The Common Code of Professional Conduct: flawed and hubristic – Part I

On Friday 10 November 2017, The Fifth International Meetings of the Defence adopted the so-called Common Code of Professional Conduct for all Counsel appearing before the International Criminal Tribunals (Common Code). Aside from being a non-binding document (I hesitate to call it a code since it is nothing of the kind), it is flawed and hubristic.  Indeed, it may be that everything you need to know about the arrogance of the document and its creators can be divined from the declaration that it is to be “referred to as the 2017 Nuremberg Code.”

By happenstance, I heard that the Association of Defence Counsel practising before the International Courts and Tribunals (ADC) was consulted on this initiative. Having a particular interest in professional responsibility and ethics, I reached out to get a copy of the Common Code.

The ADC – the first and without a doubt the most accomplished association of its kind – was not involved in the drafting of the Common Code. The ADC sent its members a copy of the “Proposed Code,” informing them that it received the draft relatively late in the process. After the ADC Executive Committee and Disciplinary Council made an initial assessment of the Proposed Code, and without circulating it to the ADC membership (for reasons that become obvious from the available correspondence and discussed below), it decided that the ADC could not sign the Proposed Code as presented.

On 17 October 2017, in an open letter regarding the Proposed Code, the ADC made its position clear: some provisions of the Proposed Code “fall short of best practice in important respects” and further “widest possible” consultations were needed, including “the voluntary organizations of counsel practising before the international courts and tribunals, and the registrars and judiciary of the international courts and tribunals,” as well as international associations, national bars, and relevant NGOs.

The ADC rightly declined to support or sign it, considering that the desired (and proper) consultative process would require time and that time was in short supply before The Fifth International Meetings of the Defence (8-10 November 2017), where the drafters planned to adopt the Proposed Code.

In a response to the ADC’s open letter, the Working Group then informed the ADC that it would not adopt the Proposed Code at Nuremberg as had been planned. Rather, the Proposed Code would be presented for discussion at the meetings, and a follow-up working group would be formed to be “responsible for the continuing development of the Code.”

This representation proved to be false.

This representation proved to be false. On 10 November 2017, those gathered at The Fifth International Meetings of the Defence discussed the Proposed Code (or, more accurately, the definitive version of the Common Code) and launched it, with some of those present signing it. The ADC is scheduled to discuss it at the ADC General Assembly on 9 December 2017. It should be interesting. Regrettably, I am unable to attend, though I hope my posts on the Common Code will add to the mix of views and provoke what promises to be a lively discussion.

In this post, I will provide some general observations about this initiative. In my opinion – also expressed elsewhere in the context of attempting to establish a supranational bar – drafting a common code of professional conduct for international(ized) criminal tribunals and courts is a fool’s errand. I will also outline my thoughts on why drafting a commentary and best practices manual on professional responsibility and ethics applicable to the existing codes of conduct of the international(ized) criminal tribunals and courts is a much more beneficial use of time and resources.

In the second post, because of the space and time needed to do a thorough commentary, I will comment on just some of the most problematic provisions of the Common Code. I will not comment on the disciplinary regime since, for reasons I explain below, it has no added value considering that each of the international(ized) criminal tribunals and courts have their own mandatory disciplinary regime. If these disciplinary regimes are deficient, then targeted amendments to recalibrate them should be proposed on an ad hoc basis as necessary.

Suffice it to say, and with all due respect to the well-intentioned drafters of the Common Code, my overall assessment is that it should be scrapped. Better to invest time and resources in plucking low-hanging, high-yielding fruit, than reaching for pie in the sky.  

Who are or what is The International Meetings of the Defence?

The International Meetings of the Defence are annual meetings organized by the Head of the Defence Office of the Special Tribunal for Lebanon (STL), François Roux. So far there have been five annual meetings. Invitations go out every year to counsel practicing at the various international(ized) criminal tribunals and courts. As far as I know, the program is generally designed by Mr. Roux. Perhaps he consults with others or reaches beyond the STL counsel he oversees in selecting the topics or speakers for these meetings. I certainly have never been consulted, just as I never saw the Common Code before the ADC provided it to its members, following my request.

A couple of years ago I attended The International Meetings of the Defence in Geneva. As meetings go, the real value was in seeing old friends and meeting new colleagues. The working group sessions were interesting and engaging, but superficial. The format and allocated time was hardly sufficient to flesh-out anything but the most obvious – certainly not the subtleties where the devil tends to hide.

To my knowledge, The International Meetings of the Defence is not a registered association. It does not represent anyone practicing before any of the international(ized) criminal tribunals and courts. It has never intervened on behalf of any defence counsel who may have been in need of assistance. It is not recognized – officially or unofficially – by any of the international(ized) criminal tribunals and courts. Nor is it recognized as an association by any associations founded by counsel practicing before any of the international(ized) criminal tribunals and courts.

So, what is The International Meetings of the Defence? Not to sound uncharitable, it is just an annual gathering of lawyers organized by Mr. Roux. While it has its value, just as conventions tend to have, it is not a representative gathering of international counsel practicing international criminal law. Any documents adopted by those attending these meetings may be instructive (assuming they are of quality), but they certainly are not binding on anyone – including those who signed on to them. Simply, anything adopted by The International Meetings of the Defence cannot be claimed to represent the views of counsel appearing before the international[ized] criminal tribunals and courts.

The futility in pursuing a common code of professional conduct 

I have repeatedly noted the futility of trying to set up a supranational Bar or Bar Association for counsel practicing before any of the ad hoc, hybrid, or permanent international(ized) criminal tribunals and courts.1   See e.g., Michael G. Karnavas, Defence Counsel Ethics, the ICC Code of Conduct and Establishing a Bar Association for ICC List Counsel, 16 Int’l Crim. L. Rev. 1048-1116 (2016). The reasons are obvious. There is no clear answer as to:

• Who should or will establish such a Bar or Bar Association?
• Based on what authority can such a Bar or Bar Association be established?
• How will it be financed?
• To whom will it be accountable?
• Based on what criteria or authority can such a Bar or Bar Association override the adopted codes of professional conduct and/or supersede the adopted disciplinary procedures and mechanisms of the international(ized) criminal tribunals and courts?
• Will national Bars or Bar Associations subordinate themselves to some supranational Bar or Bar Association?
• How can the legitimacy and recognition of the founders of international(ized) criminal tribunals and courts be secured?

Experience shows that each international(ized) criminal tribunal and court jealously guards its turf. Presidents and Registrars of these independent judicial institutions have been dismissive of any attempts by outside organizations or associations, such as the International Criminal Bar, to act as the official Bar or Bar Association representative of counsel practicing before their courts. Pursuing the establishment of an all-encompassing supranational Bar or Bar Association to represent the interests of counsel before all international(ized) criminal tribunals and courts is a romantic undertaking. Unless a Bar or Bar Association enjoys legitimacy in the eyes of the international(ized) criminal tribunals and courts, it is just another professional association of the trade union ilk, being on the outside, looking in. So, without a supranational Bar that is universally recognized by all existing and future international(ized) criminal tribunals and courts, the notion of a binding “Common Code” is a pipedream.

But even if such a Bar or Bar Association were to be established, the existing and yet to be established international(ized) criminal tribunals and courts would have to agree to make this Common Code applicable, even though each tribunal and court has its own code of professional responsibility with its own disciplinary regime. How realistic is that? Either these tribunals and courts set aside their own codes – which they drafted and adopted – and supplant it for the Common Code, or they apply the Common Code in tandem with their own codes and counsel’s domestic codes.

Is the ménage à trois of codes recommended by The International Meetings of the Defence necessary to keep counsel from going astray? Will a tribunal or court seriously allow a “Common Code” to override its code in the event of a difference or conflict?2 Each of the codes of conduct of the international(ized) criminal tribunals and courts provide that in the event of inconsistency between the tribunal’s or court’s code and any other codes governing counsel, the tribunal’s or court’s code takes precedence. See International Criminal Tribunal for the former Yugoslavia, Code of Professional Conduct for Counsel appearing before the International Tribunal, Art. 4; International Criminal Tribunal for Rwanda, Code of Conduct for Defence Counsel, Art. 19; Special Court for Sierra Leone, Code of Professional Conduct for Counsel with the Right of Audience before the Special Court for Sierra Leone, Art. 3; Special Tribunal for Lebanon, Code of Conduct for Defence Counsel and Legal Representative of Victims appearing before the Tribunal, Art. 4; International Criminal Court, Code of Professional Conduct for Counsel, Art. 4; Mechanism for International Criminal Tribunals, Code of Professional Conduct for Defence Counsel appearing before the Mechanism, Art. 4. Can it be realistically said that what is lacking before these international(ized) criminal tribunals and courts are sound and adequate codes of professional responsibility? Of course not. But, if there is a need of yet another code from which to get inspiration, the International Law Association’s The Hague Principles on Ethical Standards for Counsel Appearing before International Courts and Tribunals provides the essential elements.

Another example of a successful supranational code from which to take note is the Code of Conduct for European Lawyers (CCBE Code), drafted by the Council of Bars and Law Societies of Europe – an authoritative NGO whose membership includes the Bars and law societies of 45 European countries. The purpose of the CCBE Code was not to supplant the existing domestic codes of conduct, but to harmonize cross-border practice in Europe (see CCBE Code, Preamble, paras. 1.2.2, 1.3.1). That is why many of its provisions are drafted as broad-brush principles, with some containing express instructions to defer to the domestic regulations and codes of conduct (see e.g., CCBE Code, Regulation of Fees, para. 3.4.1). Several European countries have incorporated general principles and rules articulated in the CCBE code, while other European countries have implemented it to the extent it concerns cross-border practice (see here a list of countries that adopted the CCBE Code as of 2013). The CCBE Code’s broad recognition is a result of the CCBE’s work over the course of more than 50 years.

The Common Code may have been intended to be advisory or complementary to the codes of international(ized) criminal tribunals and courts much like the CCBE Code, with its Preamble stating that the primary purpose of the code is to “harmonize the practices of lawyers” and that the “international criminal tribunals” are “urge[d] … to interpret and apply” their codes according to the Common Code. But this is contradicted by the Common Code’s primacy provision and disciplinary regime, which indicate that it was intended to supplant existing codes. More on this below and in Part II.

What I have noted before (a position to which I firmly hold), is that the problem is not with the codes, but with the lack of a commentary that would assist counsel on how the applicable codes should be interpreted and applied.

… the problem is not with the codes, but with the lack of a commentary that would assist counsel on how the applicable codes should be interpreted and applied.

 In part, this is because of the drafting styles of the codes of conduct. In civil law systems, codes are generally drafted as broad-brush principles guiding counsel in exercising professional discretion, whereas in common law systems, codes are generally drafted as concrete legal rules and are often accompanied by extensive commentary with detailed advice and situational examples as to how counsel should resolve particular ethical dilemmas in practice.3   Discussing the drafting styles of the codes, see Mary Daly, The Dichotomy between Standards and Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by U.S. and Foreign Lawyers, 32 Vand. J. Transnat’l. L, 1122, 1223 (1999); Philip Genty, The Challenges of Developing Cross-Cultural Legal Ethics Education, Professional Development, and Guidance for the Legal Professions, 2011 J. Prof. L. 37, 42 (2011).

But there is more to this story, and that has to do with understanding different ethical principles which may share common terminology, but which may vastly differ depending on the legal tradition. What is being “independent” or “zealous” in common law systems, for example, may be entirely different in civil law systems. (For a critical analysis of domestic legal ethics, see my two-part series on The Lawyer’s Independence here and here). Here are some dos and don’ts on zealousness from my legal tradition (United States / common law), which I firmly believe are consistent practices under the codes of conduct of the international(ized) criminal tribunals and courts.

  • Defence counsel are not required to pursue a true account of the facts of the case or to promote a dispassionate application of the law to the facts.
  • Defence counsel are required to aggressively challenge both the facts and the law in defending their clients.
  • Defence counsel are forbidden to balance competing interests so that all affected persons, such as the victims and civil parties, get what they may rightly deserve. Quite to the contrary, defence counsel are expected to exclusively pursue their client’s interests.
  • Defence counsel do not view their ethics as dependent on some wider context where they may operate, such as the broader political or aspirational goal of the court; their only “positive agenda” is doing anything legally permissible and advantageous in representing their clients.
  • Defence counsel are entitled to attempt to impeach or diminish a prosecution witness’s testimony despite counsel’s personal opinions on credibility.
  • Defence counsel are entitled to allow the client to testify despite their personal opinions on the quality of the evidence.
  • Defence counsel are not obligated to reveal to the court that evidence provided by a defence witness that benefits the client is believed to be false, misleading, or even mistaken.
  • Defence counsel should not insist that a client give unsworn testimony based on a belief that the client will give false evidence.
  • Defence counsel should not judge the client’s credibility; this is for the court to determine.
  • Defence counsel should not pressure an innocent client to forgo pleading guilty if the client wishes to plead guilty after being fully informed of the consequences; going to trial and risking a higher sentence than what is offered in a plea agreement does not advance the client’s interests, nor does it necessarily ensure a fair outcome.
  • Defence counsel are entitled to argue that the evidence supports a conclusion despite their opinion that the conclusion is specious.
  • Defence counsel can resort to tactics that highlight the unfairness of the proceedings, even if such tactics may be viewed as disruptive.

Some from the civil law tradition may take exception as to how far one can push zealousness. This can be a problem when appearing before a predominantly civil law chamber, and could result in warnings or disciplinary proceedings. This is why I have advocated – at least in the case of the International Criminal Court (ICC) – for the drafting of a commentary to the existing code – a task to be carried out by the International Criminal Court Bar Association (ICCBA) in consultation with the Registrar, the Office of the Prosecutor, and the President of the ICC.4   See e. g. Michael G. Karnavas, Defence Counsel Ethics, the ICC Code of Conduct and Establishing a Bar Association for ICC List Counsel, 16 Int’l Crim. L. Rev. 1048-1116 (2016). The reason for including the other stakeholders is to ensure that the commentary is balanced, instructive, and acceptable – if not authoritative. Inclusion fosters ownership.

Such a commentary would be very much like what the American Bar Association (ABA) provides, where the ABA Model Rules of Professional Conduct prescribe baseline rules each followed by extensive commentary on how to interpret and apply these rules (see here for example of a detailed commentary on the principle of due diligence). Such a commentary could also serve as a solid base for a best practices ethics manual, training, and a mandatory ethics exam for all counsel before they can be placed on the List of Counsel.

Put bluntly, what is needed for counsel practicing at the international(ized) criminal tribunals and courts is not another code drafted by some counsel and adopted at some meeting followed by a ceremonial signing, speech-making, and champagne-drinking, but some clear, instructive, and reasonably authoritative commentary, best practices manual, or handbook that would guide practitioners.

Parting thoughts

The Common Code is flawed and hubristic. It is flawed because, among other things, some provisions are inconsistent, vague, and nonessential. It is hubristic because 50% of the Common Code deals with the disciplinary regime, obviously aiming to supplant the existing disciplinary regimes of the international(ized) criminal tribunals and courts. This is sheer fantasy. But aside from that, what is so lacking about the current disciplinary regimes that makes it necessary to concoct yet another disciplinary regime?

The ICC disciplinary regime, for example, affords counsel added protection by allowing for national bars to participate in disciplinary proceedings as ad hoc members of the Disciplinary Board. If the alleged counsel’s misconduct is already subject to a disciplinary procedure before a national authority, the ad hoc member serves as a contact point for all communication and consultation necessary to ensure the complementarity of disciplinary measures. This, to me, is sensible and astute – a safety-valve that was not added by fluke or unappreciatively of the value of having a domestic expert of counsel’s code of professional responsibility to assist in providing contextual nuance in evaluating the conduct in question, lest something get lost in translation.

In drafting the ICCBA Constitution (something I have some knowledge about), the ICC disciplinary regime was carefully examined. It was also apparent to the drafters and later on to all counsel who voted for the adoption of the ICCBA Constitution, that the ICCBA could not adopt its own disciplinary regime – not if it wanted to be recognized by the ICC as a legitimate association of counsel practicing before the ICC (see here, here, and here). Ditto for other associations, such as the ADC. The Mechanism for International Criminal Tribunals is not about to countenance the ADC adopting a code of conduct that deviates from what is in place. And no amount of urging by the ADC or others will be well-received.

The existing codes of conduct for the international(ized) criminal tribunals and courts provide checks and balances, with adequate (though not beyond the need for improvement) due process protections. However, if, indeed, what is needed is a common code of conduct, it should at least be of high quality and reflective of best practices. The Common Code adopted at The Fifth Meetings of the Defence fails on both accounts.

Perhaps if the Common Code was well-conceived, liberally circulated to counsel practicing before the international(ized) criminal tribunals and courts, transparently commented upon, appropriately revised during the drafting process to reflect the comments received, and accompanied by a commentary before being publicly debated and voted upon, it would not be so flawed and hubristic. Perhaps. But even so, getting the international(ized) criminal tribunals and courts to adopt and implement the Common Code would still be a Sisyphean task.


Continued in Part II.

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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.

One thought on “The Common Code of Professional Conduct: flawed and hubristic – Part I”

  1. Très intéressant mon cher Michael.
    Tu étais à Genève où ce travail collectif a été lancé. Dommage que tu n’y ait pas participé. Tu aurais pu constater que les sources dont tu parles ont en effet été à l’origine de nos travaux et que les groupes de travail étaient représentatifs de la diversité des cultures. Mais je comprends bien combien il est difficile à certains de passer d’une monoculuture du droit à une approche multiculturelle. Les anathèmes contre une approche multiculturelle ne font que rendre celle -ci plus urgente.
    Au plaisir de te retrouver dans le Comité de suivi du Code de Nuremeberg 2017 pour nous faire profiter de ton expérience. Bien amicalement. François

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