This post is not about an abstract topic, but rather a link to an actual story of a Navy LCDR that was involuntarily reassigned from his job as a defense counsel in a military commission case. See NY Times article here. While we don’t usually cover commissions, the involuntary termination of a defense counsel that had formed an attorney client relationship, without consulting the client, raises enough MilJus issues that the action merits coverage. According to the NYT,

[LCDR] William C. Kuebler, who was appointed by the Pentagon to represent Omar Khadr, was reassigned on Friday after an internal inquiry into his conduct, said Michael Berrigan, the deputy chief defense counsel at the Navy base in Guantanamo.

According to other reports,

[Commissions’ Chief Defense Counsel Col. Peter Masciola,] ordered Kuebler’s removal Friday in order to pursue “client-centred representation,” according to a statement from his office. . . . “The team representing Omar Khadr had become dysfunctional,” Masciola said. He said he could not elaborate because of privacy concerns and attorney-client privilege. A source who asked not to be named said yesterday Masciola had concluded that Kuebler was “a divisive figure on the military team and failed to act in best interests of Khadr.”

See Edmonton Sun report here. According to the story, “Kuebler insisted his reassignment was sparked by his criticism that [Col.] Masciola was too cosy with prosecutors.” If anyone has any more information on the events or the rationale for the firing, please let us know in comments or via email.

BTW: (1) h/t to Anon for the story; and (2) for those military DCs out there that previously felt squeamish about going to the press about your case (though some deny there are any of you, see our discussion here), what say you about this move? Is this the exception that proves the rule that you can go to the press about your case or the case study that makes TDC reluctant to go to the press?

21 Responses to “Involuntary Reassignment of Defense Counsel”

  1. Socrates says:

    The LCDR is a good person. Moreover, despite being one of the last “true-believers” in the Bush policies, and even although he is a strong Christian believer, two stereotypically conservative attributes, the LCDR was a strong critic of military tribunals in general and an ardent defender of his client in particular.

    I believe the LCDR testified before the Canadian parliament on this case, for example, and I read his boss’s statement urging “client-centered” representation as a strike against the LCDR trying the case in the press and public and forums like that. Some military practioners think “inside the box” and just want the fight in the courtroom. Maybe the boss thinks that way. Although few defense attorneys would be so reductionist.

    This is a strong move by the defense boss. I’m sure he must have recognized it as such and therefore must have had his reasons. But the client’s lack of consent trumps his brilliance as a lawyer and military officer. You can’t make “client-centered” decisions like this and not get consent from the client. That’s called a contradiction.

    But it also could be a brilliant defense maneuver to preserve a gold-plated appellate issue.

  2. Gene Fidell says:

    Re going to the media see Judge Wilkinson’s concurrence in Andrew v. Clark (4th Cir. Apr. 2, 2009),
    http://pacer.ca4.uscourts.gov/opinion.pdf/071184.P.pdf.

  3. Anonymous says:

    Based just on this report, I’m not sure that this is really an issue of whether military DC can go to the press.

    It seems to me that the DC’s supervisory attorney has simply made a determination (right or wrong) that the DC is not acting in the best interests of the client. Having made that determination, I think he has the legal and ethical responsibility to take appropriate action.

    There have been a number of occasions where I’ve had to remind myself or counsel I supervised, that we represent clients, and not causes.

    That doesn’t mean, though, that we can’t use those who are advocating on behalf of a cause to advance the interests of our own clients.

    I’d think this would be especially important in the context of military commissions, since the motive and objectives behind them is primarily political.

  4. Gene Fidell says:

    If counsel is doing something unethical, then the answer is not for a supervisor to remove him/her, but to set the wheels in motion for bar discipline/decertification, in either of which the attorney at least has some procedural rights.

  5. Gene Fidell says:

    Upon re-reading my last post it occurs to me that I should make it clear that I have no basis for believing that any unethical conduct occurred here. I said “if” and want to stress that that’s what I meant.

  6. Mike "No Man" Navarre says:

    Anon 4:48 pm:

    I agree with your sentiment that if a TDC “supervisory attorney has . . . made a determination . . . that the DC is not acting in the best interests of the client . . . [he ahs] legal and ethical responsibility to take appropriate action.”

    I think we diverge on what is appropriate action. Bottom line is that appropriate action must consider what the client thinks is appropriate. Since, according to one of the other defense lawyers, the client was never contacted, this can;t be the right action. What if the client authorized and demanded every action that the superviosry attorney found to be inappropriate? And how does the supervisory JA know such things, did he ask one of the other TDC? If so, why isn’t that TDC consulting with the client? I think the move puts the defense team in a very awkward and ethiclally challenging position.

  7. Dwight Sullivan says:

    Do we agree that it would be poor form to make an anonymous suggestion of unethical conduct where we are unaware of the details?

  8. Mike "No Man" Navarre says:

    To be clear, ditto what Gene said. I have no basis for believing that any inapproriate much less unethical conduct occurred here. I said “if” and want to stress that that’s what I meant.

  9. Craig Manson says:

    I know Pete Masciola from my Air National Guard service (he’s a Massachusetts–formerly Maryland–ANG officer on active duty to head the Commission defense function) and two years ago I had Bill Kuebler in my classroom at Pacific McGeorge School of Law in Sacramento. I have favorable impressions of both of them. I don’t know what happened here between these two excellent lawyers, but I would caution jumping to conclusions too hastily or based just on what the press says.

  10. Anonymous says:

    FACT: COL Masciola fired an accused’s attorney without the accused’s consent.

    FACT: The MJ basically said “COL Masciola, you exceeded your authority — now go sit in the corner and stay out of this.”

    I don’t know all the facts but I find it extremely disturbing what transpired here without the accused having any say in the matter.

  11. Anonymous says:

    FACT: The MJ basically said “COL Masciola, you exceeded your authority — now go sit in the corner and stay out of this.”

    That is not a fact.

  12. Anonymous says:

    It is indeed a FACT. The MJ ruled only he had the authority to make this call.

  13. Anonymous says:

    Ok, I’ve thought about it a bit, perhaps it is more of a proffer than a fact.

  14. Anonymous says:

    Did you read the ruling? Or did you read the press version of the ruing which was given to the press by LCDR Kuebler?

  15. Anonymous says:

    As the world turns stuff for the Navy JAGC. You couldn’t make this crap up. I feel like I am on drudge.

  16. Anonymous says:

    An Army Col tells and AF Col he does not have the authority to terminate an A/C relationship between a Navy LCDR and a detainee. Hardly sounds like drama within the Navy JAGC.

  17. Phil Cave says:

    Well,
    Knowing all three — Masciola, Kuebler, and Parrish, this whole thread shows the dangers of litigating by media, where the litigators haven’t read the documents or have first hand in-the-room knowledge.
    This reads like an CID/NCIS/OSI ROI.
    It would be good to have some facts rather than opinion based on hearsay and gossip.
    There is a reason for the evidence rules on hearsay, double and triple.

  18. Anonymous says:

    Phil — since you know all three of the main players in this fiasco who is the most likely to make a bad call? MJ making a ruling based on the law? Chief of TDS who fires a detailed counsel on a case without an accused’s consent? Assigned counsel who apparently had no complaints from his client?

    Please share your insights.

  19. Phil Cave says:

    I don’t know.
    I know all three.
    I respect all three based on my interactions with them and what I know about them.
    I will have recourse to my comment that I don’t think we know enough about the facts to make a professional or informed judgment on the issue. Colonel Parrish will apparently make a judicial decision in the near future. And even then we may not know enough, but we’ll be in a better position to pontificate, but we will.

  20. Phil Cave says:

    . . . and we will. Duh.