding Principle.

The A4ID discussion paper identifies that the possibility exists for such suppliers of goods and services to law firms to impact negatively on human rights.

Guiding Principle 19 sets out that the appropriate action to be taken by a business that has ascertained such a negative impact by a supplier will vary based on:

"whether the business enterprise causes or contributes to an adverse impact, or whether it is involved solely because the impact is directly linked to its operations, products or services by a business relationship [and] the extent of its leverage in addressing the adverse impact." (Guiding Principle 19(b)(i) and (ii))

Appropriate action suggested in the A4ID discussion paper include clear communication to the supplier of the firm's policy on human rights, notice that its abusive conduct is not acceptable, and "making clear that future contracts depend on meeting these standards"6.

Client issues

This theme promoted much debate, particularly around the "potential direct adverse impact on human rights by law firms as a result of the services that they provide to clients" 7.

The application of Guiding Principle 18 means that when providing legal services to a client, a law firm "should identify and assess any actual or potential adverse human rights impacts" as a result of its own activities, being the legal services provided.

The commentary to this Guiding Principle sets out that the business enterprise should conduct a human rights due diligence by understanding the impact and being aware of who may be affected, identifying the relevant human rights and "projecting how the proposed activity and associated business relationships could have adverse impacts on those identified"8.

It is also recommend that such a due diligence be carried out "periodically throughout the life of an activity or relationship"9 due to changes in human rights situations.

When providing legal advice, law firms will also need to keep in mind Guiding Principle 23(b), which places the duty on business enterprise to, "seek ways to honour the principles of internationally recognized human rights when faced with conflicting requirements"10.

Guiding Principle 19 also recognises the possibility of the business enterprise being linked to the human rights abuse solely by a business relationship, in this instance, that of attorney and client.

The commentary to this principle lists some factors to take into account when considering appropriate action to be taken, such as, "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."

The A4ID discussion paper does take cognisance of the Legal Professional Codes of Conduct that would be applicable to the attorney-client relationship on an individual country basis, and in particular highlights the following factors for specific consideration11:

  1. "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;
  2. The ability of the firm to get factual information about human rights impacts from the client;
  3. The circumstances under which the law firm would be permitted to withdraw in order to avoid involvement in human rights violations;
  4. The ability of firms to demonstrate that they have taken appropriate steps to advise their clients not to become involved in human rights impacts."

Two essential points are canvassed by the A4ID discussion paper. These include the principle that all clients are entitled to legal advice, regardless of the attorney's personal opinion on the client's objectives; and secondly, the concept of attorney-client privilege which would safeguard any communications about the human rights impact of the client's activities12.

The A4ID discussion paper suggests that a law firm "conducts its own human rights investigation before committing to represent a client, or at the early stage of representation."13 The point of this would be to place the law firm in the position of having taken, "every reasonable step to avoid involvement with an alleged human rights abuse"14.

Such an investigation also presents a possible area of difficulty, bearing in mind that a client may not appreciate an interrogation into its practices and may not even be prepared to provide more information than is required for the specific instruction. Again, this process will require sensitivity and consistent application, supported by a standard human rights policy that is well communicated to clients from the inception of the relationship.

The endorsement of the Guiding Principles by the UN, coupled with support by legal representative bodies such as the International Bar Association15, will inevitably have an impact on the manner in which law firms conduct themselves in relation to both their internal procedures and dealing with clients.

In his article "The Global Lawyer: How not to be an Evil Law Firm"16, Michael Goldhaber bluntly points out that the application of the Guiding Principles, "would jar many lawyers".

Concepts such as law firms possibly having a duty to, "drop evil clients" may seem radical, but Goldhaber reports that a US-based law firm, Freshfields, has adopted the approach that it has the right to choose its clients based on whether they fit into their firm's CSR commitments.

However, as Goldhaber rightly points out, "the devil is in identifying the devil". At what point does a client have an adverse human rights impact? At what stage does an action constitute a human rights abuse? Is it when the perpetrator has been found guilty of such conduct in terms of the voluminous human rights legislation in force in South Africa? Or is it at the rumblings of rumours of foul play?

As the A4ID discussion paper demonstrates, there is a need for further discussion around the manner in which the Guiding Principles should apply to law firms and business enterprises in general. A local opportunity for this was the International Conference on The "Protect, Respect and Remedy" Framework: Charting a Future or Taking the Wrong Turn for Business and Human Rights?, that took place on 23 January 2012 in Johannesburg17.

Despite the areas of contention, the Guiding Principles make it clear: "Business enterprises may undertake other commitments or activities to support and promote human rights, which may contribute to the enjoyment of rights; but this does not offset a failure to respect human rights throughout their operations".18

In the not too distant future, it may no longer be good enough for law firms, in particular those operating on a global scale, to merely rely on corporate social investment initiatives and pro bono programmes that secure the enjoyment of human rights.

Law firms are being called upon to lead by example – by adhering to a compliant human rights policy, due diligence process and grievance mechanism – and encouraging their business enterprise clients to follow suit.


1 Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework (June 2011)

2 n 1 above at page 4


4 Article 16, UN Declaration on Human Rights

5 Department of Social Development 2011 Green Paper on Families: Promoting Family Life and Strengthening Families in South Africa as published under Government Gazette No. 34657 on 31 October 2011

6 n 3 above at page 15

7 n 3 at page 17

8 n 1 above at page 17

9 n 2 above at page 17

10 n 1 above at page 21

11 n 2 above at page 19

12 n 2 above at page 17

13 n 2 above at page 18

14 n 1 above at page 17 - Commentary to Guiding Principle 17


16 Goldhaber, M.D. The Global Lawyer: How Not to Be an Evil Law Firm. The AMLaw Daily 7/12/2011


18 n 1 above at page 13 - Guiding Principle 11

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.