Holding Lawyers Representing States to a Higher Standard

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Gibson photoCatherine H. Gibson is a Legal Adviser in the Iran-United States Claims Tribunal and a former Trial Attorney in the Civil Division of the U.S. Department of Justice.

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 theICC 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.

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David K says

September 20, 2013

This is a very interesting post and article. I wonder to what extent a distinction between the zealous advocate and minister of justice role really applies in the international arena, as counsel are often expected to play both. I also wonder how far reality matches expectations, given the difficulties in enforcing ethical obligations for counsel at the international level. A couple more specific thoughts on how this issue plays out in international criminal courts, which I think may be very different from other bodies:
The ICC Code of Professional Conduct for Counsel - which was developed with significant input from the ABA - explicitly applies to counsel representing States. [Your article correctly states this in fn 114, but the shorthand "code for defence counsel" is misleading]. That said, the provisions of the code appear drafted with defence counsel primarily in mind and may not take into account the specific circumstances of counsel for states (see my last point below on this).

he logic behind the ICC Code as I understand it is that all counsel before the ICC (except for the OTP counsel)should be held to the same standard. This leads to two questions in my mind. First, what is the standard applicable to the OTP counsel? In the international criminal law context, these arguments about a minister of justice role may be more relevant to counsel for the OTP than states which have a much more circumscribed role in proceedings. Second, if we were to introduce a two-tiered set of expectations with States held to a different standard, what would be the implication for defence counsel? Those arguing for more stringent obligations on defence counsel may in part fear the (unfairly) stereotyped over-zealous american criminal defence attorney.

The argument for counsel for states seeing their clients broadly may have particular relevance for what is an increasingly difficult issue before international criminal tribunals. Where State leaders are investigated or prosecuted in their individual capacity, how should government lawyers act - not only in proceedings, but also in advising their clients? There is a real potential for a conflict of interests between those of the individual on trial and those of the State. I'd be very interested to see how your arguments could be pursued to institute practical changes/solutions to this problem.

Richard Hoyle says

September 20, 2013

I thought that this piece was very interesting. I think that, from the perspective of an English lawyer, barristers in our system are expected to be a bit more like a minister of justice and assistants to the Court - but in all contexts. In his third Clarendon Lecture (published in 'Law and Legal Theory in England and America'), Posner seeks to put the English and US systems side by side, along with some comparison to approaches in European civilian systems. From what I remember, he looks in some detail at the assistant to the Court idea - it may be worth reading for your research.

Arman Sarvarian says

September 21, 2013

Thank you for the excellent article and post. This field is increasingly becoming a topic of interest and debate amongst academics and practitioners alike. It will be interesting to follow developments in the international judicial system as well as in national jurisdictions, which may seek to institute reforms to seek to better grapple with ethical standards for their counsel appearing before international courts and tribunals.

I have the following observations to offer, which may provide threads for your further research:

1. Your argument that US government attorneys must act as 'ministers of justice' could, as noted in David K's comment above, be criticised by realists (usually practitioners) as impractical and ethereal. On the other hand, and ironically, a cynic could say that practitioners are sometimes pleased to sign to a set of lofty and ethereal principles ('commitment to the rule of law and justice') that are so vaguely drafted as to rarely translate into higher standards in practice. To give your argument more force, it may be useful to explore how the concept translates into practical differences from the existing set of ethical standards in the form of the ABA Model Rules and the additional Guidelines that you have referenced above. How does it affect client confidentiality, misleading the court, conflicts of interest or the handling of evidence? When it comes to tangible, specific issues, the application of a higher duty to justice becomes far more political and difficult to achieve.

2. You assert at page 1174 of your article: 'In addition, government attorneys are subject to certain expectations - at least in the eyes of some judges and practitioners - that are related to their government service. In general, a higher standard of conduct is expected of U.S. government attorneys than of private practice attorneys.' This implies that US governmental attorneys hold themselves to a higher standard of ethics than the ABA Model Rules, which are applicable to them and to private practitioners in almost all state bars. In the Guidelines that you have helpfully provided, the principal difference that I can detect is the notion that OLA attorneys must provide candid and realistic legal advice to the Government notwithstanding the effects upon desired policy. Does this mean that private attorneys can manipulate their advice to suit the objectives of their clients, regardless of its legal merits? It may be interesting to identify practical examples of scenarios in which governmental attorneys before US federal courts have been held to a stricter ethical standard than that applicable to private practitioners.

3. The perception amongst some Western European practitioners - as perhaps implicitly adverted to in Richard Hoyle's comment above - is that US ethical standards tend to be set at a lower bar than in their jurisdictions. This perception is grounded in the more market-based, client-oriented philosophical approach of the US legal culture, as well as tangible examples of conduct by US attorneys that in their jurisdictions would be considered to be unethical. In addition, there is the habit of lawyers seeking to 'export' their home standards to the international level rather than to approach the problem of divergent national standards through pragmatism and compromise.

One of the fundamental problems to professionalising advocacy before international courts and tribunals is the divergence of standards at the national level. Your article focuses upon the US case and appears to be a call for US standards to be raised abroad to match those applicable at home. To your mind, what explains the apparent difference? Is it the weakness of enforcement at international courts and the absence of enforcement at their home bars for misconduct abroad? Given the problems with Model Rule 8.5 and the lack of political will to enforce by state bars, what is the solution to raise standards abroad? Even if the standards of US attorneys were to be raised abroad to match their standards at home, will problems concerning US attorney conduct before international tribunals continue in light of divergences with the norms of other jurisdictions?

4. Following on from comment 3, to what degree - if at all - do you consider there to be appetite for change and a willingness to alter practices that are perfectly acceptable in US courts and perfectly unacceptable in many, if not most, national and international jurisdictions? In this vein, the example of witness proofing (itself controversial amongst US commentators) is useful to consider. Often, practices such as these can resemble the 'elephant in the room' due to the fact that in the vast majority of jurisdictions it is not countenanced and yet US lawyers appear to be utterly unwilling to stop the practice before international courts. It appears to me that a dialogue on the merits of witness proofing, atmospheric arguments or other such practices before international courts should flow from the dominant trend amongst national jurisdictions and from the merits of the practices themselves. In this respect, the decision of the International Criminal Court Trial Chamber in Lubanga forbidding witness proofing and thus diverging from the ICTY and ICTR and sparking considerable commentary concerning the practice.

These are the thoughts that immediately come to mind. Once again, many congratulations on your article and I look forward to reading more of your work in future.

Alexander Eichener says

September 22, 2013

Your rendering of the judicial approach on witness familiarization and witness preparation is outdated. The old decisions in the Lubanga case (which were wrong even at their time) have now underwent change. The two current Kenyan cases more reliably represent the actual evolution and state of ICC jurisprudence.
Vide etiam p. 22 ss. of the helpful IBA publication "Witnesses before the International Criminal Court" (clickable link above).

I am afraid that previous scholarship in this field so far has suffered - indeed gravely - from a rather limited Common Law approach and an underexposition to Civil Law jurisdictions. As civilian and canonist, I feel licensed to say so. ;-)

Catherine H. Gibson says

September 23, 2013

Many thanks for the thoughtful comments. I have a few thoughts in response:

(1) I agree that attorneys representing States may not, in reality, always act as ministers of justice, and that the minister-of-justice mantra can be abused. Certainly U.S. courts have upbraided U.S. government attorneys for failing to embody this heightened expectation (see below). I would argue that counsel’s failure to embody a certain expectation in individual cases does not justify abandoning the expectation entirely, but rather simply cautions against giving special weight in general to government attorneys’ positions as opposed to private attorneys’.

(2) The International Criminal Court does pose unique questions here. It seems that counsel for the individual defendant would play the zealous advocate role (within the ICC rules, of course), while OTP would act as minister of justice. State representatives appearing as amicus curiae would presumably also act as ministers of justice, but State representatives may face difficult questions when their statements implicate the rights of individual defendants, and as the article notes, defense counsel themselves may be playing a minister-of-justice role under the applicable rules. It will be interesting to see developments in the roles played by these various actors.

(3) Defining the heightened expectation for civil U.S. government attorneys in U.S. courts is difficult (the binding standards applied in the criminal context are clear), and Judge Wald’s “high C’s” mentioned in the original post are the best approximation I have found. Despite the amorphous nature of the expectation, U.S. courts have not hesitated to publicly upbraid U.S. government attorneys for failing to fulfill it.

An oft-cited example is Freeport-McMoRan Oil v. FERC, 962 F.2d 45 (D.C. Cir. 1992). That court took issue with the U.S. government attorney’s “failure to take easy and obvious steps to avoid needless litigation” and, more importantly, his denial that government attorneys bear special responsibility to take such steps. Id. at 46. As the court stated, “we find it astonishing that an attorney for a federal administrative agency could so unblushingly deny that a government lawyer has obligations that might sometimes trump the desire to pound an opponent into submission.” Id. at 48. A compilation of similar statements by U.S. courts (though a bit dated now) is in Catherine Lanctot, The Duty of Zealous Advocacy and the Ethics of the Federal Government Lawyer: the Three Hardest Questions, 64 S. Cal. L. Rev. 951, 955 n.10 (1991). A quick search Sunday evening showed a recent similar statement in Singh v. Holder, 499 Fed. App’x 617, 619 (7th Cir. 2013) (noting that a government attorney had failed to comply with a previous court order and stating “[w]e expect a higher degree of cooperation by government attorneys…”). The risk of public reprimand by a court, even if it does not result in formal sanctions, would hopefully encourage any attorney to stay well within the bounds of permitted and expected conduct.

(4) I suspect that U.S. ethical standards are not lower than in other jurisdictions, but rather reflect the adversarial and open nature of the U.S. legal proceedings. Certainly standardizing rules for witness preparation and other practices in the international sphere is a first step in determining who is acting as a minister of justice, who is acting as a zealous advocate, and who is simply acting unethically. Direct export of U.S. (or another jurisdiction’s) standards to international tribunals would be appropriate only to the extent that an international forum is intended to mirror the U.S. (or other jurisdiction’s) legal system. (And I suspect that no international tribunal is intended to mirror the U.S. legal system or that of any other country.)

Additional research in this field, both within the common law and outside it, would be certainly be welcome. Along those lines, an interesting comparison of ethical standards in the U.S., Germany, Korea, Australia, and New Zealand, including their various treatment of witness preparation, is at Robert W. Wachter, Ethical Standards in International Arbitration: Considering Solutions to Level the Playing Field, 24 Geo. J. Legal Ethics 1143 (2011).

Although Wachter's article focuses on arbitration, his call for a “simple and adaptable mechanism to ensure that proceedings are fair, and that both sides are following the same rule” seems to have broader application. My position is that, regardless of whether and when such standards are adopted, attorneys representing States should take it upon themselves to act with a heightened standard of conduct (consistent with applicable rules), to assist courts and tribunals in their justice-seeking function, and to serve goals greater than the individual case and client at issue.

I look forward to continuing this discussion.

Alexander Eichener says

September 26, 2013

It may be of comparative interest for Catherine's cause to study the just recently enacted Code of Conduct of the OTP. Its raison d'être is a preceding interlocutory squabble between Karim Khan and the OTP where the topic was argued; I think it was spawned by the defection of Essa Faal from OTP to Defence. Apart from that, the two sides regularly accuse each other of unethical (mis)behaviour. Here is the link to the code: