Hardship to client

Notion(s) Filing Case
Decision on Withdrawal of Co-Counsel - 23.11.2006 NAHIMANA et al. (Media case)

16. Furthermore, the Appeals Chamber notes that proceedings in this appeal have been delayed for a significant time,[1] notably as a result of changes in the representation of the Appellant.[2] The Appeals Chamber also notes that the request for withdrawal of Co-Counsel came at a late stage of the proceedings, after the Appellant has filed his Reply Brief. At this stage, the introduction of a new co-counsel, unfamiliar with the case, will inevitably result in undue delay,[3] given that this person will require some time to get familiar with the case and its documents.[4] An unnecessary replacement of the current Co-Counsel who is thoroughly familiar with the case and who has already dedicated hundreds of hours to the Appellant’s appeal would be detrimental to the Appellant’s right to be tried fairly and expeditiously.[5] The Appeals Chamber thus finds that the Registrar and the President did not err in taking these factors into account.[6]

[1] Decision on Jean Bosco Barayagwiza’s Motion Concerning the Registrar’s Decision to Appoint Counsel, 19 January 2005, p. 3.

[2] See supra, paras 3-4. As a result of the change of Lead Counsel as well as the appointment of a new Defence team, including the current Co-Counsel, the current versions of the Appellant’s Notice of Appeal and Appellant’s Brief were filed as late as 12 October 2005, i.e. almost two years after the Trial Judgement.

[3] See Bagosora Decision, para. 22; Blagojević Trial Decision, para. 119.

[4] Prosecutor v. Radislav Brđanin, Case No. IT-99-36-T, Decision on Defence Motion for Adjournment, 10 March 2003, p. 2.

[5] Cf. Blagojević Appeal Decision, para. 50.

[6] Registrar’s Submissions, para. 12; President’s Decision, paras 6 and 8. 

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Other instruments Directive on the Assignment of Defence Counsel (ICTR): Article 19.
Notion(s) Filing Case
Decision on Conflict of Interest (Čermak) - 29.06.2007 GOTOVINA et al.

54.    […] The Trial Chamber did not consider the hardship element when ordering the Counsel to withdraw from the Appellant’s representation and the Appeals Chamber is not convinced that it was obliged to do so to the point where such an omission would constitute an abuse of discretion. The Appeals Chamber recalls that the question of prejudice was indeed discussed by the Trial and Appeal Chambers in their previous decisions related to the impact of the joinder on the Appellant’s right to have a counsel of his choice.[1] In the present instance, there is nothing that would oblige the Trial Chamber to consider this factor in relation to the conflict of interest.

55.    […] It further finds that, even though the replacement of counsel is generally likely to cause obvious inconveniences, including a delay in the proceedings, if the conflict of interests regarding the representation of the Appellant and Ademi is not resolved at the present stage of the proceedings, the administration of justice may be seriously prejudiced and have much more disastrous consequences in future.[2] The Appeals Chamber also notes that no imminent date has been established for the commencement of the trial in this case and, considering the current trial schedule of the International Tribunal,[3] it is not likely to commence within the next six months which the Appellant affirms to be necessary for the new counsel to get familiarized with the case.

[1] Decision on Joinder [ Prosecutor v. Ivan Čermak and Mladen Markač, Case No. IT-03-73-PT and Prosecutor v. Ante Gotovina, Case No. IT-01-45-PT, Decision on Prosecution’s Consolidated Motion to Amend the Indictment and for Joinder, 14 July 2006], para. 64 and Appeals Chamber Decision on Joinder [ Prosecutor v. Ante Gotovina and Prosecutor v. Ivan Čermak and Mladen Markač, Case Nos. IT-01-45-AR73.1, IT-03-73-AR73.1, IT-03-73-AR73.2, Decision on Interlocutory Appeals against the Trial Chamber’s Decision to Amend the Indictment and for Joinder, 25 October 2006], para. 30. The Appeals Chamber then noted that any potential prejudice arising from having new counsel (situation that could arise regardless the joinder) could be mitigated by allowing additional time.

[2] See supra, para. 16; cf. Prlić Appeal Decision, para. 32; Mejakić Decision, para. 14.

Also compare with Steel v. General Motors Corp., 912 F.Supp. 724, 746 (D.N.J. 1995): “The court emphasised that ‘only in extraordinary cases should a client’s right to counsel of his or her choice outweigh the need to maintain the highest of the profession.’”.

[3] See Assessment and Report of Judge Fausto Pocar, President of the International Criminal Tribunal for the Former Yugoslavia, Provided to the Security Council Pursuant to Paragraph 6 of Council Resolution 1534 (2004), S/2007/283, 16 May 2007, paras 5 and 14 and Enclosures II, IV, XII.

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

28. As noted by the Trial Chamber, due to the compelling circumstances of the Appellant’s own personal interest in this case, the harm caused to Markač and the integrity of the proceedings if the Appellant were to continue as his counsel in the proceedings would clearly and demonstrably outweigh any hardship suffered by Markač as a result of the Appellant’s withdrawal as his counsel.[1] Furthermore, the Appeals Chamber notes that the Markač is also represented by co-counsel who will likely continue to represent him in the absence of one of the exceptions under Article 9(B) of the Code of Professional Conduct.

29. The Appeals Chamber further finds that, even though the Appellant’s withdrawal will inevitably cause a delay in the proceedings, there could be greater hardship to Markač at a later stage of the proceedings, should the conflict of interest regarding the Appellant’s representation of Markač not be resolved at the present stage. The Appeals Chamber notes in this respect that, for example, Gotovina’s Defence has not waived his right to call the Appellant as a witness and that therefore the Appellant could still face withdrawal pursuant to Article 26 of the Code of Professional Conduct. The Appeals Chamber is of the view that such situation is likely to irreversibly prejudice the administration of justice.

[1] First Impugned Decision, pp. 7 and 8.

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Other instruments Code of Professional Conduct for Counsel Appearing Before the International Tribunal.