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The Right to a Lawyer of One’s Own Choosing

A fundamental fair trial guarantee is the right to defend oneself through legal counsel of one’s own choosing.¹ Obviously, limited resources often mean that a defendant in a criminal case cannot always choose his or her own lawyer. But where a defendant can and does choose his or her own lawyer, that choice must be respected in all but the most exceptional circumstances. Imposing a lawyer on a defendant against the defendant’s will raises a serious risk that the trial will be unfair and violate the defendant’s rights. Special steps need to be taken to guard against this risk.

The right of a defendant to choose his or her own lawyer (provided he or she has the means to pay the lawyer or the lawyer works for free) is strongly protected because an effective defense requires a relationship of trust and confidence between a defendant and his or her lawyer.² If a defendant does not trust his or her lawyer and refuses to instruct him or her, it is very difficult for a lawyer to adequately represent the defendant. In some cases before international courts, lawyers whose clients refused to instruct them have asked the court to allow them to resign because they could not fulfill their professional duties under such conditions.³

At the same time, the right is not absolute: every lawyer is bound by the legal professional ethics code of the country they are working in, and serious violations of this code or other laws might lead a court to refuse to allow a lawyer to represent the defendant, even if the lawyer was freely chosen by the defendant. But widely accepted principles also require that a court not refuse to recognize a lawyer’s right to represent someone, unless the lawyer has been “disqualified in accordance with national law and practice and in conformity with these principles.”⁴

Iraqi law requires that lawyers practicing in Iraqi courts must be respectful towards the court and not obstruct the course of justice or cause unreasonable delays.⁵ The Iraqi code of legal professional ethics states that lawyers must appear in court on the set dates, should not try to delay the resolution of a case and must facilitate the task of the judge.⁶ In the al-Dujail case, the defendants’ lawyers’ statement that they would boycott the case unless certain demands are met (such as the resignation of the new Chief Judge) would appear to contravene their professional obligations under Iraqi law.

Iraqi law allows a judge to appoint a lawyer to the defendant for the session that the defendant’s own lawyer does not appear.⁷ But Iraqi law is silent on whether a court can dismiss the defendant’s chosen lawyer altogether. Disciplinary proceedings (such as disqualification) against lawyers are taken through the Iraqi Bar Association.⁸ Iraqi practice requires that, in principle, the defendant’s wishes must be considered if the court appoints a lawyer to him.⁹

In international criminal tribunals, courts have disallowed a defendant’s chosen counsel if the lawyer has previously been convicted of contempt of court,¹⁰ or the lawyer has failed to turn up more than once to a court hearing without a valid excuse.¹¹ When a new lawyer is appointed as a replacement, the courts have emphasized the importance of taking into account the defendant’s wishes about who should represent him or her. Once again, this is because a defendant’s willingness to trust his or her lawyer is essential to effective legal representation.

Overall, disallowing a defendant’s self-funded choice of counsel is a drastic step and should be a last resort where there is no other way to safeguard the proceedings. The European Commission on Human Rights has pointed out that excluding a defense lawyer who is chosen by the defendant “may intimidate other potential defense counsel or cast discredit on the defense in general … [A] succession of defense lawyers may be damaging to the presentation of the case and introduce great uncertainty into the [lawyer’s] role as the watchdog of procedural regularity.”¹²

Of course, lawyers cannot be allowed to obstruct proceedings. But a court also has to consider whether other measures are available to discipline a defendant’s chosen lawyers short of barring them from the courtroom. If the court does dismiss the defendant’s lawyers, it should give a defendant the option of selecting new lawyers of his or her own choice, and consider whether these new lawyers need further time to prepare the case.