Representing the United States abroad: proper conduct of U.S. government attorneys in international tribunals.

Author:Gibson, Catherine H.
 
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TABLE OF CONTENTS I. INTRODUCTION II. ETHICAL STANDARDS IN AMERICAN COURTS A. Ethical Duties for AU American Attorneys 1. Duties to the Client: Zealous Advocacy and Confidentiality 2. Duties to the Court, Opponents: Candor and Civility B. Special Considerations of U.S. Government Attorneys 1. Viewing the Client Broadly 2. Seeking to Preserve Government Credibility 3. Acting as Ministers of Justice III. ETHICAL STANDARDS IN INTERNATIONAL TRIBUNALS A. International Criminal Tribunals: Moving Toward Ethical Standards 1. Nuremberg and Tokyo Tribunals 2. Modern International Criminal Tribunals a. Candor to Tribunal, Civility Toward Opposing Counsel b. Defense Counsel's Duty of Zealous Advocacy c. Duty of Confidentiality B. Other Tribunals: No Formally Established Ethical Standards C. Gap-filling Measures: Model Codes 1. Lawyer's Role in the Administration of Justice 2. Duties of Candor and Civility to Tribunals and Opponents 3. Duty of Zealous Advocacy IV. U.S. GOVERNMENT ATTORNEYS SHOULD EMBODY A HEIGHTENED STANDARD OF CONDUCT ABROAD A. The Special Considerations from the Domestic Context Also Apply Abroad 1. Viewing the Client Broadly 2. Seeking to Preserve Government Credibility 3. Acting as Ministers of Justice B. Forthcoming Standards of Conduct in International Tribunals C. Interest in Creating an Accurate Historical Record and Peaceful Resolution of Disputes V. CONCLUSION I. INTRODUCTION

"May it please the Court. I represent the United States of America in this matter." These are weighty words in a U.S. court, where judges, clients, and opposing counsel expect attorneys representing the U.S. government to embody the highest standards of ethical conduct, furthering the broad interests of justice rather than the narrow interests of a single agency client. This role is in sharp contrast to that of a private practice attorney, who generally acts as a zealous advocate for a single client's narrow interests. Although the ethical rules that formally bind U.S. government attorneys do not require this heightened standard of conduct, it has become accepted (and is indeed welcomed) by judges and attorneys alike, due to the role that government attorneys play in U.S. legal culture.

What are the expectations and obligations of attorneys representing the U.S. government in international tribunals? Do the words, "I represent the United States of America"--when stated in the International Court of Justice or before arbitrators hearing a case under the North American Free Trade Agreement--evoke an expectation similar to that raised in U.S. courts? What standards of conduct do these tribunals prescribe, for attorneys in private practice and for government attorneys? Most importantly, should attorneys representing the U.S. government before international tribunals take on the advocacy role of a private practice attorney, or should they continue the role they play in U.S. courts, striving for a higher standard of conduct and supporting the broad interests of justice?

These questions are increasingly important today, in a time marked by the "judicialization of international relations" (1) and an "explosion of international adjudication," (2) in which even long-standing international tribunals are "busier than ever before." (3) Today, the U.S. government finds itself ever more frequently litigating its disputes before international tribunals, and its attorneys therefore must be increasingly conscious of their role before these tribunals. This Article addresses the questions raised in this new environment of pervasive international adjudication. Relying on scholarship discussing the ethical obligations and expectations of U.S. private practice and government attorneys in American courts, as well as the standards generally applied in international tribunals, this Article argues that attorneys representing the U.S. government abroad should play the same role in international tribunals that they play in domestic courts. That is, in both fora, attorneys for the U.S. government should embody a heightened standard of conduct and uphold the general interests of justice. In both domestic and international tribunals, the U.S. government attorney must take a broad view of the client, preserve the government's long-term credibility, and act as a minister of justice. Moreover, U.S. government attorneys have additional incentives to adopt this standard of conduct in international tribunals. Specifically, international tribunals will likely soon require, or at least recommend, this standard of conduct, and such conduct facilitates these tribunals' greater mission of the peaceful resolution of international disputes.

This Article is organized as follows: Part II discusses the ethical obligations and expectations of U.S. lawyers in the domestic context and distinguishes the conduct expected of American private practice attorneys from that expected of U.S. government attorneys. Part III describes the existing ethical rules and guidelines for attorneys practicing in international tribunals, noting recent progress in the development of such rules, but the continuing inadequacy of these rules in addressing the role of government attorneys. Part IV argues that, especially in light of the scant ethical guidance in the international context, American government attorneys acting in international tribunals should continue to embody a higher standard of conduct than private practice attorneys in international tribunals.

  1. ETHICAL STANDARDS IN AMERICAN COURTS

    In the domestic context, the ethical rules applicable to U.S. private practice and government attorneys are relatively clear. These attorneys advocate zealously for their clients in acting as the clients' advisors and confidants. Separately, attorneys owe duties of candor and civility to courts, opponents, witnesses, and others involved with the proceedings. The American Bar Association's Model Rules of Professional Conduct, (4) which have been adopted with some modification in the fifty states, provide a general overview of these duties of counsel. American attorneys are bound by the version of the ABA Model Rules adopted in the jurisdiction in which they are admitted to practice, as well as the version adopted in any jurisdiction in which they offer legal services. (5) Although the rules adopted in each jurisdiction will differ slightly, the ABA Model Rules provide a generally applicable framework for these ethical obligations. Part A below summarizes an attorney's obligations, as set out in these rules.

    1. Ethical Duties for All American Attorneys

      The ABA Model Rules provide a relatively simple mandate for representing a client: zealous and single-minded advocacy for the interests of the client and protection of client confidences, while remaining within ethical bounds by retaining duties of candor and civility to the court, opponents, and others.

      1. Duties to the Client: Zealous Advocacy and Confidentiality

        The duty of zealous advocacy takes center stage in American ethical rules. Thus, that duty is stated prominently, in the preamble to the ABA Model Rules: "[a]s an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." (6) The attorney's duty of diligence requires that an attorney "act with reasonable diligence and promptness in representing a client." (7) This duty of diligence is single-minded and narrowly focused on the lawyer's service to the client: As the ABA Model Rules state, "[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor." (8) Although the language in the current version of the ABA Model Rules may be more tempered than in previous versions, it is clear that a lawyer's role as zealous advocate is still central and strong in U.S. domestic proceedings. (9)

        American attorneys also owe a strong duty to protect clients' confidential information. (10) This duty of confidentiality may be compromised without client consent in only very limited circumstances, such as to prevent reasonably certain death or bodily injury, or to prevent, mitigate or rectify a crime or fraud that would substantially injure another's financial interests. (11) This duty of confidentiality is so strong because, in American law, "[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation." (12) This prohibition on disclosure applies not only to confidential information itself but also "to disclosures by a lawyer that do not themselves reveal protected information but could reasonably lead to the discovery of such information by a third person." (13) Thus, the duty of confidentiality underpins the duty of zealous advocacy and permits the lawyer--within some very loose limits--to pursue the narrow goals of the client alone.

        Even when an attorney is acting in an advisory capacity--such as when an attorney advises a client on the legality of certain action before any litigation has begun--the ABA Model Rules permit only limited consideration of any interests other than those of the client alone. The ABA Model Rules state that an attorney advising a client should provide an honest assessment of the law and the legality of a considered action. (14) Further, extra-legal considerations may be appropriate: "[i]n representing a client, a lawyer shall exercise independent professional judgment and render candid advice" and "a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." (15) The commentary to those rules clarifies that "[p]urely technical legal advice ... can sometimes be inadequate." (16) Moreover, in diligent service to a client "[a] lawyer is...

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