CODE OF PROFESSIONAL CONDUCT FOR
DEFENCE COUNSEL

DECISION

THE REGISTRAR,

CONSIDERING the Statute of the Tribunal as adopted by the Security Council under Resolution 955 (1994) of 8 November 1994 and in particular Articles 14 thereof,

CONSIDERING Rules 44 to 46 of the Rules of Procedure of Evidence (the Rules) concerning Counsel, which confer on the Registrar the responsibility for ensuring that only Counsel who are qualified to do so appear before the Tribunal,

CONSIDERING that being subject to a professional Code of Conduct is an essential attribute of being qualified as Counsel,

CONSIDERING that Counsel appearing before the Tribunal come from jurisdictions from all over the world, and that it is in the interests of the Tribunal that they all be subject to the same Code of Conduct,

CONSIDERING that a Draft Code of Conduct has been circulated to the Judges of the Tribunal and that they have voiced no objections to its promulgation,

CONSIDERING that the Plenary Session of the Judges of the ICTR adopted a Code of Conduct for Counsels on 4 June 1998,

CONSIDERING that the same Draft Code of Conduct has been submitted to the Advisory Panel established under Article 29 of the Directive on the Assignment of Defence Counsel of the International Criminal Tribunal for Rwanda, and that the members of the Advisory Panel have voiced no objections to its promulgation,

TAKING NOTE of the Advisory Panel’s comments on the Draft Code of Conduct,

PURSUANT TO Rules 44 to 46 of the Rules,

HEREBY PROMULGATES this Code of Conduct, annexed.

DONE in English and French.

Agwu U. Okali
Registrar

Dated this 8 day of June 1998
At Arusha
Tanzania

Annex

Code of Professional Conduct for Defence Counsel

INTRODUCTION

This Code is made in the belief that:

1.   As legal practitioners, Counsel must maintain high standards of professional conduct.

2.   The role of Counsel as specialist advocates in the administration of justice requires them to act honestly, fairly, skilfully, diligently and courageously.

3.   Counsel have an overriding duty to defend their client’s interests, to the extent that they can do so without acting dishonestly or by improperly prejudicing the administration of justice.

4.   Counsel may be subject to disciplinary proceedings under Rule 46 of the Rules of Procedure and Evidence of the Tribunal. It is therefore necessary that Counsel be aware of their rights and obligations toward the Tribunal.

To these ends, this Code and its Articles of conduct have been formulated.

Part I: Preliminary

Article 1
Definitions

(1)        In this Code, unless a different interpretation is required by the provisions of the Code or the context in which they appear, the following terms shall mean:

(a)        Has filed his or her power of attorney with the Registrar; or

(b)        Has been assigned under the Rules to a suspect, accused, detainee, witness or other person.

Any reference to Counsel includes a reference to any Co-counsel jointly and to each of them severally.

(2)        In the event of any inconsistency between this Code and the Directive, the terms and provisions of the Directive prevail.

(3)        Any term not defined in this Code has the same meaning given to it by the Statute or by the Rules.

(4)        While Counsel is bound by this Code, it is not, and should not be read as if it were a complete or detailed Code of Conduct for Counsel. Other standards and requirements may be imposed on the conduct of Counsel by virtue of the Tribunal’s inherent jurisdiction and the code of conduct of any national body to which Counsel belongs.

(5)     This Code must be read and applied so as to most effectively attain the objects and uphold the values expressed in the Preamble.

(6)     General provisions of this Code should not be read or applied in a restrictive way by reason of any particular or illustrative provisions.

(7)     The singular includes the plural and vice versa.

Article 2
Entry into Force

This Code enters into force on 4 June 1998.

Article 3
General Purpose and Application

(1)     The general purpose of this Code is to provide for standards of conduct on the part of Counsel which are appropriate in the interests of the fair and proper administration of justice.

(2)     This Code applies to Counsel as defined in Article 1(1) of this Code.

Article 4
Scope and Termination of Representation

(1)     Counsel must advise and represent their client until the client duly terminates Counsel’s position, or Counsel is otherwise withdrawn with the consent of the Tribunal.

(2)     When representing a client, Counsel must:

(a)     Abide by a client’s decisions concerning the objectives of representation if not inconsistent with Counsels ethical duties; and

(b)     Consult with the client about the means by which those objectives are to be pursued.

(3)     Counsel must not advise or assist a client to engage in conduct which Counsel knows is in breach of the Statute, the Rules or this Code and, where Counsel has been assigned to the client, the Directive.

Article 5
Competence and Independence

In providing representation to a client, Counsel must:

(a)     Act with competence, dignity, skill, care, honesty and loyalty;

(b)     Exercise independent professional judgement and render open and honest advice;

(c)     Never be influenced by improper or patently dishonest behaviour on the part of a client;

(d)     Preserve their own integrity and that of the legal profession as a whole;

(e)        Never permit their independence, integrity and standards to be compromised by external pressures.

Article 5 bis: Fee Splitting

(1)  Fee-splitting arrangements, including but not limited to financial arrangements, between Counsel and their clients, relatives and/or agent of their clients are not permitted by the Tribunal.

(2) Where Counsel are being requested, induced or encouraged by their clients to enter into fee splitting arrangements, they shall advise their clients on the unlawfulness of such practice and shall report the incident to the Registrar forthwith.

(3)  Counsel shall inform the Registrar of any alleged fee splitting arrangement by any member of his Defence team.

(4)  Following receipt of information regarding possible fee splitting arrangements between Counsel and their clients, the Registrar shall investigate such information in order to determine whether it is substantiated.

(5)  Where Counsel is found to have engaged in a practice of fee splitting or to have entered into a fee splitting arrangement with his client, the Registrar shall take action in accordance with Article 19 (A) (iii) of the Directive on assignment of Defence Counsel.

(6) In exceptional circumstances, and only where the Registrar has granted leave, Counsel may provide their clients with equipment and materials necessary for the preparation of their defence.

Article 6
Diligence

Counsel must represent a client diligently in order to protect the client’s best interests. Unless the representation is terminated, Counsel must carry through to conclusion all matters undertaken for a client within the scope of his legal representation.

Article 7
Communication

Counsel must keep a client informed about the status of a matter before the Tribunal in which the client is an interested party and must promptly comply with all reasonable requests for information.

Article 8
Confidentiality

(1)     Whether or not the relation of Counsel and client continues, Counsel must preserve the confidentiality of his client's affairs and, subject to sub-article (2), must not reveal to any other person, other than to any assistants who need to know it for the performance of their duties, information which has been entrusted to him in confidence or use such information to his client's detriment or to his own or another client's advantage.

(2)     Notwithstanding sub-article (1), and subject to Article 19 ("Conflicts"), Counsel may reveal information which has been entrusted to him in confidence in any one of the following circumstances:

(a)     When the client has been fully consulted and knowingly consents; or

(b)     When the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure; or

(c)     When essential to establish a defence to a criminal or disciplinary charge or civil claim formally instituted against Counsel; or

(d)     To prevent an act which Counsel reasonably believes:

(i)   Is, or may be, criminal within the territory in which it may occur or under the Statute or the Rules; and

(ii)  May result in death or substantial bodily harm to any person unless the information is disclosed.

(3)     For the purposes of this Article, Counsel includes employees or associates of Counsel and all others whose services are used by Counsel.

Article 9
Conflict of Interest

(1)        Counsel owes a duty of loyalty to his or her client. Counsel must at all times act in the best interests of the client and must put those interests before their own interests or those of any other person.

(2)     In the course of representing a client, Counsel must exercise all care to ensure that no conflict of interest arises.

(3)     Without limiting the generality of sub-articles (1) and (2), Counsel must not represent a client with respect to a matter if:

(a)     Such representation will be or is likely to be adversely affected by representation of another client;

(b)     Representation of another client will be or is likely to be adversely affected by such representation;

(c)     The Counsels professional judgement on behalf of the client will be, or may reasonably be expected to be, adversely affected by:

(i)         The Counsels responsibilities to, or interests in, a third party; or

(ii)        The Counsels own financial, business, property or personal interests; or

(iii)       The matter is the same or substantially related to another matter in which Counsel had formerly represented another client (the former client); and the interests of the client are materially adverse to the interests of the former client, unless the former client consents after consultation.

(4)     Counsel must not accept compensation for representing a client from a source other than that client or, if assigned by the Tribunal, from a source other than the Tribunal, unless:

(a)     That client consents after consultation; and

(b)     There is no interference thereby with the Counsels independence of professional judgement nor with the client-Counsel relationship.

(5)     Where a conflict of interest does arise, Counsel must:

(a)     Promptly and fully inform each potentially affected client of the nature and extent of the conflict; and

(b)     Either:

(i)        Take all steps necessary to remove the conflict; or

(ii)       Obtain the full and informed consent of all potentially affected clients to continue the representation, so long as Counsel is able to fulfil all other obligations under this Code.

Article 10
Client under a Disability

When a client’s ability to make adequately considered decisions in connection with their representation is impaired because of minority, mental disability or any other reason, Counsel must:

(a)     Inform the Judge or Chamber of the Tribunal hearing the matter, if any, of the disability;

(b)     Take such steps as are necessary to ensure the adequate legal representation of that client; and

(c)     As far as reasonably possible maintain a normal Counsel-client relationship with the client.

Article 11
Accounting for Time

Counsel should account in good faith for the time spent working on a case and maintain and preserve detailed records of time spent. Counsel is under a duty to set his bills and fees with moderation.

Part III: Conduct before the Tribunal

Article 12
Rules of the Tribunal

(1)     Counsel must at all times comply with the Rules and such rulings as to conduct and procedure as may be applied by the Tribunal in its proceedings. Counsel must at all times have due regard to the fair conduct of proceedings.

(2)     Counsel must not, unless permitted by the Rules or this Code or the Judge or Chamber hearing the matter:

(a)     Make contact with a Judge or Chamber of the Tribunal without first or concurrently informing Counsel acting for any other party to the proceedings;

(b)     Submit exhibits, notes or documents to the Judge without communicating them first or concurrently to Counsel acting for any other party to the proceedings.

Article 13
Candour Toward the Tribunal

(1)     Counsel is personally responsible for the conduct and presentation of their Client’s case, and must exercise personal judgement upon the substance and purpose of statements made and questions asked.

(2)     Counsel must not knowingly:

(a)     Make an incorrect statement of material fact to the Tribunal; or

(b)     Offer evidence which the Counsel knows to be incorrect.

(3)     Despite sub-article (2) (a), Counsel will not have made an incorrect statement to another party to the proceedings or to the Tribunal simply by failing to correct an error on any matter stated to Counsel or to the Tribunal during proceedings.

(4)        Counsel must take all necessary steps to correct an incorrect statement made by Counsel in proceedings before the Tribunal as soon as possible after Counsel becomes aware that the statement was incorrect.

Article 14
Integrity of Evidence

(1)     Counsel must at all times maintain the integrity of evidence, whether in written, oral or any other form, which is or may be submitted to the Tribunal.

(2)     If Counsel’s representation of a client terminates for any reason, Counsel shall return evidence and other materials, which have come into his possession as a result of the said representation, to his former client, to the latter’s Counsel, or under seal to the Registrar for onward transmission to the said client or Counsel, as appropriate.

Article 15
Impartiality of the Tribunal

(1)     Counsel must take all necessary steps to ensure that their actions do not bring proceedings before the Tribunal into disrepute.

(2)     Counsel must not seek to influence a Judge or other official of the Tribunal by means prohibited by the Statute, the Rules or this Code.

Article 16
Counsel as Witness

Counsel must not act as advocate in a trial in which the Counsel is likely to be a necessary witness except where the testimony relates to an uncontested issue or where substantial hardship would be caused to the client if that Counsel does not so act.

Part IV: Duty of Counsel to Others

Article 17
Fairness and Courtesy

(1)     Counsel must act fairly, honestly and courteously towards all persons with whom they have professional contact, namely other Counsel, their clients, Judges, members of the Office of the Prosecutor and Registry staff. Counsel shall recognize all other Counsel appearing or acting in relation to proceedings before the Tribunal as professional colleagues.

(2)     Counsel must not communicate with the client of another Counsel except through or with the permission of that client’s Counsel.

Article 18
Dealing with Unrepresented Persons

(1)     If, on behalf of a client, Counsel is dealing with a person who is not represented by Counsel, Counsel:

(a)     Must not give advice to this unrepresented person if the interests of the person are, or have a reasonable possibility of being, in conflict with the interests of the Counsel’s client; but

(b)     May advise the unrepresented person to secure legal representation.

(2)     Counsel must inform the unrepresented person of the role Counsel plays in the matter, the persons right to Counsel under the Rules, and the nature of legal representation in general.

This information must be given whether or not a conflict exists or may exist with the interests of Counsel’s client.

Part V: Maintenance of the Integrity of the Profession

Article 19
Conflicts

If there is any inconsistency between this Code and any other code which Counsel is bound to honour, the terms of this Code prevail in respect of Counsel’s conduct before the Tribunal.

Article 20
Misconduct

It is professional misconduct for Counsel, inter alia, to:

(a)     Violate or attempt to violate this Code or to knowingly assist or induce another person to do so, or to do so through the acts of another person;

(b)     Commit a reprehensible act which reflects adversely on Counsel’s honesty, trustworthiness or fitness as Counsel;

(c)     Engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d)     Engage in conduct which is prejudicial to the proper administration of justice before the Tribunal; or

(e)     Attempt to influence an officer of the Tribunal in an improper manner.

Article 21
Reporting Misconduct

(1)     If:

(a)     Counsel knows that another Counsel has breached this Code or has otherwise engaged in professional misconduct; and

(b)     That violation or conduct raises a substantial question as to the other Counsel’s honesty, trustworthiness or fitness as Counsel.

Counsel may inform the Judge or Chamber of the Tribunal before which Counsel is appearing.

(2)        The Registrar may also communicate any misconduct of Counsel to the professional body regulating the conduct of Counsel in his State of admission or, if a Professor and not otherwise admitted to the profession, to the governing body of his University.

Article 22
Enforcement

Counsel must abide by and voluntarily submit to any enforcement and disciplinary procedures as may be established by the Tribunal in accordance with the Rules.

Article 23
Amendment

This Code may be amended by the Registrar, after consultation with the Judges.