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Legal Ethics in Afghanistan 1ST EDITION, 2015 AN INTRODUCTION TO LEGAL ETHICS IN AFGHANISTAN An Introduction to the Legal Ethics in Afghanistan First Edition Published 2016 Afghanistan Legal Education Project (ALEP) at Stanford Law School http://alep.stanford.edu [email protected] Stanford Law School Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305-8610 http://law.stanford.edu Protected by Creative Commons License (No Derivative Works) i ALEP – STANFORD LAW SCHOOL Authors Rohullah Azizi Megan Karsh Julian Simcock (Student Director, 2012-13) Will Havemann Jake Klonoski Nicolas Martinez Editors James Banker Jason Fischbein Vikram Iyengar Carrie Keller-Lynn Cassandra Kildow Ryan McIlroy Ryan Nelson Vina Seelam Faculty Director Erik Jensen Rule of Law Program Executive Director Megan Karsh Advisors Rohullah Azizi Rolando Garcia Miron AMERICAN UNIVERSITY OF AFGHANISTAN Contributing Faculty Editors Taylor Strickling Mehdi Hakimi Chair of the Department of Law Taylor Strickling, 2012-13 Hadley Rose, 2013-14 Mehdi Hakimi, 2014-2016 ii PREFACE & ACKNOWLEDGEMENTS Stanford Law School's Afghanistan Legal Education Project (ALEP) began in the fall of 2007 as a student-initiated program dedicated to helping Afghan universities train the next generation of Afghan lawyers. ALEP’s mandate is to research, write, and publish high-quality legal textbooks, and to develop a degree-granting law program at the American University of Afghanistan (AUAF). The AUAF Law Department faculty and Stanford Law School students develop curriculum under the guidance of ALEP’s Faculty Director and Executive Director with significant input from Afghan scholars and practitioners. In addition to An Introduction to Legal Ethics for Lawyers of Afghanistan (1st Edition), ALEP has published introductory textbooks about: The Law of Afghanistan (3rd Edition); Commercial Law of Afghanistan (2nd Edition); Criminal Law of Afghanistan (2nd Edition); Constitutional Law of Afghanistan (2nd Edition), International Law for Afghanistan (1st Edition); Law of Obligations of Afghanistan (1st Edition), and Property Law of Afghanistan (1st Edition). Textbooks addressing Legal Methods: Thinking Like a Lawyer, Legal Methods: Legal Practice, and a new version of Public International Law are forthcoming. Many of the ALEP textbooks have been translated into the native Dari and Pashto languages and are available for free at alep.stanford.edu. Additionally, ALEP has published professional translations of the Afghan Civil Code and Afghan Commercial Code, and business guides authored by Afghan students in the business law clinic. All are available on ALEP’s website. ALEP would like to acknowledge the individuals and institutions that have made the entire project possible. ALEP benefits from generous and dynamic support from the Bureau of International Narcotics and Law Enforcement (INL) at the U.S. Department of State. Current Stanford Law School Dean Elizabeth Magill, former Dean Larry Kramer, and Deborah Zumwalt, General Counsel of Stanford University and member of AUAF’s Board of Trustees, have provided important continuing support to ALEP. ALEP’s partnership has deepened over the last six years with AUAF’s extraordinarily supportive leadership: Dr. Sharif Fayez (Founder), Dr. Mark A. English (President), Dr. Michael Smith (former President), Dr. Timor Saffary (Provost), and AUAF’s Board of Trustees. The creation of An Introduction to Legal Ethics for Lawyers of Afghanistan (1st Edition) has been one of ALEP’s most challenging and rewarding accomplishments to date. The book represents nearly four years of work and the input of many devoted individuals. ALEP sought to produce a textbook that would be both highly informative about the development of legal ethics in Afghanistan, as well as practically useful to Afghan legal practitioners. The former objective required extensive scholarly research, while the latter required a deep knowledge of Afghan legal practice and the cultural norms that relate to the development of professional ethics. The Stanford-based and Kabul-based teams worked together closely on numerous drafts of the textbook in a quickly-evolving legal landscape that occasionally rendered the book dated before it could be published. There are many to thank, from the original authors in the 2013 graduating class (Julian Simcock, Will Havemann, Jake Klonoski, and Nicolas Martinez), to the committed editors of the 2015 and 2016 classes. Ryan Nelson deserves special mention for authoring part of Chapter 1, and Jason iii Fishbein for his final review of the complete textbook. We also thank Taylor Strickling and Mehdi Hakimi, who taught Legal Ethics at AUAF and provided invaluable feedback to ALEP’s authors. ALEP is indebted, as always, to our Curriculum Advisor, Rohullah Azizi, who played an even greater role in the creation of this book than usual. Rohullah reviewed the entire second draft of the textbook and then extensively edited text and authored new material. To do so, he conducted numerous interviews with advocates, judges, and administrators of the Afghanistan Independent Bar Association, to whom we are also grateful. Finally, Megan Karsh, Executive Director of the Rule of Law Program, deserves special acknowledgment for the innumerable tasks both large and small that she performed during a four-year journey in which she shepherded this textbook from inception to completion. ALEP looks forward to continuing the collaboration that made this book possible. Please share your feedback with us on our website, alep.stanford.edu. Erik Jensen, Faculty Director, ALEP Member, Board of Trustees of AUAF Palo Alto, California, August 2016 iv TABLE OF CONTENTS Chapter 1: An Introduction to Legal Ethics…………………………………………. 1 Chapter 2: The Legal Profession……………………………………………………... 19 Chapter 3: Legal and Regulatory Authorities on Ethics…..………………………... 50 Chapter 4: Competence……………………..…………………………………….…… 81 Chapter 5: Client Confidentiality…………………..….………………………..…...... 112 Chapter 6: Conflicts of Interest………………..……………………………………… 143 Chapter 7: Legal Malpractice and Disciplinary Action……………………………… 171 Glossary……………………………….……………………………………...…………. 206 v CHAPTER 1: AN INTRODUCTION TO LEGAL ETHICS 1. WHAT ARE LEGAL ETHICS? This textbook will serve as a broad overview of the topic of legal ethics in Afghanistan. Our focus will be on the most important issues facing Afghan advocates1 as they fulfill their professional responsibilities. After a discussion of what constitutes legal ethics and why they are important to study, we will look at the specific ethical rules that control the legal profession in Afghanistan. 1.1. Legal Ethics Definitions You may already be familiar with the concept of ethics, or you may have been exposed to the term in your personal life or religious studies. In general, ethics are the accepted principles and rules of conduct governing an individual or a group. Ethics arise out of broad values shared by a group of people. These broad values are called norms or morals. From these values, groups form general beliefs about how to achieve these norms. These beliefs are called ethical principles. Ethical principles are used to formulate ethical rules, or formal rules that tell people what they can or cannot do. By enforcing these rules, groups can try to get their members to live in accordance with accepted norms. The following is an example illustrating the relationship between a norm, an ethical principle, and a rule in an organization. Imagine that a group of friends who enjoy playing chess form a club. The purpose of the club is to create opportunities for members to play chess and to improve their skills. The members share a norm that everyone deserves an equal opportunity to play and learn, regardless of talent. They adopt an ethical principle that excessive competition is bad for creating a supportive educational environment. They adopt two rules: the club will not record members’ wins and losses and the club will not hold tournaments where individuals are taken out of the competition after a loss. By implementing these rules, the club can put its ethical principle into concrete terms in a way that helps the group act in accordance with their accepted norm. In this textbook, our discussion focuses on ethical rules that apply to individuals belonging to a certain group – people belonging to the legal profession. A simple definition of profession is an occupation or job requiring mastery of a complex set of knowledge and skills through formal education and/or practical training. Examples of common professions include law, medicine, and accounting. In professions, there are normally rules regarding eligibility and licensing requirements for practicing within the profession, and members are subject to specific rights and duties, standards of behavior, and disciplinary actions for violations of such standards. Anyone not licensed may not legally perform the services or acts provided by the profession. Note that this can create a monopoly, allowing some professions to charge high rates for their services. Most professions have a governing organization or board that oversees licensing of members and regulation of the profession. 1 Although the Advocates’ Law uses the term “advocates” for those who are practicing law, the word will be used interchangeably throughout this book with “lawyer” and “attorney,” as this is common terminology in the English language to reference legal practitioners. 1 Two key terms and concepts related to a profession are a professional and professionalism. Simply stated,
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