Is a Judge Advocate General authorized to suspend civilian counsel from practicing in his service’s courts-martial?
There’s an interesting discussion in the comments to this post about whether a Judge Advocate General is authorized to suspend a civilian counsel from practicing in his service’s courts-martial. My answer to that question (which, I predict, will be the answer to that question in the Partington v. Houck case) is yes.
DOJ’s position, with which I agree, is that the Judge Advocate General of the Navy is empowered to discipline a civilian counsel practicing in naval courts by R.C.M. 109, which was adopted by the President pursuant to his statutory authority to make procedural rules for courts-martial. See Art. 36, UCMJ, 10 U.S.C. § 836. (That argument is set out at pages 11-14 of the defendants’ dispositive motion in Partington, which is available here.)
R.C.M. 109(a) provides, in relevant part:
Each Judge Advocate General is responsible for the professional supervision and discipline or military trial and appellate military judges, judge advocates, and other lawyers who practice in proceedings governed by the code and this Manual. To discharge this responsibility each Judge Advocate General may prescribe rules of professional conduct not inconsistent with this rule or this Manual. To discharge this responsibility each Judge Advocate General may prescribe rules of professional conduct not inconsistent with this rule or this Manual. Rules of professional conduct promulgated pursuant to this rule may include sanctions for violations of such rules. Sanctions may include but are not limited to indefinite suspension from practice in courts-martial and in the Courts of Criminal Appeals.
The plain meaning of R.C.M. 109(a)’s reference to “other lawyers who practice in proceedings governed by the code and this Manual” includes civilian counsel practicing in courts-martial. And the sanction that Vice Admiral Houck imposed on Mr. Partington is expressly authorized by R.C.M. 109. Thus, the only way to avoid the conclusion that a Judge Advocate General is authorized to discipline a civilian counsel would be to convince a court that the President had no authority to prescribe R.C.M. 109. But any such argument is doomed.
Let’s look at Mr. Partington’s counsel’s argument that R.C.M. 109 exceeded the President’s rule-making authority (an argument that is far from a model of clarity). (The full argument is set out on pages 12-13 of this filing.)
The President’s rule-making authority, as set forth in the M.C.M., can only relate to areas of procedure. To the extent that the language of the M.C.M. effects a substantive change to the law it is without effect. . . . The 1994 Amendment to the M.C.M. appeared to extend the NJAG’s disciplinary authority over civilian attorneys. Yet, there is nothing in the UCMJ that reflects a congressional intent that the NJAG has, or should be given, the power to discipline civilian attorneys. Indeed, Article 27 of the UCMJ, which the NJAG cited as his authority to suspend Partington, applies only to military attorneys . . . . Thus, an interpretation of R.C.M. 109 that grants the NJAG the power to suspend civilian attorneys goes beyond any Congressional intent revealed by the UCMJ and amounts to a substantive change in the law. As a result, it is without effect and must be ignored.
The assertion that the 1994 MCM amendments extended discipline power over civilian counsel is wrong on two counts. First, as oriiginally adopted in 1984, R.C.M. 109(a) authorized Judge Advocates General to discipline “other lawyers who practice in proceedings governed by the code and this Manual.” And as DOJ pointed out on page 6 of this reply brief, the 1951 MCM and all subsequent MCMs have authorized the Judge Advocates General to discipline civilian counsel. Second, the most recent change to R.C.M. 109 was included in the 1993 MCM amendments, not the 1994 MCM amendments. See Exec. Ord. No. 12,888 (1993).
But the important question is whether the President was authorized to adopt R.C.M. 109. Mr. Partington’s counsel argue that he wasn’t because Congress didn’t authorize a Judge Advocate General to discipline civilian counsel. But Congress intentionally gave the President the power to address through Article 36 matters that Congress itself didn’t address. That’s the whole point of Article 36’s delegation. So R.C.M. 109 is unauthorized only if it is a matter of substantive law rather than a procedural rule. Which is it?
R.C.M. 109 governs who may practice in courts-martial. That is a procedural rule rather than a matter of substantive law. So a President may properly authorize a Judge Advocate General to prescribe rules governing when a counsel – -including a civilian counsel — won’t be allowed to represent an accused at a court-martial.
It seems unlikely that a court would hold that for the last 60 years, Presidents have exceeded their authority by purporting to authorize the Judge Advocates General to suspend civilian counsel from representing accused in their services’ courts-martial. Nor should a court reach such a conclusion.
I take no position regarding whether the particular procedures that led to Mr. Partington’s suspension are vulnerable to attack — I haven’t studied that issue in sufficient depth to have an opinion. But as to the Judge Advocate General’s authority to suspend a civilian counsel from practicing in his service’s courts, I conclude such authority is granted by R.C.M. 109, which is a valid exercise of authority granted to the President by Article 36.