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.

6 Responses to “My public comment to the Navy JAG’s notice of changes to the Rules of Professional Conduct”

  1. Charlie Dunlap says:

    Zach has made some very thoughtful inputs that deserve serious consideration.  In fact, it is perhaps the right time for all the services to convene a working group to examine the ethical standards across the services, especially in light of the many recent developments in the military justice world.  Participation of civilian practitioners and other interested parties may also be appropriate.

  2. Just Sayin' says:

    but if they gave attorneys additional due process, how could OJAG use the PR complaint process as an oppressive tool to badger people they don’t like with no neutral oversight?

  3. ed says:

    one remedy is to file grievances with state bar grievance committees as well as the grievance committees of United States District Court Bars. I would not suggest doing this lightly but it could used when there are intentional violations of rules that the particular military branch treats as a banality.

  4. Don Rehkopf says:

    Great points Zach, but I think that there’s a more fundamental issue that Congress needs to clarify first as perhaps my long-time friend, Maj Gen Dunlap, USAF (ret), suggests, is this.  To what extent do the various TJAG’s even haverule-making authority?  Certainly they can promulgate aspirational standards and goals, but it is far from clear that they have the legal authority to promulgate mandatory rules governing judge advocates in their Branch, who ethicallyare bound by the rules and regulations of their respective licensing bodies.
     
    This isn’t a novel issue – in 1989, the then US AG Richard Thornburgh promulgated a DoJ “Rule” exemptingDoJ lawyers from certain ethical constraints imposed by all State Bars. Specifically the “lightening rod” rule was the one exempting DoJ lawyers from the ethical prohibitions on ex parte communications with suspects, targets or defendants who at the time,were represented by counsel.  One AUSA found himself at the receiving end of his State Bar’s grievance committee. The DoJ “removed” the proceeding to federal court where the Judge was less than amused.  In the Matter of Doe,801 F.Supp. 478 (D.NM, 1992).  The Court found that the DoJ regulation and misconduct unprotected by the Supremacy Clause as being a matter for the State licensing body to control.  See also, U.S. v. Lopez,4 F.3d 1455 (CA9 1993).
     
    I posit my question rhetorically because none of the statutes creating the positions of TJAG [10 U.S.C. 3037 (Army); 5148 (Navy); and 8037 (Air Force)] expressly grant the TJAG’s “rule making” authority.  See, e.g.,
    https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf

     

  5. Charlie Dunlap says:

    I am Very glad to see my friend Don Rehkopf weigh in on this critical subject!  We know that DoJ attorneys are now governed by the McDade Amendment, but I also think that military lawyers are subject to TJAG direction in that, for example for the Air Force, 10 USC 3087(c)(2) empowers TJAG to “direct the officers of the Air Force designated as judge advocates in the performance of their duties.”  I think similar provisions empower the other TJAGs….
    However, I am ready to be educated if I have this wrong! 

  6. Don Rehkopf says:

    Charlie – you are not “wrong,” but I think the issue isn’t that simple having represented JAG’s with “ethical” issues over the years.  TJAGs certainly control who gets designated as a judge advocate and who gets certified for courts-martial purposes and thus, can (with a modicum of due process) revoke such status.  The issue is more basic when it comes to the context of promulgating mandatory or binding ethicalregulations governing the conduct of attorneys.  But, law licenses are granted by the States and Territories, not the respective services’ TJAGs, and while the McDade  Amendment only applied to the DoJ, the underlying rationale can certainly be argued to apply to TJAGs who impose ethical rules that may be inconsistent with State Bar ethical rules.  One consistently problematic area has been the so-called “rat out” provisions, i.e.,  where ethical rules require a Defense Counsel to, in essence, “inform” on his/her client – perhaps the most problematic area is the so-called “future crimes” disclosure requirements where there is no uniform State rule and in numerous cases State rules conflict with the TJAG “rule.”
     
    Unless and until Congress grants the TJAGs express authority to promulgate “Rules of Professional Conduct,” any such rules can only be aspirational and violations “punished” only by withdrawal of certification or judge advocate status.  E.g.,  look at 5 USC 500(b):
    An individual who is a member in good standing of the bar of the highest court of a State may represent a person before an agency on filing with the agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts.
    Congress certainly appears  to be deferring to the States under Tenth Amendment principles the “good standing” of attorneys admitted in a particular State.  But, then look at 5 USC 500(d)(2), which rather clearly states:  “This section does not–
    authorize or limit the discipline, including disbarment, of individuals who appear in a representative capacity before an agency;
    Yes, one can make a bona fide argument that this is limited to those appearing in a “representative capacity,” e.g., courts-martial, admin boards, procurement protests, etc., but it demonstrates, I think, that this is a very murky area.
     
    Look at AFI 51-103, Designation and Certification of Judge Advocates, for example.  It is promulgated not by the AF TJAG, but “By Order of the Secretary of the Air Force.”  If the TJAG had rule-making authority, there would be no need for the SecAF to promulgate this regulation.  And note that para. 4.2 allows TJAG to de-certify and undesignate judge advocates who fail to maintain “professional standards,” or “ethical standards.”  But, then look at AFI 51-201, para. 14.2.1, which states in the context of “conflicts” “when there is a difference between state and Air Force standards, the Air Force provisions will control.”  There simply – under the current legal premises – is no basis for the AF provisions to “trump” State Bar rules.  That is the “Thornburgh” rule in disguise.
     
    Look at the APA, 5 USC 551(4):
    “rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency . . . .
    Or subparagraph (9):
    “licensing” includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license;
     
    Now, as a policy matter, a good argument can no doubt be made that the TJAGs should have the legal authority to promulgate “uniform” ethical rules, similar perhaps to the statutory delegation in Article 66(f), UCMJ, regarding the promulgation of “Joint Rules” for the Courts of Criminal Appeals; or, amend the various TJAG statutes to incorporate expressly the authority to promulgate Rules of Professional Conduct — two easy and quick fixes.  It would probably also eliminate the tension between the Tenth Amendment and the historical pre-constitutional history of the States regulating their respective Bars versus TJAGs regulating the judge advocates in their service.
     
    Just my 2 cents, but email me if you want to continue the dialogue.