Having grown up Navy I tend to initially revert to Navy thinking, and then because of my preference for Army training I look to the Army next. So, as a result of the arguments over the recent dismissal of a case, I thought I’d take another and closer look at the Air Force rules of professional responsibility. I have also invited Dew_Process, and he’s agreed, to participate with me in this post.
We think the Air Force has sought to exempt itself from a broader enforcement of constitutional based and other discovery obligations, certainly as a matter of professional regulation. Bear with us.
The introduction to the Air Force Rules of Professional Conduct, issued August 2005, note that, “The AFRPC is directly adapted from the American Bar Association (ABA) Model Rules of Professional Conduct, , with important contributions from Army Rules of Professional Conduct for Lawyers and the Navy Instruction: Professional Conduct of Attorneys Practicing Under the Supervision of The Judge Advocate General.” The introduction does give a subtle note that an ABA rule may be “altered,” and shown to be “modified.” (Note: we are referring to the version of the rules linked to at CAAFLog.)
One would think that the ABA’s own comments and formal opinions interpreting its rules would be dispositive of the intended meaning. Here the Air Force notes that the ABA comments are not incorporated, but, “counsel are encouraged to consult them for guidance and assistance in placing the Rules in context. In doing so, counsel must be aware that the AFRPC was specifically adapted to the unique needs and demands of Air Force practice, and not all of the ABA comments will be helpful.”
A rule or rules of civility may be partly found in Rule 3.4(d), which is a shall not: “in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a legally proper discovery request by an opposing party[.] (Insert here my standard reference to RCM 103 definitions regarding what “shall” means.)
More importantly Rule 3.8 lays out the, “Special Responsibilities of a Trial Counsel.” Here is where the ABA and other Service’s Rule and the AF diverge.
make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal[.]
But the AF rule states, “at sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the trial counsel, except when the trial counsel is relieved of this responsibility by a protective order of the tribunal[.]” (Emphasis added) — that’s it. Clearly there has been a deliberate choice made here, without comment or explanation why it is necessary to diverge from the ABA rule or the rule applied in the other Services. Surely a valid military reason to limit Rule 3.8 ought to be disclosed, and perhaps applied by the other Services as well if there were in fact a military necessity a reason.
Thus, in our view the AF has attempted to relieve itself of the Brady burden as a matter of professional ethics and responsibility.
Not so the Coast Guard, in COMDTINST M5800.1, they adopt the ABA language.
Not so the Army, in AR 27-26, they adopt the ABA language. They do however provide that a TC may request a protective order.
Not so the Navy & Marine Corps, in JAGINST 5803.1D, they adopt the ABA language.
I mentioned to D_P that Virginia is undergoing a robust debate of discovery rules in criminal cases. So as a Virginia licensed attorney I thought I might see what our Commonwealth Attorneys are required to do. VA RPC 3.8(d), requires the prosecutor to:
“make timely disclosure to counsel for the defendant, or to the defendant if he has no counsel, of the existence of evidence which the prosecutor knows tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment, except when disclosure is precluded or modified by order of a court[.]
So, I’m going to suggest that there may be a regulatory basis for why AF TC’s seem ethically challenged when dealing with discovery issues, compared to their brethren from the other four Services. I say this with reference to several items that should go on the Worth the Read list.
I have linked to ABA Formal Opinion 09-454, dated 8 July 2009.
I have linked to Bruce A. Green, Prosecutors’ Ethical Duty of Disclosure in Memory of Fred Zacharias, 48 SAN DIEGO L. REV. 57 (2011).
I have uploaded and linked to Donald G. Rehkopf, Jr., “Brady, Ethics, and Prosecutorial Misconduct; A Modern Day Witches Brew,” Syracuse Annual Fall Trainer, N.Y. State Association of Criminal Defense Lawyers (2012).
It appears that, intended or not, the AF has followed the course of a now discredited DoJ policy, which attempted to exempt DoJ attorneys from provisions of State Bar ethics rules. In the case of Matter of Doe, 801 F. Supp. 478, 488 (D. NM 1992), the Court observed: “In holding to ethical standards, an attorney for the Government cannot be a mere minion of the Government.” Plain and simple, federal lawyers in the Executive Branch, be they AF or DoJ, cannot exempt themselves by an internal rule from their professional responsibilities imposed by their State bars.
The Court in Doe also stated:
Recognizing a Government lawyer’s role as a shepherd of justice, we must not forget that the authority of the Government lawyer does not arise from any right of the Government, but from power entrusted to the Government. When a Government lawyer, with enormous resources at his or her disposal, abuses this power and ignores ethical standards, he or she not only undermines the public trust, but inflicts damage beyond calculation to our system of justice. This alone compels the responsible and ethical exercise of this power.
id., at 480. The District Judge in Doe then held:
Today, in the context of a disciplinary proceeding, the Government threatens the integrity of our tripartite structure by arguing its lawyers, in the course of enforcing the laws regulating public conduct, may disregard the laws regulating their own conduct. The irony of such an assertion not only fuels public discontent with our system of justice, but the insolence with which the Government promotes this as official policy irresponsibly compromises the very trust which empowers it to act. It falls to this Court to disabuse the Government of its novel self-conceived notion that Government lawyers, unlike any other lawyer, may act unethically.
Id. Accord, United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993). See also, Beyond Brady: Using Model Rule 3.8(d) for Discovery of Exculpatory Information, Nat. Seminar for Federal Defenders, June, 2010.
Most writers on the topic of Rule 3.8 agree that the rule imposes a broader obligation on prosecutors, than might be found in Brady and its progeny. According to the National Association of Criminal Defense Lawyers, “In Formal Opinion 09-454, which took effect Jan. 1, 2010, the ABA settled the point, which for years had created some confusion and uncertainty among courts, state Bar Associations, and even prosecutors.”
We have not surveyed every state rules that adopts or is similar to ABA Rule 3.8, and as adopted by the Army, Navy, Marine Corps, and Coast Guard. But there does some to be enough support for the statement that many states have adopted the ABA rule in its entirety or closely enough. As and additional part of this process a number of states are now adopting the ABA proposed ethical obligations to disclose post-trial in Rule 3.8(g). See e.g., Supreme Court of Wisconsin, June 17, 2009.
We close with reference to the Memorandum, Guidance for Prosecutors Regarding Criminal Discovery, issued 4 January 2010. No, actually we close with a recommendation of our own.
MEMORANDUM FOR: Chair, DOD Military Justice Review Group
SUBJECT: The Congress should adopt a military uniform code of professional responsibility for all lawyers practicing in courts-martials, and their assistants. This Code to be administered and regulated by the Court of Appeals for the Armed Forces, in the same or similar manner to how the Supreme Court of the Commonwealth of Virginia administers its professional discipline, once a lawyer has been certified and sworn by the Judge Advocate.