Challenges of transnational legal practice: advocacy and ethics.

Author:Rogers, Catherine A.
Position:Proceedings of the One Hundred Third Annual Meeting of the American Society of International Law: International Law as Law

This panel was convened at 10:45 am, Friday, March 27 and included as panelists: Laurel Baig of the Appeals Unit of the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia; Christopher Greenwood of the International Court of Justice; Viren Mascarenhas of Freshfields, Bruckhaus, Deringer US LLP; and Laurel Terry of Penn State Dickinson School of Law. Catherine Rogers of Penn State Dickinson organized this panel. *

INTRODUCTION

When Oscar Schacter first wrote his seminal piece, The Invisible College of International Lawyers, (1) he could not have imagined that just thirty years later, that group would be so prominent that the American Society of International Law would dedicate a panel at its 102nd Annual Meeting to discuss the unique professional and ethical challenges they face. Even if the ranks of international lawyers are no longer as obscure as when Schacter wrote, however, as the following contributions reveal, their role and professional obligations often remain opaque, even as their specific functions before international tribunals have become more demanding. The essays that follow in these Proceedings summarize some of the panel presentations on these topics by international lawyers and a scholar of international legal ethics. (2) While each essay presents a unique viewpoint, they all converge in their call for greater clarity both to guide attorneys in making ethical decisions, and to ensure that regulation and discipline for violation of rules is fair and effective.

Laurel Baig, a legal officer at the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia ("ICTY"), illustrates through the example of "witness proofing" how national procedural practices and "gut instincts" are unreliable guides for lawyers in navigating their ethical obligations before international criminal tribunals. At a more fundamental level, she observes that shared cultural backgrounds of domestic lawyers, along with the relative stability of national legal systems, can be helpful background to lawyers in making ethical decisions. Meanwhile, international criminal tribunals are dynamic, and the lawyers who practice before them are culturally diverse. Adding to these complexities, international tribunals present unique ethical and practical challenges in dealing with mass atrocities and cultural differences in dealing with witnesses from culturally diverse backgrounds. Baig makes a strong case that national ethical rules are simply not capable of regulating attorneys in this complex context. Instead, she calls for specialized written rules to capture the shared ethical expectations of lawyers practicing before international criminal tribunals.

A complimentary but nevertheless distinct view is presented by Viren Mascarenhas, who has served as a Legal Officer at the Special Court for Sierra Leone. Like Baig, Mascarenhas also calls for clearer rules. In addition to the rules themselves, Mascarenhas demonstrates how some of these substantive ambiguities are exacerbated by related unresolved issues about how to allocate regulatory powers. For example, with regard to the issues regarding payments to witnesses, he contemplates whether the real solution is the creation of a special sub-unit to administer the payments, thus removing the ethical ambiguities. Meanwhile, with regard to the disciplinary powers of international criminal tribunals, he ponders whether the transmission of letters by national regulatory authorities are an effective means of discipline, and separately whether a tribunal has (or should have) the power to hold an attorney in contempt for disobeying a court order when it conflicts with specified ethical rules.

Instead of a view from within practice before international criminal tribunals, Laurel Terry, a legal scholar specializing in comparative and international ethics, takes a step back to frame the issues raised by Baig and Mascarenhas in terms of how to improve guidance for, and regulation of, attorneys practicing before international tribunals. While approaching these subjects from outside of immediate practice, Terry offers a range of concrete suggestions including making applicable codes of ethics more readily available on tribunals' websites and extending them to all attorneys (not only defense counsel). To address problems and ambiguities that arise as a result of the possibility of an international attorney being subject to more than one set of ethical rules, Terry proposes that international tribunals add to their ethical codes specific choice-of-law provisions. Peering out beyond the context of international criminal tribunals, Terry notes that private international arbitration could similarly benefit from development of more specific codes and that organizations like ASIL have a critical role to play in providing a forum and context in which such developments can be cultivated.

* Christopher Greenwood did not submit remarks for the Proceedings.

(1) Oscar Schachter, The Invisible College of International Lawyers, 72 NW. U. L. REV. 217 (1977).

(2) In addition to the contributors in these Proceedings, Judge Christopher Greenwood of the International Court of Justice participated in the panel discussions that contributed to the following essays, and Attorney Natalie Reid of Debevoise & Plimpton LLP moderated those discussions.

By Catherine A. Rogers, Professor of Law, Penn State Dickinson School of Law.

INTERNATIONAL CRIMINAL LAW AND LEGAL ETHICS: THE NEED FOR SHARED EXPECTATIONS

The transition from domestic to international criminal law practice entails many challenges and learning experiences. Colleagues from different legal systems approach problems with different backgrounds and different expectations. Nowhere is this more apparent than when questions of ethics arise.

Domestic lawyers operate in a stable environment with shared expectations. Most domestic bar associations include legal ethics as part of lawyer training, promulgate rather detailed rules of professional conduct, offer a variety of services to assist lawyers who are facing an ethical problem, and create adjudicatory mechanisms to assess claims of misconduct. As a result, within a domestic legal system, all lawyers share a common set of norms, which should provide a common understanding of the basic rules of expected conduct.

When one moves to the international arena, this common ground disappears. While colleagues from disparate backgrounds generally share some agreement concerning the sources of substantive international law, this is not necessarily true for questions of practice or procedure. Often the practical debates divide international lawyers down the expected civil law against common law lines, but significant procedural differences also exist between seemingly similar jurisdictions.

The discovery that not everyone shares the same expectations is interesting and intellectually engaging when it comes to procedural issues like the admission of documentary evidence (such as: do you need to lay a foundation with a witness, or can you just propose admission of a dossier of documents from the bar table?), but it is much more disconcerting when ethical norms are in question. For example, in many civil jurisdictions ex parte communications between the prosecution and the judges are accepted as ordinary practice. Such communications would be forbidden in common law jurisdictions.

WITNESS PREPARATION: a CASE STUDY

Recently, the international criminal tribunals have grappled with questions of procedural ethics that have highlighted the lack of shared expectations at the international level. The contrasting approaches to the practice of pre-trial witness preparation--called "witness proofing"--exemplify this phenomenon.

Witness proofing is an interesting case study because the domestic practice is contradictory. Although witness coaching is prohibited, many domestic systems allow the lawyer to meet with the witness to explain the likely areas of examination and cross- examination, to inform the witness about effective courtroom behavior, and to review exhibits. American lawyers commonly meet their witnesses before trial to prepare them to give evidence. For the English barrister, however, it is considered unethical to meet with a witness prior to trial in order to rehearse their evidence in preparation for trial. Similar prohibitions exist in many civil law jurisdictions.

Although the Statutes and Rules of Procedure and Evidence of the ICTY and the International Criminal Tribunal for Rwanda ("ICTR") are silent on the matter, both the prosecution and defense teams at these institutions commonly proof their witnesses. The few defense challenges to witness preparation have been dismissed by the judges, who have accepted that the practice is useful to the judicial process. (2)

In contrast, in November 2006, shortly before the first and only prosecution witness in the confirmation hearing for the International Criminal Court's ("ICC") first case, the PreTrial Chamber banned witness "proofing," allowing witness familiarization with the courtroom setting only through the court's witness service. (3) A year later, this rule was relaxed slightly, permitting the witnesses to review their prior statements to refresh their memory but confirming that lawyers were not allowed to meet or talk with the witnesses once they arrived in The Hague. (4) The Trial Chamber reasoned that: "any discussion on the topics to be dealt with in court or any exhibits which may be shown to a witness in court [...] could lead to a distortion of the truth and may come dangerously close to constituting a rehearsal of in-court testimony." (5) Interestingly, the first witness in the first ICC trial in January 2009 experienced a number of problems that might have been ameliorated if he had been better prepared by the prosecution.

Defense challenges to the established practice of witness proofing...

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