Many thanks to EJIL:Talk! for the opportunity to blog. This post and the article on which it is based are written in my personal capacity, and all opinions are my own.
In my recent article in the Georgetown Journal of International Law I argue that attorneys representing States in international tribunals should act as ministers of justice, rather than as zealous advocates for their clients. My article focuses on U.S. government lawyers, but the underlying principles apply equally to all counsel appearing before international tribunals on behalf of States.
While domestic legal systems may generally prescribe specific, enforceable ethical duties for lawyers, no such formal standards exist under general international law or in the rules of most international tribunals. As discussed here, this gap may be partly filled by international courts’ rules of evidence and procedure and the reputational effects of repeat player relationships. This gap remains problematic generally, however, because lawyers of differing legal backgrounds may have divergent views of their duties and ethical obligations. In cases involving States, this gap is particularly troubling due to the high stakes for those involved and these cases’ potential importance in international law.
Fortunately, international law of lawyers’ conduct is developing. International criminal tribunals have created attorney codes of conduct, such as the ICTY’s standards for prosecution and defence, and judges have played an active role in developing these norms. Non-binding guidelines for attorney conduct have been promulgated by the International Bar Association and the International Law Association, among others, and scholars have called for standardization of rules of conduct. The existing rules and guidelines do not cover all relevant conduct, however, and do not provide any particular guidance for attorneys representing States as distinguished from those representing private parties. (photo right, International Criminal Court, credit)
I argue that, regardless of what rules actually exist or what the existing rules require or recommend, attorneys representing States before international tribunals should embody a heightened standard of conduct as compared to their counterparts representing private parties. A distinction in the conduct of counsel for States and counsel for private parties can be derived from U.S. domestic practice. In the United States, private attorneys generally act as zealous advocates and, within reason, pursue only their clients’ goals. U.S. government attorneys, however, may face different expectations. Patricia Wald – who served as a U.S. judge before moving to the international sphere – has written here that U.S. judges tend to expect U.S. government attorneys to show higher levels of “competence, candor, credibility, civility, and consistency,” as compared to their private practice counterparts.
The rationale for this heightened standard is that government attorneys, as ministers of justice, should take a broad view of their client, preserve the government’s long-term credibility, and seek right and just results, rather than results that a particular government agency may prefer. These same considerations apply in the international sphere, thus leading to the same incentive to show more competence, candor, credibility, civility, and consistency than a zealous advocate representing a single client. Moreover, this heightened standard promotes the functioning of the international justice system by assisting international tribunals in their broader goals (delegated to them by States themselves) of peacefully resolving disputes and creating an accurate record of events.
In fact, the international criminal tribunals, which have standards of conduct, have anticipated a distinction between a zealous advocate acting on behalf of a particular client and a minister of justice seeking to assist the court in reaching the just and right result. The ICTR’s Code of Professional Conduct for Defence Counsel, for example, requires defence attorneys to take “all necessary steps to ensure that their actions do not bring proceedings before the Tribunal into disrepute,” and states other basic obligations for defence counsel. The ICTR Prosecutor’s Regulation No. 2 goes further, however, and asserts that prosecutors “represent the international community [and] play a crucial role in the administration of justice,” and therefore they must “serve and protect the public interest, including the interests of the international community, victims and witnesses, and . . . respect the fundamental rights of suspects and accused.” Thus, consistent with my argument above, the international tribunals that have promulgated ethical standards require prosecutors to act a bit more like a minister of justice than a zealous advocate.
I welcome reactions to this argument. I am particularly interested in whether and to what extent other legal systems distinguish the zealous-advocate and minister-of-justice functions. I wonder whether the United States analogy applies more broadly, and I am interested in learning what standard of attorney conduct others find to be most beneficial to the goals of the domestic and international legal system. Finally, would existing ethical expectations and obligations change if a State hires private counsel as opposed to representing itself through its foreign ministry or other agency?
For more detail on domestic expectations of U.S. government attorneys, see the internal and external guidelines for U.S. Department of Justice’s Office of Legal Counsel, the American Bar Association’s standards for prosecutors, and Doug Letter, Lawyering and Judging on Behalf of the United States: All I Ask for is a Little Respect, 61 Geo. Wash. L. Rev. 1295 (1993). For a counterargument, see Catherine J. Lanctot, The Duty of Zealous Advocacy and the Ethics of the Federal Government Lawyer: The Three Hardest Questions, 64 S. Cal. L. Rev. 951 (1991). The outlines of the zealous advocacy model are here. A forthcoming book on the topic is here.