A few posts back, we discussed, here, a recent article from the new Journal of Military and Veterans Law. The article, Sailors and Marines Have Fewer Legal Rights than other Military Members as Their Military Lawyers Are Restricted in the Pre-Article 15 Advice They May Provide, 1 J. Mil. & Vet. L. 1 (2007), discussed (among other issues) the Navy Dept’s policy of restricting the ability of lawyers to form an attorney client relationship with “clients” seeking pre-Art. 15 counseling. Showing just how much CAAFlog follows every one’s comments on the site, he noticed that one of the commentors recently cited a change in the JAGMAN that potentially solved the representation issue, here. “Interested” said…
I believe the new JAGMAN (Section 0131) cures the concerns raised in the article. The section redefines and broadens the scope of permissible attorney-client relationships. It provides a much more workable and realistic standard. Under the new guidance as I interpret it, defense counsels can freely consult and advise clients pre–NJP without IMC or detailing implications.
While the commenter held out hope that the Navy cured the obvious conflict between Dept. policy and almost every state bar’s rule on confidentiality and attorney client relationship formation, see e.g. Calif. Bar Interim Op. No. 95-0015 (telephone legal advice “service’s advisory message stating that there is no attorney-client relationship is not by itself sufficient to avoid the formation of the relationship”), alas, the cure does not appear to withstand scrutiny. The following provisions so limit the applicability of the rule in JAGMAN 0131, that NJP counseling seemingly does not even fall within the ambit of the rule on attorney-client relationships:
0131b(2)(1) “Proceeding”. As used in this section, “proceeding” means a trial – level proceeding by general or special court-martial or an investigation under Article 32, UCMJ.
0131b(3) “Attorney-client relationship”. For purposes of this section, an attorney-client relationship exists between the accused and requested counsel when counsel and the accused have had a privileged conversation relating to a charge pending before the proceeding, and counsel has engaged in active pretrial preparation and strategy with regard to that charge. A counsel will be deemed to have engaged in active pretrial preparation and strategy if that counsel has taken action on the case which materially limits the range of options available to the accused at the proceeding.
0131b(3)(b) Actions that, in and of themselves, will not be deemed to constitute active pretrial preparation and strategy” include, but are not limited to: discussing the legal and factual issues in the case with the accused; discussing the legal and factual issues in the case with another person under the protection of the attorney-client privilege, such as another defense counsel; performing legal research dealing with the subject matter of the case; representing the accused in the review of pretrial confinement under R.C.M. 305, MCM; representing the accused in appellate review proceedings under Article 70, UCMJ; or providing counseling to the accused concerning Article 15, UCMJ. These actions should be appraised under a totality of the circumstances test to determine if they constitute “active pretrial preparation and strategy.”
(emphasis added). I don’t profess to be well read on JAGMAN 0131 or clairvoyant regarding the JAG’s intent in amending section 0131. But, in a Chevron world, that’s girlie-man agency discretion not military deference, JO’C, I’d say the portions I read are fairly clear that the JAG did NOT intend to alter the previous policy of no A-C relationship being created at pre-mast counseling. Thoughts?