Part I \u2013 A Critical Analysis of Domestic Legal Ethics<\/em><\/strong><\/p>\n Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.<\/strong>((Basic Principles on the Role of Lawyers, Art. 14, Adopted by the Eighth United Nations Congress on the Prevention of Crimes and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.))\u00a0\u00a0 <\/strong><\/p>\n In this blog series I will attempt to clarify what it means to be \u201cindependent\u201d in both the national and international context. In this first post, I will give a brief treatment of a lawyer\u2019s role in the civil and common law traditions before delving into how the principle of independence is interpreted in the respective systems. Untangling the web of the lawyer\u2019s various duties in safeguarding independence requires an appreciation of how it is interpreted in the various legal systems. Similarly, any analysis or understanding of ethical principles cannot be done without taking into account the functions of the lawyer within a given legal system. The following post will give a brief overview of independence in the international criminal tribunals.<\/p>\n But first, a few vignettes to set the stage.<\/p>\n I begin with a recent quote from Case 002\/01 before the Extraordinary Chambers in the Courts of Cambodia (\u201cECCC\u201d) \u2013 an exquisite illustration of a lawyer explicating his understanding of \u201cindependence\u201d in the Cambodian legal system \u2013 a civil law system modeled after the French legal tradition.<\/p>\n Even with these clear remarks, the Chambers still insistently asked for clarification and compelled me to be present in the courtroom, even though I tried to explain the Chambers of Law on the Bar which at article 58 states \u2018lawyers shall determine by their own conscience and with the consent of the client what issues to raise in order to defend the interest of the client. Similarly, a previous decision by the Bar Association of the Kingdom of Cambodia (\u2018BAKC\u2019) concerning a Cambodian lawyer practicing at the ECCC held that \u2018a professional lawyer is independent and free to serve the judicial sector.\u2019 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 \u2018to protect the interest of his\/her duties in the interest of his\/her client the lawyer shall consult, accept and listen to his client\u2019s instructions. The lawyer is a judicial assistant to society, not to court.'”((Case of NUON Chea et al.<\/em>, 002\/19-09-2007-ECCC\/SC, Response to Mr. Son Arun to the Oral Decision by the Supreme Court Chamber Regarding the Events of 17 November 2015, 18 November 2015, F30\/13, para. 4, citing <\/em>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.))<\/p>\n And now the facts and context that led up to this lawyer\u2019s actions and response.<\/p>\n On 17 November 2015, the Case 002\/01 appeal hearings at the Extraordinary Chambers in the Courts of Cambodia (\u201cECCC\u201d) were cut short. At the beginning of the hearing, a bewildered Supreme Court Chamber questioned why NUON Chea\u2019s International Co-Lawyer, Victor Koppe was absent.((Case of NUON Chea et al.<\/em>, 002\/19-09-2007-ECCC\/SC, Transcript, 17 November 2015, F1\/4.1 (\u201cCase 002 Appeal Hearing\u201d), p. 1-2.)) In a lengthy speech, NUON Chea explained that he and his Co-Lawyers would not participate in the proceedings.((Id<\/em>., p. 17.)) He complained that the Supreme Court Chamber was biased: it dismissed all of his new evidence and refused to call his appeal witnesses without reasoning.((Id<\/em>., p. 16-17.)) He instructed his National Co-Lawyer, Son Arun, \u201cnot to participate in these proceedings any further, and not to respond to any kind of questions by the Judges or the other Parties.\u201d((Id<\/em>., p. 17.)) Son Arun maintained that he must rely on his conscience and listen to client\u2019s instructions.((Id<\/em>, p. 21.)) A short recess was called. When the proceedings resumed, Son Arun did not return to the courtroom and the Supreme Court Chamber received a signed waiver of NUON Chea\u2019s right to be present in court.((Id<\/em>., p. 32.)) After deliberation, the Supreme Court Chamber ruled that:<\/p>\n it is not for the Accused to decide whether or not to be present in the courtroom. He has not only the right to be present but also the obligation to be present subject to the leave of the Chamber. Mr. Son Arun is required to be present in the courtroom even if he does not wish to make submissions on the case and if he chooses to absent himself, he will be held in contempt.((Id<\/em>., p. 37.))<\/p>\n The Supreme Court Chamber also held that NUON Chea\u2019s Co-Lawyers\u2019 conduct \u201cmay well constitute misconduct that could give rise to disciplinary sanctions.\u201d((Id<\/em>., p. 39.)) The Supreme Court Chamber then instructed the Defence Support Section to appoint a Standby Counsel for NUON Chea and to report to the Chamber on the appointment as soon as possible.((Id<\/em>.))<\/p>\n Two days later, the Supreme Court Chamber issued an Interoffice Memorandum confirming the appointment of Standby Counsel for NUON Chea.((See Case of NUON Chea et al<\/em>., 002\/19-09-2007-ECCC\/SC, Interoffice Memorandum re: Follow-up to Supreme Court Chamber\u2019s Instruction to Appoint Standby Counsel for NUON Chea, 19 November 2015, F30\/15.)) The Supreme Court Chamber also requested Victor Koppe to file submissions regarding his failure to attend the appeal hearing.((Case of NUON Chea et al<\/em>., 002\/19-09-2007-ECCC\/SC, Decision Requesting Submissions From Mr. Victor KOPPE Regarding His Failure to Attend the Appeal Hearing, 19 November 2015, F30\/14.)) Son Arun responded to the Supreme Court Chamber\u2019s decision to appoint Standby Counsel, stating: \u201cI would like to clarify that I will sit in the courtroom in future appeal hearings in Case 002\/01 since the Chamber compels me to do so. However, I am obliged to follow my client\u2019s instruction not to respond to any kind of questions by the judges or the other parties.\u201d((Case of NUON Chea et al<\/em>., 002\/19-09-2007-ECCC\/SC, Response of Mr. Son Arun to the Oral Decision by the Supreme Court Chamber Regarding the Events of 17 November 2015, 18 November 2015, F30\/13, para. 9.))<\/p>\n On 23 November 2015, Victor Koppe responded to the Supreme Court Chamber explaining that he did not attend the hearing because of NUON Chea\u2019s instructions.((Case of NUON Chea et al<\/em>., 002\/19-09-2007-ECCC\/SC, Victor Koppe\u2019s Response to the Supreme Court Chamber\u2019s Request for Explanations for his Absence From the Appeal Hearing, 23 November 2015, F30\/14\/1, para. 8.)) He also explained that he considered the trial and appeal before the ECCC to be deeply unfair, forcing him to consider \u201cwithdrawing as International Co-Lawyer in the appeal in Case 002\/01, but also as International Co-Lawyer from Case 002\/02.\u201d((Case of NUON Chea et al<\/em>., 002\/19-09-2007-ECCC\/SC, Victor Koppe\u2019s Response to the Supreme Court Chamber\u2019s Request for Explanations for his Absence From the Appeal Hearing, 23 November 2015, F30\/14\/1, para. 5.)) In support of this contention, he referred to an email he sent to the Senior Legal Officer of the Supreme Court Chamber. In the e-mail, he asked the Senior Legal Officer whether it was possible for an accused to withdraw an appeal, as \u201cthe outcome of the appeal proceedings \u2026 has now become irrelevant to [NUON Chea].\u201d((Id<\/em>., para. 3.)) He complained that the Supreme Court Chamber refused to \u201csummons Heng Samrin as a witness\u201d and would not \u201cadmit into evidence the majority of the transcripts of film footage made by renowned British filmmaker Robert Lemkin and Cambodian journalist Thet Sambath.\u201d((Id<\/em>.)) After detailing his complaints, Victor Koppe ultimately informed the Supreme Court Chamber that he \u201cdecided not to withdraw as Nuon Chea\u2019s International Co-Lawyer, despite [his] deep conviction that a fair trial at the ECCC \u2026 is absolutely impossible, and despite [his] deep conviction that the ECCC is indeed, and always will be, a complete farce.\u201d((Id<\/em>., para. 10.))<\/p>\n This was not the first time that Defence teams have boycotted and walked out of hearings at the ECCC. In 2014, the NUON Chea and KHIEU Samphan Defence boycotted trial hearings on the clients’ instructions. NUON Chea gave an ultimatum to the Trial Chamber: either the Judges step down while his disqualification motions were pending, or he would instruct his Co-Lawyers to leave the courtroom and boycott all further hearings.((Case of NUON Chea et al<\/em>., 002\/19-09-2007-ECCC\/TC, Transcript, 17 October 2014, E1\/242.1, p. 73.)) KHIEU Samphan explained that his Co-Lawyers did not have the time or resources to participate in the proceedings while preparing his appeal brief.((Id<\/em>., p. 79.))<\/p>\n After multiple failures from the Defence to attend hearings and Trial Management Meeting, the Trial Chamber warned the Case 002 Defence teams that their conduct amounted to an obstruction of the proceedings.((Case of NUON Chea et al<\/em>., 002\/19-09-2007-ECCC\/SCC, Memorandum re: Warning to Counsel for NUON Chea and KHIEU Samphan, 24 October 2014, E320, para. 6.)) Because KHIEU Samphan\u2019s position and instructions to his Co-Lawyers remained unchanged, the Trial Chamber re-appointed his Co-Lawyers as Court Appointed Counsel.((Case of NUON Chea et al<\/em>., 002\/19-09-2007-ECCC\/SCC, Decision on the Appointment of Court Appointed Counsel for KHIEU Samphan, 21 November 2014, E320\/2.)) The re-appointment required the Co-Lawyers to actively participate in the case and attend all court hearings, regardless of the client\u2019s instructions.((Id<\/em>., para. 17.)) The Trial Chamber ordered the Co-Lawyers not to follow the client\u2019s instructions where they \u201clead or are meant to lead to an obstruction of the proceedings or are against the interests of justice.\u201d((Id<\/em>., para. 18.))<\/p>\n On 21 November 2014, the Co-Lawyers for KHIEU Samphan failed to appear before the Trial Chamber.((Case of NUON Chea et al<\/em>., 002\/19-09-2007-ECCC\/SC, Decision on the Appointment of Court Appointed Standby Counsel for KHIEU Samphan, 5 December 2014, E321\/2, para. 11.)) Two days later, the Co-Lawyers for KHIEU Samphan informed the Trial Chamber that they would not accept the appointment as Court Appointed Counsel as this would violate their independence.((Id<\/em>.)) The Trial Chamber found that the KHIEU Samphan Defence\u2019s conduct obstructed the proceedings.((Id<\/em>., para. 13.)) It then appointed one International and one National Court Appointed Standby Counsel for KHIEU Samphan.((Case of NUON Chea et al<\/em>., 002\/19-09-2007-ECCC\/SC, Decision on the Appointment of Court Appointed Standby Counsel for KHIEU Samphan, 5 December 2014, E321\/2.))<\/p>\n These events are not unfamiliar to international criminal tribunals. At the International Criminal Tribunal for the former Yugoslavia (\u201cICTY\u201d), Esad Land\u017eo sought to fire his Lead Counsel on the ground that there was a conflict of interest between him and his Lead Counsel.((Prosecutor v. Delali\u0107 et al<\/em>., IT-96-21-T, Order on the Request by the Accused, Esad Landzo for Withdrawal of Lead Counsel, 21 April 1997.)) At the International Criminal Tribunal for Rwanda (\u201cICTR\u201d), Jean-Bosco Barayagwiza instructed his Counsel not to represent him in any aspect during the trial, complaining that he would not receive a fair trial from a Tribunal dependent on a \u201cdictatorial anti-hutu regime in Kigali.\u201d((Prosecutor v. Barayagwiza<\/em>, ICTR-97-19-T, Decision on Defence Counsel Motion to Withdraw, 2 November 2000, para. 1.)) At the Special Court for Sierra Leone (\u201cSCSL\u201d), Charles Taylor instructed his Counsel not to represent him during the trial, complaining that his legal team did not have adequate time and facilities for his trial.((Prosecutor v. Taylor<\/em>, SCSL-2003-01-T, Transcript: Prosecution Opening Statement, 4 June 2007, p. 244-50.))<\/p>\n Brief Observations on the Role of a Lawyer in Civil and Common Law Jurisdictions <\/em><\/strong><\/p>\n Before delving into the principle of independence, it is worth making some brief observations on the differences between the role of a lawyer in the civil law and common law systems. While the codes of ethics discussed below share many common principles such as independence, confidentiality, and loyalty, these principles are nuanced and shaped by the legal system in which the lawyer operates. Context matters.<\/p>\n In the civil law inquisitorial system, criminal trials are dominated by judges. In France, Investigating Judges are responsible for conducting the investigations, including, inter alia<\/em>, interrogating the suspect and witnesses, arranging confrontations between witnesses and the accused, inspecting the crime scene, and taking any other \u201csteps \u2026 which seems to them necessary for the discovery of the truth.\u201d((French Code of Criminal Procedure, Art. 82 available in English at<\/em> http:\/\/www.legifrance.gouv.fr\/content\/download\/1958\/13719\/version\/3\/file\/Code_34.pdf<\/a>.)) At trial in France, the Presiding Judge has the discretionary power to \u201ctake any measure he believes useful for the discovery of the truth,\u201d including summoning and questioning witnesses.((Id<\/em>., Art. 310.)) The Defence lawyer\u2019s role in France is mainly limited to making investigative requests to the Investigative Judge,((Id<\/em>., Art. 82-1.)) suggesting questions during the trial to be put to witnesses or accused by the Presiding Judge,((Id<\/em>., Art. 312.)) presenting arguments during trial, and overall, ensuring that the accused\u2019s fair trial rights are not being infringed.((Id<\/em>., Art. 346.))<\/p>\n In the Netherlands and Germany, criminal procedure is modified from the pure inquisitorial system in France. In the Netherlands, the Public Prosecutor is responsible for conducting the investigations.((Dutch Code of Criminal Procedure, Section 10 available in English at<\/em> http:\/\/www.ejtn.eu\/PageFiles\/6533\/2014%20seminars\/Omsenie\/WetboekvanStrafvordering_ENG_PV.pdf<\/a>.)) The Examining Magistrate has supervisory powers over the criminal investigation and can control the work of the Public Prosecutor.((Id<\/em>., Section 170.)) For some investigative acts such as wiretapping, the Public Prosecutor must seek authorization from the Examining Magistrate.((Id<\/em>., Section 261(l). )) The Defence may also submit investigative requests to the Examining Magistrate.((Id<\/em>., Section 183.)) The Examining Magistrate is responsible for the completeness and continuity of the investigation((Id<\/em>., Section 185.)) and may question witnesses or experts when he or she finds it necessary.((Id<\/em>., Sections 180-183.)) At trial, the Presiding Judge of the District Court may order the Public Prosecutor to have specific witnesses and experts called to appear in court.((Id<\/em>., Section 263.)) The Defence and the Prosecutor may submit questions at trial to be put to the witnesses by the Presiding Judge.((Id<\/em>., Sections 271-72.))<\/p>\n In Germany, there is no Investigating Judge and the Public Prosecutor is responsible for conducting the investigation.((German Code of Criminal Procedure, Art. 170(1) available in English at <\/em>http:\/\/www.gesetze-im-internet.de\/englisch_stpo\/englisch_stpo.html<\/a>.)) At trial, similar to the Netherlands, the Defence must apply to the Presiding Judge to have witnesses summoned or evidence produced at trial.((Id<\/em>., Art. 219(1). ))<\/p>\n By contrast, in the common law system, trials are party driven. The judges act as referees who oversee the conduct of proceedings and the admission of evidence. This requires Defence lawyers to be much more active than in the civil law system. Common law lawyers are responsible for meeting with the client, gathering evidence, conducting examination of witnesses, and presenting arguments at trial. As advocates for the client\u2019s cause, lawyers \u201czealously assert the client\u2019s position under the rules of the adversary system.\u201d((American Bar Association Model Rules of Professional Conduct (\u201cABA Rules\u201d), Preamble, para. 2.)) The lawyer\u2019s role differs somewhat between the United States (\u201cUS\u201d) and the United Kingdom (\u201cUK\u201d). In the US, there is no division of legal services; the Defence lawyer is responsible for all aspects of representation. In the UK, the provision of legal services is split between barristers and solicitors. Barristers specialize in courtroom advocacy whereas solicitors work directly with clients and are providing legal advice. In contrast to the US lawyer, who takes instructions from the client,((ABA Rule 1.4.)) barristers primarily act on the instructions of a solicitor rather than dealing with clients directly.((See <\/em>Bar Standards Board Code of Conduct, rC29.))<\/p>\n \u201cIndependence\u201d in the Civil Law Tradition<\/em><\/strong><\/p>\n A Lawyer\u2019s Independence in France<\/em><\/strong><\/p>\n In France, lawyers have a central position in the administration of justice. They are intermediaries between a person answerable to the law and the courts. They are considered auxiliaries of justice and key players in the common practice of law.((French National Internal Regulations on the profession of an advocate (R\u00e8glement Int\u00e9rieur National de la profession d’avocat) (\u201cRIN\u201d), Art. 6.1.)) Article 6.2 of the RIN sets the missions of a lawyer. Under Article 6.2, a lawyer must, inter alia<\/em>, assist and represent clients in court and provide clients with advisory services and assistance. When carrying out these tasks, lawyers are bound by fundamental principles and must ensure that their independence is not jeopardized.((Id<\/em>., Art. 6.2.))<\/p>\n In France, a lawyer (avocat<\/em>), is not an agent of the client. As John Leubsdorf explains, the French avocat<\/em>:<\/p>\n is not a spokesman, a representative, an agent, a hired gun. He does not act for money. He is an independent person who lends his eloquence and credibility to someone in whose cause he believes, and who needs his help. He sometimes vouches for clients by declaring his belief in their cause, which is precisely what a lawyer in the United States [or England or Australia] is not supposed to do…. Indeed, French authors speak of the love an avocat may feel for a client…. Such an avocat may continue to press the client\u2019s 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.((John Leubsdorf, Man in His Original Dignity: Legal Ethics in France 15 (2001). ))<\/p>\n In France, \u201c[t]he Profession of lawyer is a liberal and independent profession in whatever form it is practiced.\u201d((RIN, Art. 1.1. (unofficial translation). )) Under Article 1.3 of the RIN, lawyers \u201cshall exercise [their] functions with \u2026 independence\u2026.\u201d((unofficial translation.)) The RIN, phrased in general terms, do not further define a lawyer\u2019s ethical duty of independence or provide guidance on its application in practice. Christian Charri\u00e8re-Bournazel, former B\u00e2tonnier <\/em>of the Paris Bar Association and President of the National Council of Bars, provides one interpretation:<\/p>\n While freedom implies the right for everyone to exercise their personal rights in their own interests limited only by the requirements of the law, independence for a lawyer is charged with ethical content. The independence of a lawyer does not mean the liberty to exercise a right, but the willingness to always apply sufficient distance in order to put acts the lawyer considers useful in relation with the law and ethical rules.((Table ronde \u00ab Ind\u00e9pendance de l’avocat \u00bb : Intervention du Pr\u00e9sident Charri\u00e8re-Bournazel au 56\u00e8 Congres de l’Union International des Avocats, Dresde, 1 November 2012 available at<\/em> http:\/\/cnb.avocat.fr\/Table-ronde-Independance-de-l-avocat-Intervention-du-President-Charriere-Bournazel-au-56e-Congres-de-l-UIA-Dresde-1er_a1398.html<\/a> . (unofficial translation). ))<\/p>\n According to Christian Charri\u00e8re-Bournazel, acting with conscience means that one is acting in complete independence, guided only by a strong sense of values: law, duty, and honor.((Id<\/em>.))<\/p>\n While the RIN do not explicitly define independence, the contours of a French lawyer\u2019s independence can be gleaned by other ethical rules such as those covering conflicts of interest, confidentiality, and acceptance and withdrawal of cases. Generally, the French lawyer must be independent from external pressures such as the interests of third parties, and in stark contrast to the common law system discussed below, independent from the client.<\/p>\n Foremost, the French lawyer must first be independent from external influences. Article 16.2 of the RIN prohibits a lawyer from participating in a \u201cnetwork\u201d (a formal or informal organization of one or more lawyers and one or more members of non-legal professions) if it compromises the lawyer\u2019s independence. For example, the lawyer\u2019s independence will be compromised if the lawyer agrees \u201cto being in a subordinate position or subject to the supervision of [his or her] professional activities by other non-lawyer professionals,\u201d or \u201carrangements which lead to the distribution or sharing of income or to a distribution of remuneration.\u201d((Id<\/em>., Art. 16.2.)) French lawyers are also independent from the state. A French lawyer is free to accept a case against the state or to represent the state and the same goes for any administration.((Table ronde \u00ab Ind\u00e9pendance de l’avocat \u00bb : Intervention du Pr\u00e9sident Charri\u00e8re-Bournazel au 56\u00e8 Congres de l’Union Internationale des Avocats, Dresde, 1 November 2012 available at<\/em> http:\/\/cnb.avocat.fr\/Table-ronde-Independance-de-l-avocat-Intervention-du-President-Charriere-Bournazel-au-56e-Congres-de-l-UIA-Dresde-1er_a1398.html<\/a>. See also <\/em>John Leubsdorf, The Independence of the Bar in France: Learning from Comparative Legal Ethics <\/em>in Roger C. Cramton & John J. Barcel\u00f3 (eds), Lawyers\u2019 Practice and Ideals: A Comparative View 279 (2001). )) A French lawyer must also be independent from any magistrate.((See <\/em>Table ronde \u00ab Ind\u00e9pendance de l’avocat \u00bb : Intervention du Pr\u00e9sident Charri\u00e8re-Bournazel au 56\u00e8 Congres de l’Union Internationale des Avocats, Dresde, 1 November 2012 available at<\/em> http:\/\/cnb.avocat.fr\/Table-ronde-Independance-de-l-avocat-Intervention-du-President-Charriere-Bournazel-au-56e-Congres-de-l-UIA-Dresde-1er_a1398.html<\/a>.))<\/p>\n Conflicts of interest rules also protect the French lawyer\u2019s independence. Article 4.1 of the RIN provides that the lawyer \u201cshall, unless the parties agree, cease to act for all the clients concerned when a conflict of interest arises, when confidentiality risks being breached or when the lawyer\u2019s independence risks being compromised.\u201d When there is a serious risk of a conflict of interest in the future lawyers are obliged to first obtain the agreement of all affected parties before agreeing to act for more than one party.((RIN, Art. 4.1.)) Article 4.2 provides that a conflict of interest exists if the lawyer is unable to provide full and accurate information without compromising the interests of one or more parties, or if the lawyer is forced to present a case different from the one which would have been chosen if the interests of one party were to be represented. Unlike the common law rules on conflict of interests, the RIN do not provide concrete situations in which a conflict may limit a lawyer\u2019s independence or explain whether conflicts can be waived. Maya Goldstein Bolocan explains that while actual conflicts are not waivable, potential conflicts may be waived.((Maya Goldstein Bolocan, Professional Legal Ethics: A Comparative Perspective<\/em>, ABA CEELI Program 44 (2002). )) Phillip Genty explains that in practice \u201cthe determination of whether a conflict of interest exists is entirely the attorney\u2019s, and client consent to waive a conflict is neither solicited nor honored.\u201d((Philip M. Genty, The Challenges of Developing Cross-Cultural Legal Ethics Education, Professional Development, and Guidance for the Legal Professions<\/em>, 1 J. Prof. L. 37, 42 (2011). ))<\/p>\n Closely related to the French lawyer\u2019s duty to avoid conflicts of interest is the duty of professional secrecy.((For a more in-depth discussion of the civil law duty of professional secrecy, see <\/em> my prior blog post: Attorney-Client Privilege \u2013 Part II: Foundation in National Systems<\/a>.)) \u00a0In France, Article 66-5 of Law No. 71-1130 of 31 December 1971 on the reform of certain judiciary and legal professions provides that:<\/p>\n In all areas, whether with regard to advice or in the matter of defense, written opinions sent by a lawyer to his\/her client or intended for the latter, correspondence between a client and a lawyer, between a lawyer and other lawyers with the exception, for the latter, of correspondence marked \u201cofficial\u201d, meeting notes and generally all documents held in a file are covered by professional secrecy.<\/p>\n Article 2.2 of the RIN also provides that professional secrecy covers communications exchanged between the lawyer and his or her colleagues. In contrast to the common law system, French lawyers are not obligated to share with the client correspondence between the lawyer and his or her colleagues. This is because the privilege of professional secrecy in France belongs to the lawyer and not the client.((See<\/em> French Code of Criminal Procedure, Art. 109-1 available in English at<\/em> http:\/\/www.legifrance.gouv.fr\/affichCode.do?cidTexte=LEGITEXT000006071154&dateTexte=20051213<\/a>; French Criminal Code, Art. 226-13 available in English at <\/em>http:\/\/www.legifrance.gouv.fr\/affichCode.do?cidTexte=LEGITEXT000006070719&dateTexte=20060701<\/a>. See also<\/em> Attorney-Client Privilege \u2013 Part II: Foundation in National Systems<\/a>.)) A French lawyer is also not obligated to allow his client to review copies of documents on the Case File and is forbidden to provide his client copies of these documents. The Chambre criminelle<\/em> of the Cour de cassasion<\/em> held:<\/p>\n [A]lthough a lawyer is authorised to receive copies of the investigation file and may examine these in the presence of his client in order to prepare his defence, he may not, on the other hand, entrust his client with these documents which he received \u2018exclusively for his own use\u2019 and which must remain subject to the requirement of confidentiality of the investigation.((Cass, crim., 30 June 1995, no. 95-13035.)(unofficial translation). ))<\/p>\n The provisions on withdrawal also fortify a French lawyer\u2019s independence. In contrast to the common law system, French lawyers are permitted to withdraw in the middle of representing a client provided the lawyer provides notice to the client. Article P.34 of the Paris Bar Association Code of Ethics states: \u201c[the lawyer] has the right to stop his mission, he will need to inform his client in a timely manner\u2026.\u201d((Paris Bar Association Code of Ethics, Art. P.34 available at <\/em>http:\/\/codedeonto.avocatparis.org\/acces-article<\/a> (unofficial translation). )) When an attorney seeks to withdraw from a case, he or she must make sure that the client\u2019s interests are not jeopardized and should do his or her utmost to allow the client to acquire further representation.((See<\/em> Paris Bar Association Code of Conduct, Art. P.34.1 \u00ab\u00a0[L\u2019avocat] \u2026 est en droit d\u2019interrompre sa mission, \u00e0 charge d\u2019en pr\u00e9venir son client en temps utile pour lui permettre d\u2019assurer la d\u00e9fense de ses int\u00e9r\u00eats. \u00bb See also<\/em> Table ronde \u00ab Ind\u00e9pendance de l’avocat \u00bb : Intervention du Pr\u00e9sident Charri\u00e8re-Bournazel au 56\u00e8 Congres de l’Union Internationale des Avocats, Dresde, 1 November 2012 available at<\/em> http:\/\/cnb.avocat.fr\/Table-ronde-Independance-de-l-avocat-Intervention-du-President-Charriere-Bournazel-au-56e-Congres-de-l-UIA-Dresde-1er_a1398.html<\/a> (unofficial translation). ))<\/p>\n However, a lawyer who has been appointed by his or her b\u00e2tonnier<\/em> or by the President of the Cour d\u2019assises<\/em> cannot refuse the case unless he or she can show good cause. Article 9 of the 31 December 1971 Law states: \u201cThe lawyer regularly appointed by the b\u00e2tonnier or by the President of the Cour d\u2019assises cannot refuse his ministry without approval of his excuses or impediment by the b\u00e2tonnier or by the President.((Loi no. 71-1130 du 31 d\u00e9cembre 1971 portant r\u00e9forme de certaines professions judiciaires et juridiques, Version consolid\u00e9e au 04 d\u00e9cembre 2015 (unofficial translation). )) To refuse a case would violate Article 317 of the French Code of Criminal Procedure, which states: \u201cThe presence of a defence counsel with the accused is compulsory during the hearing.\u201d((See <\/em>Cass. civ., 15 November 1989, no. 88-11413; French Code of Criminal Procedure, Art. 317 available in English at<\/em> http:\/\/legifrance.gouv.fr\/Traductions\/Liste-des-traductions-Legifrance<\/a>.))<\/p>\n In one case before the Cour d\u2019assises<\/em> of the Pas-de-Calais<\/em>, both lawyers representing a client decided to step out of the hearing and withdraw (their client also demonstrated his intention to step out of the hearing). One lawyer was appointed by the President of the Cour d\u2019assises, <\/em>while the other was hired by the client himself. The Cour de cassation<\/em> considered that the appointed lawyer could not refuse to represent his client and could not leave the courtroom, especially since the president refused to approve the reasons he put forward for withdrawal.((Cass. crim., 24 June 2015, no. 14-84221.)) The Cour de cassation<\/em> did not prevent the other lawyer from withdrawing.((Id<\/em>.)) One can infer from this decision that generally, French lawyers are independent from the client and may withdraw in the middle of a case. However, if the lawyer was appointed to the case by the President of the Cour d\u2019assises<\/em> or by the bat\u00f4nnier<\/em>, the lawyer is not free to refuse to represent a client or withdraw from the case.<\/p>\n Although independence from the client is considered \u201cone of the cornerstones of French legal ethics[,]\u201d((Felicity Nagorcka, Michael Stanton & Michael Wilson, Stranded between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice<\/em>, 29 Melb. U. L. Rev. 448, 465 (2005). )) there seems to be a disparate view among practitioners and academics as to the implementation and modalities of a French lawyer\u2019s independence.<\/p>\n French practitioners have advised that in France, the lawyer has a duty to advise the client as to what he or she believes is the best strategy for the representation. The lawyer cannot go against the client\u2019s instructions in the sense that he or she cannot implement a strategy different than the one ordered by the client. Because the lawyer is independent from the client, the lawyer may withdraw from the case if the client\u2019s instructions go against the lawyer\u2019s conscience or what he or she believes is best for the client. According to the Bar Association of Val d\u2019Oise, a lawyer maintains intellectual independence from the client by \u201cliberty of his or her argumentation before the tribunals, which may differ from what the client proposes, and it is for him [lawyer], to ensure the best defense possible.\u201d((Avocats du Val d\u2019Oise, D\u00e9ontologie<\/em>, available at<\/em> http:\/\/www.avocat-95.fr\/index.php?page=article&article=9&PHPSESSID=b527c2df7928987a4288613572b00d67<\/a> (unofficial translation). ))<\/p>\n Academic discussions about the role of the French lawyer observe that French lawyers seem to have an absolute independence from the clients to the extent that they may decline to seek or follow any instructions.((See<\/em> John Leubsdorf, The Independence of the Bar in France: Learning from Comparative Legal Ethics <\/em>in Roger C. Cramton & John J. Barcel\u00f3 (eds), Lawyers\u2019 Practice and Ideals: A Comparative View 281 (2001); see also<\/em> Felicity Nagorcka, Michael Stanton & Michael Wilson, Stranded between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice<\/em>, 29 Melb. U. L. Rev. 448, 448, 465-66 (2005); Maya Goldstein Bolocan, Professional Legal Ethics: A Comparative Perspective<\/em>, ABA CEELI Program 9-11 (2002); Mary C. Daly, The Dichotomy between Standards and Rules: A New Way of Understanding the Differences in Perceptions of Lawyer Codes of Conduct by US and Foreign Lawyers<\/em>, 32 Vand. J. Transnat\u2019l L. 1117 (1999). ))\u00a0\u00a0 These academics emphasize that:<\/p>\n An avocat<\/em> has no responsibility to accept a case; indeed, it is his or her duty to \u2018judge\u2019 his or her client before accepting the brief. Once the brief has been accepted, an avocat<\/em> has no responsibility to continue to act for a client and may withdraw his or her services on proper notice.\u201d((Felicity Nagorcka, Michael Stanton & Michael Wilson, Stranded between Partisanship and the Truth? A Comparative Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice<\/em>, 29 Melb. U. L. Rev. 448, 448, 465-66 (2005) citing<\/em> John Leubsdorf, Man in His Original Dignity: Legal Ethics in France 26 (2001). ))<\/p>\n While these understandings of independence are alien to a common law lawyer, the contrast is a result of the French lawyer\u2019s role within the civil law system. The French lawyer is not an agent of the client tasked with zealous representation, but an assistant adding \u201celoquence to [the client\u2019s] cause.\u201d((John Leubsdorf, Man in His Original Dignity: Legal Ethics in France 26 (2001). )) The differences in interpretation among French practitioners and academics is primarily a result of less than clear ethical rules, broadly outlined in the RIN and other ethical codes. This difference in interpretation can get a lawyer into trouble inside the lawyer\u2019s national jurisdiction as well as abroad, especially when appearing before international criminal tribunals, as will be discussed in the following post.<\/p>\n A French lawyer who does not comply with his obligation of independence can face disciplinary sanctions. In France, unlike common law systems, the courts or judges do not have the power to issue disciplinary sanctions. Rather, the Bar Association is responsible for adjudicating misconduct proceedings.((\u201cAny court that considers a lawyer committed at the hearing a breach of his obligations imposed by his oath, may inform the Attorney General to prosecute the lawyer before the disciplinary body to which he belongs.\u201d Loi no. 71-1130 du 31 d\u00e9cembre 1971, Art. 25 modifi\u00e9 par Loi no. 2004-130 du 11 f\u00e9vrier 2004 – art. 33 JORF 12 f\u00e9vrier 2004 (unofficial translation). )) Article 1.4 of the RIN provides professional misconduct can lead to disciplinary sanction. These disciplinary sanctions can amount to a warning, an official reprimand, a temporary exclusion which cannot exceed three months and an exclusion from the lawyer\u2019s profession. In one matter, the Paris Appeal Court suspended a lawyer\u2019s license to practice law because he admitted to accepting his client\u2019s request to take a lease in his name and in his lawyer\u2019s capacity without having sufficient sales revenues to pay rent, agreeing to forge invoices, and using a false stamp to establish a false tax notice for the handover of the lease.((Paris Appeal Court, P\u00f4le 2, 1st<\/sup> Chamber, 27 November 2014, no.13-13621.)) The Appeal Court found that the lawyer admitted to having placed himself in a subordinate position with respect to the client who had impressed the lawyer with financial power, unable to withstand the client\u2019s pressure.((Id<\/em>.)) As a lawyer, he had an advisory duty that should have involved notifying the client of the risks of such practices.((Id<\/em>.)) Instead, the lawyer became an accomplice to the client\u2019s unethical practices, losing his intellectual and material independence.((Id<\/em>.))<\/p>\n A Lawyer\u2019s Independence in Germany<\/em><\/strong><\/p>\n In Germany, lawyers (Rechtsanwalt) are defined as \u201cindependent agent[s] in the administration of justice\u201d((The Federal Lawyer\u2019s Act, Bundesrechtsanwaltsordnung (\u201cBRAO\u201d), \u00a7 1 available in English at<\/em> http:\/\/www.brak.de\/w\/files\/02_fuer_anwaelte\/brao_engl_090615.pdf<\/a>.)) whose \u201cactivities serve the realization of a society governed by the rule of law.\u201d((Rules of Professional Practice, \u00a7 1(2), available in English at<\/em> http:\/\/www.brak.de\/w\/files\/02_fuer_anwaelte\/berufsrecht\/bora_01_01_2015_en.pdf<\/a>.)) Section 1(1) of the Rules of Professional Practice provides that a lawyer \u201cexercises his profession freely, independently, as a member of a self-determined and self-regulated profession, subject only to the law and Rules of Professional Practice.\u201d Section 1(3) of the Rules of Professional Practice explains that:<\/p>\n As an independent adviser and representative in all legal matters, the Rechtsanwalt has to protect his client from a loss of rights. He has to accompany the client with a view to shaping the law, avoiding conflicts and settling disputes. He has to protect him from wrong decisions taken by the courts and authorities and has to act as his client\u2019s safeguard against unconstitutional impairment of his rights and against the government exceeding its powers.<\/p>\n Foremost, a German lawyer must be free from external influences. Under Section 43a(1) of the BRAO, a German lawyer may not enter into any ties that pose a threat to his or her professional independence.<\/p>\n Conflicts of interest rules also protect the German lawyer\u2019s independence. Under Section 43a(3) of the BRAO, a lawyer \u201cmay not represent conflicting interests.\u201d Section 3.1 of the Rules of Professional Practice states: \u201cThe Rechtsanwalt must refrain from acting for a new party if he or she has advised or represented another party in the same matter, if there is a conflict of interest or if he has been seized with the matter in any other professional way as defined in \u00a7 45 and \u00a7 46 of the [BRAO].\u201d Section 3.4 of the Rules of Professional Practice provides that if the lawyer realizes that he or she is in breach of this rule, such as when a conflict arises, the lawyer must cease to act for all clients involved in the matter. Section 45(1) of the BRAO provides one example of a conflict of interest where a lawyer may not practice: where the lawyer has acted in the same matter in the capacity of a judge, arbitrator, public prosecutor, civil servant, or notary. Section 46(1) prohibits the German lawyer from becoming a salaried employee of a client, such as a corporation.<\/p>\n Rules governing fees also protect the German lawyer\u2019s independence. Section 49b(3) of the BRAO provides that a lawyer may not \u201caccept part of the fees or other benefits for acting as agent in obtaining instructions from clients, whether in relation to a Rechtsanwalt or in relation to third parties of any kind.\u201d<\/p>\n In Germany, as in France, lawyers who are hired by a private client are generally free to refuse or to accept a case. \u00a7 44 of the BRAO provides that: \u201cA Rechtsanwalt who is approached for professional services and who does not wish to accept the case must immediately state that this is so. The Rechtsanwalt must provide compensation for any damage resulting from any negligent delay in making such a statement.\u201d<\/p>\n However, court appointed Defence lawyers in criminal cases must not refuse to accept a case unless there are important grounds for doing so.((BRAO, \u00a7 49(1) & (2). )) \u00a7 16a of the Rules of Professional Practice explains: \u201cAn important reason may lie in the person of the Rechtsanwalt or in the conduct of the client. An important reason may also be the fact that the approval of legal aid service does not comply with the conditions set out in the Legal Advice Aid Act\u2026.\u201d Under Section 16a, such important reasons may include: the lawyer\u2019s illness or excessive workload, the client\u2019s non-cooperation, serious loss of mutual trust between the lawyer and the client due to the client\u2019s conduct, or the client\u2019s income and\/or assets do not justify the granting of legal aid.<\/p>\n Section 113 of the BRAO provides that if a lawyer breaches his or her duties under the BRAO or Rules of Professional Practice, the Lawyer\u2019s Disciplinary Court can impose sanctions. Under Section 114 of the BRAO, disciplinary sanctions may include: warnings, cautions, fines of up to twenty-five thousand euros, a ban on acting as representative and lawyer in certain fields of law for a period of between one and five years, or exclusion from the legal profession.<\/p>\n A Lawyer\u2019s Independence in the Netherlands <\/em><\/strong><\/p>\n In the Netherlands, \u201cthe main task of advocates is to consult with and assist individual clients or groups of clients whose interests converge. In doing so, advocates shall represent the points of view of their clients\u2026. Advocates are first and foremost their clients\u2019 counsel.\u201d((Code of Conduct of the Netherlands Bar Association (\u201cDutch Code of Conduct\u201d), Introduction, para. 1.2 available at <\/em>http:\/\/www.ccbe.eu\/fileadmin\/user_upload\/NTCdocument\/Netherlands_EN_Code_1_1236161752.pdf<\/a>.)) Paragraph 1.2 of the Introduction to the Dutch Code of Conduct sets out the lawyer\u2019s core functions and duties, including:<\/p>\n – Refraining for representing conflicts of interests: \u201cin their handling of a case, advocates can only serve their clients\u2019 interests well when they are guided by those interests at the exclusion of any self-interest.\u201d<\/p>\n – Being independent: for example, refraining from \u201cgranting commission to intermediaries or other third parties for the purpose of securing engagements, or with making arrangements with persons other than their own clients on the manner in which matters will be handled.\u201d<\/p>\n – Protecting the client\u2019s confidentiality: \u201cexercising the greatest possible care in observing secrecy and in making use of their advocate-client privilege[.]\u201d<\/p>\n – Maintaining competence and skill: \u201cgain and keep up the necessary know-how[,]\u201d secure necessary assistance, or refer the client to a competent lawyer.<\/p>\n Rule 2(1) of the General Rules of the Dutch Code of Conduct provides: \u201cAdvocates shall not allow their freedom and independence in the exercise of the profession to be put in jeopardy.\u201d While the Dutch Code of Conduct does not further define the lawyer\u2019s independence, it can be gleaned from the other ethical rules.<\/p>\n![\"CodeConductTiles\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2015\/12\/CodeConductTiles.jpg?ssl=1\")
<\/a>The lawyer\u2019s independence is a principle universally recognized as one of the cornerstones of the legal profession the world over. As can be seen from the above quote, lawyers must be independent and, at all times, act freely if they are to carry out their professional functions, which include, inter alia<\/em>, advocating for the advancement of human rights, protecting the rights of their clients, and fostering the administration of justice. Virtually all national and international codes of professional conduct codify the lawyer\u2019s independence. However, a lawyer\u2019s understanding of the principle of \u201cindependence\u201d and the ethical duties deriving therefrom, differs depending on his or her legal tradition.<\/p>\n<\/a>So just how independent are lawyers? To whom do they answer? Are they required to faithfully follow their client\u2019s instructions even if such instructions may interfere with the course of the proceedings and thus, purportedly interfere with the administration of justice? These questions may seem easy to answer. But when considering that disparate codes of professional conduct invoke disparate interpretations, there are often no fast and hard rules to guide even seasoned lawyers. There is always the dilemma of robustly advocating the client\u2019s cause as instructed without running afoul of one\u2019s professional code or suffering the wrath of judicial discontent (a price occasionally paid-whether justified or not-for championing the rights of the doomed, the damned and, the despised).<\/p>\n