Kay Tells Court He Doesn't Need Their Permission to Resign

After hearing more than two days of argument, the Milosevic Trial Chamber adjourned to consider the 'many important and difficult issues raised by the application of Mr. [Steven] Kay for withdrawal [as appointed counsel for the Accused].' In the meantime, it expressed gratitude to Kay for his willingness to assist Milosevic in preparing applications for subpoenas and continuing in the role of appointed counsel under modalities as revised by the Appeals Chamber. The revised modalities effectively convert assigned counsel into standby counsel, not actively involved in the defence case unless called upon by the Accused or the Court. The Trial Chamber said it would render its decision on the withdrawal application shortly.

The Chamber went on to reaffirm its earlier decision that the Accused will have 150 court days to present his defence, despite the Accused's notice that he intended to request an extension. The Court will continue to sit three days per week. Any time the Accused requires for witness preparation he must take outside the scheduled court days. The Court took this action in response to concerns that the trial could be reduced to one day a week, if Milosevic were himself to prepare witnesses and examine them in court, yet follow the medical advice that he only work three days per week.

The Prosecution had suggested giving him a maximum 180 days on a five day a week schedule -- to be used as he saw fit. Under that regime, it would be up to him whether to spend his time in court or preparing witnesses and whether to utilize his legal associates or other lawyers to assist. Prosecutor Geoffrey Nice told the Court this would give the case to the Accused 'completely' as he wishes. In making the suggestion, Nice said there was practically no role for assigned counsel under the Appeals Chamber's revision of the modalities in light of Milosevic's declared intention not to cooperate. The Prosecutor also said it was time to stop 'molly-coddling' the Accused and 'give him the responsibility he craves.' Supporting the proposal, Kay agreed. 'It hands the entire case over to the Accused.'

Milosevic, however, objected strenuously, calling the proposal an attempt by the Prosecution to manipulate his time in an attempt to thwart his defence. Not for the first time, he argued that the Prosecution took 300 days to present its case, though he later acknowledged that the Court's allowance of 150 days for the defence was based on a calculation of the actual time taken by the Prosecution, not including the Accused's lengthy cross examination.

In reaffirming the 150 day, three day a week schedule, the Court expressly noted that any days the Court was unable to sit through the fault of the Accused would be counted within the 150 days. 'Health issues,' Judge Robinson said for the Court, 'will be considered if and when they arise.'

Today, Kay expanded on the argument he has been making over the last two days that he is under an ethical obligation to withdraw. Stating that the ICTY Code of Conduct doesn't apply because it doesn't specifically address the ethical situation in which he finds himself as counsel assigned to represent a uncooperative accused, he said he must turn to the Code of Conduct from his home jurisdiction, the Bar of England and Wales. Under that Code, he informed the Court, he must withdraw if the client withdraws instructions or impugns his professionalism.

Judge Bonomy interrupted to point out that the provision was not mandatory. He could choose to withdraw or not. Kay responded that he was exercising his option to 'terminate.'

Judge Robinson, however, expressed his view that the ICTY Code does apply, even if it does not specifically address the situation the Court is confronting. In such circumstances, it is for the Court to interpret the Code according to the substantive law as it develops. The Appeals Chamber's recent decision, which provides that trial courts have authority to assign counsel to an unwilling accused, is law. How that decision will be implemented is up to the Trial Chamber. It includes how assigned counsel will function in the face of an accused who refuses to communicate or instruct him.

Kay disagreed. Maintaining still that the ICTY Code didn't apply, he asserted that he could choose to terminate his employment. If the Court does not accept that, it can report him to his Bar Council, the professional disciplinary body of the English Bar Association, he said. Robinson asked incredulously whether he could withdraw on whimsical grounds, to which Kay replied that a barrister must stand up to the Court at times. He had requested and received advice from his home bar association as well as the ICTY Association of Defence Counsel (ADC) that he would not violate the ethical code by withdrawing, he informed the Court.

Kay referred to Article 9 of the ICTY Code of Conduct for Defence Counsel, which provides that counsel may terminate or request withdrawal of representation if it can be accomplished with no adverse effect on the client, or where the client is using the lawyer's services to perpetrate a fraud or crime, the client insists on pursuing an objective the lawyer finds repugnant or imprudent, the client fails to substantially fulfil an obligation to counsel regarding counsel's services, or for other good cause. Kay argued that Milosevic's refusal to instruct or communicate with him amounts to a failure to substantially fulfil his obligation to counsel. According to Kay's reading of the Code, he may then terminate his employment.

The problem with Kay's construction of the Code provision is that termination most sensibly applies to situations where a client has directly hired counsel, in which case there is a contractual relationship between them that can be terminated. Where the Court appoints counsel, it is the Court (or the Registrar) that must approve a request for withdrawal. The obligation of employment runs from counsel to the Tribunal. Since Kay was not employed by Milosevic, but appointed by the Registrar at the Court's direction, he is obliged to obtain the Court's (or Registrar's) permission to withdraw.

Ultimately, this is an issue for the Trial Court to decide. It seems highly unlikely the Court will cede its authority over withdrawal of counsel it has appointed to assure the fairness of the trial to counsel himself or an outside professional association.

Following the hearing on withdrawal of counsel, the Accused asked the Court to issue subpoenas to Bill Clinton, Madeline Albright, Wesley Clark, Tony Blair, Gerhard Schroeder, and Rudolf Sharping to appear as witnesses. With some pique, the Court reminded him there is a procedure for securing the attendance of witnesses who will not voluntarily appear. First, the party seeking their appearance must show he has done everything possible to secure it voluntarily but has been unsuccessful. Then he must show the relevance and importance of their expected testimony. This requires Milosevic to make a submission in writing, which he has so far declined to do.

Since Kay expressed his willingness to remain appointed counsel until the Court rules otherwise, the Court turned to him to assist Milosevic with the subpoenas. That will require the Accused to communicate with and instruct Kay, which he has so far made a point of refusing to do. Whether he seeks Kay's help or writes the application himself, Milosevic contravenes his position that he will not participate in the processes of an illegal court.

The Court granted Milosevic's request for nearly a week recess which he claims to need to prepare his witnesses. The trial resumes Tuesday, November 16, to hear one witness, then adjourns until the following Monday, November 22 at 2:15 p.m. to begin its three day a week schedule. The Court has not set a date certain for announcing its decision on the application for withdrawal of counsel.