Detailing and attorney-client relationships continued
Here’s a link to the Army Standards of Conduct Office opinion dealing with the ethical implications of a counsel purporting to represent a servicemember he or she has never met. The issue arose in the context of Army TDS counsel being detailed to represent Army Reserve officer who can’t be found in Board of Inquiry proceedings.
Here’s the key takeaway:
Representing absent clients under these circumstances makes it impossible for TDS attorneys to fully comply with the Army Rules, specifically Rules 1.2, 1.3, and 1.4, and, arguably, 1.7, leaving them vulnerable to accusations that they are acting contrary to these Rules (as well as, potentially, Rules from their other licensing authorities).
The opinion explains that in such a scenario,
no relationship commences between the client and the trial defense counsel at any point in the administrative separation process. Ordinarily, such a relationship arises when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either the lawyer manifests to the person consent to do so; or the lawyer fails to manifest lack of consent to do so, and (2) the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or a tribunal with power to do so appoints the lawyer to provide the services. . . . None of these conditions match [this] scenario . . . . [A]n attorney-client relationship has not been formed in these circumstances.
The opinion continues:
The process of representation connotes an active rather than passive role for an attorney acting on behalf of a client. Common definitions of representation include the act of being another’s agent and acting as an attorney for a client. Agency, in turn, concerns a voluntary arrangement in which an agent, a lawyer, agrees to work for the benefit of a principal, a client. The client-lawyer relationship normally comes into existence only if the client consents. . . . Taking into account that these normal prerequisites have not been met, we opine that adequate “representation” between attorney and client cannot occur when there has been no attorney-client relationship, no client consent for lawyer representation, and, in fact, no communication at all between client and attorney.
SOCO’s position is consistent with military appellate case law. As COMA has stated, “[A]n attorney-client relationship is not created by the mere designation of a representative for the accused by a court-martial authority. There must be an acceptance by the accused.” United States v. Brady, 8 C.M.A. 456, 460, 24 C.M.R. 266, 270 (1957). Or as CAAF observed 39 years later, where a counsel “did not enter formally into an attorney-client relationship[,] . . . in a legal and ethical sense [he] did not become appellant’s counsel.” United States v. Miller, 45 M.J. 149, 151 (C.A.A.F. 1996).
None of the directives or comments on this issue seem to preclude a military defense attorney “introducing” himself to the client-to-be. In fact, the SOCO opinion and case law seem to encourage this “introduction.” So I’m still not seeing any problem with a pro-active defense shop going forth and preparing to defend.