Representing Multiple Witnesses: a risky gambit

It’s a general pool type of relationship where, if a conflict arises, where everyone in good faith will try to figure out what the best way to proceed is. I can never be adverse to one of those guys.

William Burck in Darren Samuelsohn, Bannon Lawyer Juggles Clients, Risks Conflicts in Russia Probe, POLITICO, 25 January 2018

A conflict of interest between an attorney and a client arises in any situation where, by reason of certain circumstances, representation by such an attorney prejudices, or could prejudice, the interests of the client and the wider interests of justice. Most systems of law have rules governing the participation of an attorney in a trial when there is a conflict of interest between the attorney and the client; such a conflict affects the essential fairness of the trial, and in respect of the Tribunal, implicates, first, the responsibility of the Trial Chamber … to ‘ensure that a trial is fair … with full respect for the rights of the accused…,’ and secondly, the right of the accused … to a fair trial.

Prosecutor v. Simić et al., IT-95-9-PT, Decision on the Prosecution Motion to Resolve Conflict of Interest Regarding Attorney Borislav Pisarević, 25 March 1999, p. 6.

Whose interests are you really looking after when you represent multiple clients in a case?

Imagine you are called upon to represent several witnesses in an ongoing investigation. As you conduct your initial interview with these potential clients, can you guarantee that you can fully, fairly, and forthrightly represent their interests, that you will utterly respect and keep secret any information they pass on to you, that you will not compromise their interests while zealously representing one of the other potential clients/witnesses, that you will not suggest an adjustment of perceptions or inferences drawn from a memory of events, or that you will not abandon any of the potential clients midway through the case after amassing institutional memory for a handsome, non-refundable fee?

Identifying and dealing with conflicts of interest can be pesky, especially when there are huge fees and/or lots of publicity to be had. Indulging in self-delusion that a conflict does not really exist – or that if one does, there is a way around it (all the stars are aligned) – is not as uncommon as one might expect, even amongst the very best of lawyers. Whether it is greed, publicity, irrational self-confidence, or profound obliviousness that causes lawyers to ignore or attempt to minimize conflicts matters not. What is at stake is the client’s fate.

In my last post I discussed the case of Robert McCoy v. Louisiana, where we saw that taking and acting on a client’s instructions is not as cut-and-dry as we all may think it is or should be. In this post, I explore the issue of conflicts of interest based on an article in POLITICO that caught my attention. Again, even though the events relate to a matter in the U.S. and come under domestic jurisprudence and the local code of professional conduct, the discussion below is instructive to anyone practicing before the international(ized) criminal tribunals and courts in dealing with conflicts of interest.

Any one listening to the news would know by now that there is an ongoing investigation in the U.S. on whether there was collusion between Donald Trump’s 2016 presidential campaign and the Russian government and whether President Trump and/or his close associates have been involved in obstruction of justice by calculatedly interfering with this ongoing investigation. Though time will tell whether there is merit in what is being alleged, the underlying facts of what happened (or who did or said what) is of little consequence to this post. I am mainly interested in what I (and others) see as a potential ethical train-wreck in William Burck’s representation of three White House insiders; i.e. whether prudence dictates a safer course in dealing with potential conflicts of interest, irrespective of a client’s willingness to waive away known conflicts of interest and accept the risks attendant with potential conflicts yet unknown.

Recently it was reported that a high-flying, much-in-demand lawyer William Burck was hired by Steve Bannon, President Trump’s chief White House strategist. Bannon worked on the Trump campaign before taking his post in the White House. He was ultimately fired. Recently, Bannon made international headlines for salacious quotes attributed to him in Michael Wolfe’s contentious book Fire and Fury: Inside the Trump White House. Bannon’s quotes apparently caught the attention of Robert Mueller, the special prosecutor appointed to investigate whether Trump and/or his close associates (including his son and son-in-law) colluded with Russia or have engaged in obstructing the investigation.

As it turns out, Burck was already retained to represent two other White House insiders who have fueled Mueller’s interests, former chief of staff Reince Priebus, and White House counsel Don McGahn. All three potentially have explosive information for either investigation. All three potentially attended meetings where things were said or done that are currently being investigated. Any of the three may have information that is not known to the other two, which may impact on their credibility or accuracy in recollecting events. And any one of the three may have information which could potentially be adverse to either of the other two.

It would have been impossible for Burck, going into the initial interview on whether to accept Bannon as a client, to know what Bannon knew and whether an actual (as opposed to a theoretical) conflict of interest existed. Indeed, the same can be said about interviewing McGahn after Burck was retained by Priebus (if he were the first client).

Burck is no stranger to how the White House operates (he was the top lawyer for U.S. President George W. Bush at the end of his second term in office). He would have appreciated the perils involved in conducting these initial interviews considering their positions in the White House and their proximity to President Trump. There is a fine line between asking questions to discern whether a client is conflict-free and a fishing expedition for information that could be potentially beneficial to an existing client. Even asking hypothetical questions can pose a danger if the predicate of the question is based on knowledge obtained from an existing client that was not otherwise available – your typical insider information.

Even if you confidently pass muster at this juncture, who is to tell whether down the road, as you probe and prod, you will not stumble upon information that helps one client to the detriment of the other. The scenarios and permutations of such risks are as serious as they are severe. There is simply no telling what the future holds and whether conflicts of interest can be resolved without withdrawing from the representation of one or all of the clients. That’s the gamble the clients take along with the lawyer. If things go wrong, and they often do, the clients pay the price. A gambit perhaps not worth taking – even if it is reasonably certain that it will all turn out alright in the end.

One way to get around a conflict of interest is to get all clients to waive the conflict and to accept the consequences should it become necessary for the lawyer to withdraw. This is rather common, and perhaps less risky when representing multiple witnesses, as opposed to multiple accused in a case charged with similar crimes, where one client can swap horses midstream and seek to turn on his or her co-accused.

Usually, prosecutors will step in and claim that there is a conflict – if it is to their advantage. In other words, if the prosecutor wishes to neutralize a worthy opponent, he or she will doggedly seek to find a way to convince the judge of the existence of an irreconcilable conflict of interest. If, on the other hand, the opponent is weak and easy pickings, prosecutors are unlikely to complicate their task at hand – getting the conviction. And if per chance the need arises to replace the lawyer, all the better, since the chamber is unlikely to grant a long extension for the new lawyer to come up to speed.

Judges, on the other hand, tend to be much more pro-active, at least in the U.S. It is not so much about doing justice – though this should not outright be discounted – as it is about their docket, their caseload. Nothing infuriates a busy trial judge more than avoidable delays – especially ones caused by lawyers. As such, judges will step in and encourage, if not order a lawyer to withdraw.

In the international(ized) criminal tribunals and courts, however, it seems that judges (and prosecutors, when it suits them) are less willing to interfere with a client’s choice of lawyer – even if potential disaster looms ahead, and even though they are responsible for ensuring that trials are fair, expeditious, and conducted with full respect for the rights of the accused (see e.g., Rome Statute, Art. 64(2)). To make the point, let’s examine an example from one of the courts. The court or case are unimportant, but pedagogically it serves the purpose of our discussion.

Two lawyers agree to jointly represent two co-accused in a case where the co-accused have similar roles and are charged with the same crimes. It may be economical, but just how wise is it, even if the chamber and prosecution go along?

Is there not an inherent (and arguably irreconcilable) conflict of interest created by this kind of joint representation? Should the prosecutor not challenge such joint representation – even if waivers of any conflict of interest are obtained and representations are made that satisfy the chamber that presumably, no conflict of interest exists that could not be overcome? How possible is to preclude the potential that one co-accused may desire to shift the blame to the other co-accused during trial, reveal evidence against his co-accused, revoke the waiver of conflict of interest, and thus create an irreconcilable conflict of interest? Or what if one of the co-accused wishes to cooperate with the judicial authorities for the purpose of mitigating his or her sentence by providing or clarifying information unknown to the prosecution, helping to organize the arrests of other suspects, pleading guilty, or agreeing to testify in other proceedings? Are any of these kinds of cooperation possible without incriminating the other co-accused?

Considering a lawyer’s duty of loyalty to his or her clients, it is reasonably foreseeable that one or both lawyers might be compelled to compromise their duty of loyalty by choosing between or blending the divergent or competing interests of their concurrent clients. And if either of the co-accused changes his strategy, both lawyers could be disqualified from representing either client, leading to a stay of the proceedings and most likely a trial de novo.

Burck’s situation is not as acute, considering that he is only representing witnesses in the same investigation. None of the witnesses seem to be targets of Mueller’s investigation. Were this to change, any one of the three clients would have sufficient time to change lawyers, and no appreciable delays could ensue. This does not mean that Burck should not have chosen a safer path.

Navigating multiple clients and the straits of a case can be perilous – whether in representing witnesses at the investigative stage or multiple accused during trial – even for the best of lawyers. I frankly would advise against this practice. But if you do find yourself tempted with the possibility, here are some basic principles to keep in mind:

  • Before agreeing to represent the clients, assess all available facts to determine whether a conflict exists (the positions of the co-accused, the charges against them, the alleged factual matrix, defenses that may or may not be possible, and mitigation factors, etc.).
  • If a conflict does exist, determine whether it can be overcome and waived by the clients’ informed consent.
  • If the conflict cannot be overcome, decline the representation.
  • If the conflict can be overcome, consult with the clients, advise them on the existing or potential conflicts of interest, and obtain their informed consent to the joint-representation. You may still not be out of the woods, since you may still have to contend with the prosecutor and/or court raising a fuss.
  • If a conflict reveals itself once retained, and if it is irreconcilable, withdraw from representing all clients that are impacted (e.g. in Burck’s case it could be one, two, or all three). Even if the clients consent to continue the joint representation (and the tricky part is how to break the news to all the clients without further acerbating the situation), it is perilous (and in my opinion unethical) to continue to remain as lawyer for the clients, when doing so may not be in their best interests, especially when the lawyer is unable to represent the clients loyally, zealously, and diligently, protect the clients’ confidential information, or abide by the client’s instructions when doing so would harm one of the other clients (see ICC Code of Professional Conduct for Counsel, Arts. 5, 14). At the end of the day, the decision on whether you will be permitted to continue the joint representation in the face of potential or actual irreconcilable conflicts of interest will rest with the court.

Anyone interested in the issue of conflicts of interest at the international(ized) criminal courts and tribunals, see my post and lecture materials here.


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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