Ethical Representation of Persons with Disabilities: Advice from the Trenches

7/22/2011 CANDIA EMMANUEL

Presentation

at

Persons

with

Disability

Workshop

at

Uganda

Christian University

Candia Advocates and Legal Consultants Social Security House, Plot 4, Jinja Road P.O Box 33629, Kampala www.candiaadvocates.com

Introduction: I am so greatly venerated to be given such an opportunity to speak to this august congregation. I was invited to talk to this regal assemblage on the topic: Ethical Representation of Persons with Disabilities: Advice from the Trenches This presentation covers the special ethical concerns that arise in the legal representation of Persons With Disabilities ranging from access to chambers to issues of best practices for representing the persons with mental disabilities. Definitions: A person with disability or persons with disability is defined under s.2 of the Persons with Disabilities Act, 2006 to mean a person having physical intellectual, sensory or mental impairment which substantially limits one or more of the major life activities of that person. A legal representative is defined in its broadest sense as one who stands in place of and represents the interests of another; a person who oversees the legal affairs of another. Examples include the executor or administrator of an estate and a court appointed guardian of a minor or incompetent person.1 Lawyers or Attorneys also act as legal representatives. In a more narrowed sense and for our purposes, legal representation is defined as the legal work that a licensed attorney performs on behalf of a client. Licensed attorneys have the authority to represent persons in court proceedings and in other legal matters.2 Under CPC number 861 in the United Nations Provisional Central Product Classification, legal services includes legal advisory and representation services concerning criminal law, judicial procedures concerning other fields of law; in statutory procedures of quasi-judicial information.3 Legal representation services generally consist of either acting as a prosecutor on behalf of the client, or defending the client from a prosecution.
2

tribunals,

boards,

etc;

and

other

legal

and

advisory

Included are both the pleading of a case in court, and out-of-court legal work. The latter comprises research and other work for the preparation of a case (e.g. researching legal documentation, interviewing witnesses, reviewing police and other reports), and the execution of post-litigation work, in relation to law other than criminal law.4 Ethics is defined in the Oxford English Dictionary as the science of morals; moral principles or code. Moral is defined as the standard of conduct respected by good men independently of positive law and religion.5 This definition does not, of course, set down the code nor establish how the code might be prepared. Many organizations and writers have attempted to define ethics in their own context whether business, organizational, political, personal or professional.6 To act ethically is to act with integrity; always be honest; Be open and transparent; Be accountable; act within your limitations; be objective at all times; always treat others with respect; set a good example; and have the courage to make a stand.7 Different people have different considerations when hiring an

advocate/attorney which include among others the nature and importance of the case, the attorney's fee and payment arrangement, personal chemistry with the attorney, and the attorney's reputation.8 It therefore falls that for there to be legal representation by an advocate, there is need to create the Advocate-Client relationship. This relationship is created by an agreement between the Advocate and the Client and most often on payment of a consideration normally the legal fees. In recent times, there has developed Legal Aid clinics and thus the term pro bono legal services being offered by licensed Advocates to mostly indigent clients. Most of the Legal Aid Clinics do enter this Advocate-Client relationship with their clients on payment, if any, of minimal fees for opening
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files. Most often the legal aid service providers and Advocates under such schemes take up legal representation as their legal obligation to do good to the needy in society. When an Advocate-Client relationship is established either through payment or some other form of scheme like pro bono, there arise rights and obligations on both sides of the bargain. The Law and General Constitutional Position The rights of persons with disabilities are provided for in various laws in Uganda. These include among others the Constitution of the Republic Uganda 1995; The National Council for Disability Act, 2003; Persons with Disabilities Act, 2006; Equal Opportunities Commission Act 2006; Local Government Act 1997. Under the Constitution, recognition of the dignity of persons with disabilities is placed on the Society and the State.9 Article 20 of the Constitution provides that Fundamental rights and freedoms of the individual are inherent and not granted by the State. And that the rights and freedoms of the individual and groups enshrined in the Constitution shall be respected, upheld and promoted by all organs and agencies of Government and by all persons. Article 21 provides that all persons are equal before and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law. It further provides that a person shall not be discriminated against on the ground of sex, race, colour, ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.10 Under Article 28 (3) a person charged with a criminal offense is to be permitted to appear before the court in person or, at that persons own expense, by a lawyer of his or her choice.11 In the case of any offence which
4

carries a sentence of death or imprisonment for life, is entitled to legal representation at the expense of the State.12 The Constitution does provide for mandatory legal representation for persons who are charged with criminal offenses that carry a sentence of death or imprisonment for life. In these circumstances, the government is obligated to afford legal services for persons who can not be able to afford legal representation by an advocate. However, such mandatory representation is for specific criminal cases. The other cases of criminal and civil nature not provided for are left for the individual persons choice and at their own expense. The framework for the legal representation of PWDs is thus set in Article 21 of the Constitution which guarantees equality before and under the law in all spheres of political, economic, social and cultural life and in every other respect. The access to justice for persons with disabilities envisages provision of procedural and age-appropriate accommodations that facilitates effective role as direct and indirect participants including as witnesses, in all legal proceedings. The convention provides an avenue through which Persons with disability can make their own contributions to the course of justice, discover their potentials and become equal participants in building their communities. The right to legal representation underscores one key aspect that runs out from the arteries of humanity, the need to be treated right like all others. Under Article 50 (1) and (2) of the Constitution, any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened is entitled to apply to a competent court for redress which may include compensation. Any person or organization may bring an action against the violation of another persons or groups human rights.

This guarantees the right to seek for and a forum where justice could be accessed. Again the constitution is clear in offering the opportunity for any person. Additionally, there is room for representative suits on behalf of aggrieved persons. Regulation of Advocates Legal profession is one very highly regulated profession that exists. To practice law especially in Uganda, one must qualify from a recognized law school; pass the post graduate diploma in Legal Practice before they are admitted to the roll of Advocates in the Ugandan Bar. The Law Council established under the Advocates Act is empowered among others to exercise general supervision and control over professional legal education in Uganda; to advise and make recommendations to the Government on matters relating to the profession of advocates; to exercise, through the medium of the Disciplinary Committee, disciplinary control over advocates and their clerks; to exercise general supervision and control over the provision of legal aid and advice to indigent persons.13 The conduct of an advocate is governed by the Advocates Professional Conduct Regulations.14 The regulations require an advocate to act only after receiving instructions from a client or their duly authorized agent(s). It requires the advocates to be diligent in carrying out their clients instructions15; to appear in courts on behalf of their clients 16; to be personally responsible for clients work17; nondisclosure of clients information18; to account for money of the client19; no personal involvement in a clients case20; not to use the fiduciary relationship with his or her clients to his or her personal advantage21; not to exploit the inexperience, lack of understanding, illiteracy or other personal shortcoming of a client for his or her personal benefit or for the benefit of any other person.22

Attorneys are officers of the court, and as such they must follow the law and obey ethical constraints. Conversely, Lawyers in Ontario have a legal obligation not to discriminate against persons with disabilities specifically entrenched in their rules professional conduct. Rule 5.04 (1) of the Rules of Professional Conduct states that lawyers have a special responsibility to respect the requirements of human rights laws in force in Ontario and, specifically, to honor the obligation not to discriminate on the grounds of disability among others in professional dealings with other members of the profession or any other person. Much as there is no such provision in our rules of professional conduct, the constitution of Uganda captures that in the bill of rights. Does the absence of such a provision in our rules of professional conduct have any effect in the way advocates behave in Uganda? That is food for thought! These rights and obligations have to themselves issues of professionalism and ethics which is the yolk of this presentation. We shall thus consider the process of legal representation by an advocate from the time of interviewing a client, taking instructions from the client, and acting on instructions of a client with disability. Ethical Challenges and the Law in Uganda There is no code or law that governs the conduct of clients unfortunately. However, clients are expected to disclose all relevant information concerning a case or other legal matter to the advocate; be honest; pay legal fees among others. Legal representation places duties on both the client and the attorney. The client should provide the attorney with all information relevant to the case and keep the attorney apprised of new information. The client should be

completely honest about the case with the attorney. The client also should follow the attorney's directives. The client has an obligation to pay the attorney for the representation. If the client does not make timely payment, the attorney may decline to perform further work for the client. An attorney also may discontinue representation if the client wants the attorney to perform an unethical or illegal act, the client lies and refuses to correct the lie, the client makes representation unreasonably difficult, or the attorney discovers a conflict of interest. Generally, a conflict of interest is any circumstance that adversely affects a client, or limits the loyalty of the attorney to a client. The are some of the areas where professional ethics among other things is expected of the advocates. Id now like to turn and look at some of the practical challenges and to Herein we shall look at PWDs with mobility problems, hearing and speech impairments, and mental disability.

Persons with mobility Challenges: Clients with mobility challenges find difficulty in accessing most law firms in Uganda which are located in houses or buildings that are not easily accessible. Persons with disabilities thus can not easily access legal representation. The lack of access to some premises makes it hard for advocates to interview clients; some of the locations make it hard for clients to disclose full information, especially where the environment is not suitable. There are also issues of confidentiality that persons with mobility challenges end up being denied because they meet people in very open places.

The

responsibility

of

providing

accessible

and

easy-to-find

building

entrances, which are connected to accessible pathways; accessible indoor or outdoor parking areas; local public transit stops; and accessible elevators, is on persons who construct buildings to which the public is invited. There are issues with accessible urinals, bathrooms; safe and welldimensioned staircases for the comfort of persons with mobility problems; ramps where stairs obstruct the free passage of wheel chair users and people with mobility challenges; adequate railing around hazardous areas; and well dimensioned elevators that persons with disabilities can use conveniently.23 Besides law firms, most police stations, where persons with disability could go and report cases are in very inaccessible buildings and premises. Where they are accused persons, the police cells are narrow and squeezed; some cells are up or down stairs with no elevators or ramps. Courts of law are also a culprit too. Many court premises are inaccessible to persons with disability. The other challenge also comes, in some cases where the advocate is a person with disability and can not personally conduct his affairs due to physical barriers at police stations, law firms, prisons, courts or such other places where he is personally required to appear. I have had to interview my clients in the presence of prison officers at the prison or police officers at a police station/post. Have I breached my ethical duty of nondisclosure of my clients information? Is it an ethical practice at all? I have had to ask another advocate to hold brief for me in some cases, is it in order? Persons with hearing or speech impairments For persons with hearing and or speech impairment, there is need to provide and develop sign language, tactile, sign language interpreters in all public
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institutions and public functions.24 Most advocates are not knowledgeable about sign languages or do not have interpreters. This poses a great ethical challenge. With the requirement for advocates to receive instructions from a client or their duly authorized agents, how can advocates interview or take instructions from such clients? Many people who act for persons with disability or help them do so on voluntary basis. It is sometimes hard for them to have written authority or other information readily available that shows their relationship to the client. How can an advocate authenticate that a person has ostensible authority to act as an agent for a client with hearing or speech impairment? Must advocates stick to the requirement of the law in demanding for proof of authority before they can interview or take instructions? Another issue that arises is where a person with hearing or speech impairment uses an interpreter; does the obligation of nondisclosure of clients information or confidentiality arise? Where do we draw the line? In common law jurisdictions, the duty of confidentiality obliges an

advocate to respect the confidentiality of his client's affairs. Information that an advocate/attorney obtains about his clients' affairs may be confidential, and must not be used for the benefit of persons not authorized by the client. Confidentiality is a prerequisite for legal professional privilege to hold.25 Legal professional privilege protects all communications between a

professional legal adviser (a solicitor, barrister or attorney) and his or her clients from being disclosed without the permission of the client. The privilege is that of the client and not that of the lawyer. The purpose behind this legal principle is to protect an individual's ability to access the justice system by encouraging complete disclosure to legal advisers without the fear

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that any disclosure of those communications may prejudice the client in the future.26 The exceptions to the duty of confidentiality are client authorization, disclosure compelled by law, disclosure ostensibly to support the lawyers own interests and disclosure of information that is not confidential. None of these exceptions cover the circumstance where one has to rely on an interpreter. How are they able to enjoy the right to their privacy? Does this right exist in as far as their communication with other persons is involved? Persons with mental disability S.10 of the Penal Code Act provides for a rebuttable presumption of sanity wherein every person is presumed to be sane until the contrary is proved. Under s.11, insanity does not make a person criminally responsible for an act or omission if at the time of doing the act or making the omission he or she is through any disease affecting his or her mind incapable of understanding what he or she is doing or of knowing that he or she ought not to do the act or make the omission. There is procedure provided for within the law to deal with such accused persons. If a person is believed by court to be insane at the proceedings of trial, court is obligated to inquire into the insanity of the accused person to find if they are of sound mind. As a result, the accused person may be acquitted, or confined as a criminal lunatic in a mental hospital or charges against such a person be dropped.27 Since the Law provides for personal criminal liability, provisions as to how persons with disability are represented become challenging. It raises questions as to who should give instructions in his/her stead especially where the offense is not a capital offense. The state may instruct an advocate to represent a person with mental disability who is alleged to have committed a capital offense.

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Under the Contract Act 2010, a person of sound mind has no capacity to contract28. For purposes of entering into a contract, a person is said to be of sound mind, if at the time of entering into the contract, that person is capable of understanding the contract and of forming a rational judgment as to its effect upon his or her interests.29 In regard to civil suits by or against persons with unsound mind, the law requires a next friend or guardian ad litem to act for them. A next friend must sign a written note to an advocate authorizing their name to be used as a next friend. They must not have any adverse interest contrary to that of that person of unsound mind; be of sound mind; be of majority age and not be a plaintiff or defendant in a particular suit.30 The law does seem to be clear with regard instituting civil suits by or against persons with mental disability. It sets out somewhat clear procedures that courts or other litigants should follow. However, the process of instituting criminal cases by or defending persons with mental disability is not provided for. In other jurisdictions, setting off the process of the legal representation by a person with mental disability is almost as ordinary as any other. However, the process of accommodating persons with a mental disorder or disability begins with identifying that your client has such a condition, which is not always evident. Since mental illness manifests itself in many different ways, there is no easy method by which a lawyer can reliably know if a client has a disorder or disability of this nature. Moreover, the client may be on medications which can mask symptoms that would otherwise be apparent. As a general rule of thumb, if you have any reason to believe that your client may have a mental disorder or disability (for example, because your client has been through a traumatic experience) refer your client for a psychological assessment.31

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In order to best serve a mentally ill client, it is important to learn about their particular disability and how it impacts on them in particular. In this regard, working with the clients mental health or community support workers, who will already be familiar with how your clients disorder or disability manifests itself. Such workers may also assist you in identifying ways to communicate effectively with your client.32 While it is critical in all Advocateclient relationships to establish the trust of your client, this is especially so where your client has a mental illness. However, in Uganda, such a process is not so properly managed and or followed if at all it exists. Most persons with mental disorder or disabilities are treated by the community as gone cases. Others are thought of demon possessed or suffering under the control of spirits and thus candidates for more spiritual processes as opposed to integration and rehabilitation. Conclusion The Convention of the Rights of Persons with Disabilities recognizes that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society.33 It is societys failure to accommodate the needs of people with disabilities that gives rise to the disabling disadvantage that people with disabilities encounter in their daily lives, not some inherent mental or physical condition.34 In the case of Granovsky v. Canada (Minister of Employment and Immigration) Justice Binnie stated: Exclusion and marginalization are generally not created by the individual with disabilities but are created by the economic and social environment and, unfortunately, by the state itself.35

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There is thus need for specific interventions in creating awareness, changing attitudes and deliberate creation of economic, social, legal, environmental conditions that favor championing of rights of persons with disabilities. More advocates need to get interested and involved in the affairs of persons with disabilities. Further specific training on how to interview, communicate and relate to persons with disability, especially persons with mental disability would come in handy. Information about medical treatment, habilitation and rehabilitation needs to be readily available to social workers, medical practitioners and legal counsel to enable proper handling of clientele with mental disabilities. There perhaps is need to provide for and emphasize, even in the code of professional conduct for the Ugandan bar, the none discriminatory approach to provision of legal representation especially for persons with disabilities. Advocacy and sensitization needs to be increased in order to translate some of the policies into actual facts happening in lives of persons with disabilities. Could things like court activism help in entrenching these values into our modern culture in Uganda? What can we practically do to? I throw that challenge back to you! I thank you for your attentive listening!

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http://Legal-dictionary.thefreedictionary.com/legal+representative. http://legal-dictionary.thefreedictionary.com/Legal+Representation 861 Legal services

8611 Legal advisory and representation services in the different fields of law
4

Ibid. Oxford English Dictionary

Professional ethics guidance note: RICS Professional Regulation and Consumer Protection department, February 2000
7
8

Ibid http://legal-dictionary.thefreedicationary.com/Legal+Representation National Objective XVI, Constitution of the Republic of Uganda Art 21(2) Art 28(3)(d) Art 28(3)(e) S.3 of Advocates Act Cap 267 SI 267-2 Regulation 2 Regulation 5 Regulation 6 Regulation 7 Regulation 8 Regulation 9 Regulation 10 Regulation 11 S.20, Persons with Disabilities Act, 2006 S.21(1) (a), Persons With Disabilities Act, 2006 http://en.wikipedia.org/wiki/Duty_of_confidentiality http://en.wikipedia.org/wiki/Solicitor-client_privilege Ss. 45 to 49 of Trial on Indictment Act Cap 23; S.11(1)(b) Contract Act 2010 S.12(1) Contract Act 2010 Order 32 Civil Procedure Rules SI 71-1

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Representing Persons With Mental Disorders and Disabilities in Immigration Proceedings, Michael Bossin and Laila Demirdache, Citizenship and Imigration, Ontario Bar Association, Vol 12 No. 2, September 2009, p.2 32 ibid
33

Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, 76th plen. Mtg., U.N. Doc A/Res/61/106, Preamble, paragraph (e).
34

Kerzner, Lana, Providing Legal Services to People with Disabilities, Arch Disability Law Centre, Toronto, April 2008, at page 3.
35

2000 SCC 28, at paragraph 30.