By: Caitlin Parets, Scarlett Del Giudice Boyer, & Jenik Radon

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Lawyers around the world are bound by codes of ethics designed to protect the legal profession and the individuals it serves, but lawyers need a Hippocratic Oath. Rooted in antiquity and still professed today by medical practitioners, modern iterations of the Hippocratic Oath include promises not only to use one’s medical knowledge to the best of one’s ability but also to “not use [one’s] medical knowledge to violate human rights and civil liberties.”^[1] As such, the Oath (colloquially conceptualized as a do-no-harm principle) operates as an added layer of ethical consideration in a physician’s best practices to ensure doctors do not underestimate their ability to do harm.^[2] Lawyers would benefit from a similar ethical consideration for human rights because sometimes simply following the law does not sufficiently capture ethical practices.^[3] The wisdom of Emmanuel Lulin, a lawyer and former Chief Ethics Officer for L’Oréal (2007-2020), sums it up beautifully: “Ethics is not about obeying the law. Ethics is about adhering to shared values. . . . Because very often things can be lawful but awful.”^[4],[5]

Recent United States Supreme Court cases highlight this disconnect between law and ethics. In June 2021, the Court decided 8-1 in favor of the Nestlé food company in a case brought by six individuals who were forced into child slave labor on cocoa plantations in the Ivory Coast, where Nestlé buys cocoa and provides farmers with technical and financial resources.^[6] This decision relied on precedent from an April 2013 opinion–an unfortunate decision from this author’s perspective–in which the Supreme Court ruled unanimously that the Shell oil corporation could not be held liable for its complicity in the use of deadly force, arbitrary detentions, forced exile, and other human rights abuses committed against the Ogoni people who protested Shell’s oil production practices on their land in Nigeria.^[7] Both Nestlé and Shell’s practices in these cases allegedly run afoul of well-recognized human rights including freedom from forced labor and slavery, the right to liberty and security of person, the rights to self-determination and free disposition of natural wealth, freedom of movement, and most basically, the right to life.^[8] And yet, their operations were tested against the letter of the law and passed the test.

Behind each of these cases–and any case accusing a corporation of exploiting the underprivileged, damaging the environment, or generally causing harm in the course of its operations–stands a lawyer who defends the corporation’s actions and interests regardless of their human rights implications.^[9] Indeed, in many cases across the United States and around the world, lawful practices carry significant negative externalities that result in human rights abuses.^[10]

When it comes to the lawful but awful, the trouble lies not in the defense lawyer who ensures her client receives a fair trial in court after the fact, but in the lawyer who advises or implicitly sanctions his client’s unethical practices along the way because the law does not explicitly prohibit them. While an adversarial system may catch the most flagrant of unethical decisions, the counseling context has no judge or opposing counsel to restrict a lawyer’s insensate obscuring of facts or distorting of law.^[11] Thus, like a physician who recites the Hippocratic Oath to affirm a personal commitment to ethical practice free from deleterious acts and corruption,^[12] shouldn’t lawyers too be individually dedicated to ethical–not simply lawful–care that incorporates human rights principles? The Norwegian Bar Association thinks so.

In May 2018, the Norwegian Bar Association adopted a new provision within its Ethical Rules for Lawyers (RGA) to clarify Norwegian lawyers’ roles in protecting human rights.^[13] Designed to elucidate a pre-existing rule mandating that a lawyer’s job is to “promote justice and prevent injustice,”^[14] Section 1.4 now states unequivocally that “a lawyer must not give advice that he realises or ought to realise will result in violation of a person’s human rights or a significant risk thereof.”^[15]

At the forefront of this human rights campaign is Norwegian Judge Frode Elgesem, who previously chaired the Norwegian Bar Association’s Human Rights Committee. Judge Elgesem explains that while there was not a specific national event or other mind-changing incident, he was “keen to try and create an awareness about the duty to respect human rights in [his] own profession.”^[16] Incidentally, his work to incorporate a human rights standard in Norway’s legal ethic coincided with an increased (yet not wide-spread) interest in the human rights agenda within business.^[17] Amongst inspiration, Judge Elgesem cites the Organisation for Economic Co-operation & Development (OECD) Guidelines for Multinational Enterprises, the United Nations (U.N.) Guiding Principles on Business & Human Rights, the International Bar Association (IBA) Practical Guide on Business and Human Rights for Business Lawyers, and Sweden’s success with a similar human rights endeavor.^[18]

However, despite the best efforts of Judge Elgesem and his peers in campaigning for this human rights provision in Norway’s legal ethic, the human rights clause remains a proposal in limbo having suffered rejection by the Norwegian Ministry of Justice, which must approve any changes to the nation’s legal ethics.^[19] This means the human rights standard only applies to registered members of the Norwegian Bar, a voluntary bar association. As a result, non-member lawyers practicing in Norway are not obligated to abide by the clause. While more than 90% of lawyers practicing in Norway are bar members and thus remain bound by the new provision, the non-member lawyers continue to represent a substantial number of lawyers who are not.^[20] Interestingly enough, among this group of lawyers not required to abide by Norway’s human rights ethic are many of Norway’s very own government and municipality lawyers.^[21]

Officials from the Ministry of Justice described the clause as “very far-reaching and partly unclear [which] could mean that the provision will be challenging to apply in practice, both for the lawyers who must comply with it, and for the disciplinary authorities who must assess whether there is non-compliance in the individual case.”^[22] The Norwegian Bar Association countered that the Ministry “misunderstood” the clause, and that the duty “consists primarily in the lawyer’s responsibility to make his client aware of and guide his client on current human rights issues that may arise. In cases where there may be gross or systematic violations of human rights provisions, the threshold for soundness is raised.”^[23] Judge Elgesem describes the Ministry’s argument as unconvincing, especially considering Norway “recently adopted a human rights act imposing a general obligation for larger Norwegian companies to undertake human rights due diligence in accordance with the OECD Guidelines for Responsible Business Conduct (The Transparency Act).” A possible reason for the reluctance to approve the human rights clause and thus extend it to the entire legal profession, that is to both members and non-members of the Norwegian Bar Association, is that non-members may see the clause “as a stepping stone for unreasonable and unfounded grievances against [government and municipality] lawyers.”^[24]

It is striking to consider that the legal profession, which has now become an industry^[25] (and an industry generally regarded as most involved and interactive with human rights), has at large often failed to incorporate in its own regulation of ethics a specific reference to the very thing it so often seeks to defend. Many, if not most, nations do not carry and/or enforce an explicitly stated standard in their legal ethic requiring their lawyers to disseminate only that advice which ensures the sanctity of human rights. Instead, most nations merely profess broad and ambiguous guidelines saying lawyers are to practice “conscientiously” or “ethically” when advising clients–nothing more, nothing less.

Nevertheless, Norway is not alone in this endeavor to codify human rights protections in ethical lawyering: the Swedish Bar Association incorporated a similar human rights clause in its own professional code of conduct in 2016.^[26] In Panama, the National Bar Association’s ethics code mandates that “The lawyer must be an active defender of Human Rights and promoter of the principle of the Rule of Law . . . .”^[27] At the international level, the preamble to the Code of Conduct for European Lawyers designed by the Council of Bars and Law Societies of Europe (CCBE) states that a lawyer’s duties extend beyond faithful performance of legal tasks to encompass legal and moral obligations to the public, “for whom the existence of a free and independent [legal] profession . . . is an essential means of safeguarding human rights . . .” amidst other state and societal interests.^[28] Supranationally, the U.N. Office of the High Commissioner for Human Rights (OHCHR) explains that “Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms . . . .”^[29]

So what does the American Bar Association (ABA) say about human rights in its Model Rules of Professional Conduct? Nothing. In the preamble to the Model Rules, the ABA says lawyers are both officers of the legal system and public citizens,^[30] which if broadly construed might suggest a greater societal responsibility beyond a given legal task.^[31] Furthermore, the Model Rules ambiguously advise lawyers that ethical conflicts and issues of professional discretion should be resolved using “sensitive professional and moral judgment guided by the basic principles underlying the Rules,”^[32] but they never address what considerations can be used in that analysis.^[33] Simply stated, the Model Rules never explicitly reference any protection or standard for human rights.

While this gap may seem innocuous or come as no shock to many, the Model Rules have been sharply criticized for their failure to “mention human rights as either a means or an end to ethical lawyering.”^[34] Professor Martha Davis suggested that ABA leadership was “hostile” to universal human rights norms already at the time of the creation of the institution, which could explain why the Model Rules have never referenced human rights.^[35] But since the initiation of the ABA in 1878, whether implicit or explicit, human rights have never been an express priority in the U.S.’s legal ethic. In fact, the ABA actively fought against the ratification of multiple human rights conventions in the 1960s.^[36]

We can be optimistic and imagine that one day the United States will follow through on its claims of being the leading human rights proponent in the world.^[37] However, the following questions remain: is overvaluing capitalism a barrier to advancing and protecting human rights?^[38] Does the U.S. have alternatives besides the Model Rules? Or must we depend on the big firms to adopt their own human rights missions?

While the reasons that the ABA has failed to codify human rights considerations are many (Professor Davis outlines several in her writing),^[39] no reason presents any justification for failing to incorporate a human rights standard in a lawyer’s daily conduct. Such a standard would demand that each practicing lawyer fully comprehend his or her specific duty to “promote justice or prevent injustice” when imparting legal advice to clients.^[40] From here, we can presume lawyers would be directed and self-directed to resources and further education on human rights that likely was not required of them during their formal legal education. Most importantly, lawyers will be forced to view clients as actual human beings, not as transactions or problems on paper; having human rights as a basis for their practice will give lawyers a roadmap for their interactions instead of using profit or personal career prestige as motivation.^[41]

Whether it’s Norway, the United States, or any other country in the world, Judge Elgesem continues to advocate for a human rights standard in legal ethics, as lawyers play key roles in preventing human rights abuses as trusted advisors to businesses and because they best serve their clients’ interests by informing them about human rights risks. Judge Elgesem says when it comes to Norway, the human rights clause is not at odds with any other duties of a lawyer nor does it deny a client proper legal advice or forceful representation in litigation.^[42] Instead, the human rights clause is a necessary development to, at the very least, ensure that the legal industry operates on the same ethical level as the rest of the business world. The duty to respect human rights follows from the business-related U.N. and OECD Guidelines, and by including a human rights clause among the ethical standards for lawyers, it is made absolutely clear that lawyers cannot escape this duty and, importantly, the duty can be adapted to the special nature of legal services.^[43]

So, when it comes to the lawful but awful, will the United States be the leader it claims to be or continue to be a laggard? While we anxiously await the outcome of Norway’s fight for a human rights ethic that binds all its lawyers, our eyes are on the United States (and any other human rights-committed country) to follow Norway’s example and implement a form of Hippocratic Oath for its own lawyers. What we suggest is not radical for, whether internationally or locally, a lawyer’s Hippocratic Oath, is simply a memorialization and reiteration of what every practicing lawyer should already be doing: upholding human rights simultaneously to dispensing legal advice. For those whose actions in the legal field would require a shift to achieve these human rights norms, the implementation of a Hippocratic Oath provides the guidance, or at the very least encouragement, needed to get started on the right track.^[44] Lawyers wield immense power to enact change, for better or for worse. The sole effort we ask of the legal profession is an effort of consideration and empathy for our fellow human, an effort to truly consider the implications of their legal advice when it comes to the rights we hold most sacred. When lawyers are bound by both the letter of the law and an ethics code requiring they not use their legal knowledge to violate human rights, then lawyers too will do no harm.

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About the Authors

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^[1] World Med. Ass’n [WMA], Declaration of Geneva (Sept. 1948, amended Oct. 2017), https://www.wma.net/policies-post/wma-declaration-of-geneva/.

^[2] See Dr. Robert H. Shmerling, First, Do No Harm, Harv. Health Publ’g: Harv. Health Blog (June 22, 2022), https://www.health.harvard.edu/blog/first-do-no-harm-201510138421.

^[3] See Alice Southall, Case Study: L’Oréal Group’s Ethics Programme – Avoiding the “Lawful But Awful” (Sep. 20, 2019), Westlaw W-022-1255, https://uk.practicallaw.thomsonreuters.com/w-022-1255 (“Ethics precedes the law, which is often a crystallisation of an ethical debate. When the law is insufficient because there are new issues to consider, you exit the legal area and re-enter the ethical arena.” (quoting Emmanuel Lulin)); Nikos Passas, Lawful But Awful: “Legal Corporate Crimes”, 34 J. Socio-Econs. 771, 772 (2005) (“By concentrating on what is officially defined as illegal or criminal, an even more serious threat to society is left out. This threat is caused by a host of company practices that are within the letter of the law and yet, they have multiple adverse social consequences.”).

^[4] Delshad Irani, “Things Can Be Lawful But Awful”: L’Oréal’s Emmanuel Lulin, Econ. Times: Brand Equity (Jan. 8, 2020, 1:20 PM IST), https://brandequity.economictimes.indiatimes.com/news/business-of-brands/things-can-be-lawful-but-awful-lorals-emmanuel-lulin/73141782.

[5] The issue of balancing ethics with legality is two-fold.  While this article focuses on the relationships that lawyers have with their clients and within the profession, we must also consider the magnetism with the bigger picture: how international law provides the blueprint for ethical business engagement and relations.  The European Union is a leading superpower that prides itself on its human rights-based values, yet even it must do more to uphold its promises of shaping a better world—one that not only stimulates short-term economic prosperity but that advances human rights and security now and for the future.  See Andra Tofan, Oscar Zou, & Jenik Radon, The 2022 Global Energy Crisis: Yet Another Opportunity Missed by the EU?, Compar. Jurist (June 12, 2023), https://comparativejurist.org/2023/06/12/the-2022-global-energy-crisis-yet-another-opportunity-missed-by-the-eu/.

^[6] See generally Nestlé USA, Inc. v. Doe, 141 S.Ct. 1931 (2021).

^[7] See generally Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013).

^[8] See, e.g., International Covenant on Civil and Political Rights arts. 1, 6, 8, 9, 12, opened for signature Dec. 16, 1966, T.I.A.S. No. 92-908, 999 U.N.T.S. 14668 (entered into force Mar. 23, 1976).

^[9] Ellie Olsen, The Dirty Work of America’s Legal Darlings: How Elite Corporate Lawyers Are Fueling Inequality, The [F]law (Jan. 15, 2023), https://theflaw.org/articles/the-dirty-work-of-americas-legal-darlings/.

^[10] Passas, supra note 3, at 782-83. For further reading on the ways corporations negatively impact society without breaking the law, see generally  It’s Legal But It Ain’t Right: Harmful Social Consequences of Legal Industries (Nikos Passas & Neva Goodwin eds., 2004).

^[11] Mike Donaldson, Lawyers and the Panama Papers: How Ethical Rules Contribute to the Problem and Might Provide a Solution, 22 Law & Bus. Rev. Am. 363, 370 (2016).

^[12] Laura McPherson, The History of the Hippocratic Oath, Ne. Univ. Bouvé Coll. of Health Scis. Sch. of Nursing Blog (June 3, 2015), https://absn.northeastern.edu/blog/the-history-of-the-hippocratic-oath/.

^[13] Thea N. Dahl, Menneskerettigheter inn i Regler for God Advokatskikk [Human Rights Included in the Code of Conduct for Lawyers], Advokatbladet (June 20, 2018) (Nor.), https://www-advokatbladet-no.translate.goog/advokatforeningen-regler-for-god-advokatskikk/menneskerettigheter-inn-i-regler-for-god-advokatskikk/113879?_x_tr_sl=en&_x_tr_tl=no&_x_tr_hl=en&_x_tr_pto=wapp.

^[14] Id.

^[15] Nor. Bar Ass’n, Code of Conduct for Norwegian Lawyers, at 1 (2018), https://www.advokatforeningen.no/contentassets/7749d42c30a44212904392fd627fb098/norwegian-code-of-conduct-2020.pdf.

^[16] E-mail from Judge Frode Elgesem, Borgarting Ct. Appeal, to authors (Feb. 13, 2023, 12:38 EST) (on file with authors) [hereinafter “E-mail from Judge Frode Elgesem”].

^[17] E-mail from Judge Frode Elgesem, supra note 16; New Norwegian Mandatory Human Rights Due Diligence Law Creates Obligations for U.S.-based Multinationals Doing Business in Norway, Ropes & Gray Newsroom (Dec. 18, 2021), https://www.ropesgray.com/-/media/files/alerts/2021/12/20211215_esg_alert.pdf.

^[18] E-mail from Judge Frode Elgesem, supra note 16. For Judge Elgesem’s references of inspiration for a Norway human rights standard, see generally Org. for Econ. Coop. & Dev. [OECD], OECD Guidelines for Multinational Enterprises (5th ed. 2011), https://www.oecd.org/daf/inv/mne/48004323.pdf; also U.N. Office of the High Commissioner for Human Rights [OHCHR], Guiding Principles on Business and Human Rights (2011), https://www.ohchr.org/sites/default/files/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf.

^[19] Nina Schmidt, Departementet Avviser Vedtatt Endring i Regler for God Advokatskikk [The Ministry Rejects the Adopted Amendment to the Rules for Good Legal Practice], Advokatbladet (Aug. 14, 2020) (Nor.),  https://www.advokatbladet.no/regler-for-god-advokatskikk-representantskapet/departementet-avviser-vedtatt-endring-i-regler-for-god-advokatskikk/153037.

^[20] The Norwegian Bar Association, Advokatforeningen, https://www.advokatforeningen.no/en/about-advokatforeningen/the-norwegian-bar-association/ (last visited May 30, 2023).

^[21] E-mail from Judge Frode Elgesem, supra note 16.

^[22] Schmidt, supra note 19.

^[23] Id.

^[24] E-mail from Judge Frode Elgesem, , supra note 16.

^[25] See, e.g., Donaldson, supra note 11, at 369 (“When combined with the unfortunate but prevalent idea that the practice of law is more of a business than a profession, the transactional lawyer’s job then becomes to make as much money for the client as possible with whatever means available.”).

^[26] Section 2.9 of the 2016 Swedish Code of Professional Conduct states, “An advocate must not give advice with the purpose of counteracting or circumventing human rights and basic freedoms covered by the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (with protocols). An advocate should in his or her practice of law also otherwise work to uphold human rights and freedoms.” Swed. Bar Ass’n,Code of Professional Conduct for Members of the Swedish Bar Association, at 14 (June 2016), https://www.advokatsamfundet.se/globalassets/advokatsamfundet_eng/code-of-professional-conduct-with-commentary-2016.pdf.

^[27] Panama’s code of legal ethics states, “The lawyer must be an active defender of Human Rights and promoter of the principle of the Rule of Law, as a necessary basis for the achievement and preservation of a free and just society.” Nat’l Bar Ass’n of Pan., Código de Ética y Responsabilidad Profesional del Abogado [Code of Ethics and Professional Responsibility of the Lawyer] (May 31, 2011) (Spanish), https://panamacna.com/codigo-de-etica/.

^[28] Council of Bars and Law Societies of Europe,  Model Code of Conduct for European Lawyers, at 4 (Aug. 10, 2021), https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/DEONTOLOGY/DEON_CoC/EN_DEONTO_2021_Model_Code.pdf.

^[29] OHCHR, Basic Principles on the Role of Lawyers (Dec. 7, 1990), https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-role-lawyers.

^[30] Model Rules of Pro. Conduct pmbl. (Am. Bar Ass’n 2020).

^[31] Jenik Radon, Adjunct Professor, Colum. Univ. Sch. Int’l & Pub. Affs. (SIPA), Lecture at the Escuela Libre de Derecho 110th Commemoration: “Lawful but Awful”: Is the Lawyer the Cause, the Enabler? (Aug. 16, 2022).

^[32] Model Rules of Pro. Conduct pmbl. (Am. Bar Ass’n 2020).

^[33] In his article discussing problems and possible solutions arising from the ABA’s Model Rules, Donaldson highlights three deficiencies: (1) the Model Rules do not prohibit helping a client break a foreign law; (2) the Model Rules do not require a lawyer to withdraw from representation even if she reasonably believes her client to be breaking the law; and (3) the Model Rules do not explicitly require a lawyer to ask questions of his client when suspicious circumstances arise. Donaldson, supra note 11, at 372.

^[34] Martha F. Davis, Human Rights and the Model Rules of Professional Conduct: Intersection and Integration, 42 Colum. Hum. Rts. L. Rev. 157, 170 (2010).

^[35] Id.

^[36] John R. Schmidhauser & Larry L. Berg, The American Bar Association and the Human Rights Conventions: The Political Significance of Private Professional Associations, 38 Soc. Rsch. 362, 388 (1971).

^[37] NBC News, Biden Speaks At Dedication Of Dodd Center For Human Rights, YouTube (Oct. 15, 2021), https://www.youtube.com/watch?v=nMJY-myq2OI.

^[38] Milton Friedman, The Friedman Doctrine – The Social Responsibility of Business Is to Increase Its Profits, N.Y. Times (Sept. 3, 1970), https://www.nytimes.com/1970/09/13/archives/a-friedman-doctrine-the-social-responsibility-of-business-is-to.html.

^[39] In addition to similarly referencing the fact that the ABA actively opposed the ratification of several human rights treaties in the 1960s, see Schmidhauser & Berg, supra note 36, Davis also cites the political and historical context of the evolution of the Model Rules through President Reagan’s administration, describing President Reagan as “contemptuous” of President Carter’s previous human right’s activism and policymaking. She also cites statements from former ABA President Frank Holman in the late 1940s, who regarded the Universal Declaration of Human Rights as “an attempt to promote state socialism if not communism throughout the world.” Davis, supra note 34, at 170.

^[40] Schmidt, supra note 19.

^[41] Friedman provides a thought-provoking analogy in the world of corporate business in his 1970 New York Times article. He wrote, “The difficulty of exercising ‘social responsibility’ illustrates, of course, the great virtue of private competitive enterprise—it forces people to be responsible for their own actions and makes it difficult for them to “exploit” other people for either selfish or unselfish purposes. They can do good—but only at their own expense.” Friedman, supra note 38.

^[42] E-mail from Judge Frode Elgesem, supra note 16.

^[43] E-mail from Judge Frode Elgesem, supra note 16.

^[44] In his review of the impact and implications of mainstream legal ethic surrounding the release of the Panama Papers, Donaldson relevantly writes “No ethical rule will stop a bad lawyer from being bad. But, under the current system, even good lawyers who want to help their client do what is right do not find it easy to do so. . . . we should at least have ethical rules that help good lawyers make good decisions and do the right thing.”  Donaldson, supra note 11, at 370.

Citation for Cover Image: Heather Hein, DU on the Bench, Univ. of Denver (May 17, 2023), https://www.du.edu/news/du-bench.