Last month, The Army Lawyer published an article authored by Marine Major G.K. Logan entitled “Zealous Advocacy, Professionalism, and the Military Justice Leader.” Major Logan’s article explores the difference between zealous advocacy, which the adversarial system demands, and zealotry, which is abhorred by the rules of professional conduct and prevailing standards of civility.
Beginning on page 8, the article singles out discovery practice as being an area in need of special attention by military justice managers, where subordinate counsel may need to be reminded that “discovery does not belong to the adversary system.” W. Bradley Wendell, Rediscovering Discovery Ethics, 79 Marq. L. Rev. 895, 898 (1996). To make his point, Major Logan uses United States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015) (CAAFlog case page) as a case study. As readers will recall, the Stellato case has been the source of much commentary, on this blog and outside the military justice community – see here, here, and here.
After chronicling, as CAAF termed it, at 74 M.J. 476, the Stellato prosecution’s “almost complete abdication of discovery duties,” Major Logan concludes that the case demonstrates the danger of conflating zealotry with zealous advocacy. It “showcases the consequences of misguided zealous advocacy and incivility.” Zealous Advocacy, Professionalism, and the Military Justice Leader, at 10. To drive the point home, the article includes some of the colorful language that Senior U.S. District Court Judge Wayne E. Alley, a former Army JAG who retired as a Brigadier General, used in an order denying a motion to dismiss in Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989):
Defendant’s Motion to Dismiss or in the Alternative to Continue Trial is denied. If the recitals in the briefs from both sides are accepted at face value, neither side has conducted discovery according to the letter and spirit of the Oklahoma County Bar Association’s Creed. This is an aspirational creed not subject to enforcement by this Court, but violative conduct does call for judicial disapprobation at least. If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.
It is so ordered this 24th day of February 1989.
Wayne E. Alley
U.S. District Judge
Quoted in James W. McElhaney, Staying Out of Jail: Keeping your license and staying out of trouble, ABA Journal, Vol. 79, No. 9 (Sept. 9, 1993), also quoted in Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996)).