Do you remember those old “Hair Club for Men” TV commercials in which Sy Sperling said, “I’m not just the president, I’m also a client”? Maybe the Air Force Judge Advocate General Department’s new recruiting slogan should be, “I’m not just a JAG, I’m also a client.”
Anyone who cares enough about military justice to be reading my random thoughts on a blog certainly knows about the recent unpleasantness involving the Air Force’s top JAG. Now the Air Force Times is reporting that a senior Air Force judge advocate was disbarred more than two decade ago. See http://www.airforcetimes.com/print.php?f=1-292925-2406397.php.
Erik Holmes’ report states that Col Michael D. Murphy, the commander of the Air Force Legal Operations Agency, “was relieved of command Nov. 30 after it was discovered he was disbarred in Texas and Louisiana more than 20 years ago and does not hold a law license.” He “was disbarred in Texas in 1984 and Louisiana in 1985 but apparently never told his commanders.”
The Air Force is now adopting a system in which judge advocates must prove their status. The Marine Corps has had such a system for years. Of course, we had our own prominent incident of a judge advocate who wasn’t actually a lawyer. See generally United States v. Zander, 46 M.J. 558 (N-M. Ct. Crim. App.), petition denied, 48 M.J. 18 (C.A.A.F. 1997); see also Lincoln Caplan, The Jagged Edge, ABA J., Mar. 1995, at 52.
The Air Force Times article about Col Murphy explains that he “first ran into trouble in 1981, when he failed to file an appeal on time for a client convicted of burglary, according to court documents.” In 1982 he was accused of professional misconduct and in 1983, Texas suspended his law licsense for seven years. But in his January 1983 application for the Louisiana bar — after Texas had begun disciplinary proceedings against him — “he stated under oath that he had never been sued nor been the subject of a disciplinary action. Both Texas and Louisiana permanently disbarred Murphy for lying on his Louisiana bar application; Texas did so in May 1984 and Louisiana in September 1985.”
I hasten to add, in all seriousness, that Col Murphy is entitled to a presumption of innocence in any disciplinary proceedings that might be brought against him and we should not assume that he is guilty simply because the story was reported in the press.
The Air Force Times raises an interesting legal issue. The article states, “But Air Force officials said there is legal precedent upholding convictions of defendants represented by unlicensed attorneys, and that attorneys don’t have to be licensed by a state bar for a military verdict to be valid.” In a case involving the infamous Jeffrey Zander, the Navy-Marine Corps Court held that where an accused is represented by both a licensed attorney and an unlicensed attorney, the error is tested for prejudice. United States v. Jackson, 54 M.J. 527 (N-M. Ct. Crim. App. 2000). See also United States v. Harness, 44 M.J. 593 (N-M. Ct. Crim. App. 1996). But might the result be different where the unlicensed attorney is the only defense counsel? The great legal journalist (and, until it went belly up, Legal Affairs editor) Lincoln Caplan noted in his ABA Journal article about Zander: “the Marines reviewed all the cases in which Zander served as defender. In 21 cases resulting in convictions after trial, a military review court released two Marines from long prison terms. It set aside punitive discharges for 17 other Marines, reinstating them on active duty or giving them honorable discharges. In each case, the Marine Corps paid all money forfeited as a result of punishment.”
We might see some additional case law develop in this area.