A Question on Spying and Legal Ethics

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In the wake of the scandal regarding the Croatia/Slovenia arbitration, but also the spats between Australia and East Timor, I have been left wondering with an ethical question: say you are counsel for one of the parties in a case before the ICJ or in an arbitration (but you are not the relevant government’s employee). Imagine if your client comes to you with a document that they could only have obtained by spying on the other party in the proceedings – say a draft of the opposing counsel’s pleadings, or a particularly important piece of undisclosed evidence in the case. Would it be ethical for you to rely on such a document? Would you, say, read your opponent’s draft pleadings? Would it make any difference whether the spying is done against the adversary state or against your opposing counsel directly?

NB: I’m not interested in how the court or tribunal would decide on any issue of admissibility; all I care about is the ethical dimension. For the avoidance of doubt, this is not a dilemma I’m currently facing or ever had to face. But my impression is that this sort of stuff must happen occasionally. Having been involved in some interstate cases, I know that some parties take reasonable security measures (e.g. send drafts or documents only in an encrypted format), while others take virtually none. In this post-Snowden era, such spying would seem trivially easy for many intelligence agencies, especially if no dedicated security measures are in place – the Slovenian arbitrator and agent providing an abject lesson.

Comments from readers much appreciated; anonymous comments with regard to this particular post are welcome.

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Martin says

September 1, 2015

Interesting dilemma Marko, others will be able to give intriguing personal insight. The [England and Wales] Bar Standards Board's code of ethics covers similar situations with strong guidance towards an open and honest approach.

[Paraphrasing] If a barrister comes into possession of a document belonging to another party by some means other than the "normal and proper channels" i.e.; mistake, inadvertence, or in breach of legal privilege, he should make enquiries of his professional client to ascertain the circumstances in which the document was obtained and unless satisfied that the document has been "properly obtained", return the document unread to the person entitled to possession of it.

Principled, but practically very difficult to apply across all of the situations referred to above.

Sir Frank Berman says

September 1, 2015

But why is there a question? If you're 'counsel' (in any real sense) then you have professional and ethical obligations as such that are not overridden by your duties towards the client. See passim my chapter on Art.42 in the Commentary on the ICJ Statute. There has been much recent practice amongst the criminal tribunals.

Marko Milanovic says

September 1, 2015

Many thanks for the responses, very helpful. Frank, I don't dispute the basic position that one can have ethical obligations that override one's duties towards the client. My question was specific to the interstate spying context. Why? Because we normally don't regard such spying to be illegal under international law, absent some special circumstances (and the context of dispute resolution might be one of them). For example, had Croatia obtained document X by hacking into a Slovenian government computer it would not have violated international law, were it not (possibly) for the ongoing arbitration. On the other hand, that type of espionage may well be illegal domestically. So in response to Martin's point re English Bar rules, espionage might even be regarded as a "proper channel" in an interstate context.

John Lunstroth says

September 1, 2015

It may be the hypo is not nuanced enough. Clients, and their litigating lawyers, come into possession of documents/info that could hurt the opposing side through all kinds of channels, from boxes left anonymously at their door, "chance" meetings in bars, mistakes in emailing or mailing, wikileaks and other public sources, etc., all of which i have seen and none of which implicates the spying piece per se. Litigants often hire investigators, many of which are now former spies, and who use "industrial" or "corporate" spying to obtain hidden or obscure knowledge about the other side, such as financial institutions/accounts. In the private sector i know of US litigants who will use offshore private ex-spies to gather relevant information about the other side for business or litigation purposes. Unless a litigant is a government, they are not spying per se, as you seem to be using the term, because they are not the state. In international law spying is not a crime, of necessity, but it is heavily criminalized in all target states. That is, for any spy, there is only one state in which their spying is legal, and that is their own state (without introducing another set of murky issues arising from shared intelligence-sharing arrangements). So, documents/info can come into the hands of the private litigant burdened with links to criminality, especially if it has been officially classified. Recall, for example, the holding of the US guv that its employees could not even read Snowden material, and the consequences. Then there are a bunch of other practical issues, about how to use the info. Can it be washed somehow, so you can get it before the court without being sanctioned? One can assume that in all state to state conflicts, especially ones involving war in any way, each party will be privy at the very least to its own state's intelligence on the other state, which they use at the risk of causing diplomatic rifts.

Will Worster says

September 1, 2015

I think we would want to distinguish between counsel that has been admitted to a bar somewhere and counsel that has not. If admitted to a bar, then his/her bar would govern - and that bar might have rules that prohibit use of materials acquired in a context broader than only criminal behavior.

However, if the bar rules only covered illegally acquired info, we could look at fruit of poisonous tree jurisprudence, although admittedly the rule is not exactly on point. But what if the acquired material was simply released to the New York Times or Wikileaks and counsel just picked it up? Not sure it is prohibited to use it then.

If a professor, then we might consider reporting to his/her university that might have its own (academic) ethical rules perhaps as a part of an employment contract or tenure.

Then the next question in my view is what to do about any functional immunity. Surely counsel are (or assimilated to) experts on mission? See Erlinder's case. Without a rule in place derogating from the functional immunity (like ICC rules), the use of espionage material might not be subject to sanction.

Relja Radović says

September 4, 2015

Perhaps the IBA Guidelines on Party Representation may be instructive. Although they are not drafted specifically for the PIL judicial/arbitral field, they may become instructive in those fields where counsels might come from commercial arbitration background (such as investment arbitration, which often takes place under auspices of "regular" arbitral institutions, such as ICC, SCC etc.).

The guidelines do not contain a direct answer, however they do regulate the request to produce documents, as the only mean of obtaining documents from the other party (essentially this is a supplement on IBA Rules on the Taking of Evidence). On the other hand, guidelines do contain instructions on how should a representative behave when he learns that his evidence is false:

A Party Representative should not submit Witness or
Expert evidence that he or she knows to be false. If a
Witness or Expert intends to present or presents evidence
that a Party Representative knows or later discovers to be
false, such Party Representative should promptly advise
the Party whom he or she represents of the necessity of
taking remedial measures and of the consequences of
failing to do so. Depending upon the circumstances, and
subject to countervailing considerations of confidentiality
and privilege, the Party Representative should promptly
take remedial measures, which may include one or more
of the following:
(a) advise the Witness or Expert to testify truthfully;
(b) take reasonable steps to deter the Witness or Expert
from submitting false evidence;
(c) urge the Witness or Expert to correct or withdraw the
false evidence;
(d) correct or withdraw the false evidence;
(e) withdraw as Party Representative if the circumstances
so warrant.

The last point (e) seems to be the highest point of ethical responsibility: the counsel has to withdraw because he cannot argue his case with false evidence. Perhaps some analogy could be drawn in respect to the unethical obtaining of documents?

cro says

September 7, 2015

In regards to Croatia-Slovenia case. I would like to point out that it is not known who was actually spying. So publicly, it can only be speculated. I think that the "spying" was justified. To put it into ethical perspective, I would not even call it spying, but rather let's call it monitoring for faul play. Before we discuss the ethical issue, I think that the underlying philosophical question must be considered: Is it illegal/moral to monitor/spy on something that should not be happening in the first place for the pourpose of discovering a possible faul play?

In this case, Sekolec and Drenik were spyed upon, but not while on their official duties. Thus, it can be concluded that the spy did not have the intention of revealing "a draft of the opposing counsel’s pleadings" or "undisclosed evidence in the case". What is there to reveal by spying private conversations between a judge and one party in the proceedings except for faul play?

From the ethical dimension there are two points of view:
1. If you cheat be careful not to get caught.
2. Don't cheat, play fair, it is the right thing to do.

Now imagine a football match without any judges. Obviously humanity is not ready for that. It is obvious that the rule number 2. is more ethical and just, but like in football it must be monitored by the judges. I'm sure that no one would say that the football judges are spying on the players in the field:) As we can often see in football, even judges can fail. This is what happened here, in the Croatia-Slovenia case, the PCA faild to perform its duty and there is only one party to blame.

JSD Student says

September 21, 2015

Just wanted to point out that a lot of what has been discussed here is introduced in the Jessup problem this year (see the first prayer on admissibility).