Fifteen years ago, the Supreme Court invalidated Nevada’s rule regulating attorneys’ extrajudicial statements. Gentile v. State Bar of Nev., 501 U.S. 1030 (1991). Justice Kennedy’s opinion noted that the Nevada rule was “almost identical to ABA Model Rule of Professional Conduct 3.6.” Id. at 1033 (Kennedy, J., majority opinion in part/dissenting in part).
Not surprisingly, the ABA changed its Model Rule 3.6 in 1994. But the military hasn’t followed suit.
As LTC Denise Lind noted in an insightful law review article in 2000, “None of the armed services has implemented new Model Rule 3.6. Each service trial publicity rule continues to allow the same ‘safe harbor provision’ found to be void for vagueness in Gentile. Thus, all of the armed services’ ethics rules governing trial publicity are void for vagueness and may not be enforceable.” LTC Denise R. Lind, Media Rights of Access to Proceedings, Information, and Participants in Military Criminal Cases, 163 Mil. L. Rev. 1, 77 (2000) (footnotes omitted).
Despite a Military Law Review article calling this problem to their attention six years ago, neither the Army nor the Navy has changed its constitutionally defective Rule 3.6. (I couldn’t find the Air Force rules of professional conduct online. They might be on the web somewhere, but if so, they seem well hidden. Why would a service want to make its rules of professional conduct hard to find?) The Coast Guard, however, seems to have cured the problem. COMDTINST M5810.1D Art. 6.C.1 (August 17, 2000) incorporates the ABA Model Rules of Professional Conduct “[a]s far as practicable and when not inconsistent with law.” So the Coast Guard would follow the 1994 revision of Model Rule 3.6 rather than its unconstitutionally vague predecessor.
All of this raises the question: what does it take to update a military law regulation to comply with a Supreme Court opinion? Should the services adopt joint rules of professional conduct? Whatever the merits of separate military legal organizations and three different JAG schools, I can’t think of any service-specific necessity for the Army, Air Force, Naval, and Coast Guard professional responsibility rules to differ. The process of adopting joint p.r. rules would no doubt lead to the problem with Rule 3.6 — and any similar defects lurking in the weeds –being fixed. It may also lead to more regular updates of the p.r. rules, perhaps as part of the Joint Service Committee working group’s annual review of the military justice system.