The code will be applied to the International Criminal Tribunal for Former Yugoslavia (ICTY), its Rwandan equivalent, and the International Criminal Court (ICC).
Counsel with ICTY experience have raised concerns about whether the code of ethics will be capable of stamping out fee-sharing corruption. The United Nations’ preparatory committee will consider the draft code in April. It has published a report into fee-splitting in the ICTY and the International Criminal Tribunal for Rwanda (ICTR) (The Lawyer, 22 October).
The report found that expensive gifts and money were handed to clients, and lawyers complained that their clients pressured them for cash or a cut of their legal fees. This was the main impetus behind the new ethical code.
William Clegg QC, head of 2 Bedford Row and an experienced defence counsel at the ICTY, expressed reservations about the ethical code. He said: “In terms of the ethical code’s ability to eliminate fee-sharing, it is unlikely to be any more effective at the ICC than at the ICTY. Simply to say one is not allowed to do something will not stop people from doing it.
“In terms of the ethical code’s ability to eliminate fee-sharing, it is unlikely to be any more effective at the ICC than at the ICTY”
William Clegg QC, 2 Bedford Row
“Also, fee-sharing will be a fraud on the court, therefore the court will be minded to prosecute a lawyer. The code is simply formalising a view held by the court.”
In addition, a defence bar – a panel of lawyers to act for defendants – is under consideration. A panel currently exists for the ICTY and the ICTR.
The move is underway, despite concerns about the future of the ICC if the US continues to refuse to ratify the Rome Statute of the ICC. A further 17 states need to ratify the Rome Statute for the ICC to go ahead, but commentators questions its worth if the US does not ratify, because of its global dominance.