We have obtained a transcript of a recording that appears to have been produced in the same vein as the previous exposé of PR company Biss Lancaster (Euro RSCG London). The transcript records what we believe to be a sting operation intended to test the ethics of a major international law firm with regards to the potential relocation of indigenous tribes in Brazil.
The company in question, King & Spalding, is based in Atlanta, and has offices in 8 different countries including the USA, France, Germany, UK and United Arab Emirates. According to their website, King & Spalding “represents half of the Fortune 100 and, according to a Corporate Counsel survey in August 2009, ranks fifth in its total number of representations of those companies. The firm also represents hundreds of clients with new ventures and mid-sized companies in emerging industries.”
The King & Spalding representative is a very senior partner in the firm.
The firm is notable for being the major sponsor of Freecycle while at the same time providing defense for corporations in cases of environmental malpractice (see http://www.kslaw.com/practices/Environmental-Litigation). Despite this apparent conflict of interest it is still surprising to see such a blatant lack of ethics with regards to oil drilling in the vicinity of indigenous tribes, within the Amazon rainforest.
The K&S representative is keen to state and restate their desire to remain within the law of the land, but so long as this condition is satisfied it seems that any activity is acceptable to them. However, even if national law does permit an activity, that does not mean the law is morally just; nor does compliance with the law justify breaching both Common Law and the moral rights of tribal peoples to remain unharmed. This latter point is enshrined in the Universal Declaration of Human Rights, Articles 3, 12 and 17.
(Note: In the transcript, the caller is referred to as “CALL” and the King & Spalding representative referred to as “KS”. Any names used have been removed.)
CALL: If I can give you some background, you can tell me whether this is something you’d be prepared to work with. Essentially we’re a publicly listed oil and gas firm, erm, we’re based in the UK (KS: Yeah) And we’ve been exploring areas that, erm, up to now have had minimal exploration and exploitation. Erm, the place we’re looking at, at the moment, is in the Para region of Brazil (KS: Mm-huh) we have...we have in the past, erm, have done some work in this area. Erm, but the previous Brazilian government pushed back on the developments that we were ready to go ahead with, prior to digging an exploratory well. But the new government...we’re getting signs that they’re more open to development, and we are preparing to carry out an initial drill. (KS: Mm-huh)
However – this is the situation we’re in – the area that we are working in has two indigenous tribes. (KS: Uhuh) which are, I don’t want to beat about the bush, they are likely to be affected by the work here. (KS: Mm-huh) Erm the...and, as a result – and, I mean, you may have dealt with some of these NGOs that are quite hot on the indigenous side of things, erm, essentially they’ve found out that us, among others, are preparing to carry out some work in this area. (KS: Yep) And they are from...the information we’ve got, they are preparing to draw up a case against the exploration. Erm, and...
KS: Not, not an unusual situation...
CALL: No, no not at all. (KS: Mm-huh) and this is one of the more active and effective NGOs, erm, that we’ve...certainly that we’ve come across (KS: Yes) and they do have local support (KS: Yep), the...
KS: And they’re essentially (coughs), they’re essentially just doing their job.
CALL: Yes, that’s right, and so are we. Urm, the tribes [that] are affected are, they have, they are...they’re not completely uncontacted, erm, but they’re in what’s known as a “pristine” state. (KS: Mm-huh) So, effectively...erm...anything that’s physical impact on their territory is going to affect...is going to affect their, their lives. In quite a major...
KS: ...presumably the right permits have been provided or sought, and environmental impact reports have been prepared.
CALL: Well, yes, I mean this is the situation with...the Brazilian government are being quite open to further developments, erm you may have heard about the very large hydro dam that’s just been given the go-ahead, (KS: Mm) only this week, I believe. Erm, so there’s definitely a sea change taking place in the Brazilian government. Erm, we had outline permission anyway from our previous work, erm, but some of the people in the previous government were...were a very unhappy, erm, with the potential indigenous issue. (KS: Yep) So, they said “no, we’re going to accept it.” (KS: Mm-huh) But we see no issues with getting permission from a, from an environmental point of view (KS: Yeah) given the political situation. I mean they’re very, they’re very keen on encouraging, erm, encouraging outside companies to come and er, use the resources that they’ve got. Particularly if we can use local labour.
KS: Presumably you been, I mean, it sounds like you’re fairly down...you’ve been...you’re fairly far down the road and you must have been working with the Brazilian Counsel [Consul?] on [some of these] issues, haven’t you?
CALL: We’ve had a law firm working on things, and we’ve had a PR company that have been assisting the operational (KS: Yeah) [unclear] as well, erm, problem is our law firm have decided to cry off...erm, they are not comfortable with the indigenous issue.
KS: I’m not sure I quite follow when you say they’re not comfortable with the indigenous [CALL mumbles] issue.
CALL: I suppose from their point of view they’re seeing some...they’re seeing some ethical issues, erm, with potentially displacing these tribes. And, erm, and I...I mean, as an individual, I can see their point of view, but obviously we have a job to do. And, erm, we want to move ahead with this...the, that particular law firm that we...that we were working with has said: Yes, there is a point at which we will not do any more work on this because we’re running up against fundamental human rights issues. Erm, particularly the issue of displacing the tribes, affecting their culture, erm, Westernising them, that kind of thing.
Erm, is that something that...that you as a firm would also have a problem with?
KS: well, it’s sort of an open-ended question, uh, and it’s...I think we would want to understand a lot more about the facts, er before, opining on that issue. Let me ask you, how did our name come to your attention, I mean, how is it that you picked up the phone and called our firm?
CALL: Well, we’ve just been looking at different practices, erm, we are looking at a...it would be, I’ll be honest with you, we are speaking to a number of other firms here, and we are going through a list (KS: Yeah) and...that’s, of course that’s the way tenders work. And...
KS: Well, there is one experience that, that we have that may have some analogous application, and is our acting for Chevron-Texaco in connection with, erm, the issue they faced in Ecuador. (CALL: Right) Er, probably you’re aware of the lawsuit that’s been brought against Chevron-Texaco in connection with alleged lack of remediation (CALL: Uh-huh), contamination also in the Amazon (CALL: Yes) um, and we have dealt with that case for now a number of years. It’s obviously not Brazil, but there’s some analogous...
CALL: Oh, to be honest it appears to be, I mean, when you’re dealing with indigenous tribes, I mean, it would seem that we’re seeing a very similar pattern, erm (KS: Yeah) Peru seems to be a bit more lively, erm, particularly...um, Bolivia is probably a no-no, given the government (KS: Yep) erm, Venezuela, not sure. But Brazil, Brazil seems to be changing...erm [unclear] I certainly noticed you have worked with Chevron here and that is a particular reason, if you haven’t had [unclear] on your clients list, to have been through something like this (KS: Yeah) there wouldn’t have been any point speaking to you.
KS: *****, you know, I think in order to, sort of...erm, you know, explore the discussions a little bit further I’d, I’d like to meet with you and I’d like to, obviously I’d need to understand who the company is (CALL: Mm-huh, yep) er, make sure we have no conflict, and then we can sit down and I can put together the...you know, the right people to have, sort of, a general chat, about what we may or may not be able to offer.
CALL: Ok, I mean, this is what we’re going to do, is we’re going to short-list (KS: Yep) and then we’re going to come back to the firms that we’re comfortable with and then we’re...and then set up some formal meetings (KS: Very good) what we need...what we would really like at this point is just, is just a: are you going to do the same as our, as our (laughs) former legal firm (KS: Well, you...) and say...
KS: ...have to understand, (CALL: ...that’s not something you would touch) I mean look, if we get engaged...if we accept an engagement and, er, we are charged, er, by our ethics to represent...um...our client zealously within the bounds of the law.
KS: I mean that’s what we do, er, for clients. So, I mean, I don’t wanna give you, erm, the absolute, you know, “of course we wouldn’t do that” because we simply don’t, I simply...it wouldn’t be honest, we simply don’t know enough of the facts. But if you are doing everything within the bounds of the law (CALL: Mm), what the law requires, then I don’t see why we would feel uncomfortable in representing you to the best of our abilities, to comply with [what] the law requires.
CALL: Even if there was, sort of, major opposition from say...
KS: Well, well that’s what we get paid for is to deal with the major opposition (CALL: Mm) to, er, do issues. But again, you know, I mean, I keep on repeating it and sure you understand what has to be done has to be in compliance with all laws.
CALL: Well, obviously, yes. But, that’s the national law (KS: Yeah...) I mean, are there international laws (KS: ...local Brazilian law, yes) , are there any international issues we would come across in this area, erm, anything that, sort of, overarches the local laws?
KS: None that come to my mind, erm, immediately. Um, as I said, I’m not a litigator...I’m a deal lawyer, erm, but none...that’s not something that pops to mind, erm...at the moment.
CALL: From the point of view of you, as a firm, there’s, erm, in the event that we need a representation if we didn’t have a...providing we weren’t, erm, conflicting with any of the Brazilian laws and the government were happy with the situation as far as relocating a tribe, and...
KS: Again, I mean, the issue of relocation is one that is...something that the government would have to approve of (CALL: Yep) have to mandate, erm, so you know, again so long as it’s done within the strictures of law, you know, I would expect that could...could be done. I mean, obviously, there will be opposition and the opposition will be heard and will need to have their concerns, er, taken into account (CALL: Uh-huh) and that’s going to be a decision of the government [unclear]
CALL: Right. Ok, ok that sounds fine, erm right, as I said we’re going to go away...we’re going to shortlist with regards...
KS: Just one, one other thing for you to consider (CALL: Yeah) is that we have a very active practice in Latin America (CALL: Uh-huh) so we have a good deal of experience, of around Latin America, including in Brazil in particularly with the energy sector.
CALL: Yeah. Fine
KS: [quietly] ...so, something to bear in mind.
CALL: Oh, no doubt our people will do all the background checks and the due diligence anyway, so (KS: Yeah) that’s fine. Ok, thank you very much ***** nice to speak to you.
KS: You’re welcome.