"Decision on the Prosecution's Motion for Review of the Decision of the Registrar to Assign Mr. Rodney Dixon as Co-counsel to the Accused Kubura"

26 March 2002
Trial Chamber II (Judges Schomburg [Presiding], Mumba and Agius)

Procedural Background

· In a Decision rendered on 26 November 20011, the Deputy Registrar assigned Mr. Rodney Dixon as co-counsel to Amir Kubura. Before joining private legal practice, Mr. Dixon worked with the Prosecution as a legal adviser from January 1996 to January 2000.

· On 20 December 2001, the Office of the Prosecutor filed a confidential Motion for review of the Registrar's Decision in which it alleged that the assignment would cause both a conflict of interest and an undue advantage due to Mr. Dixon's previous association with the Prosecution during which period he was involved "in relevant investigations and relevant prosecutions of the so-called flip-side cases such as Blaskic, Kordic and Cerkez, and Celebici".

· On 18 January 2002, lead Defence counsel for Amir Kubura filed a confidential response to the Prosecution's Motion (hereinafter the "Defence response"), inviting the Chamber to decline jurisdiction over the Motion in the absence of any express provision giving jurisdiction to the Chamber over the Decisions of the Registrar to assign Defence counsel to the accused.

· On 4 February 2002, the Prosecution filed a confidential Reply (hereinafter the "Prosecution's reply") in which it argued that the Motion was admissible since it was filed pursuant to Rules 542 and 733 of the Rules as well as to the inherent powers of the Tribunal to "entertain Motions relevant to the control of its proceedings"4.

· The Trial Chamber issued a confidential Scheduling Order on 31 January 2002 in which it invited the Registrar to file submissions on the issues raised by the Motion of 20 December 2001, the Defence response and the Prosecution's reply, including in particular the following issues:

(1) whether, in the light of the law and practice of the Tribunal, a Chamber may review a Decision of the Registrar assigning Defence counsel to a concrete case;

(2) whether, if the answer to question (1) was negative, there would be a genuine obstacle in terms of the general principles of the law for a Chamber to review such a Decision in the interests of justice and integrity of the proceedings before the Tribunal; and

(3) whether, if the answer to question (2) was negative, the Chamber could also take into consideration a possible scenario in which more than one Defence counsel with previous association with the Tribunal appear in one and the same case.

· On 8 February 2002, the Registrar filed a confidential Submission (hereinafter the "Registry submission") in which he claimed that "in the absence of any express provision to the contrary, such as Article 13 of the Directive of the Assignment of Defence Counsel5, Chambers do not possess a general power of review over Registry Decisions". The Registrar suggested that "if during the course of proceedings, it becomes evident that a conflict of interest exists and that this conflict would be likely to improperly prejudice the outcome of proceedings, then the Chamber may invite the Registrar to reconsider the assignment of Mr. Dixon in light of its findings, or the material presented before the Chamber". The Registrar added that the Chamber has the inherent power to regulate the proceedings and the conduct of the parties. He argued however that "this power should only be utilised in a manner that is consistent with and complementary to the powers of the Registrar" and that "an order to withdraw the assignment of counsel requested by an accused is contrary to the accused's right to free choice of counsel, which would not be an appropriate area for the Chamber to exercise its inherent powers". He stated that "in the event that the Prosecutor obtains previously unavailable material that would demonstrate the probability of a serious conflict, then the Registry would be prepared to reconsider its decision".

The Decision

The Trial Chamber dismissed the Motion.

The Reasoning

Admissibility of the Motion

The Trial Chamber considered that the first issue which it had to examine was whether it could review the Decision of the Registrar assigning Defence counsel. The Trial Chamber regarded it as one of general importance6 and observed that "no explicit provision in the Rules […] or in the Directive […]" covers this issue.

The Trial Chamber first noted that Rule 33(A) of the Rules7 is "explicit as to the authority of the President of the International Tribunal over the exercise of powers by the Registrar in the administration of the International Tribunal". It also referred to Rule 44(B)8 which "may be considered lex specialis to the lex generalis of Rule 33(A)" and Article 13(B) of the Directive. The Trial Chamber considered that both provisions "amply demonstrated that the President and Chambers may intervene in certain decisions of the Registrar". It specified that the "basis for presidential intervention in general lies in the provision of Rule 33(A) of the Rules"9. The Trial Chamber based its own possibility of action on "its power and duty to guarantee a fair trial and the proper administration of justice as set forth in the Statute"10. It referred to Rules 46(A)11 and 77(I)12 as having been included in the Rules "against this background". The Trial Chamber regarded both rules and Article 13 of the Directive as "not exhaustive" and mere applications of a more general power based on its duty to ensure fairness of trials and the proper administration of justice.

The Trial Chamber then examined Rules 4413 and 4514 and noted that appointment, assignment and qualifications of Defence counsel may impact on the conduct of the case and have consequences on the fairness of trials and the proper administration of justice. The Trial Chamber therefore ruled that the issues were within its power of regulation and control. It held that "if the Rules explicitly provide for the power of a Chamber to take such far-reaching steps as to exclude counsel for all future cases from representing a suspect or accused, the Chamber certainly has the power to take less far-reaching steps aimed at ensuring a fair trial and the proper administration of justice in a concrete case pending before that Chamber".

The Trial Chamber then considered Rules 54 and 73 pursuant to which the Prosecution had filed the Motion. The Trial Chamber noted the wide application of Rule 54 in the judicial practice of the Tribunal and concluded that it was "conceivable that an issue like the assignment or disqualification of counsel" could be "a matter falling within the scope of the rule because of its being part of the process of preparation or, later on, conduct of a trial". The Trial Chamber expressed the opinion that "the issue of whether a person is suitable to act as a counsel in a certain case is just one aspect of the fair trial obligation imposed on the Chamber" and concluded that "whether the accused receives a fair trial whereby justice is both done and seen to be done, is a matter over which the Chamber has jurisdiction".

The Trial Chamber then considered that the scope of the application of Rule 73(A) was "wide enough to cover the issue before the Chamber so far as that issue influences the procedure in a concrete case". It added that "problems relating to the Defence of an accused will affect the conduct of a case over which a Chamber has not only the power, but also the duty to regulate in accordance with the statutory requirements for a fair and expeditious trial" as part of the "mandate of the International Tribunal to ensure that justice is seen to be done"14.

In light of the above, the Trial Chamber ruled that it has jurisdiction over the assignment of Defence counsel by the Registrar as part of its mandate to ensure the integrity of proceedings. This includes the obligation to ensure that justice is both done and seen to be done and to ensure that the accused has a fair trial. In order to enforce this mandate, the Chamber can issue an order to withdraw the assignment of Defence counsel pursuant to Rules 54 and 73. It specified however that "the Registrar has the primary responsibility in [the assignment of counsel]" and is "entitled to reconsider his previous decision on the basis of new information hitherto unavailable to him". Lastly, the Trial Chamber added that its power to review Registrar's decisions not a power to overrule the responsibilities of the Registrar, but rather a power which is complementary to that of the Registrar and aimed at ensuring the proper administration of justice".

The Trial Chamber examined the subsidiary issue of whether there was a time limit for filing a Motion for review of the Registrar's Decision to assign Defence counsel to an accused similar to the time limit of 15 days set out in Article 13 of the Directive for seeking the President's review of the Registrar's Decision to refuse the assignment of Defence counsel. The Trial Chamber observed that there were no such time limits for challenges raised under Rules 54 and 73 and specified that "qualification, appointment and assignment of counsel continuously affects the concept of fair trial so long as a counsel acts on behalf of a suspect or accused".

Merits of the Motion

The Trial Chamber examined whether Mr. Dixon's previous association with the Prosecution creates a conflict of interest or undue advantage with regard to his assignment as co-counsel to Amir Kubura.

The Trial Chamber sought a definition of the notions of conflict of interest and undue advantage. It first examined the basic legal documents of the Tribunal and found that "the Rules and the Directive do not touch upon the specific question of a possible conflict of interest in the case of a defence counsel who has previously worked with the Office of the Prosecutor". The Trial Chamber then examined the Standards of Professional Conduct for Prosecution Counsel16 and Article 9 of the Code of Professional Conduct for Defence Counsel Appearing before the International Tribunal17 and noted that there was "no relevant provision in the basic law and regulations of the Tribunal dealing with the dispute before it".

Lacking rules dealing with the matter or even providing guidance, the Trial Chamber sought guiding principles in national laws and practices. It found roughly two different kinds of national practices, i.e. certain national laws would require governmental consent for a lawyer to represent a client, whenever a possible conflict of interest might arise18; other laws, the Chamber observed, provide that "the approach has been taken that for a certain period of time former prosecutors or judges may not, in principle, become defence lawyers in the same district or court"19. The Trial Chamber noted that other practices could be found, for example, the Code of Conduct for the Bar of England and Wales "where it is well known that a counsel may serve in these two functions in different cases", which does not restrict "the possibility that a lawyer can work as a prosecuting or defence counsel" in. In view of the diversity of national practices, the Trial Chamber concluded that it could "derive no guidance" from them and therefore had to define a relevant test to be applied in order to determine whether "in the case at hand, the assignment of co-counsel to the accused is consonant with the interest of justice". The Trial Chamber considered that in devising the test, it had to respect "its obligation under the Statute and the Rules to ensure the integrity of the proceedings as the guiding principle".

The Trial Chamber first observed that "the Registry submission notes the lack of proof to justify a finding that the prior association of Mr. Dixon with the Prosecution would be likely to prejudice the outcome of the trial improperly". The Trial Chamber noted that the Registry submission was "given in terms of potential prejudice"20, distinguishing the probability of conflict of interest from the simple possibility of such conflict. According to the Registry submission summed up by the Trial Chamber, "the possibility that a defence counsel had access to confidential information during his prior association with the Prosecution is not accepted as a criterion for disqualifying him as a counsel, whereas the probability of such access is"21. The Trial Chamber did not accept this distinction and stated that "in judicial proceedings a misstep in procedure with possibly adverse consequences will affect the integrity of the proceedings just as one will with probably adverse consequences". The Chamber reiterated that "the appearance of a just procedure is as important as the just result for a fair trial". The Trial Chamber added that "the probability test would be too high a standard as the harm from an erroneous assignment may be too great to redress for the integrity and expediency of the proceedings and the interests of witnesses and victims". It concluded that it could not "wait until foreseeable harm is done to the proceedings" and should "prevent such foreseeable harm".

The Chamber underscored that it did not mean "that any challenge to the integrity of the proceedings, however artificial or theoretical, should form the basis of a reaction from the Chamber". It specified that "only when the challenge is real, some reaction is required". The Trial Chamber concluded that the appropriate test to decide if Mr. Dixon should be disqualified from representing the accused because of his prior association with the Office of the Prosecutor lies in determining "whether there was a real possibility of conflict of interest". It called it the "real possibility test".

The Trial Chamber held that "[i]nvolvement of counsel with one of the parties in the same case is incompatible with representing the opposite party". In this situation, the conflict of interest is automatic.

This was not the case with Mr. Dixon. As a staff member in the Office of the Prosecutor, he worked on a number of cases related to that of Amir Kubura. However, Mr. Dixon had never worked on this specific case directly. The Chamber considered that "working in part on the same factual basis alone does not create a conflict of interests". The Trial Chamber ruled here that conflict of interest was not automatic and that the parties must show that a real possibility of conflict of interest might arise in concreto. According to its ruling, the Trial Chamber examined the evidence presented by the Office of the Prosecutor. It concluded that "the prior association with the Prosecution has provided Mr. Dixon with certain advantages" but considered that the Prosecution failed to establish that the overall advantage was "such that it would amount to undue advantages that might have an impact on the fairness of this trial". The Trial Chamber also took in account Mr. Dixon's written undertaking not to violate the confidentiality of any information to which he had access while working for the Prosecution. The Trial Chamber concluded that "the Prosecution has not been able to demonstrate that the prior association of Mr. Dixon with the Prosecution and the work he was required to do at that time provide a sufficient basis to conclude that a real possibility of a conflict of interest exists". It therefore rejected the Motion of the Prosecution.

The Trial Chamber stressed that it devised the "real possibility test" as a default solution to the issue pending before it. It observed that "it might have been useful if certain general guidelines or rules had been established in the past that would have provided guidance as to how to avoid having former Prosecution office employees resign and start working as a defence counsel before this Tribunal". The Trial Chamber regretted that "no steps have ever been taken by the Office of the Prosecutor to put such norms in place". It concluded that "failing such norms, it is not for the Chamber to "legislate and develop them".

_____________________________
1. The Prosecutor v. Enver Hadzihasanovic, Mehmed Alagic and Amir Kubura ("Central Bosnia"), Case No. IT-01-47-PT, Deputy Registrar, Decision of the Registrar to Assign Mr. Rodney Dixon as Co-counsel to the Accused Kubura, 26 November 2001 (summarised in Judicial Supplement No. 29).
2. "At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial."
3. "(A) After a case is assigned to a Trial Chamber, either party may at any time move before the Chamber by way of motion, not being a preliminary motion, for appropriate ruling or relief. Such motions may be written or oral, at the discretion of the Trial Chamber.
(B) Subject to paragraph (C), decisions rendered during the course of the trial on motions involving evidence and procedure (including, without limiting the generality of this Rule, orders and decisions under Rule 71, Depositions, and denials under Rule 98 bis, Motion for Judgement of Acquittal) are without interlocutory appeal. Such decisions may be assigned as grounds for appeal from the final judgement.
(C) The Trial Chamber may certify that an interlocutory appeal during trial from a decision involving evidence or procedure is appropriate for the continuation of the trial, upon a request being made within seven days of the issuing of the decision. If such certification is given, a party may appeal to the Appeals Chamber without leave, within seven days of the filing of the certification.
(D) Decisions on all other motions are without interlocutory appeal save with the leave of a bench of three Judges of the Appeals Chamber which may grant such leave.

(i) if the decision impugned would cause such prejudice to the case of the party seeking leave as could not be cured by the final disposal of the trial including post-judgement appeal;
(ii) If the issue in the proposed appeal is of general importance to proceedings before the Tribunal or in international law generally.

(E) Applications for leave to appeal shall be filed within seven days of the filing of the impugned decision. Where such decision is rendered orally, this time-limit shall run from the date of the oral decision, unless

(i) the party challenging the decision was not present or represented when the decision was pronounced, in which case the time-limit shall run from the date on which the challenging party is notified of the oral decision; or
(ii) The Trial Chamber has indicated that a written decision will follow, in which case the time limit shall run from filing of the written decision."

4. Regarding the notion of inherent powers of the Tribunal, see The Prosecutor v. Zejnil Delalic et al. ("Celebici camp"), Case No. IT-96-21, President Antonio Cassesse, Decision of the President on the Prosecutor's Motion for the Production of Notes Exchanged between Zejnil Delalic and Zdavko Mucic, 11 November 1996, in which the President stated, obiter dictum, that contempt of the Tribunal was the prerogative of the Chambers since it derived from the inherent power of the Court to control its own proceedings; The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A-R77, Appeals Chamber, Judgement on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000 (summarised in Judicial Supplement No. 11).
5. Article 13 of the Directive on Assignment of Defence Counsel of 15 December 2000 (IT/73/Rev.8, hereinafter "the Directive") provides that:
"(A) The suspect whose request for assignment of counsel has been denied may, within fifteen days of the date of notification to him, seek the President's review of the decision of the Registrar. The President may either confirm the Registrar's decision or decide that a counsel should be assigned.
(B) The accused whose request for assignment of counsel has been denied, may, within two weeks of the date of notification to him, make a motion to the Chamber before which he is due to appear for immediate review of the Registrar's decision. The Chamber may

(i) confirm the Registrar's decision; or
(ii) rule that the suspect or accused has means to partially remunerate counsel, in which case it shall refer the matter again to the Registrar for determination of which parts shall be borne by the Tribunal; or
(iii) rule that a counsel should be assigned."

6. Rule 73(D) of the Rules of Procedure and Evidence provides that Motions filed under Article 73(A) are without interlocutory appeal, save for the exception of those dealing with procedure and evidence and certified by the Trial Chamber to be appropriate for the continuation of the trial, in accordance to Rule 73(C). Rule 73(D)(ii) introduces another exception for Motions that do not concern evidence and procedure, and that a bench of three Judges of the Appeals Chamber consider to be "of general importance to proceedings before the Tribunal or in international law generally". In this case, it means that the Prosecution could file an interlocutory appeal against the Decision of the Trial Chamber which has rejected its Motion.
Regarding the power of the Appeals Chamber to rule on matters of general significance for the Tribunal's case-law, see The Prosecutor v. Dusko Tadic ("Prijedor"), Case No. IT-94-1-A, Appeals Chamber, Judgement, 15 July 1999 (summarised in Judicial Supplement No. 6), paras. 247, 281, 315 and 316; see also The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Appeals Chamber, Judgement, 1 June 2001, in which the majority of the Appeals Chamber considered that it possessed a inherent discretionary power to hear appeals on issues of fundamental importance and general significance to the case-law of the Tribunal subject to two cumulative conditions, i.e.: (1) "if it finds that their resolution is likely to contribute substantially to the development of the Tribunal's" case-law (para. 23); and (2) if the grounds of appeal "have a nexus with the case at hand" (para. 24). The majority of the Appeals Chamber reiterated that it does not possess the power to give advisory opinions. The Judges however considered that "the need to pass on issues of general importance is justified in light of the Appeals Chamber's role in unifying the applicable law. Indeed, the Appeals Chamber must provide guidance to the Trial Chambers in interpreting the law" (para. 21). The Appeals Chamber therefore expressed the view that "in deciding to pass on an issue of general importance", it is satisfying its responsibility of unifying the law (para. 22); see also the Dissenting Opinion of Judge Rafael Nieto-Navia, in which he disagreed with that Decision and expressed the view that "all grounds of appeal which do not strictly fit within the terms of Article 24 of the [ICTR] Statute cannot, and […] should not, be entertained by the Appeals Chamber" (para. 7). The Judge added that broadening "the scope of the Statute […] is a slippery and dangerous path for the Appeals Chamber to take" (paras. 8 and 9).
7. "The Registrar shall assist the Chambers, the plenary meetings of the Tribunal, the Judges and the Prosecutor in the performance of their functions. Under the authority of the President, the Registrar shall be responsible for the administration and servicing of the Tribunal and shall serve as its channel of communication."
8. "At the request of the suspect or accused and where the interests of justice so demand, the Registrar may admit a counsel who does not speak either of the two working languages of the Tribunal but who speaks the native language of the suspect or accused. The Registrar may impose such conditions as deemed appropriate. A suspect or accused may appeal a decision of the Registrar to the President."
9. See also The Prosecutor v. Joseph Nzirorera, Case No. ICTR-98-44-T, President Navanethem Pillay, The President’s Decision on Review of the Decision of the Registrar withdrawing Mr. Andrew McCartan as Lead Counsel of the Accused Joseph Nzirorera, 13 May 2002, in which Judge Pillay considered that “the President exercises authority and supervision over the Registrar” pursuant to Rule 33(A) of the ICTR Rules of Procedure and Evidence, to the same effect as Rule 33(A) of the ICTY Rules (para. ix). The Judge further referred to this Decision and found that “an application for the review by the President of a decision of the Registrar on the basis that it is unfair procedurally or substantively is receivable under Rules 19 and 33(A) if the applicant has a protectable right or interest or if it is otherwise in the interests of justice” (para. xi).
10. Article 21(2) of the Statute provides inter alia that "[i]n the determination of charges against him, the accused shall be entitled to a fair and public hearing".
11. "(i) A Chamber may, after a warning, refuse audience to counsel if, in its opinion, the conduct of that counsel is offensive, abusive or otherwise obstructs the proper conduct of the proceedings.
(iii) The Chamber may also determine that counsel is no longer eligible to represent a suspect or accused before the Tribunal pursuant to Rule 44 and 45."
12. "If a counsel is found guilty of contempt of the Tribunal pursuant to this Rule, the Chamber making such finding may also determine that counsel is no longer eligible to represent a suspect or accused before the Tribunal or that such conduct amounts to misconduct of counsel pursuant to Rule 46, or both."
13. "(A) Counsel engaged by a suspect or an accused shall file a power of attorney with the Registrar at the earliest opportunity. Subject to any determination by a Chamber pursuant to Rule 46 or 77, a counsel shall be considered qualified to represent a suspect or accused if the counsel satisfies the Registrar that the counsel is admitted to the practice of law in a State, or is a University professor of law, and speaks one of the two working languages of the Tribunal.
(B) At the request of the suspect or accused and where the interests of justice so demand, the Registrar may admit a counsel who does not speak either of the two working languages of the Tribunal but who speaks the native language of the suspect or accused. The Registrar may impose such conditions as deemed appropriate. A suspect or accused may appeal a decision of the Registrar to the President.
(C) In the performance of their duties counsel shall be subject to the relevant provisions of the Statute, the Rules, the Rules of Detention and any other rules or regulations adopted by the Tribunal, the Host Country Agreement, the Code of Professional Conduct for Defense Counsel and the codes of practice and ethics governing their profession and, if applicable, the Directive on the Assignment of Defense Counsel set out by the Registrar and approved by the permanent Judges.
(D) An Advisory Panel shall be established to assist the President and the Registrar in all matters relating to defence counsel. The Panel members shall be selected from representatives of professional associations and from counsel who have appeared before the Tribunal. They shall have recognised professional legal experience. The composition of the Advisory Panel shall be representative of the different legal systems. A Directive of the Registrar shall set out the structure and areas of responsibility of the Advisory Panel."
14. "(A) Whenever the interests of justice so demand, counsel shall be assigned to suspects or accused who lack the means to remunerate such counsel. Such assignments shall be treated in accordance with the procedure established in a Directive set out by the Registrar and approved by the permanent Judges.
(B) A list of counsel who, in addition to fulfilling the requirements of Rule 44, have shown that they possess reasonable experience in criminal and/or international law and have indicated their willingness to be assigned by the Tribunal to any person detained under the authority of the Tribunal lacking the means to remunerate counsel, shall be kept by the Registrar.
(C) In particular circumstances, upon the request of a person lacking the means to remunerate counsel, the Registrar may assign counsel whose name does not appear on the list but who otherwise fulfils the requirements of Rule 44.
(D) If a request is refused, a further request may be made by a suspect or an accused to the Registrar.
(E) The Registrar shall, in consultation with the permanent Judges, establish the criteria for the payment of fees to assigned counsel.
(F) Where a person is assigned counsel and is subsequently found not to be lacking the means to remunerate counsel, the Chamber may make an order of contribution to recover the cost of providing counsel.
(G) A suspect or an accused electing to conduct his or her own defence shall so notify the Registrar in writing at the first opportunity."
15. See The Prosecutor v. Anto Furundzija ("Lasva River Valley"), Case No. IT-95-17/1-A, Appeals Chamber, Judgement, 21 July 2000, Declaration of Judge Mohamed Shahabuddeen (summarised in Judicial Supplement No. 18), paras. 13 and 14.
16. Prosecutor's Regulation No. 2 of 14 September 1999.
17. Article 9 of the Code of Professional Conduct for Defence Counsel Appearing before the International Tribunal (IT/125 of 12 June 1997) provides that:
(1) Counsel owes a duty of loyalty to his or her Client. Counsel must at all times act in the best interests of the Client and must put those interests before their own interests or those of any other person.
(2) In the course of representing a Client, Counsel must exercise all care to ensure that no conflict of interest arises.
(3) Without limiting the generality of sub-articles (1) and (2), Counsel must not represent a Client with respect to a matter if:

(a) such representation will be or is likely to be adversely affected by representation of another Client;
(b) representation of another Client will be or is likely to be adversely affected by such representation;
(c) the Counsel's professional judgement on behalf of the Client will be, or may reasonably be expected to be, adversely affected by:

(i) the Counsel's responsibilities to, or interests in, a third party; or
(ii) the Counsel's own financial, business, property or personal interests; or
(iii) the matter is the same or substantially related to another matter in which Counsel had formerly represented another client ("the former client"), and the interests of the Client are materially adverse to the interests of the former client, unless the former client consents after consultation.

(4) Counsel must not accept compensation for representing a Client from a source other than that Client or, if assigned by the Tribunal, from a source other than the Tribunal, unless:

(a) that Client consents after consultation; and
(b) there is no interference thereby with the Counsel's independence of professional judgement nor with the Client-Counsel relationship.

(5) Where a conflict of interest does arise, Counsel must-

(a) promptly and fully inform each potentially affected Client of the nature and extent of the conflict; and
(b) either:

(i) take all steps necessary to remove the conflict; or
(ii) obtain the full and informed consent of all potentially affected Clients to continue the representation, so long as Counsel is able to fulfil all other obligations under this Code.

18. The Trial Chamber used Article 1.11(a) of the American Bar Association's Model Rules of Professional Conduct (2001 edition) as an example, taking into account that these mjudge odel rules were followed in two-thirds of the jurisdictions in the United States of America.
19. The Trial Chamber observed that Article 36 of the Chinese Law on the Profession of Lawyer forbids a former prosecutor or from serving as Defence counsel within two years of his/her resignation of the post of prosecutor or judge. The Chamber also noted that Section 20(1), No. 1 of the German Federal Law on Lawyers (Bundesrechtsanwaltsordnung of 1 August 1959) sets out a time limit of five years for admission to the roll if the applicant has worked as a judge or as a permanent civil servant, inter alia as Prosecutor, in the same district or court where he/she applies for admission.
20. See The Prosecutor v. Radoslav Brdjanin and Momir Talic ("Krajina"), Case No. IT-99-36-T, Registrar, Decision, 15 April 2002, in which the Deputy Registrar considered that there was "a likely possibility that there may be a conflict of interest between Ms. Maglov's previous representation of the witness and her current representation of the accused, and furthermore, that her failure to disclose this potential conflict prior to her testimony of the witness may prejudice the outcome of these proceedings". The Deputy Registrar further considered that "it would be in the interests of securing a fair trial and ensuring that the accused is receiving an effective defence to investigate the allegations of the witness, and the existence and extent of a potential conflict". The Deputy Registrar decided that it was "in the interest of justice to suspend the assignment of Ms. Maglov as co-counsel […] pending the outcome of investigations."
21. The Trial Chamber especially referred to a statement of the Registrar in the conclusion of the Registry Submission that "[i]n the event that the Prosecutor obtains previously unavailable material that would demonstrate the probability of a serious conflict, then the Registry would be prepared to reconsider its decision".