A lawyer’s professional gaze cannot stop at the border
At a time when corporate conduct is subject to growing scrutiny, lawyers must treat communications from United Nations Special Procedures as legally and morally consequential
In the past five years, Canadian companies have been named in 31 formal communications from United Nations Special Procedures, each alleging serious violations of international human rights law in Canada and abroad.
The nature of these allegations is serious; they range from acts of intimidation against human rights defenders in Colombia by contractors of a Vancouver-based mining firm to Bombardier’s alleged links to Uyghur forced labour in China. Most of these communications address extractive companies operating in developing countries, particularly within Indigenous territories, and the banks that finance such ventures. Of the 31, only 17 — a little over half — received any response.
The silence of these companies involved, including major entities like RBC and Ledcor, speaks volumes about the value their leadership places on compliance with the law. It also raises a more discreet issue: the professional responsibility of lawyers advising corporations facing scrutiny from international human rights mechanisms. Lawyers are not merely architects of policy, nor the highly paid curators of corporate image. When international legal authorities raise credible allegations, silence is not a justifiable act of discretion. It may well amount to professional misconduct.
Just as ignoring correspondence from Canadian courts or tribunals would call into question a lawyer’s competence and ethical integrity, so should ignoring communications from UN Special Procedures.
Business lawyers have a professional obligation to acknowledge communications from UN mechanisms. Failing to do so may breach at least three professional obligations enshrined in the Model Code of Professional Conduct, including the duty to inform and protect clients from material legal risks, the duty to not knowingly assist or be complicit in unlawful conduct, and the obligation to uphold the rule of law, of which the international legal order, including the UN system, is an essential part.
The duty to not assist in illegal conduct
The UN Special Procedures are independent experts mandated to monitor, investigate, and report on human rights concerns around the world. When they receive credible allegations of rights violations, they issue formal communications to implicated states, corporations, and other actors, outlining the allegations and inviting a response.
These communications are not legally binding, and there is currently no formal legal obligation for corporations to reply. However, their significance should not be underestimated, as they are evidence-based, issued by globally recognized legal experts, and made public. The implications for companies named in them go beyond reputational damage; they may signal real legal exposure.
As set out in the Model Code, which is replicated almost verbatim by most law societies across the country, lawyers must act competently. This involves “knowing general legal principles and procedures and the substantive law and procedure for the areas of law in which the lawyer practices.” This duty entails identifying emerging areas of legal risk, including the evolving field of international human rights litigation.
The Supreme Court of Canada’s decision in Nevsun Resources Ltd. v. Araya affirms that norms of customary international law are binding on corporations and enforceable in Canadian courts. It follows that the views of UN Special Procedures — who are, after all, global experts in international law — may serve as early warnings of legal liability.
Put another way, a lawyer who advises a client to ignore such a communication fails in a core professional duty: to identify and address material legal risks. At best, this constitutes professional negligence. At worst, it borders on complicity in potentially unlawful conduct.
The Model Code is unequivocal on this latter point. Lawyers are explicitly prohibited from “knowingly assisting in or encouraging any dishonesty, fraud, crime, or illegal conduct.” Where a UN communication alleges serious wrongdoing and a client refuses to respond appropriately despite legal advice to do so, the lawyer must withdraw. Failure to do so risks implicating the lawyer in the misconduct. In this context, silence is not just a professional lapse — it implicates the lawyer in serious human rights abuses.
The ethical imperative is clear: lawyers must counsel engagement with the Special Procedures and ensure that clients understand the legal and reputational consequences of ignoring UN human rights mechanisms. To do otherwise risks breaching not only ethical obligations but also the trust placed in the legal profession itself.
The duty to uphold the rule of law
A lawyer’s professional responsibilities extend beyond their obligations to individual clients. They also encompass a duty to uphold the integrity of the legal system as a whole. The Model Code is explicit in this regard, prescribing a duty to “encourage public respect for and try to improve the administration of justice.” Lawyers must uphold the “standards and reputation of the legal profession” and assist in the “advancement of its goals, organizations, and institutions.” The Code’s commentary further notes that lawyers should avoid conduct that would “weaken or destroy public confidence in legal institutions or authorities.”
As made clear in Nevsun, Canadian courts recognize that international legal norms form part of domestic law and may be directly enforceable against corporations. UN Special Procedures play a critical role in articulating and applying these norms. To disregard their communications is to disregard a component of the rule of law itself.
In this context, engaging with a communication from UN Special Procedures is not a political act — it is a legal one. Acknowledging the communication is not an admission of wrongdoing, any more than responding to a notice of civil claim is. Rather, it affirms a respect for due process and the shared commitment to transnational justice.
Silence is not neutrality
In an era where corporate conduct is subject to growing scrutiny under domestic and international legal standards, lawyers cannot treat communications from United Nations Special Procedures as legally or morally inconsequential. These are not abstract pronouncements but formal notices from recognized legal authorities that signal serious reputational and legal risk. Ignoring them is not mitigation — it is strategically unsound, ethically questionable, and professionally hazardous.
Acknowledging a UN communication does not concede liability. Rather, it affirms a commitment to legal process and transparency — values at the heart of international law and the Canadian legal profession. In today’s interconnected legal landscape, where international human rights law actively shapes domestic jurisprudence, a lawyer’s professional gaze cannot stop at the border.
Ultimately, the credibility of Canada’s legal profession — and its professed commitment to justice — depends on lawyers’ willingness to engage with the full scope of the rule of law. In this context, silence is not neutrality. It is a decision. And it is not one that lawyers, bound by ethical standards and entrusted with public confidence, can justifiably make.
