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

This is the second and last post on the Common Code of Professional Conduct for all Counsel appearing before the International Criminal Tribunals (Common Code), launched in Nuremberg on 10 November 2017 at The Fifth International Meetings of the Defence.

In the first post, I provided some general observations on why this initiative is a fool’s errand, and why time and resources are better spent in 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. In this post, I will briefly discuss some of the provisions of the Common Code that may not reflect best practices or may be constructively ambiguous.

I will not touch on such silly provisions as Article 10(C) dealing with courtroom attire,1   This is up to the chamber as it controls the conduct of the proceedings and order in the courtroom. For instance, during the Kenya Case initial appearance at the International Criminal Court (ICC), Judge Ekaterina Trendafilova requested that counsel not wear wigs: “And I would ask politely, and with a little bit of concern, some of the Defence teams that are wearing wigs this is not the dressing code of our institution and we would like that the dressing code is uniform for everyone who gives the face of the proceedings before the ICC. And in this quite warm weather, maybe it will be more convenient to be without wigs because this does not belong to our dressing code.” or discuss provisions that do not belong in a code of conduct, such as Article 3.6 dealing with immunity – a matter that is regulated by headquarters agreements and agreements on privileges and immunities.2   While I agree that counsel should be immune for prosecution for what they plead, they are only offered a limited (compared to judges and prosecutors) functional immunity to the extent necessary for the free and independent performance of their activities in representing their clients. For more on immunity, see my post here. Nor will I discuss the disciplinary regime. Not because it is without flaws or ambiguity, but because it is gratuitous since every international(ized) criminal tribunal and court has its own disciplinary regime – which they are not about to jettison for the one suggested by the drafters of the Common Code. I will conclude the two-part series by listing my reasons why counsel do not benefit from having another code of conduct, even if its drafters and some counsel have anointed it as the “Common Code.”

General Provisions

Preamble

As preambles go, it is thematic and reasonably pithy. It does, however, contain several declarations or aspirational goals that are questionable.

The Preamble declares that the “main purpose of adopting such a code is to govern and harmonize the practices of lawyers before the international criminal tribunals, and to ensure that the requisite consideration is given in order that they may carry out their duties independently and effectively.” It also “[u]rge[s] the international criminal tribunals … to interpret and apply their respective ethical rules in a manner consistent with the provisions of this Code [and] to take into account the provisions of this Code during any adoption and/or revision of their ethical rules.

As I already noted in the first post, the Common Code cannot achieve the harmonization of practices. Every international(ized) criminal tribunal and court has its own statute, rules of procedure and evidence, directives, regulations, code of professional conduct, etc. It is within these legal instruments that counsel are expected to carry out their duties, irrespective of their legal tradition or their national practice. Each tribunal and court has tailored its code of conduct for counsel (as they have done for the prosecution), although the general provisions are virtually identical.

[I]f indeed the Common Code has harmonization as its primary aim, it certainly provides no guidance on how to achieve it.

As I also noted, if there is a need for harmonizing the practices of counsel, it is not because a “common code” is lacking, but because counsel come from different legal traditions. They interpret and apply the precepts of the codes (which are broadly framed) differently (see my post on how the lawyer’s duty of independence is interpreted in various national systems). Hence why a commentary on the codes would better serve this purpose. In any event, if indeed the Common Code has harmonization as its primary aim, it certainly provides no guidance on how to achieve it.

Scope

The Scope of the Common Code specifies that it “applies to all counsel practising before the international criminal tribunals,” and that where there is “any inconsistency between the provisions of this Code and any other professional code of ethics which counsel are bound to honour,” the provisions of the Common Code take precedence. Aside from the fact that the codes of conduct of the international(ized) criminal tribunals and courts make it clear that they take precedence over any other codes to which counsel are bound, the Scope of the Common Code contradicts the Preamble where it urges these tribunals and courts to interpret and apply their codes in a manner consistent with the provisions of the Common Code.

Oath

The Oath provides: “I solemnly declare that I will perform my duties with dignity, conscientiously, independently, with probity, tact, integrity and humanity, and that I will scrupulously observe the principle of professional secrecy and confidentiality.”

What does “tact” or “probity” or “humanity” mean? How does tact come into play when zealously pursuing a client’s case? While probity means “adherence to the highest principles and ideals,” what are the highest principles and ideals to which counsel should adhere? And what about “humanity”? Is it humane for counsel to be pursuing his or her client’s case and, in doing so, attempt to achieve a not guilty verdict, even if counsel suspects or may even know that his or her client is guilty?

A humanist or a human rights advocate may say that there are limits to zealousness when counsel is representing a known or reasonably suspected “guilty” person; that humanity is better served if counsel would circumscribe his or her advocacy. It is unclear what the drafters of the Common Code had in mind, since the Oath can be interpreted in various ways – one of which may be inconsistent with counsel’s duties towards his or her client.

Terms of art, such as “tact” or “probity” or “humanity,” require defining – a task which is often not possible without a proper commentary based on legal authority. Through practice and case law, such terms are generally defined beyond their ordinary meaning that is provided in the definition (glossary) section of a code. The recurrent problem throughout the Common Code with injecting these terms without properly defining them is that it leads to ambiguity, uncertainty, and disparate interpretations and applications of the provisions. Rather than adding clarity and uniformity, the Common Code promotes ambiguity and confusion.

Obligations of Counsel Towards their Client

Effective representation

Article 3.1 provides that counsel must perform his or her representation “in an effective manner.” It then attempts to articulate what “ineffective representation” is: “where one or more acts or omissions of counsel, or of a member of his or her team, compromises or might compromise or materially affect the rights or interests entrusted to him or her.” This language is as abstruse as it is uninstructive. It also falls short in accurately reflecting the jurisprudence of some of the international(ized) criminal tribunals and courts.

How does one determine what has or may have compromised or materially affected the rights or interests of a client? This is so nebulous that it borders on the obtuse.

There are so many strategic and tactical variables that go into representing an accused during the pre-trial and trial proceedings, that unless one has intimate knowledge of the case and is aware of all the preparation and counsel-client communications, it is remarkably challenging in discerning ineffective legal representation. Some counsel may opt to file every conceivable submission in hopes of something sticking, or out of diligence. Others, with the same set of facts, may opt to file no submissions for entirely different strategic or tactical reasons. Counsel may decline to pursue a viable option at trial, instead taking a minimalist approach in hopes of limiting the importance of the client in a multi-accused case.

In any event, how does Article 3.1 square with the Preamble where it urges the international(ized) criminal tribunals and courts to have the Common Code supersede their respective codes because it (impliedly) harmonizes the practices? The proposal that “[t]he monitoring of the effectiveness of the representation may only be carried out by an independent authority” is hardly consistent with or harmonizes the practices of the international(ized) criminal tribunals and courts. It also seems impracticable.

Article 3.1 effectively usurps a chamber’s authority and responsibility in ensuring that a suspect, accused, or convicted person is effectively represented and that his or her rights are fully protected at all stages of the proceedings. Even if a suspect, accused, or convicted person is privately financing his or her legal representation, the chamber is not absolved from ensuring that the person enjoys all of his or her fair trial rights. In the interests of justice, the chamber is expected to step in and take appropriate measures whenever it has reasons to believe that counsel is so ineffective that he or she is seriously compromising the client’s rights.

Also, who appoints this “independent authority,” and to whom it is responsible? Can it override the chamber seized with the matter? It is rarely the case that ineffective legal representation is blatantly obvious since there may be other facts at play that are not readily apparent. It is normally revealed during the appeal stage when a cold record is available for review, usually as a means of last resort in seeking post-conviction relief.

And even then, establishing ineffective assistance is rather difficult. Take for instance the Krajišnik case3   Prosecutor v. Krajišnik, IT-00-39-A, Judgement, 17 March 2009, 17 March 2009. at the International Criminal Tribunal for the former Yugoslavia (ICTY). While Krajišnik was self-represented, the Appeals Chamber appointed an Amicus Curiae Counsel to assist the Appeals Chamber by making “submissions to the Appeals Chamber similar to those which a party would make.”4   Id., para. 8. The Amicus Curiae Counsel argued that Krajišnik’s representation was ineffective at the pre-trial and trial stages because Krajišnik’s Counsel failed to “obtain proper instructions from Krajišnik prior to the commencement of the trial to determine an appropriate defence strategy.”5   Id., para. 65. The Appeals Chamber rejected this argument, finding that the Amicus Curiae Counsel failed to “indicate any specific acts and/or omissions of Counsel from which to infer gross negligence in relation to the strategy of the Defence.”6   Id., para. 66.

Arguably, the Krajišnik standard is the standard most likely to be applied before the international(ized) criminal tribunals and courts in discerning ineffectiveness:

[U]nless gross negligence is shown in the conduct of defence counsel, due diligence … will be presumed…. If an accused believes that his right to effective assistance is being infringed by the conduct of his counsel, it is his responsibility to draw the Trial Chamber’s attention to the problem. If this was not done at trial, he can only be successful on appeal upon showing that the counsel’s incompetence was manifest and that the Trial Chamber’s failure to intervene occasioned a miscarriage of justice.7   Id., para. 42.

This mirrors the standard generally applied in the United States set by the United States Supreme Court in Strickland v. Washington: to succeed on a claim for ineffective assistance of counsel, the accused must prove that “counsel’s representation fell below the objective standard of reasonableness.”8   Strickland v. Washington, 466 U.S. 668, 694 (1994). Under this standard, there must be “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”9   Id.

The standard adopted by the Common Code sets the bar lower in determining ineffectiveness, making it unlikely to be accepted – at least by some of the international(ized) criminal tribunals and courts.  

Clients with diminished capacity

Article 3.2(D) provides that “[w]here counsel reasonably believes that a client’s ability to take well-considered decisions with respect to his or her representation is impaired for whatever reason” counsel must “inform the authority to which he or she reports” and the tribunal or court seized with the case.

This is inconsistent with the practice in some jurisdictions and arguably infringes upon counsel’s duty of confidentiality. For example, in the United States, just because a client may be suffering from diminished capacity, does not mean that counsel is free to disclose the client’s condition to the bar or the court. Rule 1.14 of the American Bar Association Model Rules of Professional Conduct (ABA Rules) is a good example of a detailed rule that is instructive of when and to what extent counsel may disclose such information in such situations:

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6 [Confidentiality of Information]. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

The Commentary to ABA Rule 1.14 provides further instruction, illustrating the utility of having such a commentary:

[U]nless authorized to do so, the lawyer may not disclose [information about the client’s condition]. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary. Nevertheless, given the risks of disclosure, paragraph (c) limits what the lawyer may disclose in consulting with other individuals or entities or seeking the appointment of a legal representative. At the very least, the lawyer should determine whether it is likely that the person or entity consulted with will act adversely to the client’s interests before discussing matters related to the client. The lawyer’s position in such cases is an unavoidably difficult one.

Client’s admission of guilt

Article 3.3(B) provides that “[u]nless expressly authorized by his or her client, counsel shall not enter into any proceedings whereby his or her client appears having admitted guilt in advance and shall refrain from engaging in any negotiations regarding his or her client’s sentence.” The text lends to constructive ambiguity. Part of the provision seems to indicate that unless authorized, counsel cannot appear on behalf of a client if the client may have made the poor choice of having admitted guilt in advance of the proceedings. It seems oxymoronic. Why has counsel been retained, if not to pull the client’s proverbial chestnuts out of the fire? It goes without saying (or maybe this is what needs to be explicitly said) that counsel must take instructions from the client. This is the general provision. It then logically follows that counsel cannot waive or negotiate away the client’s rights without his or her express authorization.

Exceptions to the ethical duty of confidentiality / professional secrecy

Article 4(B) provides in its most problematic part:

Counsel may reveal information falling within [counsel’s duty of confidentiality / professional secrecy] for the following reasons:

(iv) if, in doing so, he or she wishes to prevent an act which he or she has reasons to believe: (a) is or may be criminal or might be committed pursuant to the statutes[sic] or rules of the tribunal[.]

This is so broadly drafted that it could easily result in a breach of counsel’s duty of confidentiality / professional secrecy. Something that counsel considers “may” or “might” be criminal is not necessarily criminal. Also, what is meant by “might be committed pursuant to the statutes or rules of the tribunal,” and how does this justify the disclosure of information protected under counsel’s duty of confidentiality / professional secrecy?

ABA Rule 1.6(b) is an example of a well-thought provision on when counsel may reveal such information in the United States:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

The Commentary to ABA Rule 1.6 clarifies that the exception in Rule 1.6(b)(2) only permits the lawyer to “reveal information to the extent necessary to enable affected persons or appropriate authorities to prevent the client from committing a crime or fraud … that is reasonably certain to result in substantial injury to the financial or property interests of another and in furtherance of which the client has used or is using the lawyer’s services.” In other words, only when counsel’s services are involved in the crime or fraud is he or she permitted to disclose confidential information about the client’s activities to the authorities under this exception.

Associating with the client’s cause

Article 11Non-assimilation with the client” provides: “Counsel shall never be identified with their client or their client’s causes as a result of discharging their representation agreement before the tribunal.”

What does “identified” mean?  If, for instance, counsel is representing a military officer who was engaged in defending his homeland, and if counsel is from the same homeland and identifies with the military officer’s cause, should counsel be forbidden from representing this military officer because they share the same cause?

While representing a client does not necessarily constitute an approval of the client’s views or activities, counsel cannot shy away from advancing and vigorously promoting the client’s claims regardless of whether they privately believe in the client’s cause or disapprove of it. While distance is prudent, representing a client effectively and also identifying with the client’s cause are not necessarily ethically incompatible.

In the United States, ABA Rule 3.4 provides that “representing a client does not constitute approval of the client’s views or activities.” The Commentary to ABA Rule 3.4 clarifies that the Rule prohibits counsel to “assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause[.]” All this means that counsel should not be asserting their personal knowledge or personal opinion in making arguments before the court.

In France, by contrast, counsel are permitted, and even expected, to identify with the client’s cause:

[Counsel] 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.10   John Leubsdorf, Man in His Original Dignity: Legal Ethics in France 15 (2001).

The disparate interpretation here further illustrates my point on why a commentary of the existing codes is what is needed. Should identifying with a client’s cause to be acquitted – even if the evidence does not support an acquittal – disqualify counsel from representing the client?  Of course not. Perhaps that is not what the drafters of the Common Code meant, but taken literally as drafted it could mean just that.

Presenting inaccurate versions of the material or legal facts

Article 13(B) provides that “Counsel shall neither mislead nor knowingly deceive the tribunal: (i) by presenting an inaccurate version of the material or legal facts; or (ii) presenting evidence he or she knows to be false.

Counsel cannot be bound by his or her individual belief that a witness is not telling the truth.

Article 13(B)(i) may seem sound, but it is subject to misinterpretation. For instance, there is nothing immoral or inherently wrong with impeaching a witness that counsel believes to be telling the truth: it does not amount to misleading or knowingly deceiving the chamber. Likewise, adducing evidence from a witness where counsel thinks or believes that the evidence may not be truthful is not misleading or knowingly deceiving the chamber. The prohibition against presenting false evidence applies only if the counsel, in fact, knows that the evidence is false. Counsel cannot be bound by his or her individual belief that a witness is not telling the truth. To allow counsel to be governed by such personal conclusions relieves the prosecution of its burden of proof, denies the court the opportunity to have the evidence tested so that it may have some confidence in its credibility assessments, and, not incidentally, allows a subjective determination to strip the accused of their voices. And, as I noted in the first post, counsel are not required to pursue a true account of the facts or to promote a dispassionate application of the law to the facts, and are entitled to argue that evidence supports a conclusion despite their opinion that the conclusion is specious.

Final remarks: Counsel don’t need this “Common Code”

Though in this and my previous post on the Common Code, I address the “why” from the perspective of the international(ized) criminal tribunals and courts, several “whys” (as noted by one of my learned colleagues) can also be asked from the perspective of counsel:

•Why do we need another layer?

• What is missing from the existing interaction between the codes of conduct of international(ized) criminal tribunals and courts and other codes?

• How do counsel benefit from having to reconcile another set of rules, particularly where there is no applicable governing body to provide guidance, interpretation, or enforcement of those rules?

• What protections does the code provide that counsel do not already enjoy?

• What additional protections does the code provide the clients?

The answers are simple:

• Counsel do not need another code of conduct applicable to them at the international(ized) criminal tribunals and courts. What counsel needs is an authoritative commentary to assist in interpreting the already applicable codes of conduct;

• The existing codes of conduct of the international(ized) criminal tribunals and courts already regulate the interaction with other codes. They specify that they have primacy when practicing before the international(ized) tribunal or court. Another international code of conduct cannot supplant this.

• While the Common Code provides for a disciplinary board and disciplinary appeals board to adjudicate instances of counsel misconduct, it is highly unlikely that this could ever come to into effect and supplant the existing disciplinary regimes.

• Counsel do not benefit from having to reconcile with another set of rules. Being bound by multiple, conflicting codes of conduct creates confusion.

• The Common Code does not provide additional “protections” for counsel, but rather, in its attempt to be more specific than existing codes of conduct, effectively curtails acceptable behavior (for example, the Common Code’s prohibition on associating with the client’s cause).

• A code of professional conduct is, in the final analysis, really about two things: protecting the client and protecting the profession. Because the Common Code does not provide additional “protections” for either, it adds little, if anything, to the conversation.  Indeed, it may well be that by further muddying the water with ambiguity and conflicting rules, failing to give the kind of guidance to be found in a comprehensive commentary, and without a viable enforcement or adjudicatory mechanism, the Common Code actually harms our clients and our profession.

Those who drafted and voted for the adoption of the Common Code undoubtedly are of the opinion that it is an essential code of conduct that is exceptionally drafted and long overdue. I disagree. The Common Code is flawed and ineffectual. It should neither be considered by counsel appearing before the international(ized) criminal tribunals and courts, nor adopted by any of the professional associations associated with these tribunals and courts to which they may belong.  

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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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