The Lawyer’s Independence — Part II

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

Part II – A Critical Analysis of International Legal Ethics

This post follows up on my discussion of the ethical principle of a lawyer’s independence. Though virtually all national and international codes of conduct codify the lawyer’s independence, a lawyer’s understanding of this principle and the ethical duties deriving therefrom differs depending on his or her legal tradition.

IndependentDefIn my first post, I attempted to clarify what it means to be “independent” in the national context by discussing the lawyer’s role in the civil and common law systems and how the principle of independence is interpreted in various domestic legal systems. This post will focus on the ethical principle of a lawyer’s independence in the context of international and internationalized criminal tribunals based on the various applicable and aspirational codes of conduct.

Lawyers (hereinafter “Counsel” as generally referred to at international tribunals and courts) from different legal traditions have different experiences and are beholden to their own canons and traditions of professional ethics. What may be permissible in one national jurisdiction may not be permissible in another, and depending on the circumstance, may or may not be permissible at one of the ad hoc international or internationalized criminal tribunals, or the International Criminal Court (“ICC”). And herein lies the conundrum: with which code of conduct and with which interpretation of any of the ethical principles must Counsel abide when practicing at any of the international or internationalized tribunals? Is it as simple as saying that Counsel must abide by the code of conduct of the tribunal or court before which he or she is appearing? What if there is a conflict or a notable difference between Counsel’s national code and the court’s code? This fundamental ethical issue, which Counsel will invariably encounter in representing accused or victims before these courts and tribunals, will be the topic of another post. I merely raise this point now to highlight just how not so simple or straightforward it really is in practice to straddle codes of conduct with diverging meanings of ethical principles that textually and with an unadorned reading seem identical.

To set the stage for this discussion, in the first post I introduced the principle of independence through the events that took place in the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) during the Case 002/01 appeal hearing.

As detailed in the first post, International Co-Lawyer for NUON Chea, Victor Koppe, did not attend the appeal hearing on 17 November 2015 because his client instructed him not to attend or further participate in the proceedings.1Case 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. Son Arun, National Lawyer for NUON Chea, explained that Koppe was “under clear instructions for Nuon Chea not to participate in the hearing.”2Case of NUON Chea et al., 002/19-09-2007-ECCC/SC, Response of Son Arun to the Oral Decision by the Supreme Court Chamber Regarding the Events of 17 November 2015, 18 November 2015, F30/13, para. 2. Citing a decision from the Bar Association of the Kingdom of Cambodia (“BAKC”), Son Arun explained 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.”3Id., 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.

Aside from Koppe’s no-show during the appeal hearing, he had also walked out of court during the proceedings before the Trial Chamber.4See Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Letter from the ECCC Trial Chamber to the Dean of the Amsterdam Bar Association, Possible Misconduct of a Lawyer Admitted to your Bar Association, 11 December 2015, E378. His conduct, followed by his remarks (as seen below) led the Trial Chamber to issue a letter to the Amsterdam Bar Association stating: “In the Trial Chamber’s opinion, KOPPE’s behaviour appears to constitute professional misconduct[.]”5Id. In the letter, the Trial Chamber cited statements Koppe made on 27 August 2015, following his walkout the previous day:

  • Judge Jean-Marc Lavergne “has made cowardly decisions and lack[s] judicial integrity”;6Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Transcript, 27 August 2015, E378.3, p. 12.
  • “Judge Fenz, we didn’t ask for your disqualification, but I am regretting this decision to do this very much. Compared to what we have experienced in this second trial, Judge Cartwright was indeed a shiny and bright beacon of impartiality”;7Id.
  • “Mr. President, it is indeed true that it is your prerogative to shut me up; it is my prerogative not to say a word anymore. So it’s take it or leave it, or nothing”;8Id., p. 14.
  • “I was giving you [Judge Lavergne] my reason [for walking out of the proceedings] and you don’t want to listen…. To be honest, Judge Lavergne, I don’t really care what you think”;9Id., p. 16. and
  • “What I wrote down or what I wanted to say is; the walking out yesterday from Court, indeed without any legal justification, in a common law court might have been considered as contempt of court. But we are not in a common law court, but if we were and if I were charged with contempt of court, I would happily plead guilty. I have indeed nothing but professional contempt for the International Judges of this Tribunal.”10Id., p. 19.

As of the publication of this post, no decision has been issued by the Amsterdam Bar Association.

The events in the Case 002/01 appeal hearings invoke a critical ethical question before international and internationalized criminal tribunals: just how independent are Counsel? Each tribunal has its own code of conduct to which Counsel must adhere. Generally, each code provides that Counsel must be independent. Similar to the national codes of conduct, this means that Counsel are independent from the interests of third parties and Counsel’s own interests. While most codes provide that Counsel must abide by the client’s instructions, the degree to which Counsel are independent from the client is unsettled. As previously discussed, Counsel’s independence is interpreted differently by Counsel of the various legal traditions. A survey of the different codes of conduct and of the limited jurisprudence that has emerged from the international and internationalized criminal courts provides a point of departure from which Counsel should try to resolve any ethical issues. By exercising professional judgment and being guided by the basic principles underlying the rules in the applicable codes of conduct, Counsel can zealously protect and pursue their clients’ interests without transcending the permissible ethical boundaries.

International Criminal Tribunal for the former Yugoslavia (“ICTY”)

At the ICTY, Counsel are governed by the Code of Professional Conduct for Counsel Appearing before the International Tribunal (“ICTY Code of Conduct”). While Counsel are still bound by their national codes of conduct, if there is any inconsistency between the ICTY Code of Conduct and the national code, the ICTY Code of Conduct prevails in respect of Counsel’s conduct before the ICTY.11ICTY Code of Conduct, Art. 4.

Under Article 3 of the ICTY Code of Conduct, as a fundamental principle, Counsel are required to “act honestly, independently, fairly, skillfully, diligently, efficiently and courageously[.]”

Counsel before the ICTY must act independently of external influences. Article 10(v) of the ICTY Code of Conduct states that Counsel must “never permit their independence, integrity and standards to be compromised by external pressures.” Thus, Counsel should not permit others (such as a State that may pay for an accused’s legal representation, or the Registrar) to control how Counsel pursues the client’s objectives.

Conflict of interest rules protect ICTY Counsel’s independence.12For a more detailed conversation on Conflicts of Interest, see my prior blog post: ADC-ICTY Lecture on Conflicts of Interest. Article 14(A) of the ICTY Code of Conduct explains: “Counsel owes a duty of loyalty to a client. Counsel also has a duty to the Tribunal to act with independence in the interests of justice and shall put those interests before his own interests or those of any other person, organization or State.” Article 14(C) prevents Counsel from representing a client in a matter in which he participated personally and substantially as an official or staff member of the Tribunal or in any other capacity. Sensible. If Counsel worked on a case as a Legal Officer for a Judge, he or she would be hesitant to argue against his or her own work and former pay master, limiting Counsel’s independence. Conversely, Counsel would be privy to information that would put his or her former employer at a disadvantage. Under Article 14(D), Counsel may not represent a client if:

(i) such representation will be, or may reasonably be expected to be, adversely affected by representation of another client;

(ii) representation of another client will be, or may reasonably be expected to be, adversely affected by such representation;

(iii) the matter is the same or substantially related to another matter in which counsel or his firm had formerly represented another client (“former client”), and the interests of the client are materially adverse to the interests of the former client; or

(iv) counsel’s professional judgement on behalf of the client will be, or may reasonably be expected to be, adversely affected by:

(1) counsel’s responsibilities to, or interests in, a third party; or

(2) to counsel’s own financial, business, property or personal interests.

Where a conflict arises after Counsel undertakes the representation, the client, upon giving informed consent, may waive the conflict unless continuing the representation is “likely to irreversibly prejudice the administration of justice.”13ICTY Code of Conduct, Art. 14(E).

Rules governing fees also protect Counsel’s independence at the ICTY. Under Article 19(B), Counsel who are not assigned by the Registrar may not accept fees from sources other than the client unless the client gives informed consent and there is no interference with Counsel’s independent judgment. Counsel assigned by the Registrar must not accept compensation from the client.14Id., Art. 19(C).

Article 8 of the ICTY Code of Conduct specifies the scope of Counsel’s representation and the allocation of decision-making between client and Counsel. Under Article 8(A), Counsel must represent the client until the representation is terminated by the client or withdrawn by the Registrar. When representing a client, Counsel must “abide by the client’s decisions concerning the objectives of representation.”15Id., Art. 8(B)(i). Counsel must also “consult with the client about the means by which those objectives are to be pursued, but is not bound by the client’s decision.”16Id., Art. 8(B)(ii). Counsel must only act on instructions “which emanate from the client and which are not given as a result of an inducement from any person, organisation or State.”17Id., Art. 8(B)(iii). However, Counsel must not:

advise or assist a client to engage in conduct which counsel knows is criminal or fraudulent, in breach of the Statute, the Rules, this Code or any other applicable law and, where counsel has been assigned to the client, the Directive. However, counsel may discuss the legal consequences of any proposed course of conduct with a client and may advise or assist a client in good faith to determine the validity, scope or meaning of the applicable law.18Id., Art. 8(C).

Article 9 of the ICTY Code of Conduct governs termination and withdrawal. Under Article 9(A), Counsel must not represent a client if:

(i) representation will result in conduct which is criminal, fraudulent or a violation of the Statute, the Rules, this Code or any other applicable law;

(ii) counsel’s physical or mental condition materially impairs counsel’s ability to represent the client; or

(iii) counsel’s representation is terminated by the client or withdrawn by the Registrar.

Counsel may seek to withdraw from the representation if “withdrawal can be accomplished without material adverse effect on the interests of the client,” and for good cause, such as when:

(i) the client has used counsel’s services to perpetrate a crime or fraud, or persists in a course of action involving counsel’s services that counsel reasonably believes is criminal or fraudulent;

(ii) the client insists upon pursuing an objective that counsel considers repugnant or imprudent;

(iii) the client fails to substantially fulfil an obligation to counsel regarding counsel’s services and has been given reasonable warning that counsel will terminate or request withdrawal of his representation unless the obligation is fulfilled.19Id., Art. 9(B).

Counsel at the ICTY cannot simply terminate the representation and walk off the case. Under Article 9(C), if Counsel is to be terminated or withdrawn, “counsel shall not do so until a replacement counsel is engaged by the client or assigned by the Registrar, or the client has notified the Registrar in writing of his intention to conduct his own defence.” Upon termination or withdrawal, Counsel must take steps to protect the client’s interests, such as, giving the client sufficient notice, returning property and documents to the client, and refunding any advance payments for work not performed.20Id., Art. 9(D).

At the ICTY, Counsel can be sanctioned for professional misconduct by the Disciplinary Panel, which deals with all matters relating to Counsel’s ethical obligations.21Id., Art. 40. Additionally, Rule 44(A)(iii) of the ICTY Rules of Procedure and Evidence (“Rules”) requires Counsel practicing before the ICTY to be members of the Association of Defence Counsel Practising Before the ICTY (“ADC-ICTY”). The ADC-ICTY is an independent association of Defence Counsel that has its own Disciplinary Council.22ADC-ICTY Constitution, Art. 6, available at http://adc-icty.org/Documents/adcicty_constitution.pdf. The ADC-ICTY Disciplinary Council or Membership Committee, in consultation with the Registrar, can discontinue Counsel’s membership in the association,23Id., Art. 6(4). revoking Counsel’s right to practice before the ICTY.

Prosecutor v. Delalić et al.

In Prosecutor v. Delalić et al., Esad Landžo sought to fire his Lead Counsel on the ground that there was a conflict of interest between him and his Lead Counsel.24Prosecutor 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. The Trial Chamber denied Landžo’s request, holding that “the defence of the accused is funded by the International Tribunal and that the accused, cannot, therefore, withdraw lead counsel without showing good cause.”25Id., p. 2. It considered that good cause would include a genuine conflict of interest or a dereliction of duty.26Id. Without elaborating, the Trial Chamber found that Landžo did not meet either of these criteria.27Id. One can infer that in this instance, Counsel was not obliged to follow the client’s instructions. Counsel was independent to stay in the case or required to move to withdraw for good cause shown.

International Criminal Tribunal for Rwanda (“ICTR”)

At the ICTR, Counsel are bound by the Code of Professional Conduct for Defence Counsel (“ICTR Code of Conduct”). Article 1 of the ICTR Code of Conduct states:

While Counsel is bound by this code, it is not, and should not be read as if it were a complete or detailed Code of Conduct for Counsel. Other standards and requirements may be imposed on the conduct of Counsel by virtue of the Tribunal’s inherent jurisdiction and the code of conduct of any national body to which Counsel belongs.

Under Article 5 of the ICTR Code of Conduct (“Competence and Independence”), in providing representation to a client, Counsel must:

(a) Act with competence, dignity, skill, care, honesty and loyalty;

(b) Exercise independent professional judgement and render open and honest advice;

(c) Never be influenced by improper or patently dishonest behaviour on the part of a client;

(d) Preserve their own integrity and that of the legal profession as a whole;

(e) Never permit their independence, integrity and standards to be compromised by external pressures.

Article 4 of the ICTR Code of Conduct specifies the scope of representation and the allocation of decision-making between client and Counsel. Under Article 4(2), when representing a client Counsel must “[a]bide by the client’s decisions concerning the objectives of representation if not inconsistent with Counsel’s ethical duties,” and “[c]onsult with the client about the means by which those objectives are to be pursued.” Under Article 4(3), Counsel must not advise a client to engage in conduct Counsel knows is in breach of the Statute, Rules, Codes of Conduct, and, where assigned by the Registrar to represent a client, the Directive for the Registry of the ICTR.

At the ICTR, prohibitions on fee splitting also protect Counsel’s independence. Under Article 5bis(1), fee splitting arrangements between Counsel and client, or the client’s relatives or agents, are impermissible. Where Counsel is induced or coerced by his or her client to enter into such a fee splitting arrangement, Counsel must advise the client that the practice is unlawful and report the incident to the Registrar.28ICTR Code of Conduct, Art. 5bis(2). Counsel must also inform the Registrar of any fee splitting arrangements by members of his or her defence team.29Id., Art. 5bis(3). After conducting an investigation, the Registrar may “take action in accordance with Article 19(A)(iii) of the Directive on the Assignment of Counsel,” which includes the withdrawal of the assignment of Counsel.30Id., Arts. 5bis (4); 5bis(5). Article 19(A)(iii) of the ICTR Directive on the Assignment of Counsel states: “The Registrar may … [i]n the case of a serious violation of the Code of Conduct, withdraw the assignment Counsel or co-Counsel.”31ICTR, Directive on the Assignment of Counsel, as amended 15 June 2007, Art. 19(A)(iii).

Conflict of interest rules also protect Counsel’s independence at the ICTR. Under Article 9 of the ICTR Code of Conduct, Counsel owes a duty of loyalty to the client and must at all times act in the client’s interests, and put those interests before the interests of any other person, including Counsel’s own interests. Similar to the ICTY Rule on conflicts of interest, Article 9(3) of the ICTR Code of Conduct prevents Counsel from presenting a client in a matter if:

(a) Such representation will be or is likely to be adversely affected by representation of another client;

(b) Representation of another client will be or is likely to be adversely affected by such representation;

(c) The Counsels professional judgement on behalf of the client will be, or may reasonably be expected to be, adversely affected by:

(i) The Counsels responsibilities to, or interests in, a third party; or

(ii) The Counsels own financial, business, property or personal interests; or

(iii) The matter is the same or substantially related to another matter in which Counsel had formerly represented another client (the former client); and the interests of the client.

Article 9(4) of the ICTR Code of Conduct specifies that Counsel must not accept compensation from any other source than the client. If assigned by the Tribunal, Counsel must not accept compensation from a source other than the Tribunal, unless: (a) the client gives informed consent; and (b) there is no interference with Counsel’s independence and professional judgment or the client-Counsel relationship.32Id., Art. 9(4). Where a conflict does arise, Counsel must inform the client of the nature and extent of the conflict and either take all steps necessary to remove the conflict or obtain the client’s informed consent to continue the representation, so long as Counsel is able to fulfill all other obligations.33Id., Art. 5(b).

Withdrawal at the ICTR requires the Tribunal’s consent. Under Article 4(1) of the ICTR Code of Conduct, Counsel must advise the client until the client terminates the representation or “counsel is otherwise withdrawn with the consent of the Tribunal.”

The ICTR Code of Conduct does not specify a disciplinary regime in case of misconduct by counsel. Article 22 states: “Counsel must abide by and voluntarily submit to any enforcement and disciplinary procedures as may be established by the Tribunal in accordance with the Rules.” Unlike the ICTY, the ICTR does not have a mandatory bar association responsible for handling cases of misconduct. The ICTR-Avocats de la Défense (“ICTR-ADAD”) was a voluntary association of Defence Counsel and functioned like a trade union. The ICTR-ADAD lacked the quasi-Bar association characteristics of the ADC-ICTY and was never recognized by the ICTR as the association for Defence Counsel. Suffice it to say, even in the absence of a dedicated bar association, simulative measures for disciplinary infractions or for failure to comply with court orders are within the ICTR’s framework, as seen below and spelled out in Rule 45(I).

Prosecutor v. Barayagwiza

In Prosecutor v. Barayagwiza, Jean-Bosco Barayagwiza requested his Counsel and Co-Counsel (“Counsel”) not to represent him in any aspect during the trial.34Prosecutor v. Barayagwiza, ICTR-97-19-T, Decision on Defence Counsel Motion to Withdraw, 2 November 2000 (“Barayagwiza Withdrawal Decision”), para. 2. Counsel for Barayagwiza filed a motion to withdraw from their representation of the client.35Id., para. 1. Barayagwiza claimed that he could not receive a fair trial because the Tribunal was dependent on a “dictatorial anti-hutu regime in Kigali.”36Id. Counsel argued that it was unreasonable to require them to attend the trial when they could take no active part in it following the client’s instructions.37Id., para. 3. Counsel pointed to Article 4(2) of the ICTR Code of Conduct, which states:

When representing a client, Counsel must:

(a) Abide by a client’s decision concerning the objectives of representation if not inconsistent with Counsel’s ethical duties; and

(b) Consult with the client about the means by which those objectives are to be pursued.38Id., para. 18, citing ICTR Code of Professional Conduct for Defence Counsel, 8 June 1998, Art. 4(2).

Counsel argued that they must abide by their client’s decisions, and to do otherwise would be a breach of their respective codes of conduct.39Barayagwiza Withdrawal Decision, para. 19. Counsel stressed that their national codes of conduct (Quebec, Canada and the State of Washington, United States) prevented them from acting against their client’s instructions.40Id.

The Trial Chamber denied Counsel’s motion to withdraw, ordering them to continue with the representation.41Id., p. 7. The Trial Chamber reasoned that:

In the present case, Mr Barayagwiza is actually boycotting the United Nations Tribunal. He has chosen both to be absent in the trial and to give no instructions as to how his legal representation should proceed in the trial or as to the specifics of his strategy. In such a situation, his lawyers cannot simply abide with his “instruction” not to defend him. Such instructions, in the opinion of the Chamber, should rather be seen as an attempt to obstruct judicial proceedings. In such a situation, it cannot reasonably be argued that Counsel is under an obligation to follow them, and that not do so would constitute grounds for withdrawal.42Id., para. 24.

In reaching this conclusion, the Trial Chamber pointed to ICTR Rule 45(I),43Id., paras. 20-21. which states:

It is understood that Counsel will represent the accused and conduct the case to finality. Failure to do so, absent just cause approved by the Chamber, may result in forfeiture of fees in whole or in part. In such circumstances, the Chamber shall make an order accordingly. Counsel shall only be permitted to withdraw from the case to which he has been assigned in the most exceptional circumstances.

The Trial Chamber also looked to Article 6 of the ICTR Code of Conduct, which requires Counsel to represent a client “diligently in order to protect the client’s best interests.”44Id., para. 21, quoting ICTR Code of Conduct, Art. 6. The Trial Chamber held that the wording of these provisions indicates that Counsel are obligated to “mount an active defence in the best interest of the Accused.”45Barayagwiza Withdrawal Decision, para. 21. The Trial Chamber also noted that “Counsel is assigned, not appointed.”46Id. The Trial Chamber considered that “this does not only entail obligations towards the client, but also implies that he represents the interest of the Tribunal to ensure that the Accused receives a fair trial.”47Id. It then noted, without citing any authority, that “within several jurisdictions, a lawyer will not be obligated to comply with the client’s instructions to take no action in court.”48Id., para. 22. Citing the European Court of Human Rights, it held that “a person charged with a criminal offence does not lose the benefit of the right to legal assistance merely on account of not being present at trial.”49Id., para. 23, citing Poitrimol v. France, ECtHR App. No. 14032/88, Judgement, 23 November 1993, para. 34: “[A]lthough not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial. A person charged with a criminal offence does not lose the benefit of this right merely on account of not being present at the trial.”

Special Court for Sierra Leone (“SCSL”)

At the SCSL, Counsel are governed by the Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone (“SCSL Code of Conduct”). Article 3(B) of the SCSL Code of Conduct specifies that in the event of inconsistency between the SCSL Code of Conduct and any other code of ethics, the SCSL Code of Conduct prevails in respect of Counsel’s conduct before the SCSL.

Under Article 5 of the SCSL Code of Conduct, Counsel must act with “independence in the performance of his functions, and shall not accept nor seek instructions from a Government or any other source, nor engage in any activity which compromises his independence or which reasonably creates the appearance of such compromise[.]”

Article 8(A) of the SCSL Code of Conduct specifies that Counsel has “an overriding duty to the Special Court to act with independence and in the interests of justice and must assist the Court in the administration of justice.” This means that Counsel must not deceive or knowingly or recklessly mislead the Court, and must take all necessary steps to correct an erroneous statement by Counsel or his or her team as soon as he or she becomes aware that the statement was erroneous.50SCSL Code of Conduct. Art. 8(B). Counsel also must not submit any request or document that aims to delay the proceedings or harass any participants in the proceedings. 51Id., Art. 8(C). Similarly, Counsel cannot introduce evidence he or she knows to be false or reasonably believes to be obtained through unlawful means or means that constitute a grave violation of human rights, such as torture.52Id., Art. 6.

Article 14 of the SCSL Code of Conduct sets out the allocation of decision making between Counsel and the client. Under Article 14(A), Counsel must consult with the client and abide by the client’s decisions concerning the objectives of the representation, unless those objectives are inconsistent with Counsel’s ethical duties or professional judgment. Article 14(B) specifies that where Counsel is appointed by a Judge or Chambers as stand-by Counsel or court-appointed Counsel, Counsel must:

(i) abide by any orders of a Judge or Chamber that prescribe the scope of representation to be provided;

(ii) discuss with his client the conduct of the case, endeavour to obtain his instructions thereon and take account of views expressed by the client, while retaining the right to determine what course to follow; [and]

(iii) act throughout in the best interests of the client.

Article 14(B) specifies that Counsel may not advise or assist a client in engaging in conduct that Counsel knows is in breach of the Agreement, Statute, Rules, Directives, or SCSL Code of Conduct.

Conflict of interest rules also protect Counsel’s independence at the SCSL. Under Article 15 of the SCSL Code of Conduct, Counsel must at all times act in the client’s best interests and “shall put such interests before his own interests or those of any other person, organisation or State.” Under Article 15, Counsel must not represent a client if:

(i) a conflict or potential conflict exists between the interests of the client and any other client(s); or

(ii) the matter is the same or substantially related to another matter in which Defence Counsel or his firm had formerly represented another client (“former client”), and the interests of the client are materially adverse to the interests of the former client, unless the client and the former client consent; or

(iii) Defence Counsel’s professional judgment on behalf of the client will be, or may reasonably be expected to be, adversely affected by Defence Counsel’s own interests or his interests in a third party.

If a conflict arises, Counsel must promptly inform all affected clients about the nature and extent of the conflict, take steps to resolve or remove the conflict, or obtain the client’s informed consent to continue the representation if, in Counsel’s professional judgment, he or she can continue representing the client without prejudicing the administration of justice. Article 15 specifies that where a conflict exists between Counsel’s duties towards the client and Counsel’s duties towards the interests of justice, “the latter shall prevail.”

Regarding withdrawal, Counsel who are appointed by a Judge or Chamber must seek leave of the Judge or Chamber to terminate the representation and demonstrate good cause or that withdrawal or termination is in the interests of justice.53Id., Art. 18. Non-appointed Counsel may withdraw from representing a client if the termination or withdrawal can be “achieved without material adverse effect on the interests of the client,” or if:

(i) he believes that the client has used Defence Counsel’s services to perpetrate a crime or fraud, or persists in a course of action involving Defence Counsel’s services that Defence Counsel reasonably believes is criminal or fraudulent;

(ii) the client insists upon pursuing an objective that Defence Counsel considers unlawful, improper or an abuse of process before the Special Court;

(iii) the client fails to substantially fulfil an obligation to Defence Counsel regarding Defence Counsel’s services and has been given reasonable warning that Defence Counsel will terminate or request withdrawal of his representation unless the obligation is fulfilled; or

(iv) other good cause for withdrawal exists.54Id., Art. 18(C).

Unless otherwise ordered by a Chamber, Counsel’s termination or withdrawal shall not take effect until a replacement Counsel is brought in by the client or assigned by the Principal Defender, or the client notifies the Registrar in writing of his or her intention to conduct his or her own defence.55Id., Art. 18(D). The Principal Defender was the head of the SCSL Defence Office, which “acted as a counterbalance to the Prosecution, and was mandated to ensure the rights of suspects, accused person and, by extension, convicts.”56See Office of the Principal Defender, http://www.rscsl.org/defence.html.

Article 20 of the SCSL Code of Conduct protects Counsel’s independence from external influences. Under Article 20, Counsel must not accept remuneration for representing a client from a source other than the client unless the client consents and there is no interference with Counsel’s professional judgment, independence, or the client-counsel relationship. Fee splitting rules also protect Counsel’s independence at the SCSL. Under Article 22, if Counsel (or any member of Counsel’s team) is requested, induced, coerced, or otherwise encouraged by the client to enter into a fee splitting arrangement, Counsel must inform the Principal Defender.

Article 29 of the SCSL Code of Conduct sets out the disciplinary regime for misconduct. Under Article 29, a three-member Disciplinary Panel hears complaints against Counsel. If the Disciplinary Panel finds Counsel’s misconduct beyond a reasonable doubt,57Id., Art. 33(F). the Disciplinary Panel may subject Counsel to admonishment, public reprimand, restitution, fines, or a temporary or permanent suspension of practice before the SCSL.58Id., Art. 34(A). The Disciplinary Panel may also report the misconduct to Counsel’s bar association.59Id., Art. 34(B).

Prosecutor v. Taylor

In Prosecutor v. Taylor, Charles Taylor had instructed his Counsel, Karim Khan, not to represent him during the trial.60Prosecutor v. Taylor, SCSl-2003-01-T, Transcript: Prosecution Opening Statement, 4 June 2007 (“Taylor Prosecution Opening Statement”).

At the beginning of the Prosecution’s opening statement, Judge Sebutinde noticed that Charles Taylor was absent.61Id., p. 242. Khan explained that Taylor had “concerns … regarding the size and composition of his legal team.”62Id., p. 244. He presented a letter from Taylor wherein Taylor terminated his representation, opting for self-representation.63Id., p. 246-51. In the letter, Taylor complained that it was unfair that he only had one Counsel to represent him, whereas the Prosecution had a team of nine Counsel/prosecuting trial lawyers.64Id., p. 249. Taylor explained that he would not receive a fair trial and that he would decline to attend any further hearings until his Defence team was provided with adequate time and facilities to prepare his defence.65Id., p. 250.

Judge Sebutinde directed Khan to SCSL Rule 60, which states that:

(A) An accused may not be tried in his absence, unless:

(i) the accused made his initial appearance, has been afforded the right to appear at his own trial, but refuses to do so; or

(ii) the accused, having made his initial appearance, is at large and refuses to appear in court.

(B) In either case the accused may be represented by a counsel of his choice, or as directed by a Judge or a Trial Chamber. The matter may be permitted to proceed if the Judge or Trial Chamber is satisfied that the accused has, expressly or impliedly, waived his right to be present.

She then ordered Khan to represent Taylor for the duration of the proceedings.66Id., p. 259.

Khan replied that under Article 18(A) of the SCSL Code of Conduct, Counsel “shall not represent a client if Defence counsel’s representation is terminated (i) by the client.”67Id., p. 260 quoting SCSL Code of Conduct, Art. 18(A). He also pointed to Article 18(D), which states: “If representation by Defence counsel is to be terminated or withdrawn, unless otherwise ordered by a chamber, such termination or withdrawn shall not take effect until a replacement Defence counsel is engaged by the client or assigned by the Principal Defender or the client has notified the Registrar in writing of his intention to conduct his own defence.”68Taylor Prosecution Opening Statement, p. 260, quoting SCSL Code of Conduct, Art. 18(D). In the transcript, Khan references Article 19(D). This is an error and the transcript should have read “Article 18(D).” Khan stated that Taylor complied with this Rule by notifying the Registrar that he terminated the representation, opting to represent himself.69Taylor Prosecution Opening Statement, p. 261.

Judge Sebutinde did not accept these submissions. She pointed Khan to ICTR Rule 45(D), which states that “[a]ny request for replacement of an assigned counsel shall be made to the Principal Defender. Under exceptional circumstances, the request may be made to a Chamber upon good cause being shown and after having been satisfied that the request is not designed to delay the proceedings.”70Id., p. 262, quoting SCSL Rule 45(D). Judge Sebutinde stated:

in our opinion, this rule overrides anything, any attempt by you to step down or any attempt by Mr. Taylor to otherwise disable you from representing him today, in light of the order that we have just made. Therefore, I will repeat and emphasize that you are directed to represent Mr. Taylor throughout the opening statement today.71Taylor Prosecution Opening Statement, p. 262.

After a back and forth exchange with Khan72Id., p. 263-67., she said: “Mr. Khan, if you are not inclined to obey the directive of the Court, make it abundantly clear by walking out.”73Id., p. 266-67. Khan replied “Your Honour, I must. I do apologise,” and walked out of the court room.74Id., p. 267. Duty Counsel, Charles Jalloh, took over the remainder of the proceedings.75Id. Despite this drama – and what may seem contemptuous conduct that in some national jurisdictions could result in disciplinary sanctions – the Taylor Trial Chamber took no action against Khan. As for Taylor, his complaint was heeded; he was provided with a full complement of a defence team, headed by a formidable UK barrister specializing in criminal defence, Courtenay Griffiths, QC.76Prosecutor v. Taylor, SCSL-2003-01-T, Principle Defender’s Decision Assigning New Counsel to Charles Ghankay Taylor, 17 July 2007.

Extraordinary Chambers in the Courts of Cambodia (“ECCC”)

At the ECCC, both National and International Counsel must be authorized by the Bar Counsel of the Kingdom of Cambodia to practice before the ECCC.77ECCC Defence Support Section Administrative Regulations, Regulations 2.1-2.2. Article 21(3) of the Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea (“ECCC Agreement”) states: “[a]ny counsel, whether of Cambodian or non-Cambodian nationality, engaged by or assigned to a suspect or an accused shall, in the defence of his or her client, act in accordance with the present Agreement, the Cambodian Law on the Statutes of the Bar and recognized standards and ethics of the legal profession.”

Though the ECCC does not have its own code of conduct, Counsel are governed by the Code of Ethics for Lawyers Licensed with the BAKC (“BAKC Code of Ethics”).78BAKC Code of Ethics, 21 September 2012 (unofficial translation). As a civil law system rooted in the French legal tradition, the BAKC Code of Ethics reflects many of the aspects of the civil codes discussed in my first post on independence.

Article 22 of the BAKC Code of Ethics states that unless assigned by the President of the Bar Association to represent a client, Counsel is free to refuse representation. If Counsel accepts the representation, he or she must “complete that assignment with the greatest diligence until it is completed,” or he or she is discharged by the client.79BAKC Code of Ethics, Art. 22. Under Article 29, Counsel “shall refuse any assignments or activities that are contrary to the rule of the legal profession or his/her conscience.” Similarly, Counsel may “[d]ue to his/her conscience,” terminate any assignment for the following reasons:

-The client continues to commit crimes or wrongdoing.

-The client has used Counsel service to commit crimes or wrongdoing.

-The purpose of the client is not acceptable or contrary to Counsel’s belief.

-The client does not cooperate with Counsel.

-The client fails to fulfill his/her obligation towards Counsel for the service; and after a proper notice, Counsel shall terminate his/her assignment unless such obligation has been fulfilled.

-Other appropriate reasons to terminate the assignment.80Id., Art. 29.

Before terminating the representation, Counsel must provide the client with notice of the withdrawal “within an appropriate period which allows the client to protect his/her interest and find another lawyer.”81Id.

As with other international and national codes of ethics, conflict of interest rules under the BAKC also protect Counsel’s independence. Under Article 25 of the BAKC Code of Ethics, Counsel must not accept the following cases:

-A case in which Counsel or his/her law group has already assisted the opposing party by providing consultation or agreed to represent the opposing party;

-When the interest of a client conflicts with the interest of another client in the case that Counsel or his/her law group is working on;

-When two clients are the disputing parties of the same case;

-When a client wants to engage Counsel or his/her law group but Counsel or the law group has provided services to the opposing party in the other case or the Counsel has agreed to continue providing legal consultation unless the last case that Counsel or the law group engaged has already passed two (2) years.

-A case in which Counsel or law group act as the arbitrator, mediator, or conciliator in the Alternative Dispute Resolution.

The Cambodian Law on the Bar further defines Counsel’s independence. Article 34 of the Cambodian Law on the Bar states: “Lawyers who have been accepted to engage in the legal profession shall first take a sworn oath at the Appeal Court…. I swear that I shall implement my profession with dignity, contentiousness, honesty, humanity, and with an independent mind[.]”82Cambodian Law on the Bar, 23 June 1995, available at https://www.wto.org/english/thewto_e/acc_e/khm_e/WTACCKHM3A3_LEG_50.pdf.

Under Article 51 of the Law on the Bar, Counsel practicing in a professional affiliation “has full right to choose between the means for his or her own works. He or she may refuse any mission which he or she believes to be contrary to his or her own conscience.” Article 52 specifies:

In any case, the affiliation may not prevent an affiliate from establishing his or her personal office, or prevent him or her from respecting the obligations of the profession and the rules of the legal profession. He or she works on his or her own behalf when defending his or her clients.

Article 60 of the Law on the Bar states that a charge of misconduct can be made either directly to the Bar Council or upon complaint from a third person or from the General Prosecutor to the Appeal Court.

The ECCC Internal Rules define the procedure for professional misconduct at the ECCC. Under Article 38(1) of the Internal Rules, “[t]he Co-Investigating Judges or Chambers may, after a warning, impose sanctions against or refuse audience to a lawyer if, in their opinion, his or conduct is considered offensive or abusive, obstructs the proceedings, amounts to an abuse of process, or is otherwise contrary to Article 21(3) of the Agreement.” Article 38(2) allows the Co-Investigating Judges or Chambers to refer any misconduct to the appropriate professional authority. In Koppe’s case, that is the course of action the Trial Chamber decided to pursue. It remains to be seen whether this referral to the Amsterdam Bar Association will have traction. Presumably the Amsterdam Bar Association will not only look into Koppe’s actions and conduct, but also the underlying facts, i.e. the actions and conduct of the Trial Chamber. And while it may be essential for Counsel to maintain a courteous and civil attitude towards the Judges during the proceedings, a national bar association may be sympathetic, if not outright supportive, if one of its members is treated unfairly and offensively by the Judges while Counsel is attempting in good faith to zealously protect and pursue his or her client’s legitimate interests within the bounds of the law.

In another example in Case 002/02, the Trial Chamber ordered the appointment of duty Counsel when the KHIEU Samphan Defence boycotted trial hearings on the client’s instructions. 83See my previous post on independence. KHIEU Samphan, who was found guilty and sentenced to life imprisonment in Case 002/01, instructed his Counsel to focus on drafting the appeal of Case 002/01 rather than attending the 002/02 trial.84Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Transcript, 17 October 2014, E1/242.1, p. 79. A referral to the Paris Bar Association for the International Co-Lawyers85Case of NUON Chea et al., 002/19-09-2007/ECCC/TC, Order to Refer Conduct of Counsel for KHIEU Samphan to Appropriate Professional Bodies, 19 December 2014, E330. found no traction, presumably because on its face, the Trial Chamber’s behavior seemed unjust and inappropriate: KHIEU Samphan had requested a brief recess from the trial proceedings until his appeal brief was drafted.86Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Transcript, 17 October 2014, E1/242.1, p. 83. Considering KHIEU Samphan’s advanced age and the complexity of the trial proceedings in Case 002/02, KHIEU Samphan was being denied his fundamental fair trial right to assist in his own defence provided by the Cambodian Constitution.87Constitution of the Kingdom of Cambodia, as amended 13 July 2004, Article 31: “The Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women’s and children’s rights.” While arguably Counsel should have appeared during the scheduled proceedings, it is also understandable for Counsel to heed the client’s instructions and their own moral conviction to refrain from collaborating with the Trial Chamber’s enterprise of denying their client his fundamental fair trial rights.

Special Tribunal for Lebanon (“STL”)        

At the STL, both Defence Counsel and Legal Representatives of Victims are governed by the Code of Professional Conduct for Defence Counsel and Legal Representatives of Victims appearing before the Special Tribunal for Lebanon (“STL Code of Conduct”). Article 4(A)(ii) of the STL Code of Conduct specifies that in the event of inconsistency between the STL Code and any other codes of ethics, “the provisions of this code shall prevail.”

The STL is unique in that the proceedings are being conducted in absentia.88STL Statute, Art. 22. Thus, for the Defence, there is no direct contact with the client. In fact, Counsel at the STL are prohibited from contacting the accused and discussing any element of the case.89STL Code of Conduct, Art. 8(E).

Though there is no specific article on independence in the STL Code of Conduct, several articles define the contours of Counsel’s independence.

Under Article 7(B) of the STL Code of Conduct, “Counsel may refuse to enter into a representation agreement without giving reasons, regardless of the person requesting such representation[.]” Article 7(C) states that Counsel must refuse representation where Counsel believes that:

(i) representation will result in conduct which is criminal, fraudulent or in breach of the applicable law;

(ii) it could cause a conflict of interest as defined in Article 11 of this Code;

(iii) he or a member of his Office will be called to appear as a witness during these proceedings, unless:

(a) the testimony relates to the nature and value of legal services rendered in the case; or,

(b) the testimony relates to an issue which Counsel honestly and reasonably believes will not be contested by either party.

Article 7(F) specifies that Counsel may terminate representation if the termination can be done without any material adverse effect on the client’s interests and where good cause is shown, or if the client:

(i) has used Defence Counsel’s services to perpetrate a crime or fraud, or persists in a course of action involving Defence Counsel’s services that he reasonably believes is criminal or fraudulent; or,

(ii) insists upon pursuing an objective that Defence Counsel reasonably believes to be unlawful, improper, or an abuse of process; or,

(iii) fails to substantially fulfil an obligation to Defence Counsel regarding his fees and has been given reasonable warning that Defence Counsel will seek termination of the representation agreement unless the obligation is fulfilled.

Article 7(H) specifies that when terminating the representation, Counsel must continue to act until the request to terminate has been accepted by the Head of the Defence Office, and Counsel has been replaced.

Legal Representatives of Victims must continue to represent their clients unless Counsel’s physical or mental condition materially impairs his or her ability to act for the client.90See STL Code of Conduct, Arts. 7(D)(iii); 7(G).

Article 8 of the STL Code of Conduct details the scope of representation and allocation of decision-making between client and Counsel. Article 8(A) prohibits Counsel from advising a client to engage in conduct that Counsel knows is criminal, fraudulent, or in breach of the applicable law. However, Counsel may “discuss the legal consequences of any proposed course of conduct with a Client and may advise or assist a Client in good faith to determine the validity, scope or meaning of the applicable law.”91Id., Art. 8(A). Article 8(B) specifies that Counsel must “consult with the Client regarding all substantial aspects of his representation” and “abide by a Client’s fully informed decisions concerning the objectives of representation, which plea should be entered, whether a plea agreement should be entered into, [and] whether to testify whether to appeal a judgment of conviction and/or sentence[.]”92Id., Art. 8(B)(ii)-(iii). Counsel who are assigned to an in absentia accused shall not enter any plea on behalf of the accused, shall undertake all necessary investigations to prepare for a defence, and shall make all submissions on the law in the perceived best interests of the accused.93Id., Art. 8(C). Legal Representatives of Victims must “consult to the extent possible with all his Clients regarding the substantial aspects of their representation and their views and concerns,” “faithfully express the views and concerns of all his Clients and abide by their informed decisions,” and “act at all times in what he perceives to be the best interests of his clients.94Id., Art. 8(F)(ii)-(iv).

Conflict of interest rules also protect Counsel’s independence at the STL. Under Article 11of the STL Code of Conduct, Counsel owes a duty of loyalty to the client and must “exercise all care to ensure that no potential or actual conflict of interest arises.” Article 11(D) specifies that Counsel must not act on behalf of a client in a matter before the STL if:

(i) the matter is the same or substantially related to another matter in which Counsel or his Office had advised, represented or acted on behalf of a former Client and the interests of the new Client are materially adverse to the interests of the former Client; or,

(ii) he participated personally and substantially in the matter as an official or staff member of the United Nations International Independent Investigation Commission or Tribunal.

Under Article 11(E), Counsel must not represent a client if his or her professional judgment will be, or may reasonably be expected to be, adversely affected by Counsel’s responsibilities or interests to any third party, or Counsel’s own interests.

Article 12 governs the Counsel-client relationship. Under Article 12(D), where Counsel is induced or encouraged by a client to violate the STL Code of Conduct, Counsel must advise the client about the prohibition of such conduct.

Similar to the other international and internationalized tribunals, rules governing fees also protect Counsel’s independence at the STL. Under Article 14(B) of the STL Code of Conduct, Counsel must not accept any remuneration from a source other than the client, unless the client gives informed consent and “Defence Counsel’s independence and relationship with the Client are not thereby affected.” The same provision applies mutatis mutandis to a Legal Representative of Victims who represents non-indigent clients.95Id., Art. 16(A).

Articles 17 to 22 of the STL Code of Conduct set out the disciplinary regime at the STL. After a complaint of misconduct is made to the Head of the Defence Office or Registrar, the Pre-Trial Chamber or Trial Chamber – following a preliminary assessment of the complaint – may decide to dismiss the complaint, refer it to the relevant Head of Organ, issue sanctions, or take any other action deemed necessary, such as establishing an investigation panel or prosecuting offenses against the administration of justice under Rule 60bis of the STL Rules.96Id., Art. 18(E). Rule 60bis includes as offenses against the administration of justice:

  • knowingly making a false statement to the tribunal which Counsel knows will be used as evidence in the proceedings;
  • disclosing information relating to the proceedings in violation of a court order; refusing to comply with orders to appear or produce documents before a Judge or Chamber;
  • threatening, intimidating, causing injury, or offering a bribe to or otherwise interfering with a witness or other person with an obligation under an order of a Judge or Chamber; or
  • threatening, intimidating, engaging in serious public defamation of, offering a bribe to, or otherwise seeking to coerce a Judge or any other officer of the Tribunal.97STL Rules of Procedure and Evidence, STL-BD-2009-01-Rev.6-Corr.1, as corrected 3 April 2014, Art. 60bis(i)-(vii).

If the Pre-Trial Chamber refers a complaint to the Head of the Defence Office or the Registrar, the Head of the Defence Office or Registrar shall submit the complaint to an Independent Commissioner responsible for investigating complaints of misconduct.98STL Code of Conduct, Arts. 18(G); 18(A). Article 20 of the STL Code of Conduct provides for a Disciplinary Board that decides on disciplinary complaints by majority vote.99Id., Art. 20(C). The STL Code of Conduct does not detail the interaction between the Chambers, Heads of Organs, or Disciplinary Board in a matter involving professional misconduct.

International Criminal Court (“ICC”)

At the ICC, Defence Counsel, Legal Representatives of Victims, Counsel for States, and other Counsel appearing before the ICC are governed by the Code of Professional Conduct for Counsel (“ICC Code of Conduct”).100ICC Code of Conduct, Art. 1. Article 5 of the ICC Code of Conduct (“Solemn undertaking by counsel”) states that Counsel must act “with integrity and diligence, honourably, freely, independently, expeditiously and conscientiously.” Article 6 of the ICC Code of Conduct states: “Counsel shall act honourably, independently and freely” and must not “permit his or her independence, integrity or freedom to be compromised by external pressure; or do anything which may lead to any reasonable inference that his or her independence has been compromised.”

As with the other international and internationalized tribunals, conflict of interest rules protect ICC Counsel’s independence. Article 12(1) of the ICC Code of Conduct states that Counsel must not represent a client in a case:

(a) If the case is the same as or substantially related to another case in which counsel or his or her associates represents or formerly represented another client and the interests of the client are incompatible with the interests of the former client, unless the client and the former client consent after consultation; or

(b) In which counsel was involved or was privy to confidential information as a staff member of the Court relating to the case in which counsel seeks to appear. The lifting of this impediment may, however, at counsel’s request, be ordered by the Court if deemed justified in the interests of justice. Counsel shall still be bound by the duties of confidentiality stemming from his or her former position as a staff member of the Court.

Article 12(3) prohibits Counsel from acting in proceedings where there is a substantial probability that Counsel or an associate of Counsel will be called as a witness. Under Article 16, once a conflict arises Counsel must inform all potentially affected clients and either withdraw or seek each client’s informed consent in writing to continue the representation.

Counsel at the ICC have the right to refuse representation without stating any reasons and must refuse representation if there is a conflict of interest, Counsel is incapable of dealing with the matter diligently, or Counsel does not consider that he or she has the requisite expertise.101Id., Art. 13(1)-(2).

Article 14 of the ICC Code of Conduct sets out the scope of representation and allocation of decision-making between Counsel and client. Article 14(2) states that Counsel must “[a]bide by the client’s decisions concerning the objectives of his or her representation as long as they are not inconsistent with counsel’s duties under the Statute, the Rules of Procedure and Evidence and this Code” and “[c]onsult with the client on the means by which the objectives of his or her representation are to be pursued.” Under Article 15(1), Counsel must “provide the client with all explanations reasonably needed to make informed decisions regarding his or her representation.”

Article 18 of the ICC Code of Conduct governs termination or withdrawal. Under Article 18(1), Counsel may withdraw from the representation without the Chamber’s consent if the client “insists on pursuing an objective that counsel considers repugnant” or “the client fails to fulfil an obligation to counsel regarding counsel’s services and has been given reasonable warning that counsel will withdraw unless the obligation is fulfilled.”

As with the other international and internationalized tribunals, rules governing fees also protect ICC Counsel’s independence. Under Article 22(1) of the ICC Code of Conduct, where the client benefits from legal assistance, fees shall be paid exclusively by the Registrar or the Court, and Counsel may not accept remuneration from any other source. Article 22(2) prohibits Counsel from transferring or lending fees to a client, the client’s relatives or acquaintances, or any other third person or organization in which the client has a personal interest. Article 22(4) states that where Counsel is requested, induced, or encouraged to violate his or her ethical duties under the ICC Code of Conduct, Counsel must advise the client of the prohibition of such conduct.

Article 24 of the ICC Code of Conduct governs Counsel’s duties towards the Court. Under Article 24(2), Counsel is “personally responsible for the conduct and presentation of the client’s case and shall exercise personal judgment on the substance and purpose of statements made and questions asked.” Article 24(3) prohibits Counsel from knowingly deceiving or misleading the Court. Where Counsel becomes aware of an erroneous statement made by Counsel or Counsel’s staff, Counsel must take all necessary steps to correct the erroneous statement.102Id., Art. 24(3).

Articles 30 to 38 of the ICC Code of Conduct govern the disciplinary regime for professional misconduct. Once a complaint is made against Counsel regarding professional misconduct, the Registrar submits the complaint to the Commissioner who is responsible for investigating the complaint.103Id., Arts. 33, 34. The Registrar may also make complaints to the Commissioner on his or her own initiative.104Id., Art. 34(4). The Commissioner may dismiss the complaint without further investigation if he or she finds the complaint unfounded.105Id., Art. 39(1). Should the Commissioner find the complaint has merit, he or she will submit a report to the Disciplinary Board.106Id., Art. 39(2). The Disciplinary Board then hears the complaint107Id., Art. 41. and may impose sanctions, including:

  • Admonishment;
  • Public reprimand;
  • Payment of fines;
  • Suspension on the right to practice; and
  • Permanent ban on practicing before the ICC.108Id., Art. 41(2).

Counsel have the right to appeal Disciplinary Board decisions to the Disciplinary Appeals Board on factual or legal grounds.109Id., Art. 43.

International Bar Association (“IBA”)

Aside from the codes of conduct of the courts and tribunals, it is also instructive to consider the IBA Principles on Conduct for the Legal Profession (“IBA Principles”). As was noted in the previous post, guidance for appreciating the core ethical principles for the European legal profession can be sought by consulting the Council of Bars and Law Societies of Europe (“CCBE”) Code of Conduct for European Lawyers (“CCBE Code of Conduct”). While the Charter of Core Principles of the European Legal Profession (“CCBE Charter”) and CCBE Code of Conduct are designed to codify core ethical principles common to the entire European legal profession, the IBA Principles reflect sound ethical principles of a universal nature; instructive for both national and international practitioners.

The IBA is a voluntary association of international legal practitioners, bar associations, and legal societies.110About the IBA, available at http://www.ibanet.org/. The IBA Principles aim at “establishing a generally accepted framework to serve as a basis on which codes of conduct may be established by the appropriate authorities for lawyers in any part of the world.”111IBA Principles on Conduct for the Legal Profession, adopted 27 May 2011 by the IBA (“IBA Principles”), Preamble. They “express the common ground which underlies all the national and international rules which govern the conduct of lawyers, principally in relation to their clients.”112IBA Principles, p. 10. The IBA Principles are non-binding, and are not intended to be used as criteria for professional misconduct or malpractice proceedings.113Id. Nonetheless, they are aspirational and instructive.

Principle 1.1 of the IBA Principles is that Counsel must “maintain independence and be afforded the protection such independence offers in giving clients unbiased advice and representation. A lawyer shall exercise independent, unbiased professional judgment in advising a client, including as to the likelihood of success of a client’s case.” Principle 1.2 states: “It is indispensable to the administration of justice and the operation of the Rule of Law that a lawyer act for the client in a professional capacity free from direction, control or interference.”

Under Principle 1.2, Counsel must be free from the influence of others. “If a lawyer is not guaranteed independence and is subject to interference from others, especially those in power, it will be difficult for the lawyer fully to protect clients…. Clients are entitled to expect independent, unbiased and candid advice, irrespective of whether or not the advice is to the client’s liking.”114IBA Principle 1.2. Independence also requires that Counsel’s own interests not interfere with his or her professional judgment in protecting the client’s best interests.115Id. Principle 1.2 provides the following circumstances in which Counsel’s independence is at risk:

  • Entering into a business transaction with a client;
  • Becoming involved in a business, occupation, or activity that takes precedence over the client’s interests;
  • Acquiring an proprietary interest adverse to the client;
  • Acquiring a proprietary interest in the client’s cause of action; and
  • Third parties pay for the legal representation.116Id.

Under Principle 1.2, the process for admission to a bar, professional discipline, and professional supervision should be “free from undue or improper influence, whether governmental, by the courts or otherwise.” Principle 1.3 requires that the administration of the profession itself comply with the rule of law. Thus, Principle 1.3 suggests that decisions by a regulatory authority such as a bar association should be subject to appropriate review mechanisms.

Conclusion

itdependsAs with the national codes of conduct, the international codes of conduct provide for Counsel’s independence. While each code has general provisions on Counsel’s independence, the specific contours of independence are defined by Counsel’s other ethical duties, such as, the acceptance of and scope of representation, loyalty, avoidance of conflicts of interest, and termination and withdrawal. Though both national and international codes of conduct share common language regarding Counsel’s independence, Counsel’s understanding of this principle differs depending on his or her legal tradition. Counsel at the international and internationalized tribunals must be particularly thoughtful when it comes to their ethical duties before such tribunals, especially because Counsel are bound by both national and international codes of conduct. Irrespective of the provisions of the international codes of conduct that give primacy to the international codes, Counsel cannot practice before the international and internationalized tribunals unless Counsel is a member in good standing of his or her own national bar. Thus, doing anything that may compromise Counsel’s bar license – even if sanctioned by one of the international or internationalized tribunals – is reckless.

Practice at the international and internationalized tribunals has shown that even when the client instructs Counsel not to attend the proceedings or represent him or her any further, Counsel may not simply refuse to appear before a tribunal or further represent an accused without the tribunal’s consent. Where Counsel refuses to attend a hearing, the tribunal can either institute disciplinary proceedings or refer the matter to Counsel’s national bar association.

In zealously protecting and pursuing a client’s legitimate interests, what exactly are the ethical and moral contours within which Counsel must exercise their professional discretion? The codes of conduct are, of course, the starting point, but they do not prescribe the terms for resolving all conflicts that are likely to arise during the course of representing a client – especially in cases before international and internationalized tribunals.

Just how independent is Counsel in acting on behalf of a client?

In the final analysis, it seems that the extent of Counsel’s independence is in the eye of the beholder. It all depends on which perspective, which legal tradition, and which circumstances you consider.

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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.

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