Withdrawal of counsel

Notion(s) Filing Case
Decision on Withdrawal of Co-Counsel - 23.11.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

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.
(IT-06-90-AR73.2)

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.
(IT-06-90-AR73.1)

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.
Notion(s) Filing Case
Decision on Withdrawal of Co-Counsel - 23.11.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

At paras 11-14, the Appeals Chamber recalls that such exceptional circumstances, assessed case by case, might be constituted by a breakdown of trust, but not by an accused’s refusal to cooperate and, in the present case, by the alleged conflict between the Appellant and his Co-Counsel on issues of legal strategy.  

11. Under Article 19(A)(ii) of the Directive the Registrar may, in exceptional circumstances and at the request of lead counsel, withdraw the assignment of co-counsel.[1] The burden of proof of existence of such circumstances squarely lies on lead counsel.[2] The Appeals Chamber emphasizes that each case must be considered on its own and that what constitutes exceptional circumstances justifying a request for withdrawal may vary from one case to another. In addition, exceptional circumstances justifying withdrawal of a co-counsel might be substantially different from those applicable to withdrawal of a lead counsel.

12. The Appeals Chamber considers that the alleged conflict between the Appellant and his Co-Counsel on issues of legal strategy does not constitute an exceptional circumstance justifying a withdrawal of Co-Counsel. The Appeals Chamber notes that, in most decisions holding that a breakdown of trust between the accused and his legal representatives constituted an exceptional circumstance justifying the withdrawal of assignment, the breach of trust was attributable to one or more of the following circumstances: alleged incompetence or lack of knowledge of the Rwandan context and history; a lack of initiative in the defence of the accused; an exceptional workload incompatible with other professional commitments; a breach of professional responsibilities, including the obligation to communicate with the client; and misconduct or manifest negligence.[3] No allegations of this kind were made against Co-Counsel in the present case. Therefore, the Appeals Chamber is not convinced that the Registrar’s Decision and the President’s Decision contradict the Tribunal’s jurisprudence.

13. The Appeals Chamber recalls that, according to the jurisprudence of both the Tribunal and the ICTY, an accused’s refusal to cooperate with his lawyers does not constitute an exceptional circumstance warranting the Registrar’s withdrawal of assigned counsel.[4] More precisely, an accused does not have the right to unilaterally destroy the trust between himself and his counsel, or to claim a breakdown in communication through unilateral actions, in the hope that such actions will result in the withdrawal of his counsel by the Registrar.[5] A lack of trust in counsel based on disagreements in approach to one’s defence strategy is distinguishable from a lack of trust due to a breach by counsel in fulfilling his professional and ethical responsibilities in the course of representation.[6] Thus, a divergence of opinion as to the defence strategy cannot in itself justify that there is a loss of trust in the counsel’s abilities or commitment to the case. It is even more so when the divergence is between an appellant and a co-counsel, whose mandate is to assist the lead counsel.[7]

14. In the present case, Lead Counsel did not provide the Registrar with any specific complaints regarding the performance of Co-Counsel that may have warranted her disqualification on the grounds of ineffective assistance or breach of professional duties. The Appeals Chamber rejects the Appellant’s argument that it is sufficient “to state in broad terms” that the trust and confidence have broken down[8] and, consequently, finds that it was open to the Registrar and the President to conclude that the Appellant’s request for withdrawal was not justified.[9]

[1] The Appeals Chamber notes that Article 20(A) of the ICTY Directive on the Assignment of Defence Counsel No. 1/94, IT/73/REV.11 does not contain the requirement of “exceptional circumstances” and instead refers to “the interests of justice”. This difference should be born in mind when making parallels between the jurisprudence of the two Tribunals.

[2] See Blagojević Trial Decision, para. 116.

[3] See The Prosecutor v. Ndindiliyimana et al., Case No. ICTR-00-56-T, Decision by the Registrar of Withdrawal of Mrs. Danielle Girard as Co-Counsel for the Accused François-Xavier Nzuwonemeye, 13 October 2005, p. 3; Prosecutor v. Athanase Seromba, Case No. ICTR-2001-66-T, Decision by the Registrar of Withdrawal of Mr. Alfred Pognon, Lead Counsel for Athanase Seromba, 10 May 2005, p. 3; Blagojević Trial Decision, para. 119; The Prosecutor v. Theoneste Bagosora, Case No. ICTR-96-7-T, Decision on the Request by the Accused for Change of Assigned Counsel, 26 June 1997; Prosecutor v. Duško Tadić, Case No IT-94-1-A, Registrar’s Decision on Withdrawal of Co-Counsel, 2 September 1997, p. 1; The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Decision on the Request of the Accused for the Replacement of Assigned Counsel, 20 November 1996, pp. 2-3.

[4] See Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision Affirming the Registrar’s Denial of Assigned Counsel’s Application to Withdraw, 7 February 2005 (“Milošević Decision of 2005”), para. 9.

[5] Blagojević Appeal Decision, para. 51. See also Bagosora Decision of 24 March 2005, paras 21, 30; The Prosecutor v. Slobodan Milošević, Case No. IT-02-54-T, Decision on Assigned Counsel’s Motion for Withdrawal, 7 December 2004 (Milošević Decision of 2004”), para. 18; Blagojević Trial Decision, para. 100.

[6] Blagojević Trial Decision, paras 106, 120.

[7] See supra, para. 10.

[8] Motion, para. 5.

[9] Cf. Blagojević Trial Decision, para. 90 confirmed by Blagojević Appeal Decision.

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Other instruments ICTY Directive on the Assignment of Defence Counsel, Article 19(A)(ii)
Notion(s) Filing Case
Decision on Withdrawal of Co-Counsel - 23.11.2006 NAHIMANA et al. (Media case)
(ICTR-99-52-A)

15. Moreover, the Appeals Chamber is satisfied that the Registrar and the President properly took into account other particular circumstances of the case, such as the potential delay in the proceedings as well as the proper use of the Tribunal’s resources.[1] Indeed, in the circumstances where no misconduct or manifest professional negligence on the part of the counsel is established, factors such as the efficient management of resources are directly relevant to the decision not to permit withdrawal of counsel.[2] […]

[1] See Akayesu Appeal Judgement, para. 60; Prosecutor v. Vinko Martinović, Case No. IT-98-34-A, Decision by the Registrar re: Assignment of Counsel to Vinko Martinović, 19 May 2003, p. 2; Prosecutor v. Sefer Halilović, Case No. IT-01-48-PT, Decision by the Registrar to Withdraw the Assignment of Mr. Caglar as Counsel to the Accused and to Assign Mr. Hodžić, 18 February 2003, p. 2; Prosecutor v. Ranko Česić, Case No. IT-95-10/1-PT, and Prosecutor v. Milorad Krnojelac, Case No. IT-97-25-A, Decision by the Registrar, 6 January 2003, p. 2; The Prosecutor v. Pauline Nyiramasuhuko & Arsène Shalom Ntahobali, Case No. ICTR-97-21-T, Decision on Ntahobali’s Motion for Withdrawal of Counsel, 22 June 2001, paras 17-19; Prosecutor v. Zejnil Delalić et al., Case No. IT-96-21-T, Decision on Request by Accused Mucić for Assignment of New Counsel, 24 June 1996, para. 5.

[2] Blagojević Appeal Decision, para. 32.

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Other instruments Directive on the Assignment of Defence Counsel (ICTR): Article 19.
Notion(s) Filing Case
Decision on Defence Counsel's Motion to Withdraw - 19.12.2017 NGIRABATWARE Augustin
(MICT-12-12-R)

Pages 1-2:

BEING SEISED of a motion filed on 30 November 2017, in which Robinson seeks to withdraw as counsel for Ngirabatware, citing regulations governing professional conduct of defence counsel related to discontinuation of representation and conflict of interest;[1]

 […]

NOTING that, pursuant to Rule 43(G) of the Rules, under exceptional circumstances, at the request of assigned counsel, the Appeals Chamber may instruct the Registrar to replace the counsel upon good cause being shown and after being satisfied that the request is not designed to delay the proceedings;

CONSIDERING that the information contained in Annex A to the Motion demonstrates the existence of exceptional circumstances, which constitute good cause for the replacement of Robinson as counsel for Ngirabatware;

[1] Defence Counsel’s Motion to Withdraw, 30 November 2017 (with confidential Annex A) (“Motion”), paras. 1, 2, referring to Articles 9(B) and 14(D) of the Code of Professional Conduct for Defence Counsel Appearing Before the Mechanism (MICT/6, 14 November 2012); Annex A, paras. 8-15.

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MICT Rule Rule 43(G) Other instruments Article 9(B) and Article 14(D) of the Code of Professional Conduct for Defence Counsel Appearing Before the Mechanism