MARCO CONCEPTUAL

In the event that there is a complaint against a lawyer concerning his/her duties, a criminal procedure may be envisaged according to the Somali Penal Code of 1962. Article 299 of the Penal Code expressly provides that an advocate who is not faithful to his professional duties, and who causes injury to the interests of the party defended, assisted or represented by him before the judicial authorities, is punishable with imprisonment of one to three years, and with a fine of no less than 50,000 SLSH. According to Art.299 para 2 the punishment may be increased in the following cases:

• If the offender has committed the act in collusion with opposite party;

• If the act was committed to the prejudice of an accused person. (According to Art.299, para 3, if the prejudice was committed against a person accused of a crime punishable with the death penalty or imprisonment for life, the punishment for the defence lawyer is increased from three to ten years and fine of no less of 10,000 SLSH).

Additionally, Art.300 of the Penal Code provides that an advocate who, before the judicial authorities, places his professional services or his advices at the disposal of the opposite party, is punishable with imprisonment from six months to three years and a fine of no less 1,000 SLSH.

According to para 2 of Art.300 of the Penal Code, a punishment of up to one year and a fine from 500 to 5,000 SLSH may apply if the advocate or the adviser, having assisted or represented a party undertakes, without the consent of the latter and in the same proceedings, the defence of or the function of adviser to the opposite party.

Further, Art.301 of the Penal Code punishes the corruption of the attorney, stating that “the attorney who

pretends to have influence on a judge or with the Office of the Attorney General or with a witness, expert or interpreter receives or causes money or any other benefit to be given or promised to himself or to a third party by his client on the pretext that he has to procure the favor of a judge or of the Office of the Attorney General or of the expert or interpreter, or that he has to remunerate them, is punishable with imprisonment from two to eight years and a fine of no less of 10,000 SLSH.”

It should be noted that conviction under Articles 299, 300 (para 1) and 301 entails interdiction from public offices (Art.302 CP).

In addition to the criminal responsibility, complaints against defence lawyers for the performance of their duties entail a disciplinary procedure according to Principle 13.37 of the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems69_{: “Disciplinary complaints against Legal Aid providers} should be promptly investigated and adjudicated in accordance with professional codes of ethics before an impartial body and subject to judicial review”.

According to the UN Basic Principles on the Role of Lawyers, 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 (point 27). 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 light of these principles (point 29).

Questions:

1. What can a client do if he has a complaint against his lawyer?

2. What is the competent body to deal with a disciplinary offense of a lawyer? 3. Could the misconduct of a lawyer be settled outside the judiciary system?

4. Does a lawyer need a lawyer to represent him/her during the disciplinary procedure?

69 Accordingly the UN Basic Principles on the Role of lawyers provides that: “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” (Point 28).

Learning objectives Participants will:

• become aware of the variety of Legal Aid Schemes;

• understand the present Legal Aid system in Somaliland and • try to identify the best Legal Aid model for Somaliland.

Domestic laws and practices may vary significantly, while generally maintaining conformity with international human rights standards due to the ‘margin of appreciation’ doctrine. This presumes that it is in the competence of national governments to decide how to arrange Legal Aid provision in respective jurisdictions. Rules governing ‘mandatory’ and ‘discretionary’ cases can be derived either from international obligations binding a state, or its domestic law. Ideally, the latter should be in conformity with the former, however this is not always the case.

Services may include legal advice, the preparation of relevant documents, or full representation, including participation of the lawyer in trial proceedings. The type of services provided may vary, and may depend on the stage of the criminal procedure, the gravity of the charge(s), and the individual characteristics of the recipient. Thus, in many systems (for example in Canada, the UK and the Netherlands), legal advice may be received relatively easily, including online and telephone counseling services, whereas retention of a lawyer for representation in court requires an application and testing procedure.