Lawyers in the European Union face complex challenges as they navigate tensions between their duties to clients and their responsibilities as officers of the court and cooperators of the authorities. The lawyer’s traditional ethical obligations intersect with evolving regulatory frameworks aimed at enhancing corporate transparency, combating illicit activities, and promoting human rights and environmental sustainability. Lawyers have ethical obligations towards the clients, the courts, and authorities. Balancing these diverse responsibilities requires them to serve interests within a constantly shifting regulatory landscape in which they play a pivotal role in upholding human rights.
Historically, this position in protecting human rights has achieved significant advancements since World War II. The aftermath of the war led to the establishment of the Nuremberg Trials, where lawyers played a crucial role in the configuration of legal arguments that set precedents in the development of legal doctrine related to criminal law and international human rights law. This period also saw the adoption of the Universal Declaration of Human Rights on December 10, 1948, a landmark document that strengthened human rights protection. Lawyers have since been a vital resource in advocating for the enforcement of these rights, contributing to the development of international human rights law.
The ethical commitment of lawyers is further reinforced by significant milestones in the international field. For instance, the International Bar Association’s Practical Guide on Business and Human Rights for Lawyers, approved on May 28, 2016, was issued to assess the implications of the 2011 United Nations Guiding Principles on Business and Human Rights. These guidelines, updated in November 2023, emphasize the necessity for lawyers to integrate human rights considerations into their advisory roles, ensuring that businesses operate in a manner that respects human dignity and environmental integrity.
The path that a lawyer must track to fulfill all the obligations required in the complex regulatory framework can only be that of ethics, based on the principles that govern professional practice. These ethical principles, as outlined in the Code of Conduct and the Charter of Core Principles adopted by the European Bar Council on October 8, 2021, as well as in the codes of ethics drawn up by national bar associations, provide an outline for lawyers to uphold professional independence, confidentiality, and the refusal to engage in conflicts of interest.
Lawyers must act diligently, maintaining high standards of legal knowledge and skill, and recognizing their role as essential agents of justice. Their strategic position within the administration of justice places them as unique ethical gatekeepers, tasked with promoting the rule of law and broader interests of justice. This ethical foundation is crucial as lawyers advise companies on compliance with national, EU, and international legal mandates, helping to mitigate business risks that could lead to human rights violations and environmental harm.
The new legislative trends that are gradually emerging around the world have broadened lawyers’ ethical obligations, requiring them to actively champion human rights protection. Lawyers are now expected to guide companies towards sustainable practices, ensuring compliance with due diligence procedures to prevent or mitigate negative social and environmental impacts.
Lawyers have a vital opportunity to demonstrate that they play a crucial role in guiding companies towards human rights protection and environmental sustainability.
In the EU context, legislative measures have been introduced to advance corporate respect for human rights while increasing transparency, corporate responsibility, and environmental sustainability. These efforts culminated in Directive 2022/2464 of December 14, 2022, on corporate sustainability reporting. This directive reinforces corporate reporting requirements on environmental, social, and governance policies through a solid and affordable information presentation scheme, accompanied by effective auditing practices, to ensure data reliability and avoid greenwashing and double counting. According to the concept of “Double Materiality,” companies must demonstrate both how their activities impact ESG factors and how sustainability issues affect their operations.
The directive adopted by the European Parliament on April 24, 2024, on Corporate Sustainability Due Diligence establishes the parameters for companies to identify and mitigate adverse impacts affecting human rights and the environment throughout their activity, including the development of climate plans.
These measures aim to become an effective means that will allow companies to collaborate within activity chains, as well as to detect and eliminate actions in their production process that may contribute to human rights violations or environmental damage. Regardless of the sector in which they operate or their size, it is important for all companies to integrate the importance of protecting human rights and working for sustainability within an ethical context into their corporate culture. To this end, companies within the scope of both directives must align and fortify their due diligence policies to prevent any type of negative impact in these areas, which will, in turn, allow them to prevent and mitigate the risks of incurring violations in these fields, as well as the consequent sanctions that may be associated with them.
The reinforcement of the duty of due diligence requires the adoption and implementation of effective policies to identify, prevent, mitigate, and put an end to the so-called potential and actual “adverse impacts” on human rights in the companies’ own operations, as well as those of their subsidiaries or business partners.
These legislative developments have had profound implications for legal practice across the European Union space and globally. Practitioners are now grappling with advising companies in different industries and regions on these regulatory frameworks, which are further interconnected with international guidelines, such as the Guiding Principles on Business and Human Rights drawn up by the United Nations, approved on June 16, 2011, as well as the Guidelines for Multinational Enterprises developed by the Organization for Economic Cooperation and Development, adopted on June 21, 1976, and recently adapted in 2023.
Certainly, in this context, lawyers have a vital opportunity to demonstrate that they play a crucial role in guiding companies towards human rights protection and environmental sustainability. Their legal expertise enables detailed assessments of business risks that could lead to violations, while supporting them in meeting transparency and sustainability obligations through the application of due diligence procedures. In addition, they can assist in implementing policies to identify and prevent adverse effects, drafting precise contractual provisions to ensure supply chain compliance, and developing effective mitigation strategies. From another perspective, as strategic business advisors, lawyers can also promote ethical corporate cultures that balance profitability with human rights and environmental protection.
It is imperative that, irrespective of the various positions they may adopt, lawyers must be guided by a common compass, ethics. Indeed, the predominant principle that should be derived from the complex framework within which lawyers must practice their profession, while fulfilling their ethical and legal obligations towards clients, courts, and authorities, is that they must possess a robust ethical foundation that enables them to make all decisions from the perspective of good will. From this ethical standpoint, they can accomplish their deontological duties as mandated by the applicable codes of conduct for members of the bar.
This ethical basis will enable them to comply with the legislative mandates imposed upon them as representatives of clients and as collaborators of the state in areas such as anti-money laundering regulations, human rights protection, and issues concerning the environment, governance, and social rights. Within this wide structure, it is crucial that they maintain the autonomy and independence necessary to address the issues presented from various perspectives objectively. This implies that they cannot blindly serve the interests of clients without considering the other facets that confront them.
Therefore, it is decisive to highlight that the assumption of this broad responsibility requires strong educational support from universities, business schools, and bar associations, ensuring that legal professionals have the necessary foundations to adhere to the ethical path and effectively navigate their numerous and diverse obligations.
In essence, the role of lawyers in protecting human rights and the environment through the path of ethics is of paramount importance. Their commitment to diligent and ethical practice in advising their clients on these matters within the complex international regulatory framework is essential in building a just society. As Abraham Lincoln wisely stated: “The leading rule for the lawyer, as for the man of every other calling, is diligence.” This critical advice underscores the importance of proactive and dedicated legal practice in serving the common good, which ultimately translates into the protection of human rights and the environment.
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