Duty of loyalty

Notion(s)	Filing	Case
Counsel \| Duty of loyalty \| Simultaneous (dual) representation \| Duty of loyalty to a former client	Decision on Admission of Transcript - 23.11.2007	PRLIĆ et al. (IT-04-74-AR73.6)
21. […] A mere listing of evidentiary documents and witness statements as proof of Salahović [Prlić’ counsel]’s political activity does not […] suffice to establish prejudice to Prlić’s interests. The Prlić Appeal does not generally connect Salahović’s interests and activities to actual or potential conflicts of interest with his client. In particular, Prlić does not provide examples of how he was potentially or actually prejudiced by the alleged conflict of interest. He does not show any basis for a potential or actual risk that Salahović’s political and personal activities would “limit the choice of defence strategies”[1] in relation to Prlić’s case. show footnotes [1] Gotovina Decision of 29 June 2007, para. 28. Cf. also Prosecutor v. Ante Gotovina, Cases Nos. IT-01-45-AR73.1, IT-03-73-AR73.1 and IT-03-73-AR.73.2, Decision on Interlocutory Appeals against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006 (“Gotovina Decision of 25 October 2006”), para. 28. Download full document		Other instruments Code of Professional Conduct for Counsel Appearing before the International Tribunal
Notion(s)	Filing	Case
Counsel \| Duty of loyalty \| Simultaneous (dual) representation	Decision on Conflict of Interest (Čermak) - 29.06.2007	GOTOVINA et al. (IT-06-90-AR73.2)
23. […] At the outset, the Appeals Chamber notes that the Trial Chamber was satisfied that no confidential information that would be potentially useful to the Appellant came into Prodanović’s and Sloković’s possession through Ademi. However, in light of the findings below, the Appeals Chamber agrees with the Trial Chamber that, in the circumstances of the present case, the fact that Ademi did not provide his Counsel with any such confidential information is without bearing, since this factor is not the only basis on which a conflict of interest can be reasonably anticipated.Indeed, where a Chamber can reasonably expect that, due to a conflict of interest, a counsel “may be reluctant to pursue a line of defence, to adduce certain items in evidence, or to plead certain mitigating factors at the sentencing stage, in order to avoid prejudicing another client”, it can no longer presume that counsel has fulfilled his or her professional obligations under the Code of Conduct and has the power and the duty to intervene in order to guarantee or restore the integrity of the proceedings without delay.[3] 24. Also, while it is true that such conflicts of interest are more obvious in cases where counsel represents two accused who are, at least partly, charged with the same criminal acts, committed during the same period of time and in the same area,[4] this is clearly not the only situation where a conflict of interest may arise. In this regard, the Appeals Chamber emphasizes that the provisions of Article 14(D)(i) and (ii) of the Code of Conduct do not require that there be substantial relationship between matters in which the current clients are represented – what is prohibited is a simultaneous representation that will, or may reasonably be expected to, adversely affect the representation of either client. [See below in “Issues of particular interest” for application in the present case (command-subordinate relationship between clients] 49. […] In any case, in light of the Appeals Chamber’s findings above, this solution [possibility of engaging a third lawyer for the purposes of cross-examination of Ademi] would not be sufficient to satisfy the duty of loyalty to a current or former client as it would constitute too limited an understanding thereof.[5] The Appeals Chamber also agrees with the observation made in a different case that “the defence cannot be compartmentalised, as is suggested, to get around a conflict situation”.[6] show footnotes [1] [Impugned decision] para. 17. [2] Cf. First Miletić Decision, para. 33. [3] See Prlić Trial Decision, paras 15-16. See also Perillo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000): “‘adverse effect’ may be established with evidence that ‘some plausible alternative defense strategy or tactic’ could have been pursued, but was not because of the actual conflict impairing counsel’s performance”; Holloway v. Arkansas 435 U.S. 475, 489-490, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978): “[j]oint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing […] [A] conflict may […] prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favourable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another”. [4] See Prlić Trial Decision, para. 16; see also Prlić Appeal Decision, para. 24. [5] Cf. First Miletić Decision, para. 35. [6] Ibid. [First Miletić Decision], para. 34. Download full document		Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal.
Notion(s)	Filing	Case
Counsel \| Duty of loyalty \| Simultaneous (dual) representation \| Duty of loyalty to a former client	Decision on Joinder - 25.10.2006	GOTOVINA et al. (IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2)
Decision, para. 27: 27. […] The Appeals Chamber agrees with Gotovina that a counsel’s duty of loyalty to a client extends even to cases where a client is not a party to the litigation. As stated under Article 14(D)(i) and (ii) of the Code of Professional Conduct for Counsel Appearing Before the International Tribunal, Counsel or his firm shall not represent a client with respect to a matter if: (i) such representation will be, or may reasonably be expected to be, adversely affected by representation of another client; (ii) representation of another client will be, or may reasonably be expected to be, adversely affected by such representation [. . .]. Download full document		Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal.