To prevent automated spam submissions leave this field empty.
On April 11, the 2015 ASIL Annual Meeting held a session exploring ethical issues in a variety of international law-related settings. The session was moderated by Dr. Zach Kaufman, a U.S. Supreme Court Fellow. The panelists were Professor Catherine Rogers, Professor of Law at Penn State Law and Professor of Ethics, Regulation and the Rule of Law at Queen Mary, University of London; Ms. Brittan Heller, a criminal trial attorney at the U.S. Department of Justice; and Mr. Fergal Gaynor, Visiting Fellow at Harvard Law School.
At the outset of the session, Dr. Kaufman clarified that the Chatham House Rule applied and the discussion was off the record.
The session began with a discussion on the lack of consistency and clarity of ethics standards in international legal practice. It was characterized as an ethical no-man’s land due to the plurality of inconsistent rules and expectations of how lawyers should behave. For example, the International Criminal Court (ICC) has adopted the Code of Professional Conduct for Counsel, but this Code does not apply to the prosecution counsel even though it applies to defense counsel and victims’ representatives. Moreover, lawyers in international legal settings come from different backgrounds and could have vastly differing concepts of legal ethics. These differences arise with respect to witness preparation, document production, conflicts of interest, and reporting obligations.
One panelist argued that the proper way to advance ethics standards was to create a culture where certain standards were upheld, not to promulgate codes of conduct. If lawyers engaged in proactive discussions about ethics, they could reach a common understanding of appropriate and inappropriate conduct. This would establish a self-policing community of international law practitioners, in which a lawyer’s reputation would be jeopardized if he or she behaved unethically.
The panelists then discussed how, in the current environment, a lawyer could determine which ethical standards applied to his or her international practice. The starting point is the ethical rules applicable in the lawyer’s home jurisdiction. For example, New York rules of professional conduct apply anywhere in the world to a lawyer licensed to practice only in that state. However, it is often unclear what ethics rules would take precedence in cases of conflict. Some national codes assert primacy, as does the ICC Code of Conduct. In such situations, the international lawyer should bring any ethical dilemmas to an advisory body, both in his or her home jurisdiction and the international tribunal. A panelist noted that there may not be a “correct answer” for complex ethical dilemmas, but seeking advice in such situations is good practice for the international lawyer facing such dilemmas.
Next, the panelists considered what disciplinary measures could be taken against misbehaving lawyers. Such sanctions include contempt holdings, fee denials, warnings, and suspensions. For example, defense lawyers for former Congolese Vice-President Jean-Pierre Bemba were arrested for interfering with witnesses and presenting forged documents, and they face imprisonment and fines. Lawyer misconduct could also have deleterious effects on the case or the client. For example, indigenous peoples in Ecuador were unable to enforce a multi-billion dollar Ecuadorian judgment against Chevron in the United States after the U.S. federal court held that lead plaintiffs’ lawyer Steven Donziger had committed numerous ethical violations and breached U.S. laws in the litigation against Chevron. Moreover, lawyers could be sued for malpractice, and the panelists were aware of cases in which this had happened.
Dr. Kaufman asked if an international professional body should be created to consider and enforce ethics rules. The panelists had a variety of responses to this question. They drew a distinction between international criminal law and international arbitration. In international criminal law, associations of defense counsel have been and continue to be established. They could set up committees to hear ethics questions on a confidential basis. By contrast, international arbitration is generally considered to be a private system. There is a debate regarding whether arbitral tribunals have the power to sanction or disqualify counsel. For example, in HEP v. Slovenia, the ICSID tribunal ruled that international tribunals have inherent power to discipline lawyers who practice before them. One panelist suggested that it would be more pragmatic for the tribunal and parties to discuss and agree to the ethics standards that would apply in the proceedings.
The panelists also discussed ethics rules that may apply to judges and arbitrators, to government lawyers, and to academics. In the International Criminal Tribunal for the former Yugoslavia, where different cases brought at different times can be based on similar facts, judges are considered to be able to keep these cases separate in their minds, such that their impressions in one case are not colored by what they learned in another case. In international arbitration, arbitrators are subject to disclosure obligations. By comparison, government lawyers may sometimes face political pressure to create legal arguments supporting immoral conduct. For example, the U.S. Torture Memos and the Opinion of the English Attorney General on the legality of the Iraq War have been heavily criticized. However, it could be argued that these lawyers were not acting in their capacity as lawyers, but rather as experts, and experts’ ethical obligations were different. As for academics, there was a general public interest to encourage academics to participate in fact-finding missions. Nonetheless, they should at least sign some agreement to comply with certain standards.
This session provided ample food for thought and drove home the importance of actively considering ethics issues when one practices in international settings. The improvisational nature of international ethics could have the advantage of flexibility, but should not be taken to mean that international legal practice is no-holds-barred.
Z.J. Jennifer Lim is an associate in the New York office of Debevoise & Plimpton LLP.