The professional responsibility systems for military lawyers – administered separately by each Judge Advocate General – are notoriously opaque. However, this news report related to the ongoing case of Marine Major Mark Thompson (CAAFlog news page), provides a rare glimpse into one inquiry:

The Washington Post revealed that [Navy judge advocate and appellate military judge Commander] Rugh had given false information to a board of officers deciding whether a Marine he’d prosecuted for sexual misconduct should be expelled from the service.

Now his future — and potentially dozens of criminal appeals he’s overseen — is being threatened by the fallout from the flawed investigation into Marine Maj. Mark Thompson, a former instructor at the U.S. Naval Academy convicted of having sex with two female midshipmen.

Last week, Rugh testified at an ethics hearing before a senior officer probing whether he lied under oath in 2014 about two witnesses, his attorney said. Thompson is accused of lying to the same board and faces a second court-martial because of The Post’s revelations about his case.

The claim that CDR Rugh lied arises from the Board of Inquiry convened to determine whether Major Thompson should have been separated from the Marine Corps after he was convicted of indecent conduct and fraternization with junior officers and sentenced to confinement for two months and a fine of $60,000. In a surprise move the Board decided not only to retain Major Thompson on active duty, but also determined that he did not commit any misconduct (despite the fact that the court-martial conviction is treated as conclusive proof of misconduct).

CDR Rugh was the lead prosecutor at Major Thompson’s court-martial, and he testified to the Board (via telephone) about the facts of the case. In particular, CDR Rugh told the Board that his prosecution team talked to family members of one of the junior officers and corroborated the allegation that the officer was at Thompson’s home on a particular night. This was news to Thompson’s defense counsel, and they later raised it as an issue of non-disclosure in an effort to reverse Thompson’s convictions.

In the exposé that kindled the current prosecution of Major Thompson, Washington Post reporter Jonathan Cox spoke to some of the family members that may have been contacted by the prosecution team. They told him that they were never contacted by the prosecution. That revelation led to the claim that CDR Rugh gave false information to the Board.

The Navy’s professional responsibility system is detailed in JAG Instruction 5803.1E (available here). Complaints involving professional misconduct follow a five-step process: (1) Initial screening to determine if the complaint, on its face, establishes probable cause to believe that the rules were violated; (2) Initial review by the Rules Counsel to determine if the complaint is of a minor or technical nature that may be addressed summarily; (3) An ethics investigation if the complaint is not dismissed or resolved summarily; (4) Review of the result of the ethics investigation by the Rules Counsel, and; (5) Final action by the Judge Advocate General.

The news report suggests (update: and this version clearly states) that the complaint against CDR Rugh has reached the ethics investigation stage. However, it provides the following additional details:

Rugh’s attorney, retired Rear Adm. Christian L. Reismeier, wouldn’t comment on what his client said at the ethics hearing. But he denied that Rugh, 44, had intentionally misled the board. In an email, Reismeier called the alleged misstatement an “honest mistake” based on information that Rugh believed to be true at the time.

29 Responses to “A rare glimpse into a military legal ethics inquiry”

  1. Alfonso Decimo says:

    I am confident CDR Rugh will be cleared by this process and he is well known in the Navy-Marine Corps community as one of our best. However, this inquiry does raise the ominous specter that some random event can wound anyone’s military career. I think we all know this to be true, albeit usually vicariously through our clients’ experiences. One such random event may be the changing nature of military justice generally. For those who have specialized in this hyper-specialized are of the law I have a question. Are you ready to transition to the civilian workforce? You may need to emphasize your other (non-military justice) experience and maybe there’s still time to develop some marketable skills. As the good witch of the north says, “you had better be prepared before someone drops a house on you, too!” (or words to that effect).
     

  2. Alfonso Decimo says:

    area

  3. Jason Grover says:

    Alfonso,

    An interesting point. Please allow me to provide a counter-point. From my view, the military-justice focus is a litigation focus, and court-room skills can be highly valued in the civilian legal market. Conversely, other military legal experience, especially traditional SJA work, may be more difficult to translate to a civilian legal employer. I’d love to hear other perspectives. 

  4. stewie says:

    Reputation means something AD, but it doesn’t mean that even a good person or “one of the best” can’t have a bonehead moment. And yes, one bonehead moment can ruin a career. If he is cleared, then it won’t be one random event and his career won’t be ruined. That’s not to say that good folks haven’t sometimes been taken down unfairly, but I’m not about to start hiding my “hyper-specialization” because of the risk that something I do in the future (or I guess in the past theoretically) could possibly be looked at negatively.  That’s a risk we all take no matter what we specialize in.

  5. Alfonso Decimo says:

    You both make fair points, but I did not mean to imply that MJ practice makes anyone more susceptible to risk. All types of military personnel have houses fall on their heads when they least expect it. IMHO, traditional SJA work doesn’t easily translate into highly marketable skills, but more so than court-martial litigation, which does not closely resemble any other type of litigation. There are a few JAG billets that enhance more marketable skills, but the Air Force (for example) has more of these than the Navy-USMC, b/c of our relationships with our respective General Counsel offices. JAGs should do themselves a favor a year or two before transition and seek opportunities to build their resumes.

  6. Dew_Process says:

    I agree with Jason Grover on one point, and disagree on the other.
     
    “Litigation” is litigation and any and all court-room experience is a marketable skill. Many times the simple fact that you are not afraid to litigate something and know how to do it, will prompt a favorable reaction from the opposition.
     
    As to SJA experience, it too can easily be translated into a marketable asset provided one does it properly. E.g., the SJA is responsible for the office budget, personnel issues, supervising younger attorneys, etc.  In many ways, quite comparable to a corporate or in-house counsel in the business world.
     
    Procurement Law, Environmental Law, and Labor Law are all areas where JAGs have opportunities to “specialize,” and where Firms are virtually always hiring.
     
    Lastly, even Claims provides very marketable skills in the context of FTCA litigation (especially in the context of MedMal litigation), as most civilians who were not JAGs, have very little if any, in-depth knowledge of that area of law.  I went to a CLE a couple of years ago pushed as a “Super FTCA Seminar.” The Instructor didn’t know what the Feres doctrine was – I left at that point.
     
    So, Don’t sell yourselves short folks.

  7. stewie says:

    If one does well in a military court-room, I see no reason why they wouldn’t in a civilian one. They ain’t THAT different.

  8. Cheap Seats says:

    Having just made the transition, I will say that my MILJUS experience (and adequately describing it in a resume, e.g. jury trials, probable cause hearings vice members trials, Article 32s) along with the supervisory counsel role is what landed me a job as a litigation supervisory attorney with the government.  Litigation is litigation.  As long as people learn how to translate their military experience into civilian terms, there is a market.  Now, private firms may balk depending on how experienced you are without bringing in a book of business.  But hey, the Government is not a bad gig.  We’re here to help…

  9. former TC says:

    Given the level of professionalism observed in recent high-profile criminal justice documentaries (Making a Murderer, OJ: Made in America, and The Jinx) and what I’ve observed in the military justice system, I’d take a first tour DC or TC over most of those career criminal litigators any day. 

  10. Vulture says:

    I guess this explains the increase in guys showing up with creepy clown masks.

  11. EXMilJus says:

    AD – as a transitioning MILJUS practitioner with 6-10yrs experience, I’m definitely feeling wounded.  Everyone is quick to tell me, “You’ve done 30+ trials?  You’ll be do fine!”  However, I’ve applied to well over 50 AUSA and federal defender offices without a single interview – including border areas that are less desirable. 
    At this point, I’m about ready to give up the AUSA dream to go to a PI firm or hang a shingle to do criminal/military defense on my own.

  12. Joseph Wilkinson says:

    I will say that, when I was job-hunting a few years ago, I saw a lot of private firms doing litigation felt confident in demanding experience in the exact areas of their practice…e.g., if it’s a personal injury firm, they want several years of personal injury experience (preferably in the same state).  I assumed this reflected a large number of applicants, and was the simplest way to thin the herd.

  13. Lone Bear says:

    Or go 20, save well, and retire to the beach or mountains at 50. CDR Rugh doesn’t need the Navy, but he is a talented addition. Hope he is cleared soon.

  14. Dwight Sullivan says:

    [Standard disclaimer:  This comment is offered in my personal capacity and shouldn’t be imputed to anyone or anything else]  Litigation isn’t necessarily litigation.  As I know from my transition many, many moons ago, there’s very little overlap between court-martial practice and civil litigation; on the other hand, there’s tremendous overlap between court-martial practice and criminal litigation in either state or federal court.  Civil litigation involves very little courtroom work.  Rather, it’s a lot of depositions, a lot of written pleadings using rules that were foreign to me when I transitioned after 10 years in the military, and a lot of interaction with lawyers posturing in ways I had never experienced in the military.  Fortunately, I worked with some fabulous lawyers who took me under their wings and showed me the ropes (apparently they didn’t teach me not to mix my metaphors).  But still, it was a difficult (though rewarding) transition — I never learned as much law as I did during my first year in civilian practice.  I felt much more at home in civilian criminal courts — so at home, in fact, that one time I stood in a Maryland criminal court in Talbot County and moved for a finding of not guilty instead of a judgment of acquittal, as it is called in Maryland practice.  (The judge granted the motion nevertheless — though mainly, I think, because he didn’t want to have to endure my case-in-chief.)

  15. Leaf Blower says:

    ExMilJus,
     
    I can only guess you’re interested in AUSA jobs b/c they’re “prestigious.”  Well, you can’t eat prestige.  Hang your own shingle and get to work on learning the PI practice.  Strategically advertise and you’ll be crushing it in no time.  That’s what I did while all my peers scurried for every clerkship, AUSA job, big firm, etc, etc, job out there.  Guess who’s driving a Maserati???

  16. Charlie Gittins says:

    When I decided to leave the military, I had 13 months of litigation under my belt along with 8 acquittals as a FLEP guy.  I was old for the transition, but I was pretty good with MRE/FRE and could talk the talk.  I did alot of research on the firms I applied to and I was successful in obtaining a job at the firm of Williams & Connolly, LLC. They had never before hired an Associate who graduated from Catholic U Law School.) .  I ended up being the only associate bringing work into the firm after I successfully defended  the CO of the Blue Angels, which eventually led me to leave and start my own practice.  Litigation skills, and that does not include sitting as a P during guilty pleas, are Gold.  Sitting and watching guilty pleas is not litigation.  It means nothing to a big litigation firm.  Military guys have no skills WRT transactional work, so being an SJA, DSJA, Legal Assistance guy, etc, means nothing to the hiring committee.  If you want to get hired as a litigator in a big firm, you need to have skillz!
     

  17. A. Hernandez says:

     
    As someone who recently retired, it took me slightly over a year after retirement to get a job (I started applying before retirement). For those of you who know me, we can agree I am not the sharpest pencil in the six pack (I rest my case), but after personally prosecuting and defending over two hundred court martials, I thought I would be competitive.  It was frustrating and nerve wrecking. I applied for all jobs I thought I was qualified to do, criminal (AUSA), ethics, DOJ trial attorney in different agencies and labor.  My resume evolved, and by the time I was hired I was on the third version of my cover letter.  What did I learn?  There are very few federal attorneys with military experience (the only one I came across was in an AUSA interview with one former Air Force JAG; he had served one tour of duty in the early 80’s).  Sometimes they would look at my work in a Theater Special Operations Command and ask me questions about it because they thought it was ‘cool’ (I learned to bring their attention back to the interview and the similarities between the FRE’s and MRE’s, motions practice, etc.).  I was surprised about the disdain to my work as a TDS attorney in a couple of AUSA interviews and changed the cover letter for those jobs to include a line or two about the assignment process and how lucky I was to get jobs that allowed me to stay in the courtroom.  I was asked questions about my age and family in both AUSA and other DOJ jobs (I know, I know, they are not supposed to ask those question, but after seeing the person walking out the interview committee room before me looking like he had shaved for the first time for that interview, it seemed they were looking for someone they could maybe shape and teach the way they do things).  So I got a labor law job offer for a Federal agency in a city I liked, and I accepted. Then, I had three more job offers come in within the next seven days (of course); two of them doing trial work for the Federal Government, but I kept the labor job because I like the city and because there are no rules of evidence in MSPB and EEO cases (except whatever approximation the ALJ wants to them).  From what my boss told me, I got the job because I was able to explain how my criminal litigation and investigative experience would be a positive for the labor law position; maybe by this interview I had learned to explain my experience and interview better, maybe this office with plenty of ‘seasoned’ attorneys was not looking for a young one to bring new blood to the mix, maybe I just got lucky and was at the right interview at the right time.

  18. DoJ-type says:

    I can’t speak for all DoJ components, but mine valued the military experience and I was hired without any actual background in the component’s subject matter. In my interview, I emphasized my ability to work on teams, take direction, mentor and assist less experienced folks if need be (even if only informally), and most importantly, the ability to learn new subject areas fast. I sold them on the latter point by talking about the nature of military practice and how we rotate from ad law to MilJus to op law, etc. and may have to pick them up in a very short period of time, sometimes without the benefit of even getting to the school house for a refresher.
    Finally, a comment above seemed to boil AUSA positions down to “prestige.” Sure, there are some folks who chase those slots for that (wrong) reason. However, there are often other rationales at play. In my case, I wanted to continue serving in the Reserves, wanted a predictable income and job security, and wanted to benefit from my Active Duty time for retirement purposes (by buying back my time and therefore getting credit for my AD years for purposes of a federal civilian pension). And frankly, I lack the skills and persona to hang my own shingle, at least at this point in my life.

  19. Alfonso Decimo says:

    It took me some time after retirement, too, but I ultimately learned what many have detailed above. If I knew then what I know now, it would have taken (much!) less time. Reading several of the posts above, my head was emphatically gesturing “affirmative.” The best boost I got for my job search was a friend-of-a-friend at DOJ who met with me (although not hiring at the time), who tore my resume apart and then reviewed it again after I fixed it. A resume and an interview that will work wonders in the DoD will fly elsewhere about as well as Howard Hughes’ “Spruce Goose” did in 1947. Learn the new cultures, then sell your skill-sets in their languages.

  20. Ed says:

    I suggest all this talk about jobs diminishes the seriousness of the investigation.

  21. Alfonso Decimo says:

    DOJ – I am not convinced the complaint has reached the ethics investigation stage. If it has, then I don’t see how the IO will find a violation. If he/she does, then I don’t see that corrective action greater than counseling is warranted. So, although I am sure the subject of the investigation will need to endure a long period of anxiety, I don’t think the investigation merits very much attention from the MJ community. I stopped reading when RADM Reismeier asserted his client didn’t intentionally mislead the board. So what’s the remaining charge? Lack of diligence?

  22. John O'Connor says:

    I’ve been at a large firm in D.C. for the last eighteen years and have been on the hiring committee for many of those years.  I would echo what Dew Process said about different types of JAG billets being translatable to different types of civilian practice.  My focus has always been on civil litigation since I’ve been out and I will say that court-martial practice is, in my mind, VERY translatable to civil practice in that a JAG with court-martial experience has probably had a lot of stand up experience and has questioned witnesses (unless they pled everything).  Those skills are translatable into civilian motions practice and depositions, and probably will help them not be a basket case in dealing with a client.  At large litigation firms, those skills will be valued, but probably not as much as a demonstrated writing ability or the ability to handle cases with massive amounts of documents.  Court-martial practice didn’t really give me those skills, and I had to learn the civil procedure rules from scratch.  A JAG who wants to go into civil litigation should look for ways to demonstrate writing ability because, in my view, there’s not much of that in court-martial practice and firms will want to figure out if you can write.  Also, keep your grades up in law school.  The legal profession might be the only place in the world where anyone cares about your academic performance six years after graduation and too many JAGs think that a wealth of experience and responsibility will make mediocre grades go away (and it won’t — at least not in the private sector).

  23. Contract Lawyer says:

    If you get some experience in contracts, labor, and admin law, you will do well in applying for civil service positions.  When I have served on hiring panels, the MJ experience can plus up the KSAs for oral and written advocacy, which makes up for a lower score in the other areas.  This can be two out of five or six KSAs and can make a difference, especially in a hiring process that is sympathetic to JAGs leaving active duty.  One thing I valued in assessing applications was excellent writing skills even if that was in a different area.  I am not sure the broadly skilled Judge Advocate concept is as valid in applying for civilian jobs as they say it is for promotion boards.  

  24. k fischer says:

    Ed,
     
    I, too, abhor the diminishing seriousness displayed by the comments to this post. 
     
    However, I think what everyone is getting at with their post career employment anecdotes is that CDR Rugh should have been advised against accusing a Marine Officer of a crime without proper evidence as it would subject him to an investigation for professional misconduct and that is something that’s going to be staped to every job application that he will ever fill out.
     
     
     
     

  25. Lt. Kaffee says:

    “eeehhhhh! I’m sorry, your time’s run out! What do we have for the losers, judge? Well, for our defendants, it’s a life time at exotic Fort Leavenworth! And, for defense counsel Kaffee, that’s right, it’s a court martial! Yes, Johnny! After falsely accusing a highly decorated Marine officer of conspiracy and perjury, Lieutenant Kaffee will have a long and prosperous career teaching… typewriter maintenance at the Rocco Globbo School for Women! Thank you for playing “Should we or should we not follow the advice of the galactically stupid!”

  26. John O'Connor says:

    “However, I think what everyone is getting at with their post career employment anecdotes is that CDR Rugh should have been advised against accusing a Marine Officer of a crime without proper evidence as it would subject him to an investigation for professional misconduct and that is something that’s going to be staped to every job application that he will ever fill out.”

    Just speaking for myself, that wasn’t a point I was making at all.  The comments had gone in a particular direction (job talk) and I was just adding my opinion to the pile.  I have no opinion on the topic you raise except for a profound lack of sympathy for someone in a position of authority and responsibility sleeping with those in his charge.   
     

  27. Alfonso Decimo says:

    The statement under investigation was made at a post-trial admin sep board in response to a board member’s question, so I am confused by the Fisher King and ditto what John O’Connor wrote.

  28. k fischer says:

    JO’C,
     
    I share your lack of sympathy regarding Thompson.  I have not read CDR Rugh’s administrative board testimony, so I don’t know how committed he was to testifying, if he even did, that he personally interviewed the family members who denied ever being interviewed by anyone from the Government side.  Sounds like the testimony was not really a big deal in the Board since they found no misconduct and retained Thompson.  And, I cannot give an opinion regarding his testimony at the Board without reading a transcript of the direct and cross examination.  But, I wonder:  if it is determined that he committed professional misconduct for lack of candor before a tribunal, then is he going to face charges at Court-martial for lying at a board the way Thompson is? 
     
    Regarding my comment, I was just quoting a scene from the greatest movie ever.  AD, I apologize for the confusion, but I had no point.  I often have no point.  It’s part of my charm.

  29. Alfonso Decimo says:

    Fisher King – Got it. I am often confused and that’s part of my charm. “De tanto mirar al Cielo, se le cayó la Corona.” (Now we’re even.) – AD