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.

7 Responses to “Is a Judge Advocate General authorized to suspend civilian counsel from practicing in his service’s courts-martial?”

  1. BWMacKenzie says:

    Dwight – as always, I believe your analysis is clear, concise and moreover, accurate.  This general authority, which generally, (notice I’ve used general twice in one sentence) allows an agency head to suspend or limit the practice of civilian counsel in that ageny’s proceedings is wide-spread throughout federal practice. (For example, just take a look at the EOIR/DoJ web site) Without commenting on the merits of Mr. P’s case or whether the Navy’s rules provide adequate due process or whether, if passing due process muster, that the TJAG actually followed those rules, I too concluded that the TJAG does have this authority.  I know little to nothing about this case, but certainly believe TJAGs possess this authority.  Thanks for the great post.

  2. Phil Cave says:

    1.  I of course agree with “My Liege” DHS on his legal analysis.

    2.  Perhaps this whole case raises an issue of a need for structural change.  By that I mean placing all attorney (active, Reserve, NG, and civilian) discipline post 27(b) certification under CAAF (with the necessary expanded authority).  That would address several points:  judicial oversight, giving some greater sense of independence and impartiality (I understand one of Mr. P’s issues to be that the commanding officer of the prosecutor in the trial at issue was appointed to investigate Mr. P., which, if true, seems –  well . . . ), some level of transparency, and consistency across the Services.  I don’t see how the TJAG’s could claim a special preserve based on differences in Service culture and rules. 

  3. Zachary Spilman says:

    Perhaps this whole case raises an issue of a need for structural change.  By that I mean placing all attorney (active, Reserve, NG, and civilian) discipline post 27(b) certification under CAAF (with the necessary expanded authority).

    Good idea.

    … judicial oversight … independence … impartiality … transparency … consistency across the Services.

    Doomed from the start.

  4. Just Sayin' says:

    I agree. To me the issue is not whether they have the power, which I think is a “yes”, but whether they are executing that power properly, to which I would say “no”.  Too often the PR complaint process is used as a way to “get back at” certain attorneys, and the Navy routinely refuses to follow its own instructions.  There are notice issues, and flagrant due process issues.
    I think the idea of bringing it all under CAAF to make it more directly analogous to a state disciplinary proceeding with adequate judicial oversight is the way to go, especially when you factor in the reciprocal discipline issue.

  5. Charlie Gittins says:

    Authority? Yes.  Appropriate due process and compliance with the governing regulation . . .  absolutely not.  The military PR process is a joke.  It is totally political and biased.  I have caught prosecutors lying on the record; promising hip pocket immunity, and failing to disclose Brady material, with the MJ making rulings to that effect on the record.  The TJAGs have no interest in enforcing the rules against the G, or they appoint a sycophant to come to the G preferred conclusion.  Moreover, apparently they cannot read their own regulation, which makes it all the more infuriating.  When the reg identifies the USMC Rules Counsel and the service cannot even get that right, it is very disturbing.      

  6. Just Sayin' says:

    Agree with Charlie.  I’ve seen senior officers in the JAG Corps try to bring complaints against unpopular junior officers with absolutely zero supporting evidence, and in fact, evidence that completely contradicts their allegations, and the junior is still put through the wringer, while the false accusers are left unscathed.  These same senior officers conduct interrogations without 31b warnings and have a habit of taking things out of context, hiding exculpatory evidence, or misquoting when it serves their agenda.  It’s a really nasty corps we’ve bred.

  7. just me says:

    Unfortunately in this area  the military does mirror the civilian world where grievances carry immunity for the complainant and usually  if not always absolute not qualified.