The Supreme Court has quoted the adage that “a lawyer who represents himself has a fool for a client.”  Kay v. Ehrler, 499 U.S. 432, 437 (1991).  But Earle Partington’s pro se appearance before the D.C. Circuit this morning disproved that adage.  His case was a loser no matter who argued it.  It would have been foolish for him to pay another lawyer to tilt at the windmill rather than playing the role of Don Quixote himself for free.

Mr. Partington’s case arises from his indefinite suspension from practice before naval courts and boards – a disciplinary measure meted out by Vice Admiral Houck arising from a brief that Mr. Partington filed at NMCCA in a case in which he had also been the trial defense counsel.  NMCCA determined that the brief included “clear misrepresentations of the record.”  As a result of his indefinite suspension from naval courts, he was later suspended from practice in Hawai’i for 30 days and by CAAF for a year.  In the matter of Earle A. Partington, 69 M.J. 408 (C.A.A.F. 2010).  Mr. Partington brought suit in the United States District Court for the District of Columbia challenging his suspension by the Judge Advocate General of the Navy, as well as by CAAF.  The district court granted judgment for the defendants, Partington v. Houck, 840 F. Supp. 2d 236 (D.D.C. 2012), leading to today’s oral argument in the D.C. Circuit.

The argument would feature ruminations on CAAF’s historic nicknames, a fashion faux pas, and an assault on uniformed military defense counsel followed by a judicial endorsement of their zealousness.  The argument didn’t feature any reason to doubt the case’s outcome:  a loss for Mr. Partington.

Mr. Partington began by asking for leave to appear on his own behalf because his counsel was involved in a political corruption trial in Massachusetts.  Chief Judge Sentelle observed that Mr. Partington’s brief was also signed by a Virginia attorney (Charlie Gittins).  Mr. Partington replied that the Virginia attorney was also out of town and that it had never been contemplated that he would argue the case.

Mr. Partington, sporting a garish U.S. flag tie, then launched into his argument.  He assured that judges that the case presents important issues.  Hovering over the case, he told the court, is the 6th Amendment right to counsel.  Chief Judge Sentelle interrupted, stating that 6th Amendment rights aren’t before the court.  The 6th Amendment right belongs to the client, he observed.  This case is about the attorney.

Mr. Partington then stated that the issue is whether the Judge Advocate General of the Navy has a statutory right to discipline a civilian attorney.  Chief Judge Sentelle asked whether when Mr. Partington was licensed or authorized to appear in military courts, he became subject to their rules.  Mr. Partington replied that there’s no licensing for civilian counsel to appear in military courts.

Judge Tatel asked skeptically whether Mr. Partington was asserting that there was no authority for R.C.M. 109.  Mr. Partington offered his argument that R.C.M. 109 doesn’t allow a Judge Advocate General to discipline civilian attorneys appearing in courts-martial.  Judge Tatel replied that he doesn’t understand that argument, pointing to R.C.M. 109’s language that each Judge Advocate General is responsible for the professional supervision and discipline of judge  advocates “and other lawyers” who practice in proceedings governed by the UCMJ and MCM.  Chief Judge Sentelle told Mr. Partington that “and other lawyers” “perfectly describes you.”  Mr. Partington countered that the phrase described servicemembers who were lawyers but not judge advocates.

Mr. Partington then argued that allowing R.C.M. 109 to reach civilian counsel would exceed the scope of the President’s rulemaking authority pursuant to Article 36.  He argued that Article 36 is limited to proceedings under the UCMJ and people subject to the UCMJ.  A disciplinary proceeding involving a civilian counsel, he argued, doesn’t meet either of those purported limitations.  He also argued that Article 36’s legislative history doesn’t suggest that Congress contemplated giving the Judge Advocates General any such authority.

Judge Kavanaugh asked why R.C.M. 109 shouldn’t be interpreted to mean that anyone who practices in a court-martial is subject to discipline.  Mr. Partington replied, “They are.”  The question is by whom.  That should have been followed by an argument that civilian counsel are subject to discipline by their state bars.  Instead, he appeared to invite the D.C. Circuit to rewrite the UCMJ and the Manual for Courts-Martial by suggesting that CAAF should be the disciplinary authority for civilian counsel who practice in courts-martial.  (No one noted the apparent tension between this argument and the portion of Mr. Partington’s own case challenging CAAF for disciplining him.)  Chief Judge Sentelle – who has sat with CAAF at least four times by designation of the Chief Justice – observed that CAAF has very narrow jurisdiction.  He also noted that CAAF used to be known as “COMA” and mused that CAAF had deliberately gotten rid of that acronym.

Mr. Partington then argued that had R.C.M. 109 been intended to authorize discipline of civilian attorneys, the rule would have made that clear.  Chief Judge Sentelle rejoined that “and other lawyers” seems pretty clear.

Chief Judge Sentelle then suggested that Mr. Partington move on to his due process challenge.  Mr. Partington said the government had conceded that he was entitled to raise a challenge under the Administrative Procedures Act (APA).  Judge Kavanaugh then asked a question to clarify that the Judge Advocate General of the Navy’s action affected only Mr. Partington’s ability to practice in military courts.  Mr. Partington replied that the Navy JAG had notified his licensing authorities of his suspension from practice in naval courts and that three of his licensing authorities then disciplined him.

Mr. Partington then argued that civilian counsel are vital to the UCMJ and its protection against unlawful command influence because, he opined, it’s very common for military defense counsel not to raise issues out of fear for their careers.  Judge Tatel pushed back, saying that the D.C. Circuit had seen no signs of such a phenomenon in the Guantanamo cases.  Mr. Partington responded with what seemed like an “inside baseball” allusion to LtCol Dan Mori (whose name has been showing up in a lot of our posts lately), saying he had to sue to get fair consideration for promotion.

Mr. Partington then returned to the due process challenge, saying that in any disciplinary proceeding, an attorney is entitled to due process.  Apparently signaling some dissatisfaction with the district court’s reasoning but not its outcome, Chief Judge Sentelle observed that the D.C. Circuit could affirm its holding on a different basis.  The critical question, he suggested, is not whether the Navy could suspend an attorney from practice without due process protections but whether Mr. Partington received due process.  (The district court had ruled that Mr. Partington had no property interest in the practice of law before naval courts and thus had no due process claim arising from his suspension.  Partington, 840 F. Supp. 2d at 241-42.  Chief Judge Sentelle appeared to implicitly reject that analysis.)  Mr. Partington, appearing to fear that the D.C. Circuit’s answer to that question would be “yes,” argued that whether he received due process should be determined by the district court.

Mr. Partington then launched into a defense of the truth of his statements in his NMCCA brief that led to his suspension.  He argued that his suspension showed “bad faith” by the military.  He returned to his theme that his suspension was an attack on “civilian counsel.”  He didn’t explain how he came to be chosen as the sacrificial lamb or why scores of other civilian counsel are permitted to practice in courts-martial without being disciplined.

AUSA Marina Utgoff Braswell then took the podium and in five minutes of uninterrupted argument methodically destroyed Mr. Partington’s position.  She reduced the case to three issues:  (1) was the Judge Advocate General of the Navy statutorily authorized to discipline civilian attorneys; (2) whether Mr. Partington received due process; and (3) whether the decision to suspend him comported with the Administrative Procedures Act.  She argued that there is no indication that R.C.M. 109’s “other lawyers” language doesn’t include civilian counsel; she also advanced the commonsense policy argument that the Navy JAG must be authorized to discipline counsel who commit misconduct in naval proceedings.  She then turned to her second argument, laying out a litany of opportunities that Mr. Partington had to participate in the disciplinary process in the Navy, all of which he had declined.  This portion of Ms. Braswell’s argument was particularly effective.  She didn’t argue that Mr. Partington wasn’t entitled to due process but rather demonstrated that he had ample opportunity to challenge the professional responsibility allegations against him but failed to do so.  So much for a deprivation of due process.  Finally, she argued that Vice Admiral Houck hadn’t rubber stamped the results of the disciplinary process but had found that Mr. Partington had made material misrepresentations to NMCCA and that decision was unassailable under the APA.  Ms. Braswell then sat down without having been asked a single question, the appellant’s case blown to bits in her wake.

Then, in his three minutes of rebuttal, Mr. Partington became emotional.  If his case ever had a chance – it didn’t – this is when his client would have been most foolish in his choice of counsel.  He attempted to defend his honor and justify what he had said in his brief to NMCCA.  He embarrassed himself by telling the court that it hadn’t yet ruled on his guano crazy motion to compel answers to a portion of his complaint.  In fact, the D.C. Circuit had denied that motion on 3 December, which we noted the day it happened.  When Chief Judge Sentelle confirmed that the denial order had been released to the parties, Mr. Partington replied, “I’ve never received it.”  Chief Judge Sentelle replied that maybe that’s because he has an attorney and the notice went to him.  Chief Judge Sentelle showed his exasperation over the motion, observing that not only had the D.C. Circuit never granted such a motion, he can’t recall the court ever having received such a motion.  Mr. Partington plaintively asserted that the motion was filed because the “government is not telling the truth.”  He argued that his NMCCA brief was true.  He complained that the government never identified what true fact he misrepresented.  He rationalized that he didn’t participate in the Navy’s disciplinary process because the government was trying to “ambush” him.  Finally, he challenged the government to say that what he said was false.  Of course, it already had.  Chief Judge Sentelle interrupted Mr. Partington’s sputtering to tell him he had already exceeded his allotted time.  And then it was over.

7 Responses to “Partington v. Houck oral argument at D.C. Circuit”

  1. Bill C says:

    The shame of all this is that the Navy TJAG’s decision will be upheld, and it will be used as precedent for future cases. Had Mr. Partington participated in the discipline process, he might have had an argument that it lacked due process as it was not court-supervised (might have.)  But he punted the issue, and it can now be used as a hammer in other cases. 

  2. Stu Couch says:

    I agree with you Bill that bad facts often make bad law.  But having observed the NMCCA oral argument in which Mr. Partington started this mess (I sat in the cheap seats — aghast like everyone else), this guy has earned every hard lick he has suffered in the process. 

  3. Phil Cave says:

    As a civilian counsel in Navy and Marine Corps courts-martial I’ve always had to file a notice of appearance.  We certify being bound by the Navy rules of professional responsibility.  The other Services don’t ask that because they assume, as we all should, that the Service RPR apply.  Keep in mind the RPR are fairly similar to the Model Rules, which are themselves generally followed in the states.  So I always thought that argument was both a non-starter and specious.  To hold otherwise does make for two rules, one for military counsel and one for civilian counsel.  Unless you want a system where the TJAG rules don’t exist and military counsel are subject to one of 50 potentially different sets of rules.
    Where was the military appellate counsel in all of this?  He/she signed the brief.  That person is also professionally responsible for the alleged ethical lapses.  I agree to a lesser degree, but responsible they are.  Perhaps that “distinction” in the case fueled Mr. Partington’s personal angst.  If the military appellate counsel objected to the arguments then that should have been pointed out at the time, probably that was done.  If making the point didn’t work there were options available to withdraw from participation in the brief.  Standing-by for rants on that point.  It has been my privilege and experience to work with smart military appellate counsel.  I think we civilians have an obligation to listen to their comments, in the same way that they have the obligation to raise concerns, additional points, and give input to us civilian appellate counsel.  Based on everything I have seen and heard so far about this case I expect Mr. Partington failed to take some sound advice.
    I think it was unfortunate for Mr. Partington to make comments about military counsel in the manner they seem to have been made (I trust Dwight “My Liege” Sullivan’s reporting).  Mr. Partington was a military counsel once.  Forgetting your antecedents is unfortunate.  As a military defense counsel I had the opportunity to work with a few civilian counsel.  In the old days hiring of civilian counsel wasn’t so common as now.  Two were awesome, one was atrocious.  If you served at NLSO Norfolk in the late 1970′s to early 1980′s you know of whom I speak.  I will say I have seen websites of civilian lawyers who seem to make that same point about military defense counsel as a means to advertise   Again unfortunate.  That said I have had any number of military counsel tell me, and apparently the client that a civilian can do or say things they couldn’t because of their status.  That seems to say that civilian counsel have leeway to violate the law, rules of ethics, or sense.  Again unfortunate if that’s the thinking.  As I civilian I see this as a mentoring point.  If it is the right thing for a civilian counsel to do, then it must also be the right thing for the military counsel to do.  True, I only have to answer to my client, not the supervisory attorney or other leadership.  So if the military counsel concern is true, that must mean there is a perception that creative zealous advocacy is not tolerated.  Experience tells me otherwise.  It has also been my privilege and experience to work with many smart, creative, hardworking military defense counsel, a few maybe not. Make a distinction between lack of experience and lack of zeal.  I think this is a similar point made about civilian public defenders.
    I do endorse his one good point. CAAF, a judicial body should be responsible for managing and disciplining counsel.  Check how the states generally do it – initially “administrative” followed by potential judicial review.  So, have the current rules with a right of review/appeal to CAAF, or something.
    Brother Bill, I don’t think we need fear the decision.  I think the due process issues wait for a better case, one in which the issues are properly preserved and not waived by failing to answer the mail, more than once – hopefully there won’t be one.  All this case will ultimately decide is that under the current process TJAG can discipline civilian counsel, and Partington will be distinguishable.  See the above paragraph to get ahead of the next case.

  4. Dew_Process says:

    “And then it was over.”   Beautiful and a perfect ending.
    I agree with everything that brother Phil says with one exception.  I’ve been defending courts-martial as a civilian since 1981, in all services and have always “lined out” any “Notice of Appearance” language that even remotely suggested, much less consented to anything binding me to a particular Services TJAG Rules of Professional Responsibility.  During that period of time, I’ve had exactly 2 military judges question me about that and both, after hearing my explanations / reasons had no problem with my continued representation.
    First of all, the RPR’s are not “uniform” amongst the Services, and in some cases are materially different than those imposed by my State Rules, e.g., the defense attorney-as-snitch rules.  Second, if it involves something before the court-martial itself, “contempt” furnishes a remedy coupled with reporting that misconduct to the State bar.  Finally, there is the tension between the issue of whether or not the UCMJ or TJAG “creation” statutes, gives the various TJAGs “rule-making” authority and the client’s Sixth Amendment right to counsel.  Relying on RCM 109 begs the question – did Congress delegate such authority to the CinC via Article 36, UCMJ, allowing for the re-delegation to the various TJAGs or not?  Clearly there are arguments going both ways and unfortunately, the Partington litigation does not appear to resolve that basic issue.
    That being said however, I see no impediment to CAAF having a “grievance” committee [which of course implies that anyone trying a court-martial must first be admitted to CAAF (a good idea imho)], to uniformly and administratively investigate disciplinary complaints and if “founded,” refer them to the Court for action as appropriate.  But, the fear of losing a billet or two, will probably preclude this from happening unless Congress mandates it.
    Finally, while the so-called “notice” to Mr. Partington was patently and facially defective, ignoring the process is akin to trying to put out a fire by pouring gasoline on it.  Possible in theory; improbable in fact.  I think the unstated agreement to both Dwight’s and Phil’s commentary is that the factthat if you look at the litany of lawyers who represented / advised him, and how it ultimately played out, proves the wisdom of Kay v. Ehrler, supra.
    DISCLAIMER:   I advised Mr. Partington early on in this process after the Navy TJAG took action.

  5. Just Sayin' says:

    oh there are many out there who have the “good facts” needed to make a procedural due process and an arbitrary and capricious challenge against the TJAG.  But alas, they are all blocked by the Feres doctrine and JAG knows it.

  6. Gene Fidell says:

    Feres woud not bar an APA claim to set aside TJAG professional disciplinary actions. 

  7. Just Sayin' says:

    after the damage has been done.  Advice to servicemembers facing TJAG abuse: write your congressmen.  Particularly if they are on the SASC.  And keep records.  Seems to be the only thing that works.  Anything else is trying to close the door after the horse is loose.