Resource Person: Michael S. Gallagher, S.J.
Tel: +41 22 919 1033
Fax: +41 22 919 1048
Michael Gallagher taught courses in legal ethics at Loyola University Law School in the 1980’s. A1979 graduate of Georgetown University Law School, he is a member of the bar in the U.S. jurisdictions of Louisiana, Texas and Massachusetts. He has been lead counsel in over 150 asylum cases in the United States. He is currently the Geneva Representative of Jesuit Refugee Service (JRS). He was the chair of the committee that drafted the Nairobi Code.
This page is aimed to encourage lawyers and paralegals that advise and represent refugees to freely discuss ethical dilemmas that arise in the course of their work with firstname.lastname@example.org, which is guaranteed to be confidential.
Ethics, or the morally astute conduct of an individual or organization, are vital to establishing trust in the provision of legal assistance to refugees. The uniquely vulnerable position in which refugees find themselves leaves them open to exploitation or manipulation on a dangerous scale. Providing refugees with sound and transparent advice is critical to the securing of asylum in countries in which they find themselves.
It was for these reasons, and out of discussions between UNHCR and legal aid NGOs in 2006, that the Southern Refugee Legal Aid Conference came together in Nairobi, Kenya, in early 2007 to draw up a code of ethics pertaining specifically to ‘legal aid providers in the context of refugee status determination procedures and other legal aid services offered to refugees.’ While all lawyers are already bound by a code of ethics, legal aid NGOs also use the services of paralegals to prepare cases and represent lawyers and they are not.
The benefits of such a ‘code’ are myriad, for by signing and committing to the enforcement of such a code, national, regional and international affiliations and NGOs have undertaken to implement sound ethical values and management practices in their operations, and such a shared code helps to promote a rise in quality and secure higher standards throughout the sector.
The Nairobi Code has been adopted by many of the participants of the Southern Refugee Legal Aid list-serve, with the aim of setting clear ethical standards for all refugee-related legal aid providers, and the hope is that this uniquely client-centred code will be adopted generally by all those who give legal advice to refugees and represent them in refugee status adjudication and in other legal matters. The ‘Model Rules’ do not replace the systems for regulating lawyers that already exist in most countries. However, the Nairobi Code is intended as a model of best practice to be adopted voluntarily by legal aid providers with the hope it will incrementally become customary.
Below, I pose some questions around the Nairobi Code to provoke discussion on its strengths and drawbacks, and invite your comments…
The Nairobi Code: Where is it weak?
That may seem like a strange way to begin the ethics page of the Rights in Exile Programme website, but what is a better way to begin a discussion of ethics than to think about how we could make the Code itself better?
Consider provision 8.3 of the Code: “Advisors shall not enter into any financial relationship with any current client or for six months after the end of the advisor-client relationship.”
One can see that the provision, as the section title for section 8 indicates, is intended to protect the client from being exploited by an advisor. What the drafters of the code were thinking about were situations in which the asylum seeker, because of the power imbalance existing between the advisor and the client, would feel obligated to provide services or agree to business arrangements which unduly favored the advisor. For example, to “agree” does painting the advisor’s house for payment substantially lower than the market price.
Where is the problem?
How about this: Your legal clinic is representing persons from many parts of the continent. Some of them speak only local languages and the only persons you can find to translate for you are other clients who speak both the local language and a language you understand.
What can you do? Can you hire the clients to serve as interpreters without violating rule 8.3? Is the answer to “ask” the clients to serve as interpreters for free? Isn’t that worse, since the clients, who in our experience are often in need of finding funds to live on, are getting nothing whatsoever for their very valuable service?
So we have a problem.
Actually we have two, because the Nairobi Code does not tell us how to amend the Nairobi Code.
This page is meant to start the discussion. Somehow or other through the magic of web designers, we will be able to talk with each other about this and other issues which emerge in our efforts to represent asylum seekers in an ethical fashion.