The Duty of Loyalty vs. The Duty to Justice

Impassioned arguments and intense questioning pervaded Courtroom I for a second day as Trial Chamber III considered Appointed Counsel's request to withdraw from representing Slobodan Milosevic. The presentations revealed significantly different views of defence counsel's responsibilities, the authority of the court and the manner of executing justice.

The following quotations reflect the differences. Steven Kay, speaking to the Court: 'I owe a duty to him [Milosevic], not to you.' Milosevic, speaking of a relationship between himself and Kay: 'You can't destroy something that never existed.' Geoffrey Nice, agreeing with the Accused: 'The order of the Court made it absolutely plain that assigned counsel were not entering into a relationship of client and lawyer. They were being required to represent him independently of what he might want, provided they did everything they could . . . to obtain instructions from him.'

From Kay's point of view, he owes an absolute duty of loyalty to his client which supercedes any other obligation, including, apparently, his duty to the Court. The duty of loyalty derives from the two codes of conduct which govern his professional behavior -- the ICTY Code of Conduct and the Code of Conduct of the Bar of England and Wales. If a client does not want his representation, then he simply cannot go forward, according to him. If he violates the code of conduct, he is subject to disciplinary action.

Milosevic maintains there never was any kind of a relationship between himself and Kay, even when he was amicus curiae. He has been consistent in his position that he wishes to represent himself, though he has allowed --and on occasion, even requested -- Kay's assistance in drafting and arguing legal motions and briefs on his behalf, including the recent appeal of the Trial Court's decision to appoint counsel. When asked his position today, the Accused adamantly responded, '[I]t is obvious you are trying to define the continued role of assigned counsel and I continue to oppose it.' In sum, he will continue his refusal to cooperate with assigned counsel, despite the Appeals Chamber's decision upholding it. Looking to the future (as the Appeals Chamber did not), he pointed out that the first time he becomes so ill he cannot be in the courtroom to conduct his defence, continuing the trial in his absence with assigned counsel will violate his right to be present. That is, the trial cannot continue without him.

Prosecutor Nice takes the position that the defence counsel's highest obligation is to justice as an officer of the court. Where the Court directs him to provide an accused with a defence, he can and must do so, regardless of the accused's noncooperation. His duty is to act in the best forensic interests of the Accused, not his best political interests. This, Nice maintains, can be done without instructions from Milosevic. Indeed, he briefly listed legal defences that Milosevic mentioned during his statement opening the defence case. Moreover, the Court's modalities order contemplated Milosevic's noncooperation when it directed appointed counsel to seek instructions but to utilize his professional judgment in defending the case.
At the heart of the different interpretations lies the question to whom does appointed counsel owe the greatest duty -- to the person he represents or to the court who appointed him? All professional codes, including the Tribunal's, recognize that lawyers owe a fundamental duty of loyalty to their clients. Codes also recognize that lawyers owe an overarching duty to act in the interests of justice. Sometimes, the two duties conflict.

Article 14 of the ICTY code addresses these two sometimes competing duties: 'Counsel owes a duty of loyalty to a client. Counsel also has a duty to the Tribunal to act with independence in the interests of justice and shall put those interests before his own interests or those of any other person, organization or State.' It is this provision that the Milosevic Trial Chamber will have to interpret when it considers whether Kay's duty of loyalty must yield in the matter of representation to his greater duty to justice. The Appeals Chamber established the law in the Blagojevic case that the Court can order counsel to continue representing an unwilling accused in certain circumstances, including that it is in his best interests to do so. Other instances where a lawyer's duty to justice trumps his or her duty of loyalty to a client occur when the client wants his or her assistance in presenting false evidence or otherwise working a fraud on the court.

Kay argued the Code did not apply because it did not specifically address appointed counsel's relationship with and duties toward an unwilling client. Therefore, the Code of England and Wales, where he usually practices, is applicable and, he says, it forbids him from representing a client who will not instruct him. However, the ICTY Code contemplates appointment of counsel and is broad enough for the Court to interpret how its provisions will apply in this situation. Moreover, the ICTY Code also clearly states that if there is any conflict between it and 'any other codes of practice and ethics governing counsel, the terms of this Code prevail in respect of counsel's conduct before the Tribunal.'

At the end of the day, fresh from his victory before the Appeals Chamber, Milosevic asked the Court to delay hearing the witness scheduled for tomorrow. Because of today's hearing, he complained, he had not had a chance to prepare the witness. In addition, he told the Court he needed an extra week 'transitional period' to prepare his first batch of witnesses, since he has been out of touch with them for two months. The Trial Chamber granted his first request and took the second under advisement (i.e. it will give its ruling later). The trial's conclusion recedes farther into the distance.

The hearing will conclude tomorrow. Milosevic's first witness will appear on Tuesday, November 16.