The Ethics of Serving as Appointed Counsel (Updated)

The Ethics of Serving as Appointed Counsel (Updated)

Both Martin Holterman and Sasha Greenawalt have questioned my repeated — and quite deliberate — insistence that “no competent barrister will accept appointment as stand-by counsel under these circumstances,” and that any barrister who does accept the appointment will thus “be interested in one thing and one thing only: the free publicity that comes with it.”  Martin’s comment is the most specific, so I will repeat it here:

I have to say I am a little troubled by your pre-emptive strikes against the appointed counsel. This seems well beyond the bounds of fair play among jurists, not to mention entirely uncalled for. Whoever the Tribunal will appoint is not the bad guy, in fact, he/she will be one of your guys, and does not deserve this kind of abuse.

Four months is far from ideal, but it is enough for counsel to function well enough to safeguard the accused’s right to a fair trial. How well counsel ultimately ends up functioning depends to a large extent on your client’s cooperation. Regardless, there’s absolutely no excuse for calling this person a hack just for taking on the job.

This is a very fair position to take, but I disagree with it.  The “easy” case, for me, is the one that we are presented with in Dr. Karadzic’s case: a barrister who accepts appointment knowing that he will have less than four months to prepare for trial.  Others might disagree, but I simply do not believe that four months is anywhere near sufficient preparation.  This is an enormously complicated case, involving 11 counts, four separate JCEs, and issues of command responsibility.  The prosecution intends to call hundreds of witnesses to testify concerning dozens of municipalities, and its evidence consists of more than 1.2 million pages of documents.  And that is just the prosecution’s case — the defense will also likely call hundreds of witnesses and make use of hundreds of thousands of pages of documents.  So I simply refuse to believe that even the most skilled barrister could be ready for trial by 1 March 2010 — in which case it would be fundamentally unethical for a barrister to accept the appointment under the terms set by the Trial Chamber.

That is particularly true given the likelihood that Dr. Karadzic will refuse to cooperate with stand-by counsel, much less stand-by counsel who has become appointed counsel.  Martin is absolutely right that “[h]ow well counsel ultimately ends up functioning depends to a large extent on [Dr. Karadzic’s] cooperation.”  But that is beside the point in terms of whether it is ethical for a barrister to accept the appointment: in determining whether four months is adequate time, any barrister offered the position has to assume that no cooperation will be forthcoming.  So the real question, rightly or wrongly, is not “why will I not have enough time to prepare, because of the complexity of the case or because of Dr. Karadzic’s intransigence?”  It is instead: “given that I know Dr. Karadzic won’t cooperate with me, is four months enough time to prepare a case of this magnitude?”  And to that question I think the answer is unequivocally no.

As I said, this is the “easy” case.  The more difficult one is the situation in which the barrister who is asked to represent a defendant against his wishes does have all of the time he needs to prepare for trial.  Should a good barrister accept such an appointment?  I don’t think so.  A defence barrister may be an officer of the court, but his role — his only role — is to present his client’s case as zealously as he can within the bounds of the law.  That does not mean uncritically deferring to a defendant’s every wish; a good defence barrister will tell his client when he’s making bad decisions.  But it is ultimately the defendant’s right to determine the kind of defence he wants to present, even if it is a bad one.  So how can a defence barrister in good conscience represent a client who had made it clear he does not want his services?  In such a situation the barrister will determine what defense to present, not the defendant. And that is simply antithetical to the defence relationship.

This is where I disagree with Martin. To begin with, I don’t think it is possible for a barrister to separate “safeguard[ing] the accused’s right to a fair trial” from zealously advocating the defense that his client wants to pursue.  The right to a fair trial is not just about ensuring that the prosecution plays by the rules; it is also about respecting the client’s right to determine how he wants to respond to the charges against him.  Moreover, even if it is possible to separate the two, a defence barrister should not be placed in a position where he is nominally the representative of the defendant, yet only advocates on the defendant’s behalf when the fairness of the trial is at stake.  How can that person be described as the defendant’s representative?  In reality he is simply an agent of the system, one whose basic function is to ensure that the defendant’s conviction will be viewed as legitimate by the outside world.  Such a person may well be necessary — but we should not pretend that he is a defence barrister.  He is, at best, amicus curiae.

The bottom line, then, is that no defence barrister should ever accept being appointed to represent a defendant who does not want his representation.  Perhaps he would do a better job than the defendant himself.  Perhaps he would do better than a barrister who had the defendant’s cooperation.  Perhaps he would even do a better job than hired counsel.  None of that matters — the role of the defence barrister is to advise his client and champion his client’s cause, even if that means it is more likely the defendant will be convicted.  The most basic myth about the role of the defence barrister is that he must always do everything he can (within the law) to ensure that his client is acquitted.  That is indeed often a defence barrister’s role — but only because most clients want to avoid conviction.  If that is not what the client wants (perhaps because, as is often the case at the international tribunals, the client knows full well that a conviction is a fait accompli), then the defence barrister cannot want it either.  And if he does want it — if he does think obtaining an acquittal is more important than respecting his client’s autonomy — then he doesn’t deserve the title “defence barrister.”

All of this, of course, avoids a critical question: what should be done in the Karadzic case regarding the possibility that he will boycott the trial?  The best solution would be to negotiate an acceptable delay with Dr. Karadzic, who has given no indication that he will not cooperate with the Tribunal even if he is given adequate time to prepare.  Short of that, I believe the best solution would be for the Tribunal to appoint one or more barristers to function as amici in the case, as it did in Milosevic.  Such appointments would protect the integrity of the trial without engaging in the pretense that the appointed barristers “represent” Dr. Karadzic.  Here is how Human Rights Watch describes Milosevic’s use of amici:

A valuable lesson from the Milosevic trial was the innovative use of the amici curiae. Shortly after Milosevic informed the court that he intended to represent himself, the Trial Chamber decided in a pretrial conference, in the interests of securing a fair trial, to assign counsel to appear before it as amicus curiae. The amici would assist the Trial Chamber by

(a) making any submissions properly open to the accused by way of preliminary or other pretrial motion;

(b) making any submissions or objections to evidence properly open to the accused during the trial proceedings and cross-examining witnesses as appropriate;

(c) drawing to the attention of the Trial Chamber any exculpatory or mitigating evidence; and

(d) acting in any other way that designated counsel considers appropriate in order to secure a fair trial.

The amici are assigned to assist the court in ensuring that a proper determination of the case is made. The amici do not represent the defendant.

Here, the amici assigned to the case filed hundreds of technical motions (including the rule 98bis Motion for Judgement of Acquittal) that Milosevic ultimately agreed with, even if he did not offer them explicit instructions. Because the case was so complex, having counsel to look after the technical aspects of the case was an invaluable part of ensuring Milosevic had a fair trial.

In interviews with the amici, they noted that they preferred the role of amicus to being assigned as defense counsel. They pointed out that had they been assigned to represent Milosevic from the start, they would have an ethical obligation not to act without instructions. Given that Milosevic would have refused to instruct assigned counsel, they would not have had the opportunity they had as amici to file motions helpful to the defense without conflicting with their obligations to the client. In any event, the assignment of counsel as amici was very important in a case this complex requiring a great deal of expertise in ensuring Milosevic’s rights were represented. A significant additional benefit of assigning amici is that should the defendant be unable to continue to represent himself, counsel who have been participating in the trial from its beginning are available to step in.

Milosevic’s amici understood that their role was to protect the integrity of the Tribunal, not to represent Milosevic, which explains why the Tribunal was able to attract superb amici like Steven Kay, Gillian Higgins, and my colleague Tim McCormack. Kay and Higgins actually began as court-appointed counsel.  But because they are ethical barristers, they sought to withdraw as counsel (unsuccessfully at first, to the shame of the Tribunal) as soon as it became clear that Milosevic would not cooperate with them.

I stand by what I wrote in my original post: no ethical defence barrister will accept being appointed stand-by counsel for Dr. Karadzic.  Not only is there not enough time to adequately prepare for trial, “representing” a defendant who does not want to be represented is antithetical to the mission of a defence barrister.  It is safe to say, therefore, that any barrister who is willing to serve as stand-by counsel in the Karadzic case is far more concerned about getting his name in the papers than about protecting Dr. Karadzic.

UPDATE: Marko offers the following comment:

[Y]our position has a necessary consequence that I find unacceptable: (1) an accused can say that he wishes to represent himself, (2) but then decide to boycott his trial, for whatever reason, (3) and the court would then not have any way of continuing the trial, since the trial of an unrepresented accused in absentia would be unfair, while it would at the same time be ‘unethical’ for any lawyer to act as appointed counsel. In other words, your view of ethics would mean the collapse of any criminal justice system as we know it – no trial of an obstructive defendant would ever be possible.

I can see why Marko thinks that, so I want to make clear that I do not believe that a trial can never continue in the defendant’s absence.  On the contrary, I believe that it can if three conditions are satisfied: (1) the absence is due to the defendant’s decision to boycott the trial; (2) the defendant has a way to follow the trial from his cell; and (3) the defendant has the right to return to trial when he chooses.  Moreover, as I said above, I have no problem with the court appointing amici to safeguard the defendant’s rights (but not his interests) while he chooses to be absent.  I think that is a much better solution than appointing counsel with whom the defendant will not cooperate and then pretending that the defendant is “represented.”

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Marko Milanovic
Marko Milanovic

Kevin, You and I obviously don’t see eye to eye when it comes to the whole Karadzic thing, which is fair enough. Let’s leave aside for a moment the Karadzic trial itself, the issue of adequate preparation time etc – I must confess that I am completely puzzled by your assertion that it is NEVER ethical for a court-appointed lawyer to represent a client who does not want the representation. Now, you and I are actually not ethicists or moral philosophers, which it makes it somewhat difficult for either of us to put forward a coherent ethical argument. With respect (and you know that I actually mean that, despite the otherwise prevalent contrary usage), you don’t actually make an ethical argument. You only make an assertion that a lawyer should never act contrary to the wishes of his client, and deduce everything from that, but it is this assumption that requires justification. I will only say this – your position has a necessary consequence that I find unacceptable: (1) an accused can say that he wishes to represent himself, (2) but then decide to boycott his trial, for whatever reason, (3) and the court would then not have any way… Read more »

Marko Milanovic
Marko Milanovic

Kevin, Wait, wait… correct me if I’m wrong, but didn’t you have this to say just the other day: “Fifth, and finally, it is important to note that one aspect of the Trial Chamber’s decision is completely legally indefensible: The right of an accused to be present during his trial is, indeed, a right that can be voluntarily waived by that accused and there may indeed be circumstances in which a Trial Chamber could decide to proceed in his absence, even if an accused were not represented by counsel. To say this is a radical position is an understatement.  There is absolutely no legal justification for holding a trial in absentia without appointed counsel.  The ICTY Statute does not give the Trial Chamber that power.  Counsel was appointed in Milosevic, and the Appeals Chamber specifically held  that “the Trial Chamber failed to recognize that any restrictions on Milosevic’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial.”  The Appeals Chamber took the same approach in Seselj.  And, of course, the ICTR’s Rule 82 bis — the rule that the ICTR’s judges at least bothered to formally… Read more »

[insert here] delenda est
[insert here] delenda est

Kevin, I thought that even adversarial-system barristers were subject to a broader and overriding duty to uphold the integrity of the court and the judicial system.

Hence, for example, if Karadzic told you that he had ordered a particular massacre, you could not plead that he had not done so. Nor, for example, could you ethically be party to the obstruction of justice: if Karadzic had appointed you 5 years ago and you then became aware of his whereabouts, you would probably have felt rather conflicted, no?

Finally, I agree in principle with your point about amici. That would seem a more reasonable way out. I am just not entirely sure how much difference there is in substance – how many defendants really choose the conduct of their own trials?? – or whether it is so great as to deserve the oppobrium you heap on it.

Sasha Greenawalt
Sasha Greenawalt

Thanks Kevin for elaborating on your views. Just to be clear, my original reply went only to the question of the stand-by counsel’s possible motives. Could a self-respecting attorney agree to her appointment as Karadzic’s stand-by defense attorney for reasons other than publicity seeking? It seems to me the answer is yes, even if your criticisms of the Trial Chamber decision are also correct. If, for whatever reason, Karadzic refuses to participate in his defense, I think you agree that it is desirable that a competent lawyer be tasked with testing the prosecution’s case, even if Karadzic himself prefers that no one perform that function. There is an independent interest here in seeking the truth and safeguarding the fairness of the proceedings which transcends Karadzic’s subjective preferences. Perhaps it is better, in such circumstances, that the lawyer testing the prosecution’s case be called an amicus. But function is more important than semantics, and the truth of the situation will be a matter of public record. Whatever the defense lawyer is called, she will be free to stand up in court and explain whether she is proceeding with Karadzic’s consent or participation. If she is unhappy with her formal title, she… Read more »


Although “we cannot assume that publicity seeking is the only possible reason that anyone would step in as Karadzic’s stand-by-counsel”  it is more likely than not that this is the primary motivation for such counsel.


I fully agree with Marko’s views on this trial. Also with his post on EJIL’s talk blog. Kevin, if I understand your views correctly, a trial of a boycotting accused would proceed with: the judges, the prosecution and amici curiae (friends of the court, not of the accused). This means that the trial would go ahead without the accused being represented. This is contradictory to your view of 5 November in my opinion. Okay, you have now clarified that view to mean that if the amici are there, the trial can proceed. As far as I am aware not a single criminal legal system allows for such a trial where an accused’s representation is replaced by amici. There is no support in law for this proposition. Furthermore, from a fair trial perspective, it would be unacceptable that an accused is unrepresented as you suggest. Assigned counsel, even those who do not communicate with the accused because of his choice not to do so, are in a better position to represent his interest than friends of court are. They have a clear role in the courtroom and can conduct their own investigations, cross-examine witnesses on all issues, call witnesses – they would be in a much better position to defend an accused’s intrest than amici. As to your… Read more »

Martin Holterman

First of all, I did not intend to make a distinction between amici and true counsel. If you want to call the appointed person an amicus, that is fine by me, as long as that person can make submissions, etc. Secondly, I would not consider a trial in absentia if the defendant is absent but his counsel is not. As long as the defendant is represented by counsel (not an amicus), then it doesn’t matter where the defendant is, whether he has a tv, or why he is absent: that is not an in absentia trial. A proper in absentia trial only has limited consequences for the defendant. As soon as the defendant is located and arrested, the trial will ordinarily be redone. It only changes the defendant’s position from that of someone presumed innocent, with all the (European) rights that go with that, to that a convicted felon. Finally, I’d like to note that I did not mean to distinguish between different aspects of the barrister’s role. I just meant to distinguish between the lowest level of barrister performance that would still be legally permissible (“constitutionally effective assistance of counsel”, in US Supreme Court parlance), and the higher levels… Read more »

Sasha Greenawalt
Sasha Greenawalt

I think Martin, Scriptum, and I all agree that the important thing with respect to assigned counsel is not what title you give that person but what role they have to play.  And I don’t see Kevin arguing that a procedurally hobbled amicus is preferable to an assigned counsel who is given greater powers to contest the prosecution’s case.  The real issue, I think, is whether it is misleading or somehow improper to give someone the title of counsel for the accused who does not actually have the accused’s consent.

I don’t see a problem with the title so long as the real facts are out in the open as a matter of public record.  I am not surprised to see Scriptum say that the assigned counsel is the common practice, and it would be interesting to see how different legal systems formally refer to counsel who perform this function.