Ethics in Refugee Representation:
Understanding the Nairobi Code
Objective: Understand the Nairobi Code
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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.
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.
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.
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.
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
 Copy of newspaper article
 Legal brief
 Copy of desertion announcement
 Advocate notes
 Amnesty International Report
 Psychologist report
 Draft summary for Asylum Access
publicity
 Copy of Passport
 Copy of Army ID Card
 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
 Copy of newspaper article
 Copy of desertion announcement
 Amnesty International Report
 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”
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
 Copy of newspaper article
 Copy of desertion announcement
 Amnesty International Report
 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”
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
 Copy of newspaper article
 Legal brief
 Copy of desertion announcement
 Advocate notes
 Amnesty International Report
 Psychologist report
 Draft summary for Asylum Access
publicity
 Copy of Passport
 Copy of Army ID Card
 Verbal conversations with Mr. Moyo
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
 Copy of newspaper article
 Legal brief
 Copy of desertion announcement
 Advocate notes
 Amnesty International Report
 Psychologist report
 Draft summary for Asylum Access
publicity
 Copy of Passport
 Copy of Army ID Card
 Verbal conversations with Mr. Moyo
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
 Copy of Army ID Card
 Legal brief
 Copy of newspaper article
 Advocate notes
 Copy of desertion announcement
 Psychologist report
 Amnesty International Report
 Copy of Passport
 Draft summary for Asylum Access
publicity
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.
Explanation of Question 4
Thus, you are prohibited from providing the following
documents to the Ministry:
 Testimony
 Copy of Army ID Card
 Legal brief
 Copy of newspaper article
 Advocate notes
 Copy of desertion announcement
 Psychologist report
 Copy of Passport
Explanation of Question 4
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
 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.
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.
Question 5: What information can you provide to
UNHCR in the circumstances described?
 Advocate notes
 Mr. Moyo’s threat to commit suicide
on the steps of UNHCR
 Psychologist report
 Copy of Passport
 Copy of Army ID Card
 Copy of newspaper article
 Copy of desertion
announcement
 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
Answer to Question 5: What information can you
provide to UNHCR in the circumstances described?
 Advocate notes
 Mr. Moyo’s threat to commit suicide
on the steps of UNHCR
 Psychologist report
 Copy of Passport
 Copy of Army ID Card
 Copy of newspaper article
 Copy of desertion
announcement
 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
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.
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.
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.
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.
Question 6: Which information can you share with
the legal advisors in the human rights clinic?
 Testimony
 Amnesty International Report
 Legal brief
 Your conversations with Mr. Moyo
about what happened in the firstinstance RSD proceedings
 Advocate notes
 Psychologist report
 Copy of Passport
 Copy of Army ID Card
 Copy of newspaper article
 Copy of desertion announcement
 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”
Answer to Question 6: Which information can you share
with the legal advisors in the human rights clinic?
 Testimony
 Amnesty International Report
 Legal brief
 Your conversations with Mr. Moyo
about what happened in the firstinstance RSD proceedings
 Advocate notes
 Psychologist report
 Copy of Passport
 Copy of Army ID Card
 Copy of newspaper article
 Copy of desertion announcement
 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”
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.
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.
Question 7 – Part 1: Without obtaining Mr. Moyo’s
permission, which information can you give her?
 Testimony
 Copy of newspaper article
 Legal brief
 Copy of desertion announcement
 Advocate notes
 Amnesty International Report
 Psychologist report
 Draft summary for Asylum Access
publicity
 Copy of Passport
 Copy of Army ID Card
 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
 Copy of newspaper article
 Legal brief
 Copy of desertion announcement
 Advocate notes
 Amnesty International Report
 Psychologist report
 Draft summary for Asylum Access
publicity
 Copy of Passport
 Copy of Army ID Card
 Mr. Moyo’s US telephone number
 Mr. Moyo’s email
Question 7 – Part 2: If you first obtain Mr. Moyo’s
permission, which information can you give her?
 Testimony
 Copy of newspaper article
 Legal brief
 Copy of desertion announcement
 Advocate notes
 Mr. Moyo’s US telephone number
 Psychologist report
 Mr. Moyo’s email
 Copy of Passport
 Copy of Army ID Card
Answer to Question 7 – Part 2: If you first obtain Mr.
Moyo’s permission, which information can you give
her?
 Testimony
 Copy of newspaper article
 Legal brief
 Copy of desertion announcement
 Advocate notes
 Mr. Moyo’s US telephone number
 Psychologist report
 Mr. Moyo’s email
 Copy of Passport
 Copy of Army ID Card
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.
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 lies
Before 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 Relationships
So, 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.
Advisor-Client Relationships
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.
Advisor-Client Relationships
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.”
Advisor-Client Relationships
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.
Advisor-Client Relationships
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.
2.
3.
4.
5.
6.
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; the legal advisor may not retain
notes, drafts, statements or briefs that she prepared.
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 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.
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.
Explanation of Question 1
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!
Conflicts of Interest
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
Conflicts of Interest
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.
Conflicts of Interest
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
Conflicts of Interest
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.
Conflicts of Interest
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.
Conflicts of Interest
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
Duty to Avoid Exploitation
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.
Duty to Avoid Exploitation
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.