ethical representation of persons with disabilities

8/6/2019 Ethical Representation of Persons With Disabilities

http://slidepdf.com/reader/full/ethical-representation-of-persons-with-disabilities 1/16

Ethical Representation of Persons

with Disabilities: Advice from theTrenches

7/22/2011

CANDIA EMMANUEL

Presentation at Persons with Disability Workshop at Uganda

Christian University

Candia Advocates and Legal ConsultantsSocial Security House, Plot 4, Jinja RoadP.O Box 33629,Kampalawww.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 tribunals, boards, etc; and other legal and advisory

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



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 owncontext 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

3



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 paymentor 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 person’s 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 orimprisonment 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 person’s choice and at their own expense. The framework for the

legal representation of PWD’s is thus set in Article 21 of the Constitutionwhich 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, discovertheir 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 maybring an action against the violation of another person’s or group’s human

rights.

5



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 clients16; to be personally

responsible for client’s work17; nondisclosure of client’s information18; to

account for money of the client19; no personal involvement in a client’s

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

6



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 rulesprofessional 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, theconstitution 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 aclient 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

7



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 performfurther 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. I’d now like to turn and look at some of the

practical challenges and to Herein we shall look at PWD’s 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.

8



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 well-

dimensioned 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 couldgo 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 client’s 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

9



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 ortheir 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? Mustadvocates 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

client’s 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

10

http://en.wikipedia.org/wiki/Common_law

http://en.wikipedia.org/wiki/Solicitor-client_privilege

http://en.wikipedia.org/wiki/Solicitor

http://en.wikipedia.org/wiki/Barrister

http://en.wikipedia.org/wiki/Lawyer

http://en.wikipedia.org/wiki/Common_law


http://en.wikipedia.org/wiki/Solicitor

http://en.wikipedia.org/wiki/Barrister

http://en.wikipedia.org/wiki/Lawyer



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 lawyersown 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.

11



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

12



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 client’s mental health or community support workers, who

will already be familiar with how your client’s 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 Advocate‐client 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 demonpossessed 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 society’s 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

13



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 personswith 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!

14



1 http://Legal-dictionary.thefreedictionary.com/legal+representative.

2 http://legal-dictionary.thefreedictionary.com/Legal+Representation

3 861 Legal services

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

4

Ibid.5 Oxford English Dictionary

6 Professional ethics guidance note: RICS Professional Regulation and Consumer Protection department,

February 2000

7 Ibid8 http://legal-dictionary.thefreedicationary.com/Legal+Representation

9 National Objective XVI, Constitution of the Republic of Uganda

10 Art 21(2)

11 Art 28(3)(d)

12 Art 28(3)(e)

13 S.3 of Advocates Act Cap 267

14 SI 267-2

15 Regulation 2

16 Regulation 5

17 Regulation 6

18 Regulation 7

19 Regulation 8

20 Regulation 9

21 Regulation 10

22 Regulation 11

23 S.20, Persons with Disabilities Act, 2006

24 S.21(1) (a), Persons With Disabilities Act, 2006

25 http://en.wikipedia.org/wiki/Duty_of_confidentiality

26 http://en.wikipedia.org/wiki/Solicitor-client_privilege

27 Ss. 45 to 49 of Trial on Indictment Act Cap 23;

28 S.11(1)(b) Contract Act 2010

29 S.12(1) Contract Act 2010

30 Order 32 Civil Procedure Rules SI 71-1

http://legal-dictionary.thefreedictionary.com/legal+representative


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


http://legal-dictionary.thefreedicationary.com/Legal+Representation


http://en.wikipedia.org/wiki/Duty_of_confidentiality





http://en.wikipedia.org/wiki/Duty_of_confidentiality




31 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.232 ibid

33 Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, 76th plen. Mtg., U.N. DocA/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.

ethical representation of persons with disabilities

Documents