Ethics in Refugee Representation: Understanding the Nairobi Code

1. Ethics in Refugee Representation: Understanding the Nairobi Code

2. 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

3. 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.

4. 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.

5. 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.

6. Why Do We Need the Nairobi Code? 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.

7. Why Do We Need the Nairobi Code? 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.

8. Why Do We Need the Nairobi Code? 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.

9. Principle 1: The Duty of Confidentiality Must maintain confidentiality of ALL information from clients from prospective clients after client relationship ends

10. 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

11. 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

12. 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.

13. 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

14. 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

15. 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

16. 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

17. 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.

18. Question 2: For which items can you, as a legal advocate, waive the privilege of confidentiality?  Copy of newspaper article  Copy of desertion announcement  Amnesty International Report  Draft summary for Asylum Access publicity  Verbal conversations with Mr. Moyo  Testimony  Legal brief  Advocate notes  Psychologist report  Copy of Passport  Copy of Army ID Card

19. 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.

20. 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.

21. 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?  Draft summary for Asylum Access publicity  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”  Testimony  Legal brief  Advocate notes  Copy of newspaper article  Copy of desertion announcement  Amnesty International Report

22. 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?  Draft summary for Asylum Access publicity  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”  Testimony  Legal brief  Advocate notes  Copy of newspaper article  Copy of desertion announcement  Amnesty International Report

23. 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.

24. 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.

25. Question 4 – Part 1: Which documents do you provide to the Ministry?  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

26. Answer to Question 4 – Part 1: Which documents do you provide to the Ministry? None.

27. 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  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

28. 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  Copy of Army ID Card  Copy of newspaper article  Copy of desertion announcement  Amnesty International Report  Draft summary for Asylum Access publicity

29. 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.

30. Explanation of Question 4 Testimony  Legal brief  Advocate notes  Psychologist report  Copy of Passport  Copy of Army ID Card  Copy of newspaper article  Copy of desertion announcement Thus, you are prohibited from providing the following documents to the Ministry:

31. Explanation of Question 4  Amnesty International Report  Draft summary for Asylum Access publicity 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. 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:

32. Question 5 Background Information 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.

33. Question 5: What information can you provide to UNHCR in the circumstances described?  Advocate notes  Psychologist report  Copy of Passport  Copy of Army ID Card  Copy of newspaper article  Copy of desertion announcement  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”  Your conversations with Mr. Moyo about how he was feeling throughout the testimony-preparation process

34. Answer to Question 5: What information can you provide to UNHCR in the circumstances described?  Advocate notes  Psychologist report  Copy of Passport  Copy of Army ID Card  Copy of newspaper article  Copy of desertion announcement  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”  Your conversations with Mr. Moyo about how he was feeling throughout the testimony-preparation process

35. Explanation of Question 5 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.

36. Explanation of Question 5 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.

37. Explanation of Question 5 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.

38. Question 6 Background Information 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.

39. 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  Copy of Army ID Card  Copy of newspaper article  Copy of desertion announcement  Amnesty International Report  Your conversations with Mr. Moyo about what happened in the first-instance RSD proceedings  Your conversations with Mr. Moyo about how he was feeling throughout the testimony-preparation process  Your earlier conversation where Mr. Moyo said he will “take steps” because he “can’t stand waiting”

40. 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  Copy of Army ID Card  Copy of newspaper article  Copy of desertion announcement  Amnesty International Report  Your conversations with Mr. Moyo about what happened in the first-instance RSD proceedings  Your conversations with Mr. Moyo about how he was feeling throughout the testimony-preparation process  Your earlier conversation where Mr. Moyo said he will “take steps” because he “can’t stand waiting”

41. Explanation of Question 6 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.

42. Question 7 Background Information 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.

43. Question 7 – Part 1: Without obtaining Mr. Moyo’s permission, which information can you give her?  Copy of newspaper article  Copy of desertion announcement  Amnesty International Report  Draft summary for Asylum Access publicity  Mr. Moyo’s US telephone number  Mr. Moyo’s email  Testimony  Legal brief  Advocate notes  Psychologist report  Copy of Passport  Copy of Army ID Card

44. Answer to Question 7 – Part 1: Without obtaining Mr. Moyo’s permission, which information can you give her?  Copy of newspaper article  Copy of desertion announcement  Amnesty International Report  Draft summary for Asylum Access publicity  Mr. Moyo’s US telephone number  Mr. Moyo’s email  Testimony  Legal brief  Advocate notes  Psychologist report  Copy of Passport  Copy of Army ID Card

45. Question 7 – Part 2: If you first obtain Mr. Moyo’s permission, which information can you give her?  Copy of newspaper article  Copy of desertion announcement  Mr. Moyo’s US telephone number  Mr. Moyo’s email  Testimony  Legal brief  Advocate notes  Psychologist report  Copy of Passport  Copy of Army ID Card

46. Answer to Question 7 – Part 2: If you first obtain Mr. Moyo’s permission, which information can you give her?  Copy of newspaper article  Copy of desertion announcement  Mr. Moyo’s US telephone number  Mr. Moyo’s email  Testimony  Legal brief  Advocate notes  Psychologist report  Copy of Passport  Copy of Army ID Card

47. Explanation of Question 7 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.

48. 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

49. 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

50. When a client lies Before the advisor-client relationship: Do not reveal past misstatements Persuade client to correct misstatements No communications founded on misstatements