Ethics in Refugee Representation: Understanding the Nairobi Code

Ethics in Refugee Representation:

Understanding the Nairobi Code

Objective: Understand the Nairobi Code

Understand Nairobi Code principles Apply Nairobi Code principles Identify responsibilities to clients, tribunals, and others Know when you have a problem and seek advice

What Is the Nairobi Code?

The Nairobi Code was developed after the office of the United Nations High Commissioner for Refugees, UNHCR, asked Asylum Access and other refugee legal aid providers to develop a code of ethics for practicing before UNHCR in refugee status determination proceedings. UNHCR conducts refugee status determination in about 80 countries, most of them in Africa, Asia or Latin America. This request coincided with efforts by organizations working in southern countries to develop a network of southern refugee legal aid providers. So in January 2007, a number of organizations that either were already providing legal aid to refugees or were interested in providing legal aid to refugees came together in Nairobi, Kenya, to draft a model code of ethics that would govern provision of legal aid services to refugees. The result was the Nairobi Code.

What Is the Nairobi Code?

The Nairobi Code Model Rules of Ethics for Legal Advisors in Refugee Cases is designed to guide legal advocates in addressing ethical dilemmas that arise when providing legal information, advice, counsel, representation or other legal or procedural assistance to refugees. It was developed by a community of legal advisors and legal aid organizations who provide legal assistance to refugees, primarily in Africa, Asia and Latin America, and primarily – although not exclusively – in refugee status determination proceedings.

Why Do We Need the Nairobi Code?

What was the purpose of drafting the Nairobi Code? Why do we need a code of ethics? Put simply, when a complicated situation arises, it isn’t always immediately clear how we, as legal advisors, should handle it. The Nairobi Code provides a framework for deciding how to deal with complicated ethical issues in refugee legal aid.


Imagine that you are a legal advocate, and you’re sitting in a refugee status determination proceeding with your client. Your client is answering questions from the decision-maker, and all of a sudden she says something that you know for a fact is untrue. What do you do? On the one hand, you have a duty to represent your client and promote her interests. On the other hand, you have a duty to be truthful, to uphold the integrity of the legal process.


If you understand the Nairobi Code, you’ll understand what to do in many situations. Some situations will still pose difficult questions. There’s not always a perfect right answer. But the Nairobi Code gives you concrete principles on which to base your decision.


So what do you do if your client makes a false statement to the tribunal? To answer that question, we need to talk about three central duties of a legal advisor: the duty of confidentiality, the duty of diligence, and the duty of integrity.

Principle 1: The Duty of Confidentiality Must maintain confidentiality of ALL information

from clients

from prospective clients

after client relationship ends

Client’s Right, Advisor’s Duty Privilege of confidentiality belongs to client

No waiver without client consent

Advisor’s duty to protect

Advisor’s duty to train staff

Confidentiality Exceptions

Can reveal general information if: Confidential professional consultations Public domain + client consent

Can reveal minimal information if: Imminent bodily harm Defense to formal charge of ethics breach Removal of identifying detail

Quiz: The Duty of Confidentiality

In this quiz, please imagine you are a legal advisor for Asylum Access in a country where UNHCR conducts refugee status determination (RSD).

Take a minute to review the file of Mr. Ibrahim Moyo, a client from Democratic Republic of Congo. You will then be asked to answer some questions about the nature and extent of your obligation to keep his information confidential.

Question 1: To whom does the privilege of confidentiality belong for each item?

Testimony: Client Asylum Access UNHCR

No privilege

Legal brief: Client Asylum Access UNHCR

No privilege

Advocate notes: Client Asylum Access UNHCR

No privilege

Psychologist’s report: Client Asylum Access UNHCR

No privilege

Copy of Passport: Client Asylum Access UNHCR

No privilege

Question 1, continued: To whom does the privilege of confidentiality belong for each item?Copy of Army ID Card: Client Asylum Access UNHCR

No privilege

Copy of Newspaper Article: Client Asylum Access UNHCR

No privilege

Copy of Desertion Announcement: Client Asylum Access UNHCR

No privilege

Amnesty International report: Client Asylum Access UNHCR

No privilege

Draft Summary for Asylum Access Publicity: Client Asylum Access UNHCR

No privilege

Answer to Question 1: To whom does the privilege of confidentiality belong for each item?

Testimony: Client Asylum Access UNHCR

No privilege

Legal brief: Client Asylum Access UNHCR

No privilege

Advocate notes: Client Asylum Access UNHCR

No privilege

Psychologist’s report: Client Asylum Access UNHCR

No privilege

Copy of Passport: Client Asylum Access UNHCR

No privilege

Answer to Question 1, continued: To whom does the privilege of confidentiality belong for each item?Copy of Army ID Card: Client Asylum Access UNHCR

No privilege

Copy of Newspaper Article: Client Asylum Access UNHCR

No privilege

Copy of Desertion Announcement: Client Asylum Access UNHCR

No privilege

Amnesty International report: Client Asylum Access UNHCR

No privilege

Draft Summary for Asylum Access Publicity: Client Asylum Access UNHCR

No privilege

Explanation of Question 1:

Under the Nairobi Code, the client owns the privilege of confidentiality; the legal advisor only asserts this privilege on behalf of the client.

Any information provided by the client or about the client by a third-party source must by kept confidential by the legal advisor, unless the client chooses to give his or her explicit consent to waive the privilege of confidentiality.

Question 2: For which items can you, as a legal advocate, waive the privilege of confidentiality? Testimony

Legal brief

Advocate notes

Psychologist report

Copy of Passport

Copy of Army ID Card

Copy of newspaper article

Copy of desertion announcement

Amnesty International Report

Draft summary for Asylum Access publicity

Verbal conversations with Mr. Moyo

Answer to Question 2: For which items can you, as a legal advocate, waive the privilege of confidentiality?

None.

Only the client can waive the privilege of confidentiality.

Question 3: Background Information

While you are assisting Mr. Moyo to draft his testimony, you notice that he has serious difficulties discussing the harassment he suffered from Kabila supporters during his military training in China. You suspect the harassment may have been much more severe than he is admitting, possibly involving sexual assault of some sort.

You refer Mr. Moyo to a psychologist for a confidential evaluation, after confirming that she has no conflicts of interest. If the evaluation supports Mr. Moyo’s refugee status claim, you intend to ask the psychologist for a summary of her findings which you will submit to UNHCR, with Mr. Moyo’s permission, in support of his petition for refugee status.

Question 3: The psychologist asks for a copy of the testimony and any other relevant background information in advance of her appointment with Mr. Moyo. Which information can you share with the psychologist? Testimony

Legal brief

Advocate notes





Your conversations with Mr. Moyo about how he was feeling throughout the testimony-preparation process

Your conversation with Mr. Moyo where he says he will “take steps” because he “can’t stand waiting”

Answer to Question 3: The psychologist asks for a copy of the testimony and any other relevant background information in advance of her appointment with Mr. Moyo. Which information can you share with the psychologist? Testimony

Legal brief

Advocate notes






Your conversation with Mr. Moyo where he says he will “take steps” because he “can’t stand waiting”

Explanation of Question 3:

Under the Nairobi Code, you can reveal information provided by or about the client for the purpose of confidential professional consultations.

Psychologists and other healthcare professionals are generally required to keep patient information confidential, however you should always confirm that the person with whom you are sharing the information has a professional duty to keep the information confidential before you reveal it.

You should also ensure that the professional you are consulting has no conflicts of interest.

Question 4 Background Information

You receive a letter from the Interior Ministry of the country where you are working, informing you that they are investigating the possibility that Mr. Moyo may be a prohibited immigrant on the grounds that members of foreign militaries are barred from entry into the country unless they have been issued a special waiver by the Ministry.

The Ministry requests that you provide any and all documents from or pertaining to Mr. Moyo within 30 days.

Question 4 – Part 1: Which documents do you provide to the Ministry? Testimony

Legal brief

Advocate notes

Psychologist report

Copy of Passport







Answer to Question 4 – Part 1: Which documents do you provide to the Ministry?

None.

Question 4 – Part 2: For which documents are you required to assert the privilege of confidentiality (and thus refuse to provide them to the Ministry)? Testimony

Legal brief

Advocate notes

Psychologist report

Copy of Passport







Answer to Question 4 – Part 2: For which documents are you required to assert the privilege of confidentiality (and thus refuse to provide them to the Ministry)?

Testimony

Legal brief

Advocate notes

Psychologist report

Copy of Passport






Explanation of Question 4

As a legal advisor, you are required to assert the privilege of confidentiality on behalf of your client.

In this scenario, you must assert the privilege of confidentiality for all confidential documents provided by or about the client.

Thus, you are prohibited from providing the following documents to the Ministry: Testimony

Legal brief

Advocate notes

Psychologist report

Copy of Passport





You are not required to assert a confidentiality privilege where none exists. Thus, you are not required to maintain the confidentiality of the following documents: Amnesty International Report


However, you may not wish to provide this information to the Ministry. You should consult with your supervisor about how to respond to the Ministry’s letter.



After you submit Mr. Moyo’s testimony, legal brief and supporting information to UNHCR, you hear nothing from UNHCR for three months. When you call UNHCR to inquire about the status of Mr. Moyo’s case, UNHCR tells you it likely will not issue a decision for another three months.

When you relay this information to Mr. Moyo, he becomes distraught and tells you that his wife and child have been threatened again and that he cannot wait another three months to find out whether he has been granted refugee status. He then threatens to commit suicide on the steps of the UNHCR office if he is not given a decision by the end of the week.

Question 5: What information can you provide to UNHCR in the circumstances described? Advocate notes

Psychologist report

Copy of Passport




Mr. Moyo’s threat to commit suicide on the steps of UNHCR

Mr. Moyo’s comment that his wife and child were threatened again

Your earlier conversation where Mr. Moyo said he will “take steps” because he “can’t stand waiting”


Answer to Question 5: What information can you provide to UNHCR in the circumstances described? Advocate notes

Psychologist report

Copy of Passport




Mr. Moyo’s threat to commit suicide on the steps of UNHCR

Mr. Moyo’s comment that his wife and child were threatened again



There is a narrow exception to the duty of confidentiality if your client has threatened to harm himself or others: You may provide the minimal information necessary to prevent imminent bodily harm to your client or others.

Thus, in the scenario in Question 6, you can inform UNHCR of the threat and ask for their assistance in speeding up the RSD decision or otherwise addressing your client’s concerns; however, you may not share any other information communicated by or about the client unless the client consents.


Note that under the Nairobi Code, you are required to take prompt steps to inform the appropriate authorities about any threat of imminent bodily harm.

Thus, in this scenario, you might need to inform local police or other law enforcement, and/or local healthcare authorities, in addition to UNHCR.

Consult with your supervisor for assistance in determining the proper response, but remember that you are independently responsible for taking prompt steps to prevent imminent harm to your client or others.


Additionally, it is generally considered best practice to inform the client when you intend to reveal information he has provided to a third-party source, if you can do so without precipitating harm to the client or someone else.

In this scenario, if you can do so safely, you should tell the client that you are going to discuss his concerns about the delayed decision with UNHCR.

You should explain to the client that you will not reveal any other information he has shared with you, except insofar as is necessary to prevent him from harming himself.



Mr. Moyo is denied refugee status in an RSD proceeding that you feel violates due process norms.

You want to consult with the human rights law clinic of a local university to determine whether it is possible to contest the due process violations in local court.

You confirm that the legal advisors in the human rights clinic have no conflicts of interest and are ethically bound to maintain the confidentiality of all prospective client information.

Question 6: Which information can you share with the legal advisors in the human rights clinic? Testimony

Legal brief

Advocate notes

Psychologist report

Copy of Passport





Your conversations with Mr. Moyo about what happened in the first-instance RSD proceedings



Answer to Question 6: Which information can you share with the legal advisors in the human rights clinic? Testimony

Legal brief

Advocate notes

Psychologist report

Copy of Passport





Your conversations with Mr. Moyo about what happened in the first-instance RSD proceedings



Under the Nairobi Code, you can reveal information provided by or about the client for the purpose of confidential professional consultations, for example with other legal advisors or advocates.

You should always confirm that any information you share will be protected by a duty of confidentiality before you reveal it to another legal professional.



Mr. Moyo is eventually recognized as a refugee on appeal, and is resettled to the United States.

A few months after he has been resettled, just before World Refugee Day, you are contacted by a local newspaper reporter who wants to profile the problems that drive African refugees to seek refuge in the country where you are working.

She asks you for specific examples of Africans who have sought refuge, and the problems that have led them to flee their home country. She also asks for contact information for refugees whom she can interview.

Question 7 – Part 1: Without obtaining Mr. Moyo’s permission, which information can you give her? Testimony

Legal brief

Advocate notes

Psychologist report

Copy of Passport






Mr. Moyo’s US telephone number

Mr. Moyo’s email

Answer to Question 7 – Part 1: Without obtaining Mr. Moyo’s permission, which information can you give her? Testimony

Legal brief

Advocate notes

Psychologist report

Copy of Passport







Mr. Moyo’s email

Question 7 – Part 2: If you first obtain Mr. Moyo’s permission, which information can you give her? Testimony

Legal brief

Advocate notes

Psychologist report

Copy of Passport





Mr. Moyo’s email

Answer to Question 7 – Part 2: If you first obtain Mr. Moyo’s permission, which information can you give her? Testimony

Legal brief

Advocate notes

Psychologist report

Copy of Passport





Mr. Moyo’s email

The client can waive confidentiality of any information provided by or about himself.

Remember that you must have the client’s explicit consent, however.

Wherever possible, it is best practice to obtain this consent in writing to avoid misunderstandings.


Principle 2: The Duty of Diligence Act responsibly

Obtain best results for client

Maintain regular access to UNHCR materials and COI

Maintain filing and records system

Principle 3: The Duty of Integrity Must be truthful in ALL communications

Urge clients to be truthful

Do not encourage, advise or assist misleading statements

No duty to screen weak claims

When a client liesBefore the advisor-client relationship:

Do not reveal past misstatements

Persuade client to correct misstatements

No communications founded on misstatements

When a client lies

During the advisor-client relationship:

Do not reveal misstatements

Persuade client to correct misstatements

No communications founded on misstatements

If central, cease representation

Quiz: The Duty of Integrity

In this quiz, please answer the following questions by checking the appropriate box or boxes.

Question 1: May you ever tell a tribunal something you know to be untrue?

Yes

No

Answer to Question 1: May you ever tell a tribunal something you know to be untrue?

Yes

No

Question 2: Suppose that, on behalf of a client, you submit to a tribunal a written testimony that you believe to be true. You later learn that one portion of the testimony is not true. What do you do? a. Inform the tribunal that a portion of the testimony is untrue and ask the tribunal to strike that portion from the record of the proceedings. b. Inform the tribunal that the testimony submitted contains errors but do not reveal which statements are incorrect. c. Urge your client to correct his or her testimony. If he or she refuses, inform the tribunal that you are withdrawing from representation because your client lied to the tribunal. d. Urge your client to correct his or her testimony. If he or she refuses, inform him or her that you are forced to withdraw from representation. Then inform the tribunal that you are withdrawing from representation, but without informing the tribunal of the reasons for your withdrawal. e. Urge your client to correct his or her testimony. If he or she refuses, continue to represent him or her on the grounds that the client should choose what information is presented to the tribunal.

Answer to Question 2: Suppose that, on behalf of a client, you submit to a tribunal a written testimony that you believe to be true. You later learn that one portion of the testimony is not true. What do you do?

d. Urge your client to correct his or her testimony. If he or she refuses, inform him or her that you are forced to withdraw from representation. Then inform the tribunal that you are withdrawing from representation, but without informing the tribunal of the reasons for your withdrawal.

Question 3: Suppose the client in the previous question admits to lying about a portion of his or her testimony and agrees to correct it in a supplemental written submission to the tribunal. What do you do? a. Submit a written supplement to the client's testimony that corrects the original testimony and explains why the client previously provided incorrect information. Continue to represent the client.

b. Inform the tribunal that the testimony submitted contains errors but do not reveal which statements are incorrect. Continue to represent the client. c. Inform the tribunal that the testimony submitted contains errors but do not reveal which statements are incorrect, and withdraw from representation. d. Submit a written supplement to the client's testimony that corrects the original testimony and explains why the client previously provided incorrect information, and then withdraw from representation.

Answer to Question 3: Suppose the client in the previous question admits to lying about a portion of his or her testimony and agrees to correct it in a supplemental written submission to the tribunal. What do you do?

a. Submit a written supplement to the client's testimony that corrects the original testimony and explains why the client previously provided incorrect information. Continue to represent the client.

Question 4: Suppose that a client comes to you for assistance with an appeal of a rejected refugee status claim. In the course of preparing the appeal, you learn that, during her initial refugee status determination hearing, the client lied about her marital status. The client's marital status is entirely irrelevant to her appeal and does not bear on the reasons for her rejection. What do you do?

a. Inform the tribunal that a portion of the testimony is untrue and ask the tribunal to strike that portion from the record of the proceedings. b. Urge your client to correct her testimony. If she refuses, inform her that you are forced to withdraw from representation. Then inform the tribunal that you are withdrawing from representation, but without informing the tribunal of the reasons for your withdrawal. c. Urge your client to correct her testimony. If she refuses, however, continue to represent him or her. d. Urge your client to correct her testimony. If she refuses, make a legal strategy decision to submit a one-page errata statement with the appeal brief that corrects the original testimony and states that the client is married. Continue to represent the client.

Answer to Question 4: Suppose that a client comes to you for assistance with an appeal of a rejected refugee status claim. In the course of preparing the appeal, you learn that, during her initial refugee status determination hearing, the client lied about her marital status. The client's marital status is entirely irrelevant to her appeal and does not bear on the reasons for her rejection. What do you do?

c. Urge your client to correct her testimony. If she refuses, however, continue to represent him or her.

Question 5a: Does the duty of integrity require you to refuse to represent someone simply because their testimony sounds improbable? Yes

No

Question 5b: Does the duty of integrity require you to refuse to represent someone who suffered clear discrimination that may or may not rise to the level of persecution?

Yes

No

Question 5c: Does the duty of integrity require you to refuse to represent someone if country of origin information (COI) is contradictory such that only one source of COI supports their claim to have a well-founded fear? Yes

No

Answer to Questions 5a, 5b and 5c: Does the duty of integrity require you to refuse representation of these cases?

No. The duty of integrity does not require a legal advisor or a legal aid organization to refuse to represent refugee claimants who have weak claims.

Video Clip: Duties of Confidentiality and Integrity

Emily: The upshot of this is, if your client makes a false statement to the tribunal, you cannot tell the tribunal unless you have the client’s explicit consent.

But, if the false statement is central to the issue for which you’re providing representation, you have to withdraw from representing that client.

Duties of Confidentiality and Integrity

So the duty of diligence links a legal advisor’s responsibility to the client – not to reveal confidential statements – with a legal advisor’s responsibility to the tribunal – not to encourage or assist misleading statements.

Duties of Confidentiality and Integrity

And after you stop representing a client, you still have to keep the client’s information confidential. The duty of confidentiality applies to clients even after you have stopped representing them, and also to prospective clients who seek your assistance, even before you start representing them.

Advisor-Client Relationships

In other words, the Nairobi Code governs a legal advisor’s behavior from the moment a prospective client walks in the door. As a legal advisor, you have responsibilities from the moment someone comes to seek your help.

Advisor-Client RelationshipsSo, imagine that a prospective client walks in the door. What do you, as a legal advisor do first?

Under the Nairobi Code, I have to clearly explain whether I can offer you services, and explain the services I can offer. Of course, any information you tell me about yourself in this conversation is confidential.

I also need make clear the objectives and scope of my legal services. eg: Objectives: Help client prepare for first UNHCR RSD interview; Help client draft testimony; Draft legal brief; Scope: First UNHCR RSD interview only; No appeal or Request for Review.


You become my client only when you voluntarily consent to my services as a legal advisor, after being informed of the objectives and scope of the services to which we’ve agreed.

You stop being my client if you clearly and explicitly tell me, in writing or orally, that you no longer want my assistance, or if you make an allegation of ethical misconduct against me. You also stop being my client if I withdraw from representation, either because we cannot agree on the goals or strategies of the representation, or because I am ethically required to withdraw.


So the client is really the one in control of the relationship. Once the legal advisor has agreed to provide representation, and both people have agreed on the scope of the representation, the client has the final say. The Nairobi Code is explicit about this – it says “Clients should remain in control of the goals of representation. If…the client and advisor are unable to agree on the goals or strategies of representation, the advisor may withdraw from representation.”

The Advisor-Client Relationship

Nairobi Code Section 3.6:

“Clients should remain in control of the goals of representation. If…the client and advisor are unable to agree on the goals or strategies of representation, the advisor may withdraw from representation.”


Emily: As for the work done on the case, it belongs to the client. The client the right to view and obtain copies of all materials in his or her files. However, as the legal advisor, I have the right to maintain records of my work on a client’s case, so I am not required to destroy a client’s files, even if the client requests it.


And as the legal advisor, it’s my responsibility to notify the decision-making body when I am no longer representing the client.

Question 1: Which of the following statements are true?1. The client owns all original documents provided by the client; the legal advisor may

not retain originals of client documents.2. The client owns all work product produced by the legal advisor; the legal advisor

may not retain notes, drafts, statements or briefs that she prepared. 3. The client owns all work product produced by the legal advisor and is entitled to view

or receive a copy of any notes, drafts, statements or briefs prepared by the legal advisor, but the legal advisor is also entitled to retain these documents as a record of her work on the case.

4. The legal advisor is entitled to retain copies of documents provided by the client as part of the record of her work on the case.

5. The legal advisor owns all work product she produced, and is not required to provide copies to the client if the legal advisor believes that providing copies to the client could jeopardize the security of the client or the legal advisor.

6. If the client requests that the legal advisor destroy his file, the legal advisor must do so.

Answer to Question 1: Which of the following statements are true?TRUE:

The client owns all original documents provided by the client; the legal advisor may not retain originals of client documents.

The client owns all work product produced by the legal advisor and is entitled to view or receive a copy of any notes, drafts, statements or briefs prepared by the legal advisor, but the legal advisor is also entitled to retain these documents as a record of her work on the case.

The legal advisor is entitled to retain copies of documents provided by the client as part of the record of her work on the case.


The Nairobi Code provides that the client owns the contents of his file and any original documents he provided, but also allows the legal advisor to retain copies of both client documents and work product as a record of her work on the case.

The client cannot require that the legal advisor destroy his or her file, but the legal advisor also cannot withhold from the client any of the materials in the file, even if the legal advisor believes that withholding some materials is in the client’s best interest.

Question 2: Who is responsible for notifying the decisionmaker if the advisor-client relationship ends?

The client is responsible for notifying the decisionmaker at the end of the advisor-client relationship.

The legal advisor is responsible for notifying the decisionmaker at the end of the advisor-client relationship.

The decisionmaker is responsible for requesting periodic updates on the status of representation.

Answer to Question 2: Who is responsible for notifying the decisionmaker if the advisor-client relationship ends?

The client is responsible for notifying the decisionmaker at the end of the advisor-client relationship.

The legal advisor is responsible for notifying the decisionmaker at the end of the advisor-client relationship.

The decisionmaker is responsible for requesting periodic updates on the status of representation.

Question 3: Who controls the goals of the representation?

The client controls the goals of representation.

The legal advisor controls the goals of representation.

Answer to Question 3: Who controls the goals of the representation?

The client controls the goals of representation.

The legal advisor controls the goals of representation.

Conflicts of Interest

What if you have two clients, and your responsibilities to them conflict?

The first answer is: Don’t get yourself into that situation!


If any of your current clients has an interest that is opposed to a prospective client, you can’t take on that prospective client.

Conflict of Interest: Don’t Do It!

NO SERVICES IF:

Another client has opposing interests


An opposing interest is anything that would keep you from fully performing your duty of diligence to either client. So, for example, imagine you were representing a woman who fled her country after being raped, because her male family members were threatening to murder her as an “honor killing,” and the police refused to protect her. If her brother then came in and asked you to assist him to get refugee status for entirely unrelated reasons – for example, because he had been involved with an opposition political party back home – you would have to refuse to represent him, because your current client’s interests are opposed to those of her brother.


What about your personal interests? What if your interests are opposed to a client’s interest?

Again, don’t do it! You should never represent a prospective client where you have a direct financial or personal interest that is opposed to the client’s interest. [Cut to slide, audio continues as voiceover:] Similarly, if you have a personal relationship with a client that could prevent you from exercising objective judgment, you should refer the client to an alternative legal advisor, if one is available.

Conflict of Interest: Don’t Do It!

NO SERVICES IF:

Another client has opposing interests

YOU have opposing financial or personal interests

You have a personal relationship with the client


But what if you’re already representing both clients?

Let’s imagine that you’re representing two brothers who are seeking refugee status. Each brother tells you that the other one is wanted in their home country for killing their next-door neighbor. Under the Refugee Convention, committing a serious nonpolitical crime excludes a person from refugee status. When you learn of this issue, you should refer at least one, if not both, of the clients to alternate advisors immediately.


What if there are no other legal advisors?

The Nairobi Code says that, where two clients develop a conflict of interest and no alternate legal advisors are available, you may continue to assist both of them IF you have clearly notified them of the conflict and its potential consequences, and sought ways to limit the scope of representation to minimize conflicts.


Nairobi Code Section 5.5:

“Where…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.”

Duty to Avoid Exploitation• One of the most important duties of a legal advisor: the duty to avoid exploitation.

• Refugees are often in an extremely vulnerable situation, and, when you are their legal advisor, they are placing their trust in you. With every client, you have to remember that you may play a life-or-death role in that person’s life. Because of this, you have an enormous responsibility to ensure that you treat each client with dignity and respect, and avoid engaging in any relationship that might exploit a client for your own gain.

Duty to Avoid Exploitation

What rules should legal advisors follow to be sure they are not exploiting a client?

The most important rule is, “No sexual or business relationships with any current clients.” Any sexual or business relationship, even if the client initiates it, proposes it, encourages it or agrees to it, is presumed to be exploitative.

No Exploitation

No sexual relationships with clients

No business relationships with clients

Video: Duty to Avoid Exploitation

What about relationships with other people – for example, someone who decides refugee claims?

As a legal advocate, you have a responsibility not only to avoid sexual or business relationships with clients, but also to avoid any relationship that directly or indirectly compromises your independent judgment on behalf of your client.

No Exploitation

No sexual relationships with clients

No business relationships with clients

No relationships that compromise independent judgment


What about after you have finished representing the client?

For six months after the representation ends, you should not enter into any financial relationship with a client. But there is one narrow exception: If you purchased goods or services from someone, and then later they came to you for legal help, and no other advisor was available, then you can continue to purchase those goods or services as long as doing so complies with the conflict of interest rules.


Example

Imagine that you hire someone to clean your house once a week. After a year, she reveals to you that she is a refugee who fled her home country to avoid being jailed for practicing her religion. Now she has learned that the local police are cracking down on foreigners without residence permits. She asks for your help in seeking refugee status, and there are no legal advisors to whom you can refer her. Assuming there are no other ethical complications, you can represent her, and she can continue to clean your house.

Conclusion

Final words on Nairobi Code

At this point, it’s hard to make definitive predictions about the future of the Nairobi Code. Currently, it is a voluntary, non-binding code, but a number of refugee legal aid providers have adopted it, and the United Nations High Commissioner for Refugees has posted it on its reference website, RefWorld. At Asylum Access, we have adopted the Code, and our legal advisors, or advocates, are expected to adhere to it. It’s a great tool for ensuring ethical, consistent refugee legal aid practices, and we feel privileged to be a part of upholding and promoting it.

Documents

Ethics in Refugee Representation: Understanding the Nairobi Code