As with judges, a code of professional conduct for lawyers is an essential tool for the maintenance of the integrity of the profession and, consequently, the quality of access to justice in a country. The UN Basic Principles on the Role of Lawyers state that “[c]odes of professional conduct shall be established by the legal profession through its appropriate organs, or by legislation”.{{1}}
In order to uphold the integrity of the legal profession lawyers must be held accountable in fair proceedings before independent bodies, for breaches of established standards of professional conduct.
Complaints against lawyers for misconduct in their professional capacity should be “processed expeditiously and fairly under appropriate procedures.”{{2}} They should be decided “in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession.”{{3}}
International professional standards prescribe that the body responsible for investigating and adjudicating on allegations of misconduct by lawyers should be independent and impartial, and ensure that proceedings are conducted fairly and following proper procedure.{{4}} A lawyer accused of professional misconduct must have “the right to be assisted by a lawyer of their choice”.{{5}} He or she should be entitled to notice of the complaints against him or her and have adequate time and facilities to prepare and present a defence. Any sanction against a lawyer for misconduct should be proportionate. The lawyer should be entitled to independent judicial review of the disciplinary proceedings.{{6}}
The duty of lawyers to observe professional ethics is enshrined in the Transitional Constitution.{{7}} However, according to the information available to the ICJ, there is currently no code of professional ethics or conduct for lawyers in South Sudan.{{8}}
As regards professional discipline, the Advocates Act 2003 sets out a procedure for the discipline of lawyers. As noted above, provisions of the Act were either never implemented or fell into disuse. Moreover, the provisions of the Act regarding the procedure for disciplining lawyers were not in line with international standards, as they did not establish and ensure that the lawyer under investigation had an opportunity to put forward a defence and be heard. In addition, the body responsible for adjudicating complaints against lawyers, as foreseen under the Advocates Act but which appears never to have been established in practice, would have been subject to the influence, if not outright control, of the Minister of Justice and the judiciary.{{9}}
[[1]]1. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 26;”]
Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(m).”]
Codes of professional conduct for lawyers shall be established by the legal profession through its appropriate organs, or by legislation, in accordance with national law and custom and recognized international standards and norms.
[/expand] The International Bar Association (IBA) Standards for the Independence of the Legal Profession [expand title=”(Standard 22)”]
There shall be established rules for the commencement and conduct of disciplinary proceedings that incorporate the rules of natural justice.
[/expand] reserve this task for lawyers’ associations. See Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 102.”]
The Bar Association shall establish and enforce in accordance with the law a code of professional conduct of lawyers, Such a code of conduct may also be established by legislation.
[/expand][[1]]
[[2]]2. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27;”]
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(n).”]
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice
[/expand][[2]]
[[3]]3. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 29;”]
All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(p).”]
All disciplinary proceedings shall be determined in accordance with the code of professional conduct, other recognized standards and ethics of the legal profession and international standards.
[/expand][[3]]
[[4]]4. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27″]
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
[/expand] and [expand title=”29;”]
All disciplinary proceedings shall be determined in accordance with the code of professional conduct and other recognized standards and ethics of the legal profession and in the light of these principles.
/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(n)-(o);”]
(n) Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
(o) Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or even before a judicial body, and shall be subject to an independent judicial review
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 106;”]
Disciplinary proceedings shall be conducted with full observance of the requirements of fair and proper procedure, in the light of the principles expressed in this Declaration.
[/expand] International Bar Association (IBA) Standards for the Independence of the Legal Profession, [expand title=”Standard 22.”]
There shall be established rules for the commencement and conduct of disciplinary proceedings that incorporate the rules of natural justice.
[/expand][[4]]
[[5]]5. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 27;”]
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(n).”]
Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice.
[/expand][[5]]
[[6]]6. UN Basic Principles on the Role of Lawyers, [expand title=”Principle 28;”]
Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review.
[/expand] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, [expand title=”Article I(o);”]
Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or even before a judicial body, and shall be subject to an independent judicial review.
[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 105 [expand title=”Article 105;”]
An appeal shall lie from a decision of the disciplinary committee to an appropriate appellate body.
[/expand] International Bar Association (IBA) Standards for the Independence of the Legal Profession , [expand title=”Standard 24″]
Disciplinary proceedings shall be conducted in the first instance before a disciplinary committee of the appropriate lawyers’ association. The lawyer shall have the right to appeal from the disciplinary committee to an appropriate and independent appellate body.
[/expand][[6]]
[[7]]7. Transitional Constitution, [expand title=”S. 137(2).”]
Advocates shall observe professional ethics, and promote, protect and advance the human rights and fundamental freedoms of citizens.
[/expand][[7]]
[[8]]8. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 51.[[8]]
[[9]]9. International Commission of Jurists, South Sudan: An Independent Judiciary in an Independent State? (December 2013), p. 49-51.[[9]]
