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.”