No Legal Representation Without Governmental "Interposition"

Georgetown Journal of Legal Ethics, The, Summer 2004 by Beck, Anne, Tonova, Sylvia

I. FACTUAL BACKGROUND

It has been seven years since U.S. attorneys John Rostow and Steven Brown first took the case of Dragan Mladovic, an individual indicted by the International Criminal Tribunal for the former Yugoslavia ("ICTY"), the United Nations Security Council-established tribunal whose purpose is to prosecute individuals who have committed violations of international humanitarian law in the territory of the former Yugoslavia1 Then, around June 2003, a paralegal working for the attorneys, came across an executive order pursuant to which the provision of legal services to their client was rendered illegal, which might subject the attorneys to federal criminal prosecution if they continued to represent their client.2 The regulations implementing the executive order (the "Regulations"), however, provided that Mr. Rostow and Mr. Brown could continue to represent their client if they applied for a license from the Office of Foreign Assets Control ("OFAC"),3 the agency in the Department of the Treasury charged with administering the executive order. Thus the attorneys were faced with a substantial dilemma. On the one hand, if Mr. Rostow and Mr. Brown went forward with the representation of their client, they exposed themselves to the possibility of criminal prosecution and, if convicted, imprisonment for up to ten years and a criminal fine ranging between $250,000 or "twice the pecuniary gain per violation," whichever is greater.4 In addition, OFAC may impose a civil penalty of up to $11,000 per violation.5 On the other hand, if Mr. Rostow and Mr. Brown withdrew from the representation of their client, they might be in violation of the Code of Professional Conduct for Counsel Appearing Before the International Tribunal ("ICTY Code"), which imposes upon counsel a "duty of loyalty to a client" and a duty to the ICTY "to act with independence in the interests of justice" and to place "those interests before [counsel's] own interests or those of any other person, organization or State."6

On May 28, 2003 President Bush issued the executive order in question, Executive Order 13304 ("Executive Order"), which prohibited two types of transactions. First, the order blocked and prohibited the transfer, payment, export, withdrawal or any other transaction in the property or interests in property of individuals designated in the Executive Order or subsequently designated by the secretary of the Treasury, in consultation with the secretary of the State, if such property or interests in property "are in the United States, . . . hereafter come within the United States, or ... are or hereafter come within the possession or control of U.S. persons."7 second, it prohibited the "contribution or provision of funds, goods, or services" by United States to persons whose property or interests in property are blocked by the Executive Order, i.e., the individuals listed in the Annex to the Executive Order.8

The Executive Order states that the above prohibitions are necessary in order to "take additional steps with respect to continuing, widespread, and illicit actions," including "the harboring of individuals indicted by the International Criminal Tribunal for the former Yugoslavia," that obstruct the implementation of the agreements designed to bring peace to the Western Balkans.9 The Executive Order amends Executive Order 13219 of June 26, 2001, which also prevented the transfer, paying, or otherwise dealing in property of persons who threaten international stabilization efforts in the Western Balkans.10 The Annex to the Executive Order omitted the names of some of the people who were previously designated in Executive Order 13219, but it also added the names of all individuals who are under open indictment by the ICTY.11 In doing so, the Executive Order listed not only individuals who have been indicted but not brought before the ICTY, but also all individuals who have been indicted and are currently being tried before the ICTY. For instance, the Executive Order lists Radovan Karadzic, who has been indicted but has not yet been brought before the ICTY, and Radoslav Brdjanin, who is currently represented in ICTY proceedings by U.S. attorneys John Ackerman and David Cunningham.12

The Executive Order's prohibition on the provision of "services" could be interpreted as a prohibition on the provision of legal services by U.S. citizens to the individuals designated in the Annex to the Executive Order. OFAC confirmed this interpretation in a letter sent to Mr. Rostow and Mr. Brown.13 According to OFAC's letter, � 588.507(a) of the Regulations contains a "general license authorizing the provision of certain legal services, but only to the extent that such legal services relate to matters arising pursuant to or in connection with U.S. enforcement actions or in connection with property interests subject to the laws of the United States."14 The provision of any other legal services to persons designated in the Executive Order, not otherwise authorized in � 588.507(a), requires the issuance of a specific license.15 Because the provision of legal services to ICTY defendants was not authorized by a general license in � 588.507(a) of the Regulations, all U.S. attorneys representing such individuals had to apply for a sp�cifie license from OFAC.16