When Does Counsel Commit Misconduct?

Adam Coady
DC-Cam Legal Associate Summer 2009
Georgetown Law 2011

Although the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) has yet to sentence a single defendant, the ECCC has determined that behavior by two separate counsel constitute misconduct. In the Ieng Sary case, the defense counsel disclosed previously unpublished information on their website, even after receiving a letter from the Co-Investigating Judges (“OCIJ”) stating the material was considered confidential. The unauthorized disclosure of information was considered Rule 38 misconduct and counsel was warned by the OCIJ that subsequent misconduct would “expose [counsel] to the legal consequences.”

In the Khieu case, the Pre-Trial Chamber issued the first of two warnings to the International Defense Co-Counsel after he declined, without notice, to continue to act on behalf of his client at a pre-trial hearing. In response, the Pre-Trial Chamber issued him a warning pursuant to Internal Rule 38(1), "as he has abused the processes of the Pre-Trial Chamber and the rights of the Charged Person." A year later, a pre-trial hearing was delayed, and then postponed because the International Co-Counsel was unexpectedly absent. When the International Co-Counsel spoke at the rescheduled hearing, he implied that the judges were guilty of corruption, called the judges "squatters," and said that they were obsessed only with money. Notably, although the previous hearing had been rescheduled to allow the International Co-Counsel to be present and contribute, at the rescheduled hearing he said nothing of direct relevance to the legal substance of the hearing, but let the National Co-Counsel make all of the arguments.

In response, the Chamber issued the second warning, holding that the unexplained absence, “abusive” language and refusal to "participate meaningfully in the hearings" could not be tolerated by the Pre-Trial Chamber, which "has a duty to ensure that decorum and dignity necessary for the court proceedings are preserved." His behavior had "delay[ed] proceedings and misus[ed] the Court's resources." The Chamber warned the International Co-Counsel that his behavior was obstructive conduct and an abuse of process within the meaning of Internal Rule 38.

The right to counsel of the defendant’s choosing is a minimum guarantee, but certain behavior can warrant a restriction of the right

Article 13 of the 2003 Framework Agreement between Cambodia and the United Nations (“2003 Framework Agreement”) guarantees certain minimum trial rights to a defendant at the ECCC. The rights listed closely mirror the fair trial rights guaranteed in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights (“ICCPR”) and include the right to engage a counsel of one’s choice. This fair trial right serves the purpose of ensuring that a defendant, by being able to freely choose his own counsel, is able to pursue a defense strategy of his own choosing. Depending on what the defendant believes is the best strategy of defense, he can choose a counsel that is a master of international law, or an expert at procedural issues, or even counsel with a reputation of challenging the legitimacy of courts.

However, under Internal Rule 38, the ECCC has the authority to limit who a defendant chooses and how that counsel acts. Accordingly, a defendant’s right to counsel of choice and a defense strategy are not unlimited. If the conduct of the chosen counsel is determined to be “misconduct,” the ECCC may decide to restrict the counsel’s conduct in court or refuse him an audience altogether, requiring the defendant to pick another counsel.

Nevertheless, the ECCC should be careful not unnecessarily limit the right of the defendant to choose his own counsel and defense strategy. Although these fair trial guarantees can be restricted under certain circumstances, international courts have proceeded with caution. As shown below, these courts will often allow a defendant a certain amount of latitude before acting to restrict the defendant’s right by any considerable amount. The observation of fair trial rights, including the right to counsel of choice, is an important legitimizing factor for an international tribunal and any move on the part of the ECCC to prematurely restrict these rights would raise questions about the judges’ impartiality and the ability of the ECCC to render a fair verdict. Therefore, this article will examine ECCC and international jurisprudence with the purpose of providing guidance to the ECCC as to when a counsel’s conduct is inappropriate, what factors the ECCC should consider when deciding to sanction a counsel, and what remedies may be appropriate.

Specifically, this article will look at instances where international courts have restricted a defendant’s choice of legal representation. Restrictions have most often occurred when defendants have chosen to represent themselves. When the defendant exercises his right to self-representation, he is also exercising the right to counsel of his choice. Therefore, an examination of when courts have found it appropriate to restrict this right of self-representation, will provide additional guidance as to appropriate limits that may be placed on defense counsel behavior.

When does counsel commit misconduct?

In the Internal Rules of the ECCC, Rule 38(1) describes broad categories of conduct that could be classified as misconduct and subject to court action, including acts that are: offensive or abusive; obstruct the proceedings; amount to abuse of process; or are not in accordance with standards of the court or the legal profession. Although these categories are not defined within the Rule, the ECCC and international courts have found behavior to fall into these categories, or very similar categories, when counsel a) is absent from court; b) verbally abuses the court; c) significantly abuses the process and proceedings of the courtroom; and/or d) violates a specific ECCC statute or rule. Although these categories often overlap in practice, by breaking out each act into distinct behaviors, this memo will be better able to define which defense strategies are appropriate.

Absence from court

The ECCC has considered absences from court to potentially constitute misconduct pursuant to Rule 38. In Khieu, the International Defense Co-Counsel was unexpectedly absent from one of the few pre-trial hearings that were scheduled, reportedly detained in France tending to a sick acquaintance. The National Co-Counsel requested a delay, arguing that the International Co-Counsel’s presence was necessary for that day’s defense argument. This absence, combined with other disruptive behavior by the International Co-Counsel at the rescheduled hearing, led the Pre-Trial Chamber to issue a warning that the counsel’s behavior amounted to Rule 38 misconduct.

International courts consider absences that are intentional to justify court action. In both the SCSL Norman case and the ICTR Barayagwiza case, the defendants were deliberately absent from court with the clear intent to cause delay. The courts quickly labeled this behavior as disruptive and decided to restrict the defendants’ right to self-representation.

If the absence is unintentional and repeated, international jurisprudence supports the view that the behavior may be sufficient to warrant court action. The best example is from the ICTY Milosevic case where the defendant exercised his right to self-representation but his health issues forced him to be repeatedly absent from court. The Appeals Chamber held that intentional disruption cannot be “the only kind of disruption legitimately cognizable by a Trial Chamber.” An unhealthy defendant asserting his right to self-representation can still significantly disrupt the court, intentionally or not; the court should not have to choose "between setting that defendant free and allowing the case to grind to an effective halt."

The more difficult cases are those where the intention is unclear. In the ICTR Musema case, counsel refused to attend proceedings until the defendant paid for a previous appearance. The court was not certain whether the absence was with the intent to delay the proceedings or for a truly legitimate reason. The court did not immediately act; instead it tried to rectify the situation. Even after payment was received, counsel did not show up to court. Finally, the Chamber considered this behavior to be obstructive and contrary to the “interests of justice”, warranting court action. Although this behavior was not clearly intended to disrupt proceedings for the purposes of delay, after a period of time, the continued behavior, intentional or not, was sufficient to justify court action.

Notably, the ICTY has avoided acting in anticipation of a possible absence that would cause an obstruction of the proceedings. In the early stages of the Milosevic case, the prosecution requested the assignment of counsel for the defendant because it was predicted that the defendant’s desire for self-representation would “inevitably increase the strain on his health” thereby causing future delay. Although this assumption was probably reasonable, the Trial Chamber refused to restrict the defendant’s right to self-representation. The Chamber believed that it would be in the defendant’s “best interests to accept the assistance of defence counsel,” however at that time, there were no circumstances in which to justify restricting the defendant’s rights.

In conclusion, the international jurisprudence suggests that there are a range of absences that justify court action. Courts appear to error on the side of allowing time to correct the behavior, unless the behavior is clearly intended to disrupt the court. In Milosevic, the court exhibited a remarkable level of tolerance primarily because the health problems that caused the absence were largely unavoidable. In Norman and Barayagwiza, the defendants clearly stated their intent to be absent because of their disagreements with the functioning of the court. The difficult cases are those like Musema, where the counsel appears to have a legitimate excuse at first, and then continues to come up with additional excuses. Courts generally do not allow this behavior to go on indefinitely; however, this type of behavior is, at first glance, given the benefit of the doubt.

Verbal abuse of the court

Conduct that includes verbal abuse of the court has also been found to justify court action. At the ECCC, the International Defense Co-Counsel in Khieu accused the judges of corruption and called them "squatters” because the prime minister had “stated publicly that he wish[ed] [the judges] to leave.” The Pre-Trial Chamber found the counsel’s remarks insulting towards the judges and “offensive and obstructive conduct” constituting Rule 38 misconduct.

International courts have considered deliberate vulgar, inflammatory language in the courtroom to be offensive and subject to court action. In the ICTY Jankovic case, the defendant repeatedly and consistently used inflammatory and abusive language. Some of his more inflammatory statements included calling his counsel an “immoral bastard who works for this grotesque Hague Tribunal” and both his counsel and the Chief Prosecutor of the Tribunal, “fascist spies and complete bastards.” The Chamber held the behavior to be disruptive and predicted that it would impair the “effective and fair defence of the Accused if he were to defend himself in person.” Therefore, the defendant’s conduct was subject to court action that restricted the defendant’s right to self-representation.

Courts generally attempt to distinguish between language that is critical of the court versus language that abuses the court. In the European Court of Human Rights (“ECHR”) Saday v. Turkey case, the defendant had verbally attacked the Turkish court. He criticized the judges as “executioners in robes” and directed most of his abusive language towards the officers of the court. In reviewing the Turkish court’s decision, the ECHR stated that while the “composition and functioning of a tribunal may be criticized, verbal attacks of a personal nature made against the judges, creating an atmosphere detrimental to the orderly administration of justice, may be subject to sanctions.” Comparatively, in Barayagwiza, in a motion to the court the defendant challenged the ability of the ICTR to “render an independent and impartial justice due…to the fact that it is so dependent on the dictatorial anti-Hutu regime of Kigali ” and was therefore incapable of respecting fundamental human rights. The Chamber chose to ignore these comments and did not act until the defendant actually boycotted the trial.

In the ECCC Khieu case, the International Defense Co-Counsel walks a fine line during his in-court speeches. In a roundabout manner, he questions the legitimacy of the court by insulting the character of the judges. The Pre-Trial Chamber found his remarks to be “abusive and insulting towards the judges” and therefore misconduct. Although an argument could be made that his remarks were not intended to be abusive towards the judges, but instead an attack on the overall legitimacy of the court, the Pre-Trial Chamber’s decision would be aligned with international jurisprudence.

Abuse of process

Behavior that amounts to abuse of process may also be subject to court action. In the ECCC Khieu case, the International Defense Co-Counsel refused to participate in a pre-trial hearing because the entirety of the case file had not been translated into French. He had given no previous warning to the Pre-Trial Chamber and as a result, the Chamber had to adjourn unexpectedly. The Chamber found that the counsel’s conduct was an abuse of process and subject to court action. At a later date, the International Co-Counsel was absent from a hearing and the National Co-Counsel requested that the hearing be postponed because the International Co-Counsel was responsible for the defense’s argument on that day. At the rescheduled hearing, when the International Co-Counsel did show up, he refused to “participate meaningfully in the hearings” and “fail[ed] to bring any contribution to the debate.” The Chamber held this behavior impermissibly delayed the proceedings and misused the Court’s resources, amounting to obstructive conduct and an abuse of process within the meaning of Internal Rule 38.

Totality of the circumstances test

According to Black’s Law Dictionary, the term “abuse of process” is the “improper and tortuous use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope.” Accordingly, behavior that can be construed as an abuse of process may be initially permissible. For example, court submissions may become frivolous only if excessive and the refusal to heed court orders might, initially, be justifiable. At some point, behavior that takes legitimate court process and uses the allowed procedure to slow down and delay the trial is subject to court action. However, international courts often find it is difficult to delineate when annoying, yet permissible behavior becomes a more serious concern, one warranting court action. In order to determine when behavior crosses this threshold of tolerance, courts likely use a totality of the circumstances test to identify when certain behavior becomes intolerable and justifies restricting the defendant’s rights.

At the ICTY, conduct that “substantially and persistently” obstructs the proper and expeditious conduct of the trial has been found to be an abuse of process justifying court action. In order to decide when conduct “substantially and persistently” obstructs the trial, the ICTY Seselj court appears to use a totality of the circumstances test. During the beginning of the proceedings, the Trial Chamber refused to restrict the defendant’s right to self-representation, even though the defendant “increasingly demonstrated a tendency to act in an obstructionist fashion.” At that point in the trial, he had engaged in numerous disruptive tactics, including only responding to motions in “excessively long and largely irrelevant” hand written notes; refusing to use a laptop for fear of electric shock; and submitting hand-written petitions to the Appeals Chamber, even though the defendant knew the Rules did not allow it. The Trial Chamber held that the “‘attitude and actions” of the Accused…are indicative of obstructionism on his part.” Nevertheless, the Trial Chamber only appointed stand-by counsel, stating that the defendant’s right to defend himself was “left absolutely untouched.” The stand-by counsel was assigned in order to “safeguard a fair and expeditious trial” and only served as an assistant to the defendant.

Three years later, the defendant’s process-abusing behavior continued, combined with abusive and offensive conduct. He rarely complied with the procedural rules of court, filed 191 “frivolous” submissions, disrespected the decorum of the court, repeatedly expressed his “intent to shatter the Tribunal in the Hague that even the Queen of Holland would not remain whole,” published multiple books with offensive titles relating to witnesses, used abusive language, and constantly raised irrelevant arguments in court. The Trial Chamber adopted, and the Appeals Chamber affirmed, the test stated in Milosevic (“Milosevic test”) holding that a restriction of the defendant’s right to self-representation is warranted if it “substantially and persistently” obstructs the proper and expeditious conduct of the trial. The Seselj chamber did not explain why the similar behavior three years earlier did not “substantially and persistently” obstruct justice whereas the most recent behavior did. However, one could assume that the Chamber based its decision not on the individual actions themselves, which may independently have been tolerable, but on the disruptive impact of the collective behavior considered in the aggregate. The Chamber had tolerated the defendant’s behavior for three years, but the conduct had finally reached a certain threshold, justifying a restriction on his right to self-representation.

Although the precise moment when a defendant’s abuse of court process justifies action is difficult to determine, international courts appear to examine the totality of the circumstances, weighing the defendant’s and court’s interests and deciding if the restriction of rights is justified by the level of disruption caused by the defendant. Each case will require an examination of the specific abuses but the court should do so in the context of the entire trial and how the acts have cumulatively affected the court.

Questioning the legitimacy of the tribunal

Although counsel behavior that uses court procedure to slow and disrupt the court can be considered subject to court action, international jurisprudence suggests that there is at least one tactic that should be initially immune to charges of being frivolous and an abuse of process. In the ICTY Tadic case, the counsel attacked the establishment of the Tribunal and questioned its legitimacy. Instead of immediately considering the issue an abuse of process and dismissing or ignoring the charge, the Appeals Chamber addressed and answered the concerns about legitimacy. Although the Appeals Chamber disagreed with the assertion that it was an illegitimate court, the fact that the Chamber did not immediately sanction the counsel for questioning the basis of the tribunal’s authority supports the contention that defense counsel should be able to question the foundations of any international court. Although this decision suggests that it is an appropriate strategy, once the court rules on its legality, if counsel were to continue to raise this issue throughout the trial, it would probably be considered frivolous and fit somewhere on the spectrum of abuse of process discussed above.

Acting contrary to specific ECCC standards, statutes and rules

At the ECCC, behavior that violates standards of the court or the legal profession may constitute misconduct. Article 21(3) lists a series of documents and norms that lay out these standards, helping to guide the ECCC in determining when future conduct may be actionable. Article 21(3) requires counsel to act in accordance with certain standards, including those listed in i) the 2003 Framework Agreement between United Nations and Cambodia; ii) the Cambodian Law on the Statutes of the Bar and iii) “recognized standards and ethics of the legal profession.” Additionally, the ECCC may find conduct that violates one of the Internal Rules to constitute misconduct.

2003 Framework Agreement

The 2003 Framework Agreement does not specifically list instances where a counsel’s behavior would constitute misconduct. However, the Agreement contains several Articles that may be found to establish standards of behavior, including Article 13 (listing fair trial rights of the accused) and Article 23 (guaranteeing court protection for victims and witnesses). Presumably, any counsel behavior that violates these Articles could constitute misconduct in violation of the 2003 Framework Agreement.

Cambodian Law on the Statutes of the Bar

The Cambodian Law on the Statutes of the Bar (“CLSB”) is the governing statute of the Bar Association of the Kingdom of Cambodia (“BAKC") and lists a number of offenses that the ECCC could use to justify court action against defense counsel. For example, the CLSB demands that counsel who practice law while part of BAKC must maintain absolute confidentiality. In addition, the CLSB creates a Code of Ethics that requires that counsel must: respect the obligations of his oath and the “principles of conscience, humanity, and tact”; wear a robe; “preserve for the judges, in independence and dignity, the respect due to their position;” observe the procedural rules and practices of the jurisdiction; and refuse to engage in disloyal and disruptive conduct. Accordingly, any behavior that is not in accordance with these standards could be construed as actionable misconduct.

Recognized standards and ethics of the legal profession: Apparent incompetence or mistakes by counsel do not necessarily justify court action

Although the term “recognized standards and ethics of the legal profession” is very broad, the Ieng Sary defense counsel supposedly breached these “standards and ethics” when the counsel made case file documents public after being told by the OCIJ that the documents were not to be disclosed. The OCIJ held, and the Pre-Trial Chamber affirmed, that counsel acted in violation of Article 21(3) by failing to “act in accordance with the standards and ethics of the legal profession.”

It is notable that international courts appear to give the defense counsel considerable leeway within the “recognized standards and ethics” to devise a defense strategy. Courts could find that a counsel who presents irrelevant legal arguments or seems incompetent is not in accordance with the “recognized standards” of the legal community. However, they have not found inadequate defense strategies by the counsel to justify court action, as long as the client consents. In the ICTY Tadic case, the court refused to rectify the alleged incompetence by counsel. Even if the court believed the defendant was not receiving the best legal advice, unless there was a showing of gross incompetence or a protest by the defendant to the strategy, the court would not act. The Akayesu Chamber endorsed the view of the ICTY Appeals Chamber in the Tadic Decision and held that the incompetence of counsel is an actionable offense only when the counsel acted “despite the wishes of the Appellant [and] in the absence of protest [by the defendant] at the time.” Therefore the alleged misconduct of the Akayesu counsel was not grounds for overturning the defendant’s conviction.

Thus, although a counsel’s choice of defense may not appear to be in the perceived best interests of the client, international courts generally refrain from determining that a counsel’s incompetence or poor strategy has violated standards and ethics of the legal profession unless there is some indication that the defendant and counsel do not act as one.

Violation of ECCC Internal Rules

A violation of one of the Internal Rules by counsel may be considered misconduct. For example, Rule 35 (1) lists a series of offenses, that if violated, would constitute Rule 38, including if counsel:

Discloses confidential information in violation of an order of the Co-Investigating Judges or the Chambers; without just excuse, fails to comply with an order to attend, or produce documents or other evidence before Co-Investigating Judges or the Chambers; or destroys or otherwise tampers in any way with any documents, exhibits or other evidence in a case before the ECCC.

Although these are very specific offenses and a strict reading would offer very easy determinations of misconduct, the ECCC will probably want to examine each alleged violation of Rule 35 (1) on a case-by-case basis. Within each instance of misconduct, there is still a considerable amount of room for ambiguity. As seen in the ECCC Ieng Sary case, the definition of “confidential” and what constituted an “order” were highly contested. Thus, each alleged violation of Rule 35 (1) will need to be examined on a case-by-case basis in order to determine if there has truly been a violation.

Violations of the other ECCC Internal Rules could be considered misconduct by the ECCC and subject to court action. As in the Ieng Sary case, counsel could be found to violate Rule 56 confidentiality. Additionally, Rule 11 creates a set of criteria that defense counsel must meet. Presumably, if during the course of the proceedings, counsel is shown to not meet these criteria, the ECCC could find that the counsel’s behavior constituted misconduct.

When does the misconduct need to occur for it to justify action?

Courts have generally looked to misconduct that occurred during any stage of the defendant’s proceedings. Notably, however, in the ICTY Kunarac case the Chamber allowed the counsel’s behavior from a previous ICTY chamber to be considered as the main evidence of disruptive behavior. The Kunarac defendant had requested the services of counsel who had been found in contempt of another ICTY Chamber during the prior Tadic trial. Although the counsel had not yet appeared before the specific trial chamber and could not have been said to have obstructed the proceedings of the Kunarac Chamber, the Chamber refused the counsel an audience. Because “the Chambers possess an inherent power to control the proceedings in such a way as to ensure that justice is done and to deal with conduct which interferes with the Tribunal's administration of justice,” and the counsel had already demonstrated a complete lack of respect for the rules of the ICTY while representing a previous client, the Chamber did not allow the Kunarac defendant to choose this particular counsel.

Because of the infancy of the ECCC, there has not been an example of counsel acting inappropriately in a previous ECCC case. The Kunarac case however suggests that a court may consider misconduct that occurred in courts with similar, but not identical rules and obligations. If the ECCC is satisfied that the counsel was under similar rules and still showed a complete lack of regard for the rules, then it could justify restricting the defendant’s rights based on the counsel’s previous behavior.

When behavior is sufficiently disruptive to warrant action, what steps should the court take?

Warning

The Internal Rules of the ECCC require that a warning be given before the court sanctions or refuses an audience to the counsel. The International Co-Counsel in Khieu has received two warnings for different types of behavior. Additionally, the Ieng Sary defense team received a warning in the OCIJ Confidentiality Order.

International jurisprudence suggests two criteria to consider in determining if a warning is adequate, including: i) the specificity of the warning; and ii) whether the court gives a real chance for the misconduct to be rectified before acting to restrict a defendant’s right.

Specificity of the warning

The Appeals Chamber in Seselj required the court warning to be specific and clearly explain the repercussions if the misconduct continued. The Trial Chamber had repeatedly warned the defendant but never stated explicitly that if the disruptive behaviour continued, it would result in restrictions on the defendant’s right to self-representation. The Appeals Chamber held that the ICTY Rule 80(B) warning must "specifically indicate that the disruptive conduct, if it persists, could result in a specific restriction." The Chamber reasoned that any court action would affect a fundamental right, so the required warning must be unequivocal that further misconduct would restrict this basic right. The Chamber provided additional guidance stating that a warning "needs to be explicit, in the form of an oral or written statement to an accused explaining the disruptive behaviour and that, if it persists, the consequence will be restriction on the accused's right of self-representation."

Although the Internal Rules of the ECCC do not have as detailed language as the ICTY Rule 80 (B) regarding the specificity of the warning, the ECCC may want to follow the Seselj court’s reasoning. A general warning to the defense does not give real guidance in how any future court action can be avoided. At the ECCC, the Pre-Trial Chamber and the OCIJ seem to recognize the benefit of specificity as the warnings in the Khieu and Ieng Sary cases have been very specific and stated exactly what kind of behavior is considered misconduct. However, neither of the warnings gives a clear indication of the types of disciplinary action the counsel would face if the misconduct continued.

Timing of the warning

ICTY jurisprudence suggests that there should be a gap in time between when a warning is issued and any action by the court to punish the misconduct. For example, in the ICTY Seselj case, the Acting Counsel for the defendant argued that the Rules of Procedure and Evidence of the ICTY required that any warning must be "given immediately prior to the restriction of the right of self-representation." Even though the Appeals Chamber reversed the assignment of counsel on other grounds, the Appeals Chamber explicitly rejected the Acting Counsel’s argument, holding that the language of the rule implied some “gap” in time between warning and actual court action.

The “gap” was clarified in a subsequent appeal. After the first Appeals Chamber decision, the defendant’s right to self-representation had been reinstated. As soon as the proceedings restarted in the Trial Chamber, standby-counsel was immediately re-assigned, which led to additional disruptive behavior by the defendant, and the Trial Chamber imposed counsel again. The Appeals Chamber held that the Trial Chamber failed to give the defendant a real chance to show that “despite his conduct pre-trial and the conduct leading up to the imposition of assigned counsel, he now understood that in order to be permitted to conduct his defense, he would have to comply with the Rules …. and that he was willing to do so.” Therefore, after a warning, the defendant must be given a chance to demonstrate changed behavior before the court can act.

Jurisprudence from the both ECCC and the ICTR seem to support this requirement that a defendant be given a “real opportunity” to correct their behavior before the court acts on the misconduct. In the ECCC, after the warning was given in both Ieng Sary and Khieu, the court took no additional action, but appear to be giving the counsel a “real opportunity” to not behave in a further manner that would be considered misconduct. In the ICTR Musema case, the counsel was given a warning after her repeated absences from court and then was allowed the opportunity to appear in court and represent her client. Only after she was absent an additional time, did the court act and require the assignment of new counsel.

Remedies for Misconduct of a Lawyer

If the ECCC determines that a counsel’s behavior constitutes misconduct, there are three remedies available under Rule 38. The court may i) sanction counsel; ii) refuse audience to the counsel; and/or iii) refer such misconduct to the appropriate professional body. In international jurisprudence, once a court decides to apply a remedy, courts are guided by the principle of proportionality in determining which remedy to use. In the ICTY Milosevic case, the Appeals Chamber held that a restriction of the defendant’s right should be guided by the “basic proportionality principle: any restriction of a fundamental right must be in service of a ‘sufficiently important objective’ and must ‘impair the right’ no more than is necessary to accomplish the objective.” The Appeals Chamber overturned the Trial Chamber’s decision to forbid the defendant’s involvement in his defense. The Appeals Chamber recognized that because the defendant’s health could improve, his right to participate in the future should not be prematurely restricted. The case was remanded to the Trial Chamber so it could "craft a working regime that minimizes the practical impact of the formal assignment of counsel, except to the extent required by the interests of justice.” The ECCC may want to look to cases where courts have applied this principle for guidance as it decides when and how to apply Rule 38 remedies.

Sanctioning the Counsel

Depending on the counsel, the Chamber might sufficiently deter further misconduct by sanctioning the counsel. In neither the Ieng Sary nor Khieu cases, have specific sanctions been used or threatened. International courts have used various sanctions including: admonitions, fines, and prison time. In determining which sanction for which offense, as discussed above, international courts appear to use the proportionality principle. For example in ICTY Blagojevic case, the Chamber admonished the counsel after he filed a frivolous motion. Comparatively, in the ICTY Aleksovksi case, the Trial Chamber imposed a fine after counsel acted in a more inappropriate manner, disclosing the identity of a protected witness.

Refusing Audience to Counsel

If the ECCC has determined that a counsel’s behavior constitutes misconduct, another option under Rule 38 (1) is to refuse audience to counsel. Once the court refuses an audience, the defendant, if he can afford counsel, must chose new counsel. In the ECCC, if the defendant refuses to choose new counsel, Internal Rule 81(4) allows the Chamber to order that the defendant be represented by counsel assigned by the Defence Support Section.

International jurisprudence is mixed about whether or not a court should actually assign counsel to an unwilling defendant. In Seselj, although the Chamber found that the defendant’s behavior constituted misconduct, the Chamber never truly succeeded in assigning counsel. The defendant had made it very clear that he did not want to be assigned counsel and every time the Trial Chamber tried to assign counsel, the Appeals Chamber found another reason to reverse the assignment. A similar situation occurred in Milosevic. It would appear that many courts have been very reluctant to impose counsel on unwilling defendants.

Some courts have however, assigned counsel to unwilling defendants. In Sesay and Barayagwiza, the SCSL and ICTR courts forced counsel upon the defendants, even though they had explicitly stated that they did not want counsel to represent them. When assigning counsel in the SCSL Sesay case, the court stated that, “the law does not recognize a right ‘not to have counsel assigned’ to an accused who has refused to exercise the choice available to him.” Although the jurisprudence does not suggest a clear pattern of when to assign counsel over the defendant’s objections, the ECCC may want to be cautious when assigning counsel over a defendant’s adamant objection. If a defendant’s objections to assigned counsel either a) cause him to boycott the trial and the court to proceed without him, or b) create the appearance that the defendant is not in charge of his defense and not receiving a fair trial, the reputation of the ECCC will suffer and the success of the case, regardless of the verdict, may be questioned.

Sending notice to the bar association

Finally, under Rule 38, the ECCC may refer misconduct of counsel to the appropriate professional body. The ECCC has referred misconduct to the professional body of counsel in both Khieu and Ieng Sary.

If a complaint of misconduct is sent to a foreign lawyer’s bar association, the complaint can initiate a wide range of action. For example, if the Alaska Bar Association receives a complaint, the Bar Counsel will review the complaint to determine if the documents contain enough factual allegations which, if true would constitute ethical misconduct. If the complaint indicates misconduct, a copy is sent to the lawyer for a response. Furthermore, if the factual allegations are sufficient, the Bar Counsel will begin a full investigation into the alleged misconduct and will either a) dismiss the grievance; b) issue a private admonition which is placed on the lawyer’s record, or c) file a petition for a formal hearing, or enter a stipulation for discipline, either of which will be taken to the Disciplinary Board and/or the Alaska Supreme Court. In Ieng Sary, the misconduct of the International Defense Co-Counsel, Michael Karnavas, was sent to the Alaska Bar Association (“Association”), but the Association recently decided to take no action against the Karnavas, Michael Karnavas. The Association found that the “breach of confidentiality” did not warrant a formal investigation. Although not subjected to any disciplinary action, in essence, the referral penalizes Karnavas because, one could assume, any additional referral to the Association will subject him to greater scrutiny.

Conclusion

At the ECCC, a defendant is guaranteed the right to counsel of one’s choosing, ensuring that a defendant is able to pursue their defense strategy of choice. Nevertheless, as demonstrated in Rule 38, a defendant’s right to counsel and defense strategy at the ECCC is not unlimited. In determining if a counsel’s actions constitute misconduct and thereby subject to court action, international jurisprudence suggests that a considerable amount of latitude should be given. Once a court has determined that there has been misconduct, the principle of proportionality should guide any decision on a remedy. Although proportionality should be decided on a case-by-case basis, any decision to restrict counsel should be made in light of the fact that any restriction could be perceived as a violation of a defendant’s fair trial rights and call into question the fairness and impartiality of the court.