Client’s consent for conflicting representation

Notion(s) Filing Case
Decision on Conflict of Interest (Markač) - 04.05.2007 GOTOVINA et al.

32. The Appeals Chamber agrees with the Trial Chamber that the giving of consent by Markač could not cure the conflict of interest between Markač and the Appellant in relation to his position as Minister of Justice tempore criminis.[1] Consent given by a potentially affected client to remove a conflict of interest with counsel is not conclusive of there being no conflict of interest.[2] Although the Trial Chamber resolved the conflict of interest in the Simić case by consent, the Trial Chamber in the present case was not bound to follow the Simić case.[3] In any event, the present case is distinguishable from that of Simić. First, the Appeals Chamber notes that the applicable provisions are different. At the time the decision in the Simić case was rendered, the Trial Chamber applied Article 9(5) of the Code of Professional Conduct which read: […]

Article 9(5) of the Code of Professional Conduct has since been amended and currently provides, as Article 14 (E) of the Code of Professional Conduct: […]

33. The Appeals Chamber has already found that the Appellant’s further representation of Markač is likely to irreversibly prejudice the administration of justice.[4] In addition, whereas in the Simić case, all the co-accused stated that there was no conflict of interest between them and counsel, Gotovina, in the present case, has not waived his right to call the Appellant as a witness and has clearly indicated that there is, in his view, a conflict of interest.

[1] Impugned Decision [Prosecutor v. Ante Gotovina et al., Case No. IT-06-90-PT, Decision on Conflict of Interest of Attorney Miroslav Šeparović, 27 February 2007], p. 8.

[2] Stojić Decision, para. 27.

[3] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement, 24 March 2004, para. 114 (“The Appeals Chamber considers that decisions of Trial Chambers, which are bodies with coordinate jurisdiction, have no binding force on each other, although a Trial Chamber is free to follow the decision of another Trial Chamber if it finds that decision persuasive.”)

[4] See supra, para. 28.

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Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal.
Notion(s) Filing Case
Decision on Conflict of Interest (Čermak) - 29.06.2007 GOTOVINA et al.

33.    The Appeals Chamber recalls that “consent provided by a potentially affected client or former client to remove a conflict of interests upon consultation with the counsel should generally be regarded as fully informed in the absence of an indication to the contrary”.[1] However, such presumption could only be made in this case if the Appellant and Ademi had been fully conscious of all possible implications, and possible limitations that their simultaneous representation could impose upon either of their defence strategies.[2] Having examined both Undertakings, the Appeals Chamber is of the view that the Appellant has not demonstrated any discernible error in the Trial Chamber’s findings, as they did not refer to any discussion on possible implications of such dual representation on any of the defence strategies with the exception of Ademi being potentially called as a witness in the present case.

34.    The Appeals Chamber also disagrees with the Appellant’s argument that the Trial Chamber should have ordered the Counsel to present new, more satisfactory, undertakings before rendering the Impugned Decision. The Trial Chamber was under no obligation to do so since the duty to inform promptly and fully each potentially affected client (current or former) and to take all steps to remove it or to obtain the full and informed consent of the said persons lies squarely upon the counsel.[3]

35.    In any case, the Appeals Chamber recalls that such consent, even if found to be fully informed, is not conclusive of there being no conflict of interest.[4] The fact that the Appellant agreed to common representation does not relieve the Trial Chamber of its responsibility to ensure that the integrity of the proceedings would be preserved if such representation is maintained.[5] In the present case, the Trial Chamber concluded otherwise and the Appeals Chamber has found no error in such conclusion.[6] Moreover, the Appeals Chamber finds that the Appellant’s consent is in fact of no relevance to the present issue, as the point of concern is whether, by participating in the Appellant’s defence, Prodanović and Sloković will be led into conflict with their professional responsibilities to Ademi.[7]

[1] Prlić Appeal Decision, para. 27 citing Prosecutor v. Milan Martić, Case No.: IT-95-11-PT, 2 August 2002, Decision on Appeal Against Decision of Registry, p. 7.

[2] Cf. Prlić Appeal Decision, para. 27 (emphasis added).

Also compare with Wheat v. United States, 486 U.S. 153, 162-163: “The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials […] A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored on the niceties of legal ethics. Nor is it amiss to observe that the willingness of an attorney to obtain such waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information to them”.

[3] Article 14(E) of the Code of Conduct.

[4] Prlić Appeal Decision, para. 27; First Miletić Decision, para. 32.

[5] See supra, para. 16.

Also compare: United States v. Vasquez, 995 F.2d 40, 45 (5th cir. 1993); Wheat v. United States, 486 U.S 153, 162-163, 108 S.Ct. 1692, 1698-1699; United States v. Medina, 161 F.3d 867, 870 (5th Cir.1998), United States v. Rico, 51 F.3d 495, 511 (5th Cir. 1995): “In determining the validity of a waiver, the district court is afforded ‘substantial latitude in refusing waivers of conflicts of interest not only if an actual conflict is demonstrated, but in cases where a potential for conflict exists which may result in an actual conflict as the trial progresses’. The court must also evaluate the potential effect on the integrity of the judicial system”.

In the UK, such consent may also be found insufficient to save the professional from breaching fiduciary obligations to act for one client without being inhibited by the existence of the other client, and to avoid any actual conflict (whereby it is impossible to fulfil obligations to one client without breaching obligations to the other) (see Hollander C. and Salzedo S., Conflicts of Interest & Chinese Walls (London: Sweet & Maxwell, 2000), 98, 117–18).

The French case-law also defines situations where a client’s consent is without bearing on the counsel’s duty of loyalty : [] puisque les intérêts pécuniaires des deux époux étaient en opposition, l'accord allégué de M. Y… étant sans portée, en l’espèce, sur le devoir de prudence qui s'imposait à l'avocat [] » (Cour de Cassation, 1ère ch. civile, 20 Janvier 1993, Bull. 1993 I No 22, p. 14).

[6] See supra, para. 28.

[7] Cf. First Miletić Decision, para. 33.

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