On 3 October 2001, in the case of The Prosecutor v Joseph Nzirorera, Trial Chamber II in its Decision on Nzirorera’s Motion for Withdrawal of Counsel by a 2 – 1 majority denied the Accused’s motion for the withdrawal of his defence counsel. [The Lead Counsel to the accused Joseph Nzirorera, was assigned by the Tribunal’s Registry under the Tribunal’s legal aid programme on the basis of Mr. Nzirorera’s declaration of his inability to afford the costs of his defence.]
The Trial Chamber in its majority Decision (Judges William Sekule and Arlette Ramoroson) directed the Registry to examine fee-splitting matters, including allegations in this case, and to take all necessary measures to inform all accused and Counsel before this Tribunal that fee-splitting is unacceptable and merits sanctions under the Rules. Judge Winston Churchill Matanzima Maqutu appended a separate and dissenting opinion to the Decision.
In the motion, the accused Joseph Nzirorera requested the Chamber to withdraw the assignment of his lead counsel, Mr. Andrew McCartan (United Kingdom) and his Co-Counsel Mr. Martin Bauwens (Belgium) on the grounds, inter alia, that: the confidence that should exist between the accused and his counsel no longer exists; that there exists a “profound and irreconcilable disagreement” between the accused and his counsel concerning defence strategy; and that Lead Counsel had acted dishonestly to the detriment of the interests of his client and of the Tribunal, by asking his legal assistant to alter his fee claims in order to maximize his payments.
Mr. McCartan disputed the allegations of Mr. Nzirorera. In a letter to the Registry dated 11 April 2001, Mr. McCartan alleged that his refusal to accept a proposal from Mr. Nzirorera to split the fees paid to the Lead-Counsel by the Tribunal was the real reason behind the accused’s motion to have him (McCartan) withdrawn as Lead Counsel.
The majority of the Chamber found that no exceptional circumstances had been established to justify the withdrawal of Counsel, but acknowledged that the allegation of financial dishonesty against Mr. McCartan was a serious one which needed to be investigated. The majority agreed with Mr. McCartan’s contention that his refusal to accede to the accused’s request for a fee-splitting arrangement did not constitute an exceptional circumstance.
In his dissenting opinion, Judge Maqutu found, inter alia that Mr. McCartan had entered into a fee-splitting agreement with the accused in November 2000, failed to report this agreement timeously, and reported the fee-splitting when he knew the accused was about to apply for his removal as Counsel. By so doing, Mr. McCartan had “lost the moral high ground”. “The accused was not given a copy of this letter [to the Registry] of 11 April 2001 – to which he was entitled. It is very unconvincing for a member of the legal profession to claim he thought the Rules of this Tribunal permitted the patently immoral practice of fee splitting”, Judge Maqutu stated in his Separate and Dissenting Opinion. Judge Maqutu also recalled that Mr. McCartan had agreed, in response to a question from the Bench, that fee splitting was forbidden and regarded as unethical by the Code of Conduct of the Law Society of Scotland to which Counsel belonged.
The accused Nzirorera has filed a Notice of Appeal against the majority Decision of Trial Chamber II. That being so, the Registrar can make no comments on substantive issues of fact or law that are sub judice in this matter.
The Registrar, however, wishes to stress his determination, as underscored in his previous statements on defence issues in the Tribunal on 13 June 2001 and 16 July 2001, to take all appropriate measures to prevent abuses of the Tribunal’s legal aid system. In this context, several proactive steps and systematic reforms announced in those statements have been instituted and are on-going.
In compliance with the Chamber’s majority Decision in the Nzirorera case, the Registry is taking further steps to ensure the effective investigation of allegations of financial dishonesty on the part of the Lead Counsel and allegations of fee splitting between accused persons and Defence Counsel remunerated by the Tribunal. In this connection, the Registry has taken the following additional steps:
Undertaken and assisted further investigations, including communications to relevant parties in the Nzirorera case requesting further pertinent information;
Proposed an amendment to the Code of Conduct of Defence Counsel before the ICTR formulating language that specifically prohibits fee splitting and makes it obligatory on counsel to inform the Registrar of any alleged breach of this article by another counsel or defence team member. This amendment to the Code of Conduct will be considered by the next plenary session of the Judges of the Tribunal.
The Registry reiterates to all accused persons and Counsel before the ICTR that fee splitting is unacceptable and will incur appropriate sanctions under the Tribunal’s Rules and other relevant regulations if and when the existence of such a practice is established.
The Registry will remain vigilant in the administration of the Tribunal’s legal aid scheme in order to ensure that high professional and ethical standards are maintained in the defence of accused persons before the ICTR. In this connection, the Tribunal has requested the post of an Investigator for defence matters in its budget proposal for the biennium 2002 – 2003, and believes that, should this post resource be approved by the General Assembly, its capability to achieve this objective will be significantly strengthened.