In this post in May, I noted that the Judge Advocate General of the Navy was soliciting public comments to proposed changes to the Rules of Professional Conduct for attorneys.
The notice was posted on May 1, 2013, and comments were due by July 1, 2013. As of today, the docket entry on regulations.gov shows a total of one comment submitted, which I assume is the one that I submitted, through that site, on July 1 (prior to my submission, the comment count was zero).
My 4-page comment, which you can read in its entirety here, made three proposals:
First, while the Rules already apply the American Bar Association’s Code of Judicial Conduct to all military and appellate judges and to any other covered attorney performing judicial functions under the supervision of the Judge Advocate General, I believe that additional rulemaking is needed:
The unique potential for the improper influence of rank in the military justice system in the Department of the Navy compels additional rulemaking in order to ensure that the conduct of covered attorneys performing judicial functions conforms to the principles outlined in the Code of Judicial Conduct.
Second, I don’t think the Rules adequately define the unique role and responsibilities of a trial counsel:
The proposed language perpetuates a misconception regarding the relationship between a trial counsel and a convening authority. A trial counsel represents the United States in a court-martial; a trial counsel does not represent a convening authority, and a trial counsel does not have a duty of loyalty to, or an attorney-client relationship with, a convening authority.
Third, I believe that the process for investigating and resolving complaints of professional misconduct requires additional procedural protections:
The proposed language retains the existing provisions that do not require that the attorney appointed to conduct a preliminary inquiry or an ethics investigation be neutral and disinterested, and that allow a Rules Counsel and the Judge Advocate General to summarily make adverse determinations that are contrary to the findings and recommendations of both the attorney appointed to conduct the preliminary inquiry and the attorney assigned to conduct the ethics investigation. It is respectfully suggested that these provisions should be revised to provide additional procedural protections for a covered attorney accused of professional misconduct.