Challenges of Transnational Legal Practice: Advocacy and Ethics
Rogers, Catherine A., Baig, Laurel, Mascarenhas, Viren, Terry, Laurel S., Greenwood, Christopher, Proceedings of the Annual Meeting-American Society of International Law
This panel was convened at 10:45 am, Friday, March 27 and included as panelists: Laurel Baig of the Appeals Unit of the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia; Christopher Greenwood of the International Court of Justice; Viren Mascarenhas of Freshfields, Bruckhaus, Deringer US LLP; and Laurel Terry of Penn State Dickinson School of Law. Catherine Rogers of Penn State Dickinson organized this panel. *
When Oscar Schacter first wrote his seminal piece, The Invisible College of International Lawyers, (1) he could not have imagined that just thirty years later, that group would be so prominent that the American Society of International Law would dedicate a panel at its 102nd Annual Meeting to discuss the unique professional and ethical challenges they face. Even if the ranks of international lawyers are no longer as obscure as when Schacter wrote, however, as the following contributions reveal, their role and professional obligations often remain opaque, even as their specific functions before international tribunals have become more demanding. The essays that follow in these Proceedings summarize some of the panel presentations on these topics by international lawyers and a scholar of international legal ethics. (2) While each essay presents a unique viewpoint, they all converge in their call for greater clarity both to guide attorneys in making ethical decisions, and to ensure that regulation and discipline for violation of rules is fair and effective.
Laurel Baig, a legal officer at the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia ("ICTY"), illustrates through the example of "witness proofing" how national procedural practices and "gut instincts" are unreliable guides for lawyers in navigating their ethical obligations before international criminal tribunals. At a more fundamental level, she observes that shared cultural backgrounds of domestic lawyers, along with the relative stability of national legal systems, can be helpful background to lawyers in making ethical decisions. Meanwhile, international criminal tribunals are dynamic, and the lawyers who practice before them are culturally diverse. Adding to these complexities, international tribunals present unique ethical and practical challenges in dealing with mass atrocities and cultural differences in dealing with witnesses from culturally diverse backgrounds. Baig makes a strong case that national ethical rules are simply not capable of regulating attorneys in this complex context. Instead, she calls for specialized written rules to capture the shared ethical expectations of lawyers practicing before international criminal tribunals.
A complimentary but nevertheless distinct view is presented by Viren Mascarenhas, who has served as a Legal Officer at the Special Court for Sierra Leone. Like Baig, Mascarenhas also calls for clearer rules. In addition to the rules themselves, Mascarenhas demonstrates how some of these substantive ambiguities are exacerbated by related unresolved issues about how to allocate regulatory powers. For example, with regard to the issues regarding payments to witnesses, he contemplates whether the real solution is the creation of a special sub-unit to administer the payments, thus removing the ethical ambiguities. Meanwhile, with regard to the disciplinary powers of international criminal tribunals, he ponders whether the transmission of letters by national regulatory authorities are an effective means of discipline, and separately whether a tribunal has (or should have) the power to hold an attorney in contempt for disobeying a court order when it conflicts with specified ethical rules.
Instead of a view from within practice before international criminal tribunals, Laurel Terry, a legal scholar specializing in comparative and international ethics, takes a step back to frame the issues raised by Baig and Mascarenhas in terms of how to improve guidance for, and regulation of, attorneys practicing before international tribunals. …