The Lawyer’s Independence: A Universal Principle of Disparate Meanings – Part I

Part I – A Critical Analysis of Domestic Legal Ethics

Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.1Basic Principles on the Role of Lawyers, Art. 14, Adopted by the Eighth United Nations Congress on the Prevention of Crimes and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.  

CodeConductTilesThe lawyer’s independence is a principle universally recognized as one of the cornerstones of the legal profession the world over. As can be seen from the above quote, lawyers must be independent and, at all times, act freely if they are to carry out their professional functions, which include, inter alia, advocating for the advancement of human rights, protecting the rights of their clients, and fostering the administration of justice. Virtually all national and international codes of professional conduct codify the lawyer’s independence. However, a lawyer’s understanding of the principle of “independence” and the ethical duties deriving therefrom, differs depending on his or her legal tradition.

In this blog series I will attempt to clarify what it means to be “independent” in both the national and international context. In this first post, I will give a brief treatment of a lawyer’s role in the civil and common law traditions before delving into how the principle of independence is interpreted in the respective systems. Untangling the web of the lawyer’s various duties in safeguarding independence requires an appreciation of how it is interpreted in the various legal systems. Similarly, any analysis or understanding of ethical principles cannot be done without taking into account the functions of the lawyer within a given legal system. The following post will give a brief overview of independence in the international criminal tribunals.

But first, a few vignettes to set the stage.

I begin with a recent quote from Case 002/01 before the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) – an exquisite illustration of a lawyer explicating his understanding of “independence” in the Cambodian legal system – a civil law system modeled after the French legal tradition.

Even with these clear remarks, the Chambers still insistently asked for clarification and compelled me to be present in the courtroom, even though I tried to explain the Chambers of Law on the Bar which at article 58 states ‘lawyers shall determine by their own conscience and with the consent of the client what issues to raise in order to defend the interest of the client. Similarly, a previous decision by the Bar Association of the Kingdom of Cambodia (‘BAKC’) concerning a Cambodian lawyer practicing at the ECCC held that ‘a professional lawyer is independent and free to serve the judicial sector.’ This means in their professional work, lawyers are independent in their technical work in accordance with their professional rules and the applicable provisions. In order ‘to protect the interest of his/her duties in the interest of his/her client the lawyer shall consult, accept and listen to his client’s instructions. The lawyer is a judicial assistant to society, not to court.'”2Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Response to Mr. Son Arun to the Oral Decision by the Supreme Court Chamber Regarding the Events of 17 November 2015, 18 November 2015, F30/13, para. 4, citing Kingdom of Cambodia Law on the Bar, Art. 58; Letter from the Bar Association of the Kingdom of Cambodia to the President of the Trial Chamber, 1504/BAKC/15, 13 July 2015, E330/1/1.

And now the facts and context that led up to this lawyer’s actions and response.

On 17 November 2015, the Case 002/01 appeal hearings at the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) were cut short. At the beginning of the hearing, a bewildered Supreme Court Chamber questioned why NUON Chea’s International Co-Lawyer, Victor Koppe was absent.3Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Transcript, 17 November 2015, F1/4.1 (“Case 002 Appeal Hearing”), p. 1-2. In a lengthy speech, NUON Chea explained that he and his Co-Lawyers would not participate in the proceedings.4Id., p. 17. He complained that the Supreme Court Chamber was biased: it dismissed all of his new evidence and refused to call his appeal witnesses without reasoning.5Id., p. 16-17. He instructed his National Co-Lawyer, Son Arun, “not to participate in these proceedings any further, and not to respond to any kind of questions by the Judges or the other Parties.”6Id., p. 17. Son Arun maintained that he must rely on his conscience and listen to client’s instructions.7Id, p. 21. A short recess was called. When the proceedings resumed, Son Arun did not return to the courtroom and the Supreme Court Chamber received a signed waiver of NUON Chea’s right to be present in court.8Id., p. 32. After deliberation, the Supreme Court Chamber ruled that:

it is not for the Accused to decide whether or not to be present in the courtroom. He has not only the right to be present but also the obligation to be present subject to the leave of the Chamber. Mr. Son Arun is required to be present in the courtroom even if he does not wish to make submissions on the case and if he chooses to absent himself, he will be held in contempt.9Id., p. 37.

The Supreme Court Chamber also held that NUON Chea’s Co-Lawyers’ conduct “may well constitute misconduct that could give rise to disciplinary sanctions.”10Id., p. 39. The Supreme Court Chamber then instructed the Defence Support Section to appoint a Standby Counsel for NUON Chea and to report to the Chamber on the appointment as soon as possible.11Id.

Two days later, the Supreme Court Chamber issued an Interoffice Memorandum confirming the appointment of Standby Counsel for NUON Chea.12See Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Interoffice Memorandum re: Follow-up to Supreme Court Chamber’s Instruction to Appoint Standby Counsel for NUON Chea, 19 November 2015, F30/15. The Supreme Court Chamber also requested Victor Koppe to file submissions regarding his failure to attend the appeal hearing.13Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Decision Requesting Submissions From Mr. Victor KOPPE Regarding His Failure to Attend the Appeal Hearing, 19 November 2015, F30/14. Son Arun responded to the Supreme Court Chamber’s decision to appoint Standby Counsel, stating: “I would like to clarify that I will sit in the courtroom in future appeal hearings in Case 002/01 since the Chamber compels me to do so. However, I am obliged to follow my client’s instruction not to respond to any kind of questions by the judges or the other parties.”14Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Response of Mr. Son Arun to the Oral Decision by the Supreme Court Chamber Regarding the Events of 17 November 2015, 18 November 2015, F30/13, para. 9.

On 23 November 2015, Victor Koppe responded to the Supreme Court Chamber explaining that he did not attend the hearing because of NUON Chea’s instructions.15Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Victor Koppe’s Response to the Supreme Court Chamber’s Request for Explanations for his Absence From the Appeal Hearing, 23 November 2015, F30/14/1, para. 8. He also explained that he considered the trial and appeal before the ECCC to be deeply unfair, forcing him to consider “withdrawing as International Co-Lawyer in the appeal in Case 002/01, but also as International Co-Lawyer from Case 002/02.”16Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Victor Koppe’s Response to the Supreme Court Chamber’s Request for Explanations for his Absence From the Appeal Hearing, 23 November 2015, F30/14/1, para. 5. In support of this contention, he referred to an email he sent to the Senior Legal Officer of the Supreme Court Chamber. In the e-mail, he asked the Senior Legal Officer whether it was possible for an accused to withdraw an appeal, as “the outcome of the appeal proceedings … has now become irrelevant to [NUON Chea].”17Id., para. 3. He complained that the Supreme Court Chamber refused to “summons Heng Samrin as a witness” and would not “admit into evidence the majority of the transcripts of film footage made by renowned British filmmaker Robert Lemkin and Cambodian journalist Thet Sambath.”18Id. After detailing his complaints, Victor Koppe ultimately informed the Supreme Court Chamber that he “decided not to withdraw as Nuon Chea’s International Co-Lawyer, despite [his] deep conviction that a fair trial at the ECCC … is absolutely impossible, and despite [his] deep conviction that the ECCC is indeed, and always will be, a complete farce.”19Id., para. 10.

This was not the first time that Defence teams have boycotted and walked out of hearings at the ECCC. In 2014, the NUON Chea and KHIEU Samphan Defence boycotted trial hearings on the clients’ instructions. NUON Chea gave an ultimatum to the Trial Chamber: either the Judges step down while his disqualification motions were pending, or he would instruct his Co-Lawyers to leave the courtroom and boycott all further hearings.20Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Transcript, 17 October 2014, E1/242.1, p. 73. KHIEU Samphan explained that his Co-Lawyers did not have the time or resources to participate in the proceedings while preparing his appeal brief.21Id., p. 79.

After multiple failures from the Defence to attend hearings and Trial Management Meeting, the Trial Chamber warned the Case 002 Defence teams that their conduct amounted to an obstruction of the proceedings.22Case of NUON Chea et al., 002/19-09-2007-ECCC/SCC, Memorandum re: Warning to Counsel for NUON Chea and KHIEU Samphan, 24 October 2014, E320, para. 6. Because KHIEU Samphan’s position and instructions to his Co-Lawyers remained unchanged, the Trial Chamber re-appointed his Co-Lawyers as Court Appointed Counsel.23Case of NUON Chea et al., 002/19-09-2007-ECCC/SCC, Decision on the Appointment of Court Appointed Counsel for KHIEU Samphan, 21 November 2014, E320/2. The re-appointment required the Co-Lawyers to actively participate in the case and attend all court hearings, regardless of the client’s instructions.24Id., para. 17. The Trial Chamber ordered the Co-Lawyers not to follow the client’s instructions where they “lead or are meant to lead to an obstruction of the proceedings or are against the interests of justice.”25Id., para. 18.

On 21 November 2014, the Co-Lawyers for KHIEU Samphan failed to appear before the Trial Chamber.26Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Decision on the Appointment of Court Appointed Standby Counsel for KHIEU Samphan, 5 December 2014, E321/2, para. 11. Two days later, the Co-Lawyers for KHIEU Samphan informed the Trial Chamber that they would not accept the appointment as Court Appointed Counsel as this would violate their independence.27Id. The Trial Chamber found that the KHIEU Samphan Defence’s conduct obstructed the proceedings.28Id., para. 13. It then appointed one International and one National Court Appointed Standby Counsel for KHIEU Samphan.29Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Decision on the Appointment of Court Appointed Standby Counsel for KHIEU Samphan, 5 December 2014, E321/2.

These events are not unfamiliar to international criminal tribunals. At the International Criminal Tribunal for the former Yugoslavia (“ICTY”), Esad Landžo sought to fire his Lead Counsel on the ground that there was a conflict of interest between him and his Lead Counsel.30Prosecutor v. Delalić et al., IT-96-21-T, Order on the Request by the Accused, Esad Landzo for Withdrawal of Lead Counsel, 21 April 1997. At the International Criminal Tribunal for Rwanda (“ICTR”), Jean-Bosco Barayagwiza instructed his Counsel not to represent him in any aspect during the trial, complaining that he would not receive a fair trial from a Tribunal dependent on a “dictatorial anti-hutu regime in Kigali.”31Prosecutor v. Barayagwiza, ICTR-97-19-T, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, para. 1. At the Special Court for Sierra Leone (“SCSL”), Charles Taylor instructed his Counsel not to represent him during the trial, complaining that his legal team did not have adequate time and facilities for his trial.32Prosecutor v. Taylor, SCSL-2003-01-T, Transcript: Prosecution Opening Statement, 4 June 2007, p. 244-50.

QuestionMarkSo just how independent are lawyers? To whom do they answer? Are they required to faithfully follow their client’s instructions even if such instructions may interfere with the course of the proceedings and thus, purportedly interfere with the administration of justice? These questions may seem easy to answer. But when considering that disparate codes of professional conduct invoke disparate interpretations, there are often no fast and hard rules to guide even seasoned lawyers. There is always the dilemma of robustly advocating the client’s cause as instructed without running afoul of one’s professional code or suffering the wrath of judicial discontent (a price occasionally paid-whether justified or not-for championing the rights of the doomed, the damned and, the despised).

Brief Observations on the Role of a Lawyer in Civil and Common Law Jurisdictions

Before delving into the principle of independence, it is worth making some brief observations on the differences between the role of a lawyer in the civil law and common law systems. While the codes of ethics discussed below share many common principles such as independence, confidentiality, and loyalty, these principles are nuanced and shaped by the legal system in which the lawyer operates. Context matters.

In the civil law inquisitorial system, criminal trials are dominated by judges. In France, Investigating Judges are responsible for conducting the investigations, including, inter alia, interrogating the suspect and witnesses, arranging confrontations between witnesses and the accused, inspecting the crime scene, and taking any other “steps … which seems to them necessary for the discovery of the truth.”33French Code of Criminal Procedure, Art. 82 available in English at http://www.legifrance.gouv.fr/content/download/1958/13719/version/3/file/Code_34.pdf. At trial in France, the Presiding Judge has the discretionary power to “take any measure he believes useful for the discovery of the truth,” including summoning and questioning witnesses.34Id., Art. 310. The Defence lawyer’s role in France is mainly limited to making investigative requests to the Investigative Judge,35Id., Art. 82-1. suggesting questions during the trial to be put to witnesses or accused by the Presiding Judge,36Id., Art. 312. presenting arguments during trial, and overall, ensuring that the accused’s fair trial rights are not being infringed.37Id., Art. 346.

In the Netherlands and Germany, criminal procedure is modified from the pure inquisitorial system in France. In the Netherlands, the Public Prosecutor is responsible for conducting the investigations.38Dutch Code of Criminal Procedure, Section 10 available in English at http://www.ejtn.eu/PageFiles/6533/2014%20seminars/Omsenie/WetboekvanStrafvordering_ENG_PV.pdf. The Examining Magistrate has supervisory powers over the criminal investigation and can control the work of the Public Prosecutor.39Id., Section 170. For some investigative acts such as wiretapping, the Public Prosecutor must seek authorization from the Examining Magistrate.40Id., Section 261(l). The Defence may also submit investigative requests to the Examining Magistrate.41Id., Section 183. The Examining Magistrate is responsible for the completeness and continuity of the investigation42Id., Section 185. and may question witnesses or experts when he or she finds it necessary.43Id., Sections 180-183. At trial, the Presiding Judge of the District Court may order the Public Prosecutor to have specific witnesses and experts called to appear in court.44Id., Section 263. The Defence and the Prosecutor may submit questions at trial to be put to the witnesses by the Presiding Judge.45Id., Sections 271-72.

In Germany, there is no Investigating Judge and the Public Prosecutor is responsible for conducting the investigation.46German Code of Criminal Procedure, Art. 170(1) available in English at http://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo.html. At trial, similar to the Netherlands, the Defence must apply to the Presiding Judge to have witnesses summoned or evidence produced at trial.47Id., Art. 219(1).

By contrast, in the common law system, trials are party driven. The judges act as referees who oversee the conduct of proceedings and the admission of evidence. This requires Defence lawyers to be much more active than in the civil law system. Common law lawyers are responsible for meeting with the client, gathering evidence, conducting examination of witnesses, and presenting arguments at trial. As advocates for the client’s cause, lawyers “zealously assert the client’s position under the rules of the adversary system.”48American Bar Association Model Rules of Professional Conduct (“ABA Rules”), Preamble, para. 2. The lawyer’s role differs somewhat between the United States (“US”) and the United Kingdom (“UK”). In the US, there is no division of legal services; the Defence lawyer is responsible for all aspects of representation. In the UK, the provision of legal services is split between barristers and solicitors. Barristers specialize in courtroom advocacy whereas solicitors work directly with clients and are providing legal advice. In contrast to the US lawyer, who takes instructions from the client,49ABA Rule 1.4. barristers primarily act on the instructions of a solicitor rather than dealing with clients directly.50See Bar Standards Board Code of Conduct, rC29.

“Independence” in the Civil Law Tradition

A Lawyer’s Independence in France

In France, lawyers have a central position in the administration of justice. They are intermediaries between a person answerable to the law and the courts. They are considered auxiliaries of justice and key players in the common practice of law.51French National Internal Regulations on the profession of an advocate (Règlement Intérieur National de la profession d’avocat) (“RIN”), Art. 6.1. Article 6.2 of the RIN sets the missions of a lawyer. Under Article 6.2, a lawyer must, inter alia, assist and represent clients in court and provide clients with advisory services and assistance. When carrying out these tasks, lawyers are bound by fundamental principles and must ensure that their independence is not jeopardized.52Id., Art. 6.2.

In France, a lawyer (avocat), is not an agent of the client. As John Leubsdorf explains, the French avocat:

is not a spokesman, a representative, an agent, a hired gun. He does not act for money. He is an independent person who lends his eloquence and credibility to someone in whose cause he believes, and who needs his help. He sometimes vouches for clients by declaring his belief in their cause, which is precisely what a lawyer in the United States [or England or Australia] is not supposed to do…. Indeed, French authors speak of the love an avocat may feel for a client…. Such an avocat may continue to press the client’s cause for years, even after the client dies, or again may quarrel and break up with the client, as happened with Labori and Dreyfus when Dreyfus accepted a Presidential pardon.53John Leubsdorf, Man in His Original Dignity: Legal Ethics in France 15 (2001).

In France, “[t]he Profession of lawyer is a liberal and independent profession in whatever form it is practiced.”54RIN, Art. 1.1. (unofficial translation). Under Article 1.3 of the RIN, lawyers “shall exercise [their] functions with … independence….”55unofficial translation. The RIN, phrased in general terms, do not further define a lawyer’s ethical duty of independence or provide guidance on its application in practice. Christian Charrière-Bournazel, former Bâtonnier of the Paris Bar Association and President of the National Council of Bars, provides one interpretation:

While freedom implies the right for everyone to exercise their personal rights in their own interests limited only by the requirements of the law, independence for a lawyer is charged with ethical content. The independence of a lawyer does not mean the liberty to exercise a right, but the willingness to always apply sufficient distance in order to put acts the lawyer considers useful in relation with the law and ethical rules.56Table ronde « Indépendance de l’avocat » : Intervention du Président Charrière-Bournazel au 56è Congres de l’Union International des Avocats, Dresde, 1 November 2012 available at http://cnb.avocat.fr/Table-ronde-Independance-de-l-avocat-Intervention-du-President-Charriere-Bournazel-au-56e-Congres-de-l-UIA-Dresde-1er_a1398.html . (unofficial translation).

According to Christian Charrière-Bournazel, acting with conscience means that one is acting in complete independence, guided only by a strong sense of values: law, duty, and honor.57Id.

While the RIN do not explicitly define independence, the contours of a French lawyer’s independence can be gleaned by other ethical rules such as those covering conflicts of interest, confidentiality, and acceptance and withdrawal of cases. Generally, the French lawyer must be independent from external pressures such as the interests of third parties, and in stark contrast to the common law system discussed below, independent from the client.

Foremost, the French lawyer must first be independent from external influences. Article 16.2 of the RIN prohibits a lawyer from participating in a “network” (a formal or informal organization of one or more lawyers and one or more members of non-legal professions) if it compromises the lawyer’s independence. For example, the lawyer’s independence will be compromised if the lawyer agrees “to being in a subordinate position or subject to the supervision of [his or her] professional activities by other non-lawyer professionals,” or “arrangements which lead to the distribution or sharing of income or to a distribution of remuneration.”58Id., Art. 16.2. French lawyers are also independent from the state. A French lawyer is free to accept a case against the state or to represent the state and the same goes for any administration.59Table ronde « Indépendance de l’avocat » : Intervention du Président Charrière-Bournazel au 56è Congres de l’Union Internationale des Avocats, Dresde, 1 November 2012 available at http://cnb.avocat.fr/Table-ronde-Independance-de-l-avocat-Intervention-du-President-Charriere-Bournazel-au-56e-Congres-de-l-UIA-Dresde-1er_a1398.html. See also John Leubsdorf, The Independence of the Bar in France: Learning from Comparative Legal Ethics in Roger C. Cramton & John J. Barceló (eds), Lawyers’ Practice and Ideals: A Comparative View 279 (2001). A French lawyer must also be independent from any magistrate.60See Table ronde « Indépendance de l’avocat » : Intervention du Président Charrière-Bournazel au 56è Congres de l’Union Internationale des Avocats, Dresde, 1 November 2012 available at http://cnb.avocat.fr/Table-ronde-Independance-de-l-avocat-Intervention-du-President-Charriere-Bournazel-au-56e-Congres-de-l-UIA-Dresde-1er_a1398.html.

Conflicts of interest rules also protect the French lawyer’s independence. Article 4.1 of the RIN provides that the lawyer “shall, unless the parties agree, cease to act for all the clients concerned when a conflict of interest arises, when confidentiality risks being breached or when the lawyer’s independence risks being compromised.” When there is a serious risk of a conflict of interest in the future lawyers are obliged to first obtain the agreement of all affected parties before agreeing to act for more than one party.61RIN, Art. 4.1. Article 4.2 provides that a conflict of interest exists if the lawyer is unable to provide full and accurate information without compromising the interests of one or more parties, or if the lawyer is forced to present a case different from the one which would have been chosen if the interests of one party were to be represented. Unlike the common law rules on conflict of interests, the RIN do not provide concrete situations in which a conflict may limit a lawyer’s independence or explain whether conflicts can be waived. Maya Goldstein Bolocan explains that while actual conflicts are not waivable, potential conflicts may be waived.62Maya Goldstein Bolocan, Professional Legal Ethics: A Comparative Perspective, ABA CEELI Program 44 (2002). Phillip Genty explains that in practice “the determination of whether a conflict of interest exists is entirely the attorney’s, and client consent to waive a conflict is neither solicited nor honored.”63Philip M. Genty, The Challenges of Developing Cross-Cultural Legal Ethics Education, Professional Development, and Guidance for the Legal Professions, 1 J. Prof. L. 37, 42 (2011).

Closely related to the French lawyer’s duty to avoid conflicts of interest is the duty of professional secrecy.64For a more in-depth discussion of the civil law duty of professional secrecy, see my prior blog post: Attorney-Client Privilege – Part II: Foundation in National Systems.  In France, Article 66-5 of Law No. 71-1130 of 31 December 1971 on the reform of certain judiciary and legal professions provides that:

In all areas, whether with regard to advice or in the matter of defense, written opinions sent by a lawyer to his/her client or intended for the latter, correspondence between a client and a lawyer, between a lawyer and other lawyers with the exception, for the latter, of correspondence marked “official”, meeting notes and generally all documents held in a file are covered by professional secrecy.

Article 2.2 of the RIN also provides that professional secrecy covers communications exchanged between the lawyer and his or her colleagues. In contrast to the common law system, French lawyers are not obligated to share with the client correspondence between the lawyer and his or her colleagues. This is because the privilege of professional secrecy in France belongs to the lawyer and not the client.65See French Code of Criminal Procedure, Art. 109-1 available in English at http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006071154&dateTexte=20051213; French Criminal Code, Art. 226-13 available in English at http://www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006070719&dateTexte=20060701. See also Attorney-Client Privilege – Part II: Foundation in National Systems. A French lawyer is also not obligated to allow his client to review copies of documents on the Case File and is forbidden to provide his client copies of these documents. The Chambre criminelle of the Cour de cassasion held:

[A]lthough a lawyer is authorised to receive copies of the investigation file and may examine these in the presence of his client in order to prepare his defence, he may not, on the other hand, entrust his client with these documents which he received ‘exclusively for his own use’ and which must remain subject to the requirement of confidentiality of the investigation.66Cass, crim., 30 June 1995, no. 95-13035.)(unofficial translation).

The provisions on withdrawal also fortify a French lawyer’s independence. In contrast to the common law system, French lawyers are permitted to withdraw in the middle of representing a client provided the lawyer provides notice to the client. Article P.34 of the Paris Bar Association Code of Ethics states: “[the lawyer] has the right to stop his mission, he will need to inform his client in a timely manner….”67Paris Bar Association Code of Ethics, Art. P.34 available at http://codedeonto.avocatparis.org/acces-article (unofficial translation). When an attorney seeks to withdraw from a case, he or she must make sure that the client’s interests are not jeopardized and should do his or her utmost to allow the client to acquire further representation.68See Paris Bar Association Code of Conduct, Art. P.34.1 « [L’avocat] … est en droit d’interrompre sa mission, à charge d’en prévenir son client en temps utile pour lui permettre d’assurer la défense de ses intérêts. » See also Table ronde « Indépendance de l’avocat » : Intervention du Président Charrière-Bournazel au 56è Congres de l’Union Internationale des Avocats, Dresde, 1 November 2012 available at http://cnb.avocat.fr/Table-ronde-Independance-de-l-avocat-Intervention-du-President-Charriere-Bournazel-au-56e-Congres-de-l-UIA-Dresde-1er_a1398.html (unofficial translation).

However, a lawyer who has been appointed by his or her bâtonnier or by the President of the Cour d’assises cannot refuse the case unless he or she can show good cause. Article 9 of the 31 December 1971 Law states: “The lawyer regularly appointed by the bâtonnier or by the President of the Cour d’assises cannot refuse his ministry without approval of his excuses or impediment by the bâtonnier or by the President.69Loi no. 71-1130 du 31 décembre 1971 portant réforme de certaines professions judiciaires et juridiques, Version consolidée au 04 décembre 2015 (unofficial translation). To refuse a case would violate Article 317 of the French Code of Criminal Procedure, which states: “The presence of a defence counsel with the accused is compulsory during the hearing.”70See Cass. civ., 15 November 1989, no. 88-11413; French Code of Criminal Procedure, Art. 317 available in English at http://legifrance.gouv.fr/Traductions/Liste-des-traductions-Legifrance.

In one case before the Cour d’assises of the Pas-de-Calais, both lawyers representing a client decided to step out of the hearing and withdraw (their client also demonstrated his intention to step out of the hearing). One lawyer was appointed by the President of the Cour d’assises, while the other was hired by the client himself. The Cour de cassation considered that the appointed lawyer could not refuse to represent his client and could not leave the courtroom, especially since the president refused to approve the reasons he put forward for withdrawal.71Cass. crim., 24 June 2015, no. 14-84221. The Cour de cassation did not prevent the other lawyer from withdrawing.72Id. One can infer from this decision that generally, French lawyers are independent from the client and may withdraw in the middle of a case. However, if the lawyer was appointed to the case by the President of the Cour d’assises or by the batônnier, the lawyer is not free to refuse to represent a client or withdraw from the case.

Although independence from the client is considered “one of the cornerstones of French legal ethics[,]”73Felicity Nagorcka, Michael Stanton & Michael Wilson, Stranded between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice, 29 Melb. U. L. Rev. 448, 465 (2005). there seems to be a disparate view among practitioners and academics as to the implementation and modalities of a French lawyer’s independence.

French practitioners have advised that in France, the lawyer has a duty to advise the client as to what he or she believes is the best strategy for the representation. The lawyer cannot go against the client’s instructions in the sense that he or she cannot implement a strategy different than the one ordered by the client. Because the lawyer is independent from the client, the lawyer may withdraw from the case if the client’s instructions go against the lawyer’s conscience or what he or she believes is best for the client. According to the Bar Association of Val d’Oise, a lawyer maintains intellectual independence from the client by “liberty of his or her argumentation before the tribunals, which may differ from what the client proposes, and it is for him [lawyer], to ensure the best defense possible.”74Avocats du Val d’Oise, Déontologie, available at http://www.avocat-95.fr/index.php?page=article&article=9&PHPSESSID=b527c2df7928987a4288613572b00d67 (unofficial translation).

Academic discussions about the role of the French lawyer observe that French lawyers seem to have an absolute independence from the clients to the extent that they may decline to seek or follow any instructions.75See John Leubsdorf, The Independence of the Bar in France: Learning from Comparative Legal Ethics in Roger C. Cramton & John J. Barceló (eds), Lawyers’ Practice and Ideals: A Comparative View 281 (2001); see also Felicity Nagorcka, Michael Stanton & Michael Wilson, Stranded between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice, 29 Melb. U. L. Rev. 448, 448, 465-66 (2005); Maya Goldstein Bolocan, Professional Legal Ethics: A Comparative Perspective, ABA CEELI Program 9-11 (2002); Mary C. Daly, The Dichotomy between Standards and Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by US and Foreign Lawyers, 32 Vand. J. Transnat’l L. 1117 (1999).    These academics emphasize that:

An avocat has no responsibility to accept a case; indeed, it is his or her duty to ‘judge’ his or her client before accepting the brief. Once the brief has been accepted, an avocat has no responsibility to continue to act for a client and may withdraw his or her services on proper notice.”76Felicity Nagorcka, Michael Stanton & Michael Wilson, Stranded between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice, 29 Melb. U. L. Rev. 448, 448, 465-66 (2005) citing John Leubsdorf, Man in His Original Dignity: Legal Ethics in France 26 (2001).

While these understandings of independence are alien to a common law lawyer, the contrast is a result of the French lawyer’s role within the civil law system. The French lawyer is not an agent of the client tasked with zealous representation, but an assistant adding “eloquence to [the client’s] cause.”77John Leubsdorf, Man in His Original Dignity: Legal Ethics in France 26 (2001). The differences in interpretation among French practitioners and academics is primarily a result of less than clear ethical rules, broadly outlined in the RIN and other ethical codes. This difference in interpretation can get a lawyer into trouble inside the lawyer’s national jurisdiction as well as abroad, especially when appearing before international criminal tribunals, as will be discussed in the following post.

A French lawyer who does not comply with his obligation of independence can face disciplinary sanctions. In France, unlike common law systems, the courts or judges do not have the power to issue disciplinary sanctions. Rather, the Bar Association is responsible for adjudicating misconduct proceedings.78“Any court that considers a lawyer committed at the hearing a breach of his obligations imposed by his oath, may inform the Attorney General to prosecute the lawyer before the disciplinary body to which he belongs.” Loi no. 71-1130 du 31 décembre 1971, Art. 25 modifié par Loi no. 2004-130 du 11 février 2004 – art. 33 JORF 12 février 2004 (unofficial translation). Article 1.4 of the RIN provides professional misconduct can lead to disciplinary sanction. These disciplinary sanctions can amount to a warning, an official reprimand, a temporary exclusion which cannot exceed three months and an exclusion from the lawyer’s profession. In one matter, the Paris Appeal Court suspended a lawyer’s license to practice law because he admitted to accepting his client’s request to take a lease in his name and in his lawyer’s capacity without having sufficient sales revenues to pay rent, agreeing to forge invoices, and using a false stamp to establish a false tax notice for the handover of the lease.79Paris Appeal Court, Pôle 2, 1st Chamber, 27 November 2014, no.13-13621. The Appeal Court found that the lawyer admitted to having placed himself in a subordinate position with respect to the client who had impressed the lawyer with financial power, unable to withstand the client’s pressure.80Id. As a lawyer, he had an advisory duty that should have involved notifying the client of the risks of such practices.81Id. Instead, the lawyer became an accomplice to the client’s unethical practices, losing his intellectual and material independence.82Id.

A Lawyer’s Independence in Germany

In Germany, lawyers (Rechtsanwalt) are defined as “independent agent[s] in the administration of justice”83The Federal Lawyer’s Act, Bundesrechtsanwaltsordnung (“BRAO”), § 1 available in English at http://www.brak.de/w/files/02_fuer_anwaelte/brao_engl_090615.pdf. whose “activities serve the realization of a society governed by the rule of law.”84Rules of Professional Practice, § 1(2), available in English at http://www.brak.de/w/files/02_fuer_anwaelte/berufsrecht/bora_01_01_2015_en.pdf. Section 1(1) of the Rules of Professional Practice provides that a lawyer “exercises his profession freely, independently, as a member of a self-determined and self-regulated profession, subject only to the law and Rules of Professional Practice.” Section 1(3) of the Rules of Professional Practice explains that:

As an independent adviser and representative in all legal matters, the Rechtsanwalt has to protect his client from a loss of rights. He has to accompany the client with a view to shaping the law, avoiding conflicts and settling disputes. He has to protect him from wrong decisions taken by the courts and authorities and has to act as his client’s safeguard against unconstitutional impairment of his rights and against the government exceeding its powers.

Foremost, a German lawyer must be free from external influences. Under Section 43a(1) of the BRAO, a German lawyer may not enter into any ties that pose a threat to his or her professional independence.

Conflicts of interest rules also protect the German lawyer’s independence. Under Section 43a(3) of the BRAO, a lawyer “may not represent conflicting interests.” Section 3.1 of the Rules of Professional Practice states: “The Rechtsanwalt must refrain from acting for a new party if he or she has advised or represented another party in the same matter, if there is a conflict of interest or if he has been seized with the matter in any other professional way as defined in § 45 and § 46 of the [BRAO].” Section 3.4 of the Rules of Professional Practice provides that if the lawyer realizes that he or she is in breach of this rule, such as when a conflict arises, the lawyer must cease to act for all clients involved in the matter. Section 45(1) of the BRAO provides one example of a conflict of interest where a lawyer may not practice: where the lawyer has acted in the same matter in the capacity of a judge, arbitrator, public prosecutor, civil servant, or notary. Section 46(1) prohibits the German lawyer from becoming a salaried employee of a client, such as a corporation.

Rules governing fees also protect the German lawyer’s independence. Section 49b(3) of the BRAO provides that a lawyer may not “accept part of the fees or other benefits for acting as agent in obtaining instructions from clients, whether in relation to a Rechtsanwalt or in relation to third parties of any kind.”

In Germany, as in France, lawyers who are hired by a private client are generally free to refuse or to accept a case. § 44 of the BRAO provides that: “A Rechtsanwalt who is approached for professional services and who does not wish to accept the case must immediately state that this is so. The Rechtsanwalt must provide compensation for any damage resulting from any negligent delay in making such a statement.”

However, court appointed Defence lawyers in criminal cases must not refuse to accept a case unless there are important grounds for doing so.85BRAO, § 49(1) & (2). § 16a of the Rules of Professional Practice explains: “An important reason may lie in the person of the Rechtsanwalt or in the conduct of the client. An important reason may also be the fact that the approval of legal aid service does not comply with the conditions set out in the Legal Advice Aid Act….” Under Section 16a, such important reasons may include: the lawyer’s illness or excessive workload, the client’s non-cooperation, serious loss of mutual trust between the lawyer and the client due to the client’s conduct, or the client’s income and/or assets do not justify the granting of legal aid.

Section 113 of the BRAO provides that if a lawyer breaches his or her duties under the BRAO or Rules of Professional Practice, the Lawyer’s Disciplinary Court can impose sanctions. Under Section 114 of the BRAO, disciplinary sanctions may include: warnings, cautions, fines of up to twenty-five thousand euros, a ban on acting as representative and lawyer in certain fields of law for a period of between one and five years, or exclusion from the legal profession.

A Lawyer’s Independence in the Netherlands

In the Netherlands, “the main task of advocates is to consult with and assist individual clients or groups of clients whose interests converge. In doing so, advocates shall represent the points of view of their clients…. Advocates are first and foremost their clients’ counsel.”86Code of Conduct of the Netherlands Bar Association (“Dutch Code of Conduct”), Introduction, para. 1.2 available at http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/Netherlands_EN_Code_1_1236161752.pdf. Paragraph 1.2 of the Introduction to the Dutch Code of Conduct sets out the lawyer’s core functions and duties, including:

– Refraining for representing conflicts of interests: “in their handling of a case, advocates can only serve their clients’ interests well when they are guided by those interests at the exclusion of any self-interest.”

– Being independent: for example, refraining from “granting commission to intermediaries or other third parties for the purpose of securing engagements, or with making arrangements with persons other than their own clients on the manner in which matters will be handled.”

– Protecting the client’s confidentiality: “exercising the greatest possible care in observing secrecy and in making use of their advocate-client privilege[.]”

– Maintaining competence and skill: “gain and keep up the necessary know-how[,]” secure necessary assistance, or refer the client to a competent lawyer.

Rule 2(1) of the General Rules of the Dutch Code of Conduct provides: “Advocates shall not allow their freedom and independence in the exercise of the profession to be put in jeopardy.” While the Dutch Code of Conduct does not further define the lawyer’s independence, it can be gleaned from the other ethical rules.

As with France and Germany, conflicts of interest rules also protect the Dutch lawyer’s independence. Under Rule 7(1) of the Dutch Code of Conduct, a lawyer must not represent the interests of more than one party if an actual conflict of interest exists or there is a real chance of a conflict arising. If a conflict arises that is incapable of immediate resolution, the Dutch lawyer must withdraw.87Id., Rule 7(2). The commentary to Rule 7(2) explains that “[t]he obligation to withdraw due to a conflict of interest is no longer dependent on whether ‘the proper representation of the interests of one of the parties is jeopardised’…. [T]he new wording allows for the continuation of the relationship if the conflict of interest can be immediately resolved.” The Dutch lawyer must also act independently from self-interest. Under Rule 5 of the Dutch Code of Conduct, “the interest of the client rather than any self-interest of advocates shall determine the manner in which advocates are required to handle cases.” Paragraph 1.2 of the Introduction to the Dutch Code of Conduct states: “advocates can only serve their clients’ interests well when they are guided by those interests at the exclusion of any self-interests.”88Id., Introduction, para. 1.

As in France, the privilege of professional secrecy belongs to the lawyer and not the client. Under Rule 6(2), if a lawyer concludes that he or she must disclose the client’s secrets, such as when it might be advantageous to the case, the lawyer is “free to do so if the client does not object thereto and if it is compatible with sound professional practice.”

Under Rule 9(1) of the Dutch Code of Conduct, lawyers assume full responsibility for the handling of a case. This means that lawyers may “not evade this responsibility by invoking the instruction received from their clients.”89Id., Rule 9(1). However, lawyers must not perform any acts against the client’s wishes.90Id. Rule 9(2) provides that if the lawyer and client disagree on the manner in which the case is handled, and the dispute cannot be resolved by mutual consultation, the lawyer must withdraw. When the lawyer withdraws, he or she must do so carefully in a manner that does not jeopardize the client.91Id., Rule 9(3).

European Multijurisdictional Practice – Council of Bars and Law Societies of Europe (“CCBE”) Code of Conduct

The CCBE is a voluntary association which represents bar associations and other legal societies of 32 European Member States.92http://www.ccbe.eu/index.php?id=22&L=0. Its Charter of Core Principles of the European Legal Profession (“CCBE Charter”) and Code of Conduct for European Lawyers (“CCBE Code of Conduct”) are designed to codify core ethical principles common to the entire European legal profession. These core principles serve as a guide for lawyers engaged in multijurisdictional practice in Europe in order to avoid the dilemma and confusion of being subject to multiple sets of ethical rules. The CCBE Code of Conduct expresses “a consensus of all the Bars and Law Societies of the European Union and European Economic Area”93CCBE Code of Conduct, Art. 1.3.2. and urges that the national rules of ethics are interpreted in a way consistent with the CCBE Code of Conduct.94Id.

Though voluntary, several European States have adopted and incorporated the CCBE Code of Conduct into domestic legislation. France and the Netherlands are good examples. Article 21 of the French RIN provides that French lawyers must apply the provisions found in the CCBE when carrying their judicial and legal activities in the European Union when in relation with other lawyers of the European Union. Rule 39 of the Dutch Code of Conduct states: “An advocate has to comply with the CCBE Code of Conduct for European Lawyers in his cross-border activities within the European Union and the European Economic Area.”

The Preamble of the CCBE Code of Conduct emphasizes the lawyer’s obligations to the client, court, the legal profession in general, and society:

A lawyer’s function therefore lays on him or her a variety of legal and moral obligations (sometimes appearing to be in conflict with each other) towards:

– the client;

– the courts and other authorities before whom the lawyer pleads the client’s cause or acts on the client’s behalf;

– the legal profession in general and each fellow member of it in particular;

– the public for whom the existence of a free and independent profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in face of the power of the state and other interests in society.95CCBE Code of Conduct, Preamble, Art. 1.1.

According to the CCBE Charter, the lawyer’s independence is one of the core values of the legal profession. The Preamble to the CCBE Charter provides that “[a] lawyer must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend and it is the lawyer’s duty not only to plead the client’s cause but to be the client’s adviser.”

Principle (a) of the Commentary on the Charter of Core Principles of the European Legal Profession (“CCBE Commentary”) provides that a lawyer must be free, “politically, economically and intellectually – in pursuing his or her activities of advising and representing the client.” This means that the lawyer is independent from powerful and improper external influences such as the state or business associates.96CCBE Commentary, Principle (a). The CCBE Code of Conduct and Charter explicitly provides that the lawyer is independent from the client. Principle (a) states: “[t]he lawyer must also remain independent of his or her own client if the lawyer is to enjoy the trust of third parties and the courts. Indeed without this independence from the client there can be no guarantee of the quality of the lawyer’s work.”97Id. Lastly, Principle (a) provides that bar associations play an important role in guaranteeing independence. “Self-regulation of the profession is seen as vital in buttressing the independence of the individual lawyer. It is notable that in unfree societies lawyers are prevented from pursuing their clients’ cases, and may suffer imprisonment or death for attempting to do so.”98Id.

Article 2.1.1 of the CCBE Code of Conduct further adds more detail to the principle of independence, stating:

The many duties to which a lawyer is subject require the lawyer’s absolute independence, free from all other influence, especially such as may arise from his or her personal interests or external pressure. Such independence is as necessary to trust in the process of justice as the impartiality of the judge. A lawyer must therefore avoid any impairment of his or her independence and be careful not to compromise his or her professional standards in order to please the client, court or third parties.

Principle (c) of the CCBE Commentary provides that the lawyer must not take on a client if there is a conflict of interest between the client and the lawyer. If the conflict arises in the course of representation, the lawyer must cease to act.99CCBE Commentary, Principle (c). Article 2.7 of the CCBE Code of Conduct obliges a lawyer to “put those [client’s] interests before the lawyer’s own or those of fellow members of the legal profession.” Article 2.1.2 of the CCBE Code of Conduct also provides that if a lawyer gives advice “only to ingratiate him- or herself, … to serve his or her personal interests” such an advice has no value. Article 3.2.2 of the CCBE Code of Conduct obliges a lawyer to cease acting for “both or for all clients concerned when a conflict of interests arises between those clients and also whenever there is a risk … the lawyer’s independence may be impaired.”

Under the CCBE Code of Conduct, a lawyer has the right to refuse to accept instructions from his or her client, but once he or she accepts those instructions, the lawyer has an obligation not to withdraw unless this can be done without jeopardizing the client’s interests.100CCBE, Explanatory Memorandum, Commentary on Article 3.1 – Acceptance and Termination of Instructions. Even if a lawyer is independent from his or her client, and the client allows the lawyer to withdraw from a case, “a lawyer shall not be entitled to exercise his or her right to withdraw from a case in such a way or in such circumstances that the client may be unable to find other legal assistance in time to prevent prejudice being suffered by the client.”101CCBE Code of Conduct, Art. 3.1.4.

“Independence” in the Common Law Tradition

Independence in England and Wales

In England and Wales, barristers are regulated by the Bar Standards Board. The ethical rules in the Bar Standards Board Code of Conduct focus on 10 Core Duties (“CD”):

CD1: You must observe your duty to the court in the administration of justice.

CD2: You must act in the best interests of each client.

CD3: You must act with honesty and integrity.

CD4: You must maintain your independence.

CD5: You must not behave in a way which is likely to diminish the trust and confidence which the public places in you or in the profession.

CD6: You must keep the affairs of each client confidential.

CD7: You must provide a competent standard of work and service to each client.

CD8: You must not discriminate unlawfully against any person.

CD9: You must be open and co-operative with your regulators.

CD10: You must take reasonable steps to manage your practice, or carry out your role within your practice, competently and in such a way as to achieve compliance with your legal and regulatory obligations.102Bar Standards Board Code of Conduct, p. 22.

Above all, a barrister has a duty to the court to act with independence. Guidance to CD1 (“gC1”) explains that a barrister’s duty to the court in the administration of justice “overrides any other core duty, if and to the extent the two are inconsistent.” Rule C3 (“rC3”) states: “You owe a duty to the court to act with independence in the interests of justice. This duty overrides any inconsistent obligations which you may have (other than obligations under the criminal law).”103emphasis in original. Acting with independence in the interest of justice prohibits the barrister from abusing his or her role as an advocate, wasting the courts time, and compromising his or her independence.104Id., rC3.

Seconded to the barrister’s obligation to the court is the barristers duty to act independently in the client’s best interests.105Bar Standards Board Code of Conduct, CD2, rC15. rC4 states: “Your duty to act in the best interests of each client is subject to your duty to the court.”106emphasis in original. rC15 explains that the barrister’s duties towards the client (CD2, CD6, and CD7) require the barrister to fearlessly “and by all proper and lawful means” promote the client’s best interests without regard to the barrister’s own interests or the interests of any other person.107Bar Standards Code of Conduct, rC15(1)(2). A barrister must not permit his or her professional client, employer, or other person to limit his or her discretion as to how the client’s interests can be best served.108Id., rC15(4). gC18 provides examples where a barrister’s independence would be compromised by the client’s, professional client’s, or other person’s interests: offering, promising or giving a commission or referral fee, or lending or accepting money (such as a loan).

Confidentiality and conflict of interest rules also define a barrister’s independence. rC21 provides that a barrister may not accept instructions to act in a particular manner if:

  1. due to any existing or previous instructions you are not able to fulfil your obligation to act in the best interests of the prospective client; or
  2. there is a conflict of interest between your own personal interests and the interests of the prospective client in respect of the particular matter; or
  3. there is a conflict of interest between the prospective client and one or more of your former or existing clients in respect of the particular matter unless all of the clients who have an interest in the particular matter give their informed consent to your acting in such circumstances; or
  4. there is a real risk that information confidential to another former or existing client, or any other person to whom you owe duties of confidence, may be relevant to the matter, such that if, obliged to maintain confidentiality, you could not act in the best interests of the prospective client, and the former or existing client or person to whom you owe that duty does not give informed consent to disclosure of that confidential information; or
  5. your instructions seek to limit your ordinary authority or discretion in the conduct of proceedings in court; or
  6. your instructions require you to act other than in accordance with law or with the provisions of this Handbook; or
  7. you are not authorised and/or otherwise accredited to perform the work required by the relevant instruction; or
  8. you are not competent to handle the particular matter or otherwise do not have enough experience to handle the matter; or
  9. you do not have enough time to deal with the particular matter, unless the circumstances are such that it would nevertheless be in the client’s best interests for you to accept; or
  10. there is a real prospect that you are not going to be able to maintain your independence

gC73 explains that these rules are part of a barrister’s “broader obligation to maintain … independence (CD4).” cG73 provides one scenario where the barrister’s independence is compromised: when the barrister is likely to be called as a material fact witness. In such a situation, a barrister can only withdraw if it does not jeopardize the client’s interests.109Id., gC73.

Barristers are not free to decline representation to clients once they have received instructions from a professional client.110Id., rC29. Barristers can only refuse cases in limited situations, inter alia for the reasons listed under rC21 or if accepting the instructions would cause an unreasonable work burden or excessive malpractice liability.111Id., rC30.

Were the client is to instruct a barrister to act unethically, the barrister’s duties to the court would override his or her duties toward the client, subject to the rule of confidentiality. gC11 explains that if there is a risk that the court would be misled unless the barrister disclose the client’s confidential information, the barrister must seek the client’s permission.112Id., gC11. If the client refuses to allow disclosure, the barrister must cease to act and return his or her instructions. However, the barrister may not reveal the confidential information to the court.113Id., gC11. In Rondel v. Worlsey, Lord Reid explained the balance between a barrister’s duty to the client and to the Court:

Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.114Rondel v. Worsley [1969] 1 A.C. 191, 227.

Barristers can be subject to administrative fines and warnings by the Professional Conduct Committee (“PCC”)115Bar Standards Board Enforcement Regulations, rE50-E52. or, the matter could be referred to a Disciplinary Tribunal for formal professional misconduct hearings.116Id., rE56. The Disciplinary Tribunal is empowered to disbar or suspend a barrister’s practicing certificate.117Id., rE160.

A Lawyer’s Independence in the United States (“US”)

In the US, each of the 50 states has its own code of professional conduct for lawyers that is binding on members of a state’s bar. In 1983, the American Bar Association (“ABA”), a voluntary but powerful bar association, promulgated the Model Rules of Professional Conduct, which have been incorporated into the ethics rules of most states. These Model Rules will be used throughout this section to explain the ethical duty of independence in the US.

When representing a client, an American lawyer must “exercise independent professional judgment and render candid advice.”118ABA Rule 2.1. This means that the client is entitled to “straightforward advice expressing the lawyer’s honest assessment.”119Commentary to ABA Rule 2.1. Thus, a lawyer must be independent in rendering such advice; he or she must be independent from the interests of third parties, and his or her self-interests, and to a very limited extent (will be seen below) from the client.

Foremost, a US lawyer must be independent from the influence of third parties. Under ABA Rule 5.4, a lawyer must not (a) share legal fees with a non-lawyer; (b) form a partnership with a non-lawyer that involves the practice of law; (c) permit anyone who recommends, employs, or pays the lawyer to direct or regulate the lawyer’s professional judgment; or (d) practice in a corporation if a non-lawyer owns an interest in the corporation, is a corporate director or officer, or has the right to direct or control the lawyer’s professional judgment.120ABA Rule 5.4(a)-(d). These limitations protect the lawyer’s independent judgment from the influence of third parties, particularly when someone other than the client pays for the lawyer’s legal services.121Commentary to Rule 5.4. A US lawyer may accept compensation from a third party if the client gives informed consent and the third person does not interfere with the lawyer’s independent professional judgment or the client-lawyer relationship.122ABA Model Rule 1.8(f). For example, a mother who pays for her son’s lawyer following an arrest cannot dictate to the lawyer how the case should be resolved – make sure the judge gives him a harsh sentence, he deserves it! – or insist upon being include in all confidential lawyer-client communications.

Conflicts of interest rules also protect the US lawyer’s independence. ABA Rule 1.7(a) provides that a lawyer must not represent a client if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Notwithstanding a conflict of interest, a US lawyer may still represent the client if the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, the representation does not involve the assertion of a claim by one client against another, and each affected client gives informed consent.123ABA Rule 1.7(b). Paragraph 1 of the commentary to ABA Rule 1.7 explains: “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests.”

ABA Rule 1.8 provides specific limitations regarding the US lawyer’s self-interests. Under ABA Rule 1.8 a US lawyer must not:

(a) enter into a business transaction with a client;

(b) use information gained from one client to the disadvantage of another client;

(c) solicit a substantial gift from a client;

(d) make or negotiate an agreement giving the lawyer media rights to a portrayal based in substantial part on information relating to the legal representation;

(e) provide financial assistance to a client;

(f) accept compensation from third parties without the client’s consent;

(g) make aggregate settlements of claims between two or more clients unless each party consents;

(h) make agreements limiting the lawyer’s malpractice liability (unless the client is independently represented) or settle malpractice claims with an unrepresented client (without first advising the client to obtain independent legal advice);

(i) acquire a proprietary interest in the cause of action the lawyer is conducting for a client; or

(j) have sexual relations with a client (unless a consensual sexual relationship existed before the representation).

These rules exist because the lawyer’s legal training coupled with the relationship of trust and confidence between the lawyer and client create a situation where the lawyer could take advantage of the client.124Commentary to ABA Rule 1.8, para. 1. For example, a business transaction with the client poses a significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s financial interest in the transaction.125Id., para. 3.

In the US, a lawyer is an agent of the client. Once a lawyer agrees to represent a client, he or she must diligently and competently represent the client to completion of the case.126Comment to ABA Rule 1.16, para. 1. ABA Rule 6.2 provides that a tribunal can also appoint a lawyer to represent a client, and the lawyer must not seek to avoid such appointments unless he or she can show good cause, such as when:

(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;

(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or

(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.

Under ABA Rule 1.2(a), a US lawyer must abide by the client’s decisions concerning the objectives of the legal representation. The client retains the ultimate authority to determine the objectives of the representation.127Commentary to ABA Rule 1.2, para. 1. Specifically, a US lawyer must abide by a client’s decision as to whether to settle a matter, what plea to be entered, whether to waive a jury trial, and whether the client will testify.128ABA Rule 1.2(a). However, ABA Rule 1.2(d) provides a limit to the client’s control over the lawyer: a lawyer must not “counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent[.]”

Occasionally, clients and lawyers disagree about the means to be used to accomplish the client’s objectives. The commentary to ABA Rule 1.2 provides that clients normally defer to the lawyer with respect to the means to be used to accomplish their objectives, while the lawyer defers to clients regarding questions such as the expenses to be incurred or concern for third persons who may be adversely affected.129Commentary to ABA Rule 1.2, para. 2. The ABA Rules do not proscribe how such disagreements should be resolved, but the lawyer should consult the client to seek a mutually acceptable resolution.130Id. If the client cannot agree, the lawyer may seek to withdraw.131Id.

There are certain situations where a lawyer must seek to withdraw. ABA Rule 1.16(a) states that a lawyer must seek to withdraw if representing the client would result in a violation of the rules of professional conduct or other laws, or the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. There are also cases in which the lawyer may withdraw. ABA Rule 1.16(b) provides that a lawyer may withdraw if:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer’s services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause exists.

Where a US lawyer has been appointed by a tribunal (court), withdrawal will require the tribunal’s approval.132Comment to ABA Rule 1.16, para. 3. Tribunal approval may also be required even if the lawyer voluntarily undertook the representation, if the sought withdrawal occurs during pending litigation.133Id.

Clients, on the other hand, can fire a lawyer at any time with or without cause.134Id., para. 4. Once the client fires the lawyer and chooses to self-represent, he or she cannot later complain of ineffective assistance of counsel.135Faretta v. California, 422 U.S. 806, 834 (1975): “The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction.”    Were a US lawyer to act on a client’s instructions not to attend trial, sanctions would be swift and severe. Such conduct violates the rules of professional conduct as it would obstruct the proceedings and delay the administration of justice. The commentary to ABA Rule 3.2 states:

Dilatory practices bring the administration of justice into disrepute….[I]t is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose.”

A lawyer can be subject to two types of sanctions for such professional misconduct: litigation sanctions by a tribunal and disciplinary sanctions by his or her bar.136ABA Rule 8.5. A tribunal can impose heavy fines from the bench. For example, in Fletcher v. HPN Holdings, the Defence lawyer was sanctioned $6,000 for among other litigation abuses, walking out of a deposition and failing to appear at other scheduled depositions.137Fletcher v. HNP Holdings, Case No. F064864 (Cal. Dist. Ct. App. 8 April 2014) (unpublished). The California Fifth Appellate District Court upheld the Superior Court of Fresno County’s litigation sanction, explaining that “walking out and not coming back, and not appearing at the other scheduled depositions, were not among [Counsel’s] legitimate options.”138Id., p. 16. A lawyer’s bar can also reprimand the lawyer, impose fines, or suspend or revoke a lawyer’s license to practice law.139See ABA Model Rules for Lawyer Disciplinary Enforcement, Rule 10.

Conclusion

The various codes of ethics share many common principles: independence, loyalty, confidentiality, etc. However, the ethical duties are shaped by the legal system in which they exist. Common to both civil and common law, a lawyer’s independence requires him or her to act independently from external influences and self-interest. Yet a sharp distinction is drawn in regard to the lawyer’s independence from the client. Whereas the common law lawyer is an agent of the client, and must act on his or her instructions, the civil lawyer is independent and may disregard the client’s instructions. This has important consequences in the international legal system where these ethical principles converge, and often, come into conflict. To solve the conundrum of being subject to multiple rules of ethics, various attempts have been made to provide uniform rules for lawyers engaged in multijurisdictional practice, such as the CCBE Code of Conduct, and, for lawyers practicing before international tribunals, the International Bar Association Principles on Conduct for the Legal Profession. Additionally, each of the international criminal tribunals has codified ethical rules, attempting to harmonize the practice of law in the international realm.


In Part II of this series, I will provide a brief overview of the lawyer’s independence in the international criminal tribunals. Aside from discussing the ethics codes, I will provide some case examples illustrating how international criminal tribunals have dealt with the lawyer’s independence in practice.

comments2

Share

Footnotes   [ + ]

Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

Leave a Reply

Your email address will not be published. Required fields are marked *