Consultation — The DIFC Courts’ Professional Conduct Code

Please note: Deadline for comments extended to March 22, 2012.

The Code of Professional Conduct for Legal Practitioners in the DIFC Courts (the “Court Code”) was introduced in September 2009. By registering to practise in the DIFC Courts, each individual legal practitioner and firm undertakes to act with integrity and independence in support of the Courts and the wider community that it serves. The Court Code is a mandatory code for all practitioners in the DIFC Courts.

The Courts are now sending out for consultation a non-mandatory code, the DIFC Professional Conduct Code, intended to apply to all lawyers licensed to practise law in the DIFC, including non-court lawyers. It is intended that it should set the standard for professional conduct of all lawyers who operate within the DIFC, whether they are licensed to conduct business in the DIFC or authorised to appear as an advocate before the DIFC Courts. This means that the proposed Code is applicable, not only to those who undertake contentious work in the DIFC Courts (whether such lawyers and firms are based in the DIFC or outside), but also applies to those non-contentious lawyers and firms who are licensed to conduct business in the DIFC. In due course the provisions of this draft non-mandatory code that affect court lawyers will be incorporated into the existing Court Code. For example, it is suggested that the following rules might be suitable for migration:

(a) The second sentence of Rule 18.1 which directly concerns behaviour in Court (“A Lawyer shall not voluntarily disclose to the Court any discussions between himself and the Lawyer acting for another party without the consent of the other Lawyer”)

 

(b) The whole of Rule 19 (“Allegations against another Lawyer”)

 

(c) Rule 20.2 (“A Lawyer who fails to honour the terms of a professional undertaking is prima facie guilty of professional misconduct”) provided it is made clear that the undertaking is given to the Court

 

(d) Rule 20.5 (“A Lawyer shall not contrive facts…”)

 

(e) Rule 9.3 (“A Lawyer shall cease to act for a client…”)

The DIFC Courts invite interested persons to make representations with respect to the draft Code until 4pm on March 22, 2012. The DIFC Courts value all comments received on the draft Code and will endeavour to take into account all comments received.

Comments are to be sent to the DIFC Courts Consultation email: Consultation@difccourts.ae


Please find below the foreword to the draft Code from Chief Justice Michael Hwang.

FOREWORD

This Professional Conduct Code for the DIFC (the “Code”) has been published by the DIFC Courts. It is intended that it should set the standard for professional conduct of all lawyers who operate within the DIFC, whether they are licensed to conduct business in the DIFC or authorised to appear as an advocate before the DIFC Courts. This means that the Code is applicable, not only to those who undertake contentious work in the DIFC Courts (whether such lawyers and firms are based in the DIFC or outside), but also applies to those non-contentious lawyers and firms who are licensed to conduct business in the DIFC.

The Code is not directly applicable in the sense that it has any legal or regulatory status. However, the failure by a DIFC lawyer or a DIFC firm to behave in accordance with the Code is likely to have consequences for that lawyer or firm in the event that such conduct becomes relevant to any case or hearing that comes before the DIFC Courts. The DIFC Courts will view the Code as a benchmark for behaviour and professional standards against which actual conduct will be measured. In due course, those provisions which affect litigation lawyers will be incorporated into the existing Code of Professional Conduct for Legal Practitioners (Practice Direction No 2 of 2009) and will become mandatory, while the provisions governing transactional lawyers will continue to be non-binding.

While the provisions of the Code are primarily drafted to cover transactions between DIFC lawyers, it is also intended that they should be read as applying to situations where DIFC lawyers interact with lawyers outside the DIFC, whether in Dubai or elsewhere. The term “Lawyer” when used in the Code to refer to another lawyer other than the lawyer whose conduct is being governed by the applicable Article should therefore be read accordingly where the context permits.

Some parts of the Code are accompanied by an explanatory commentary. Although the commentary does not form part of the relevant provision of the Code, it explains how that provision is likely to be interpreted.

The Code itself is based on established professional conduct rules drawn from different jurisdictions. It has been the subject of review by those who practice in the UAE. It has also been the subject of public consultation. The result is the Code, adherence to which will result in a proper standard of conduct which is the hallmark of the legal profession and vital to the administration of justice within the DIFC.


Michael Hwang SC
Chief Justice, DIFC Courts


Click the link below to view the proposed Code.

No longer available – Consultation period over.