The Role of Counsel in Sustainability Strategy

This entry is from a white paper of the same name published on the website of our sister consulting firm, Enodo Rights.

The emergence of standard-driven corporate responsibility is the source of unique opportunity for businesses and stakeholders alike. The structure and precision are good for business. But they are also the source of increasing legal risk. Against this backdrop, a human rights strategy that does not consider legal risk is bad business. Lawyers, therefore, have a critical role to play in designing and implementing effective corporate responsibility policies and procedures. The contours of that role, however, are still unclear.

Human rights due diligence is central to respect for human rights. But it is also the source of potentially significant legal risk, particularly in jurisdictions that mandate or encourage evidence sharing between parties. The role of lawyers is, in part, to balance the demands of due diligence and confidentiality in implementing effective corporate responsibility strategy.

In this white paper, we explore a model for flexible and collaborative attorney involvement in corporate responsibility decisions that caters to the field’s increasing complexity. Any role for lawyers must be sensitive to the human rights tasks for which they are not suited. Respect for human rights, in particular, is neither built on compliance nor defined exclusively by legal risk. As Shift’s General Counsel John Sherman has noted, beyond legal issues, “the challenge for a company is also about improving relationships and changing ways of doing business.” An effective model should, therefore, draw on attorneys’ particular strengths while recognizing the specific limitations inherent in their role as counsel.