The Nairobi Code: Model Rules of Ethics for Legal Advisors in Refugee Cases (2007)
Publication date:
01/02/2007 Full Text:
The Nairobi Code
1 SCOPE AND PURPOSE
1.1 These rules are intended to guide legal aid providers in the context of
refugee status determination procedures and other legal aid services
offered to refugees.
1.2 These rules are sub-ordinate to any applicable domestic rules governing
the provision of legal services, and are intended only to supplement such
rules.
2 DEFINITIONS
2.1 The term “legal advisor” refers to any person providing advice and/or
representation to people seeking recognition as refugees, or to people
who have been recognized as refugees and are seeking other assistance.
2.2 The term “services” refers to the advice, document preparation, and/or
representation that a legal adviser may provide.
2.2.1 “Advice” includes providing an opinion about how law or
policy applies to a particular person’s circumstances.
2.2.2 “Document preparation” includes assisting a person in
preparing written documents in the person’s own name, including
but not limited to personal testimonies, that are intended for
submission in support of an RSD or other application.
2.2.3 “Representation” includes acting on behalf of a another
person either orally or in writing, including the submission of
memoranda arguing that a person meets legal criteria for refugee
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status or communicating with UNHCR or other bodies on a client's
behalf about his or her case.
2.3 The term “client” refers to a person to whom a legal adviser has agreed to
provide services and who voluntarily accepts those services.
2.4 The term “prospective client” refers to a person who has sought services
from a legal adviser but to whom the adviser has not yet agreed to provide
services.
3 ADVISOR-CLIENT RELATIONSHIPS
3.1 Advisors shall in all cases clearly explain to prospective clients whether
they can officer services of any kind, and shall provide clear explanations
of the type of service they offer. The objectives and scope of any advisorclient
relationship shall be explicit before the advisor begins to conduct
any work on the case, and before the client is asked to agree to the
representation.
3.2 In order to maximize impact, legal aid providers may limit their services.
For instance some agencies may provide only advice or document
preparation, or may focus their services on particular types of clients who
either have particularly acute needs or whose cases raise especially
important legal issues. However, advisors must inform clients of any limits
in the services to be provided at the beginning of the advisor-client
relationship.
3.3 Notwithstanding Rule 3.4, a legal adviser is under no obligation to provide
services to a prospective client, and may decide to decline to provide
assistance unless prohibited by Rule 3.4.
3.4 Subject to the provisions of rule 3.2, legal advisers shall not deny services
to any person on the basis of race, gender, sexual orientation, nationality,
political opinion, religion, age, family status, indigence or membership in a
particular social group.
3.5 Advisor-Client relationships may begin only with the voluntary, informed
consent of the client, and may continue only if this consent continues. A
client may end his or her relationship with a legal advisor by clear and
explicit communication, orally or in writing. An allegation by a client of
ethical misconduct against an advisor shall be presumed to indicate that
the client no longer consents to continuing the advisor-client relationship.
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3.6 Clients should remain in control of the goals of representation. If at some
point during the advisor and client relationship, the client and advisor are
unable to agree on the goals or strategies of representation the advisor
may withdraw from representation.
3.7 Clients shall be entitled to view and obtain copies of all materials in their
files. Legal advisors shall provide copies of the materials to the client upon
the client's request, during or after the end of the advisor-client
relationship. However, advisors may maintain records of their work on a
client's case, and are not required to destroy files, even if requested by a
client.
3.8 The legal advisor shall notify the adjudicating body in writing when the
advisor client relationship has terminated.
4 DILIGENCE
4.1 An advisor shall act responsibly and with due diligence in the handling of a
client’s case and shall act within the bounds of the law and these rules to
obtain the best results possible for the client.
4.2 Advisors shall complete all work as agreed with clients. Advisors shall
complete all required documents for a client by any deadline applicable.
4.3 Advisors are responsible for maintaining regular access to published
UNHCR materials and country of origin information as necessary to assist
clients in refugee status determination applications and other matters.
4.4 Advisors shall maintain a filing and records system in order to record their
work on a client's case.
5 CONFLICTS OF INTEREST
5.1 Advisors shall not provide services to any prospective client where the
advisor has a direct financial or personal interest that is opposed to the
client’s interests.
5.2 Advisors shall not offer services to any prospective client where another
client of the same advisor has interests that are opposed to the
prospective client's interests.
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5.3 Where two clients of the same advisor develop a conflict of interests after
the beginning of an advisor-client relationship, and where local ethical or
professional standards would permit, the advisor shall seek to refer one or
both of them to alternative advisors immediately.
5.4 Where advisors have a personal relationship with the client that could
interfere with his or her exercising objective judgment, the advisor shall
seek to refer the client to an alternative legal advisor, if available.
5.5 Where Rule 5.3 or 5.4 applies and alternative legal advisors are
unavailable, an advisor may assist clients where a conflict of interest
exists only after clearly and explicitly notifying the clients of the conflict
and its potential consequences, and after seeking ways to limit the scope
of representation so as to minimize conflicts.
6 CONFIDENTIALITY
6.1 Clients and prospective clients are entitled to confidentiality of the
information obtained from them or others by their advisors. The
confidentiality privilege is owned by the client, not by the advisor. Except
as provided for in these rules, confidentiality may be waived only with a
client’s explicit consent.
6.2 An advisor shall protect the confidentiality of all information that is
gathered regarding a client’s affairs, except as specifically provided for in
these rules. Advisors shall maintain files and records in a manner
designed to protect their clients' confidentiality. The duty to maintain client
confidence continues beyond the termination of the advisor client
relationship unless otherwise provided in these rules.
6.3 Confidentiality shall not apply to information that has entered the public
domain with the client's consent. When a client voluntarily allows a piece
of information to enter the public domain, the client will be presumed to
have waived confidentiality on that piece of information. However,
advisors may not reveal information that has entered the public domain
against the wishes of the client, or without the client's consent.
6.4 An advisor may reveal confidential information about a client to other legal
advisors for the purpose of professional consultations, so long as the other
advisors will be bound by the same duty of confidentiality and so long as
the other advisors do not have a conflict of interest as described in Rule 5.
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6.5 Where an advisor believes a client is likely to inflict bodily harm on another
person in the imminent future, the advisor must take prompt steps to
inform the appropriate authorities, and may reveal that amount of
confidential client information which is necessary to prevent bodily injury.
6.6 An advisor may reveal confidential client information as minimally
necessary to defend him or herself from any formal accusation of breach
of these ethical rules.
6.7 A legal advisor or organization employing a legal advisor may use
information collected from clients’ cases in publications and writings
without the consent of affected clients only if the publication is sanitized of
any unique details that would allow an interested person to identify the
person involved.
6.8 A legal advisor or an organization providing legal services must train all
staff and support personnel on their responsibility to maintain client
confidential information and ensure that client confidences are maintained.
7 DUTY OF INTEGRITY
7.1 An advisor shall adhere to the truth in all communications, shall urge his or
her clients to do the same, and shall not encourage, advise, or assist any
person to make false or misleading statements to any tribunal or agency
before whom the advisor appears on the client’s behalf.
7.2 Notwithstanding Rule 7.1, the advisor is not the decision-making body
regarding the validity of applications for refugee status recognition or other
matters, and has no duty to screen out or turn away prospective clients
who have relatively weak claims.
7.3 An advisor shall conduct his or her interactions with other parties in a
courteous, professional manner, consistent with principles of respect for
other people and principles of human rights and non-discrimination
7.4 When an advisor knows that a client has made misstatements of fact to a
tribunal or adjudicating body before the beginning of the advisor-client
relationship, and there are no contrary local profession ethical rules, the
following shall apply:
7.4.1 The advisor shall not reveal the past misstatements to any
person or body without the client’s explicit consent.
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7.4.2 The advisor shall attempt to persuade the client to correct
the statements.
7.4.3 The advisor shall not proceed in making any
communications to the adjudicating body or any other body
that are founded on the past misstatements, and shall not
take any actions likely to lead the adjudicating body or any
other body to rely on the past misstatements.
7.5 An advisor shall not knowingly sign or otherwise be associated
with any letter, report or other documents, make any statement or
offer any submission with respect to a client which contains false
or misleading information. An advisor shall not submit to an
adjudicating body any document which the advisor knows to either
be a forgery or to contain false or misleading information.
7.6 When client makes statements to an adjudicating body after the
beginning of the advisor-client relationship that the advisor knows
to be false, the following shall apply:
7.6.1 The advisor shall not reveal the misstatements to any
person or body without the client’s explicit consent.
7.6.2 The advisor shall attempt to persuade the client to correct
the statements to the adjudicating body.
7.6.3 The advisor shall not proceed in making any
communications to the adjudicating body or any other body
that are founded on the misstatements, and shall not take
any actions likely to lead the adjudicating body or any other
body to rely on the misstatements.
7.6.4 Where the misstatement goes to the heart of the
representation and the client refuses to correct the
misstatement, the legal advisor shall cease representation.
8 DUTY TO AVOID EXPLOITATION
8.1 An Advisor shall not engage in any relationship either directly or
indirectly that is likely to compromise his or her independent judgment
on behalf of the client in rendering legal services and shall not exploit
his or her client for financial, sexual or other gain. To avoid all doubt
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any sexual or business relationship between a legal advisor and a
current client shall be presumed to be exploitative.
8.2 Advisors shall not solicit or receive any services, products, or labor
for which a person might normally be compensated in money or other
exchange from any current client or for six months after the end of an
advisor-client relationship, except as permitted by Rule 5.5 where a
relationship pre-existed the need for legal services and no alternative
legal advisors are available.
8.3 Advisors shall not enter into any financial relationship with any
current client or for six months after the end of an advisor-client
relationship.
Promulgated at
SOUTHERN REFUGEE LEGAL AID CONFERNECE (SRLAC)
Nairobi, Kenya
1 February 2007
ATTACHED ANNEXES:
Annex 1
Model Minimum Standards of Qualifications
for Legal Advisors for Refugees
Annex 2
Complaint Mechanism as a Feature in a Professional Accountability
Structure for Legal Aid Providers
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Annex 1
Model Minimum Standards of Qualifications
for Legal Advisors for Refugees
Qualifications of Legal Adviser:
Subject to any domestic rules to the contrary, Current license issued by the relevant authority of a member state of the Undergraduate degree, equivalent to a bachelor's degree or
•
accredited University or other legal institution or
is a current student in a supervised legal clinic connected with an
•
and
is a person with more than 2 years experience working in refugee matters
•
Training in refugee law (minimum 20 hours)
•
Training in interviewing techniques and testimony writing (10 hours)
•
Training may consist of independent reading, observation of practitioners, or
other types of instruction.
A person who is recognized as meeting either of these criteria may offer the full
services of a legal adviser to applicants in refugees.
Training in ethical responsibilities (2 hours)
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Annex 2
Complaint Mechanism as a Feature
in a Professional Accountability Structure for Legal Aid Providers
At the very least every legal aid provider shall have a client complaint mechanism
as part of its office handbook of operating procedures. These procedures shall be
communicated to each client at the beginning of the relationship.
Some suggested elements of the complaint procedure include:
1 Preprinted complaint forms which are in the major languages spoken by
the client community. The form should assist the complainant in making
the complaint by suggesting necessary elements such as date and place
of action complained against and an opportunity to provide a narrative of
the incident.
2 Each organization should determine the procedure for dealing with
anonymous complaints. On their own anonymous complaints can never
be the source of a negative action against an employee.
3 Instructions on how to communicate the complaint should appear on the
form and also in a conspicuous public area of the legal aid provider’s
office.
4 The complaint should be investigated and resolved in a timely fashion by a
disinterested party.
5 The results of the complaint process should be communicated to the
complainant where known.
6 The employee complained against shall have the presumption of
innocence.
7 The person complained against should be notified of the complaint. The
person complained against should have a right to reply to the complaint
and all evidence used against them and to be heard by the independent
investigator.
8 The organization shall keep records of all complaints submitted as well as
of the investigation findings and resolutions.
9 The range of sanctions for violations ethical duties should be part of the
office handbook of operating procedures.
a person may be recognized as a legal advisor for refugees if they meet either
criteria A or B:
Criteria A:
•
United Nations as a lawyer, solicitor, attorney, barrister, counselor-at-law
or equivalent professional designation.
Criteria B:
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Model Rules of Ethics
for Legal Advisors in Refugee Cases