Counsel for Earle Partington today filed this post-argument memorandum with the D.C. Circuit arguing that R.C.M. 109’s use of the term “other lawyers” (as in the Judge Advocate General may discipline judge advocates and “other lawyers”) doesn’t include civilian counsel appearing at courts-martial.

The post-argument memorandum contends that subjecting civilian counsel to discpline by a Judge Advocate General exceeds the scope of the President’s delegated authority under Article 36 (which the memorandum misquotes) because that article is limited to the adoption of pretrial, trial, and post-trial procedures “for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals.”  Partington reasons that his disciplinary proceeding isn’t a miltiary tribunal under the UCMJ and that, in any event, he isn’t subject to UCMJ jurisdiction pursuant to Article 2.

That misses the point.  The relevant procedural rule governs who may appear as counsel in a court-martial to represent the accused.  Congress delegated to the President the authority to answer that question.  As a result of the disciplinary proceedings against Mr. Partington, he may not represent the accused in a naval court-martial.  So by authorizing the Judge Advocate General to suspend a lawyer from court-martial practice (or impose other forms of discipline), the President was adopting a procedural rule for cases being tried by courts-martial.  Hence, R.C.M. 109 was adopted pursuant to the President’s delegated power under Article 36.

4 Responses to “Partington files post-argument memorandum”

  1. Cloudesley Shovell says:

    One has a certain amount of sympathy for arguments concerning the scope of the President’s authority here.  It requires an incredibly expansive reading of Art. 36 to conclude that “Pretrial, trial, and post-trial procedures, including modes of proof, for cases arising under this chapter triable in courts-martial” includes the power to enact RCM 109.  Sure, there can be a lot of hand-waving and appeals to inherent authority and all that, but come on.  This is an Article I court system, which is a creature of statute, with no inherent authority whatsoever.   Congress could have spoken clearly about giving military JAGs the authority to discipline civilian attorneys, but Congress did not.  Instead, in Art. 36, Congress used rather restrictive language limited to courtroom rules of procedure and evidence.  Maybe its time for a statutory amendment.  It’s one thing to say it’s a rule of “pretrial, trial, and post-trial procedure” to say who may appear as counsel in a case; it’s quite another to create an entire ethics system, including punishments, that exists entirely separate from the existence of any trial, and yet say it’s authorized as a rule of court procedure. 
    A close reading of the applicable UCMJ Articles and the relevant instructions (for the Navy at least) demonstrates that the JAG has no authority for professional discipline whatsoever over a certain class of persons authorized to act as counsel in courts-martial.  By their terms, both RCM 109 and JAGINST 5803.1D apply only to attorneys.  In special courts-martial at least, trial counsel need not be an attorney at all.  UCMJ Art. 27(c), RCM 502(d)(2).  In fact, the sole qualification to serve as an assistant trial counsel or even as assistant defense counsel in either a general or special court-martial is that said person be a commissioned officer.  JAGINST 5803.1D, para 4.d, expressly states that it does not apply to non-attorneys.  Go figure.  If Art. 36 authorizes the JAG to pursue sanctions against civilian attorneys, certainly it authorizes the JAG to pursue sanctions against actual military officers who are independently subject to the UCMJ. Yet he cannot, even though said officers, when detailed as counsel, must certainly fall under his direct supervision.
    Of course, for the life of me, I cannot understand why Mr Partington failed to participate in the process, regardless of whether he thought the JAG had any authority to act against him.  It is my understanding that the JAG will trip over himself to ensure a full hearing to any person desiring it. 
    Points to ponder anyway.  I do not think this whole thing is nearly so clear cut as some think it is.  Too bad that this case is full of bad facts; I fear bad law will be the result.
    Kind regards,

  2. stewie says:

    Arent the only “sanctions” here that he can no longer appear in before a military court?
    Why wouldn’t a TJAG have that authority?

  3. Dew_Process says:

    Admiral Shovell,
    You I think hit the nail on the head.  Article 36, needs to be interpreted in pari materia with the Navy TJAG Statute, 10 U.S.C. 5148(d), which reads:

    (d) The Judge Advocate General of the Navy, under the direction of the Secretary of the Navy, shall–
    (1) perform duties relating to legal matters arising in the Department of the Navy as may be assigned to him;
    (2) perform the functions and duties and exercise the powers prescribed for the Judge Advocate General in chapter 47 of this title;
    (3) receive, revise, and have recorded the proceedings of boards for the examination of officers of the naval service for promotion and retirement; and
    (4) perform such other duties as may be assigned to him.

    Notably, Congress did not grant any “rule-making” authority, much less disciplinary authority over civilian attorneys.  Cf., 10 USC 944, where Congress granted CAAF rule-making authority.  But, I share your concern that the facts will produce bad law.

  4. SgtDad says:

    A constitutional right to counsel doesn’t mean much if the gov’t can control who the counsel is.