The Department of the Navy (DoN) is revising its Rules of Professional Conduct and procedures for receiving, processing, and taking action on complaints of professional misconduct made against attorneys practicing under the supervision of the Judge Advocate General of the Navy (JAG). The revision to this part generally aligns with recent changes to the American Bar Association Model Rules of Professional Conduct. The revisions clarify when an attorney shall reveal confidential information and when such disclosure is discretionary, and allows for covered attorneys to make reasonable disclosures necessary to ensure compliance with the Rules of Professional Conduct. The revision contains administrative corrections throughout.

Read the proposed new rules and submit your comments at this regulations.gov link. Comments are due by July 1, 2013.

The United States Court of Appeals for the District of Columbia Circuit yesterday issued this order summarily denying Earle Partington’s motion to file this post-argument memorandum addressing what “other lawyers” means in R.C.M. 109, which tasks the Judge Advocates General with the professional supervision and discipline of judge advocates and “other lawyers” who practice in courts in their respective services.

The case appears to be on a glide-path to affirmance, though likely on a somewhat different basis than that adopted by the district court.

Counsel for Earle Partington today filed this post-argument memorandum with the D.C. Circuit arguing that R.C.M. 109′s use of the term “other lawyers” (as in the Judge Advocate General may discipline judge advocates and “other lawyers”) doesn’t include civilian counsel appearing at courts-martial.

The post-argument memorandum contends that subjecting civilian counsel to discpline by a Judge Advocate General exceeds the scope of the President’s delegated authority under Article 36 (which the memorandum misquotes) because that article is limited to the adoption of pretrial, trial, and post-trial procedures “for cases arising under this chapter triable in courts-martial, military commissions and other military tribunals.”  Partington reasons that his disciplinary proceeding isn’t a miltiary tribunal under the UCMJ and that, in any event, he isn’t subject to UCMJ jurisdiction pursuant to Article 2.

That misses the point.  The relevant procedural rule governs who may appear as counsel in a court-martial to represent the accused.  Congress delegated to the President the authority to answer that question.  As a result of the disciplinary proceedings against Mr. Partington, he may not represent the accused in a naval court-martial.  So by authorizing the Judge Advocate General to suspend a lawyer from court-martial practice (or impose other forms of discipline), the President was adopting a procedural rule for cases being tried by courts-martial.  Hence, R.C.M. 109 was adopted pursuant to the President’s delegated power under Article 36.

The Supreme Court has quoted the adage that “a lawyer who represents himself has a fool for a client.”  Kay v. Ehrler, 499 U.S. 432, 437 (1991).  But Earle Partington’s pro se appearance before the D.C. Circuit this morning disproved that adage.  His case was a loser no matter who argued it.  It would have been foolish for him to pay another lawyer to tilt at the windmill rather than playing the role of Don Quixote himself for free.

Mr. Partington’s case arises from his indefinite suspension from practice before naval courts and boards – a disciplinary measure meted out by Vice Admiral Houck arising from a brief that Mr. Partington filed at NMCCA in a case in which he had also been the trial defense counsel.  NMCCA determined that the brief included “clear misrepresentations of the record.”  As a result of his indefinite suspension from naval courts, he was later suspended from practice in Hawai’i for 30 days and by CAAF for a year.  In the matter of Earle A. Partington, 69 M.J. 408 (C.A.A.F. 2010).  Mr. Partington brought suit in the United States District Court for the District of Columbia challenging his suspension by the Judge Advocate General of the Navy, as well as by CAAF.  The district court granted judgment for the defendants, Partington v. Houck, 840 F. Supp. 2d 236 (D.D.C. 2012), leading to today’s oral argument in the D.C. Circuit.

The argument would feature ruminations on CAAF’s historic nicknames, a fashion faux pas, and an assault on uniformed military defense counsel followed by a judicial endorsement of their zealousness.  The argument didn’t feature any reason to doubt the case’s outcome:  a loss for Mr. Partington.

Mr. Partington began by asking for leave to appear on his own behalf because his counsel was involved in a political corruption trial in Massachusetts.  Chief Judge Sentelle observed that Mr. Partington’s brief was also signed by a Virginia attorney (Charlie Gittins).  Mr. Partington replied that the Virginia attorney was also out of town and that it had never been contemplated that he would argue the case.

Read more »

Here’s an unexpected development.  Earle Partington today filed this notice that he intends to personally argue his case before the D.C. Cicuit on Wednesday.  I’d already put in for vacation tomorrow morning — I’ll be there and will report on the events later in the day.

Not surprisingly, the D.C. Circuit denied Earle Partington’s latest motion to compel the defendants to answer certain paragraphs of the complaint.  Here’s a link to the order.  And here’s our previous discussion of the motion that it denied.

The DC Circuit today issued this order giving each side 15 minutes to present oral argument in the Partington case on 12 December.  I plan to be there; I’ll report on the festivities later that day.

Just two weeks before oral argument, Earle Partington’s counsel have filed this perplexing motion asking the D.C. Circuit to order the Navy defendants to answer allegations from his complaint.

The motion recycles previously made arguments and takes a particularly aggressive (and, in my view, unfortunate) stance toward opposing counsel.  For example, the motion asserts, “Since Partington filed this action in the district court, the Navy defendants and government counsel have responded with a barrage of factual misrepresentations and bad faith legal arguments to support the Navy defendants’ bogus action against him.”  Motion at 11-12.  The motion suggests, “This court should issue an order to show cause to the Navy defendants and government counsel as to why they should not be sanctioned for their individual and collective misconduct.”  Id. at 12.  Later, the motion argues that “the Navy defendants have no compunction about outright factual misrepresentations.”  Id. at 15.  The motion concludes:

The point Partington is seeking to make here is that the Navy defendants have been less than truthful with this court. By forcing them to answer the relevant paragraphs of the complaint at this time, an injustice to Partington will be avoided and the sanctionable conduct of these appellees and government counsel will be exposed. If this case is remanded as it must be, these defendants will have to answer the complaint so there is no prejudice in requiring an answer now. Further, an answer now will avoid a potential fraud upon the court.

Id. at 19-20.

I find it unlikely that the D.C. Circuit will find such ad hominem attacks to be persuasive.

Here is the per curiam opinion regarding former LCDR Diaz’s professional licence from the Supreme Court of Kansas.

In the Matter of Matthew M. Diaz.

He appeared pro se.

At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator recommended that the respondent be disbarred. The respondent requested that no discipline be imposed beyond that assessed by the military courts. As referenced above, the hearing panel recommended that respondent be suspended from the practice of law for 3 years and that the suspension be made retroactive to the date of his temporary suspension.

As discussed about United States v. Manning and Noble Prize (intended), the court observed.

We begin our analysis by recognizing that in apparent support of respondent’s position that the military courts have sufficiently disciplined him, he repeats an argument he made before those tribunals. Respondent essentially argues that while his actions were wrong his motive was virtuous. In short, he disclosed the information to protect the Guantanamo Bay detainees’ habeas corpus rights declared in the United States Supreme Court opinion of Rasul v. Bush.  . . . . As noted by the hearing panel, the United States Navy-Marine Corps Court of Criminal Appeals affirmed, finding his motive argument “nonsensical and dangerous.” (citations omitted.)

However, the opinion then cites to the providence inquiry where Diaz admits to disclosure for “selfish reasons” and not seeking guidance from seniors because of career concerns.

The majority of the court found that Diaz be disbarred.

On Tuesday, Earle Partington’s lawyers filed this reply brief in his appeal currently pending before the D.C. Circuit challenging the Judge Advocate General of the Navy’s imposition of professional responsibility discipline against him.  Among other claims, Mr. Partington challenges the Judge Advocate General’s authority to discipline a civilian counsel.

Oral argument in the case will be heard on 12 December.

On Wednesday, 12 December, the United States Court of Appeals for the District of Columbia Circuit will hear oral argument on the challenge to the Navy’s professional responsibility disciplinary system in Partington v. Houck, No. 12-5038.  The panel will consist of Judges Sentelle, Tatel, and Kavanaugh.

That’s not a CAAF oral argument day, so I’m hopeful I’ll be able to attend.

Here’s the brief that DOJ filed on behalf of the appellees in the D.C. Circuit in Partington v. Houck, No. 12-5038.

On Monday, the D.C. Circuit issued this order accepting this amicus brief from the ACLU of Hawaii and the ACLU of the National Capital Area.

Also on Monday, the D.C. Circuit issued this order denying Partington’s motion for summary reversal.

There are two articles worth the read looking back over some of last terms criminal law cases.

Orin Kerr reviews Fourth Amendment cases from the 2011 SCOTUS term, at SCOTUSBlog.

The 13 August National Law Journal has a piece, by Laura Levinson, Retroactivity of cases on criminal defendant’s rights.  (You will need to be a subscriber to NLJ to view it on the web.  But for those of us with Androids, download the NLJ app, and read the weekly NLJ for free.)

Of interest in the Levinson piece is a brief discussion of Missouri v. Frye, and Lafler v. Cooper.  The BLUF on these two cases is that there is a right to effective assistance of counsel during the pretrial negotiation process.  She predicts “a flood of petitions[.]”

Frye:  Holding: The Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected, and that right applies to “all ‘critical’ stages of the criminal proceedings.”  (Per SCOTUSBlog)

Lafler:  Holding: Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.  (Per SCOTUSBlog)

See also, here.

My Liege Dwight Sullivan may remember this case from our days together at Appellate Defense, United States v. Lonetree, 35 M.J. 396, 413-14 (C.M.A. 1992), cert. denied 507 U.S. 1017 (1993).  The case was remanded for a Dubay on the IAC claim.

Lonetree asserts that his civilian counsel erred by failing “to explore the possibilities of a pretrial agreement, negotiate with the Government over the terms of such an agreement, and present a potential pretrial agreement to their client for his consideration.” Brief for Appellant at 18.

As the basis for his claim, Lonetree details civilian counsels’ total hostility to entering a plea bargain that might have resulted in a 10-, rather than a 25-, year sentence. Lonetree’s affidavit describes his civilian counsels’ assurances that he was not “legally guilty” and that he would prevail at trial, as well as their attempts to convince Lonetree that the Government’s case was racially motivated. . . .

Lonetree offers us colorable claims consistent with the existing record that civilian counsel offered him bizarre and untenable advice, consistently attempting to instill in him a distrust of his military counsel and consistently inducing him away from a plea bargain assuring him substantial leniency in the face of overwhelming evidence of his guilt.

If recollection serves, upon remand they negotiated a “PTA,” for 20 years.  Again, if recollection serves there were “political” overtones to the case at trial.  One of the civilian attorney’s in the case was William H. Kunstler.

The Kunstler firm has, however, not consistently cleaved to the bar’s professional duties in their legal practice. See, e.g., United States v. Lonetree, 35 M.J. 396, 411-13 (C.M.A. 1992) (hearing is ordered to determine whether William Kunstler provided ineffective assistance of counsel when he advised his client not accept a plea agreement that would have significantly reduced his sentence in order to argue at trial that the government’s case was racially motivated), cert. denied, 123 L. Ed. 2d 444, 113 S. Ct. 1813 (1993). Indeed, in this matter, the Kunstler firm has again demonstrated that in their practice, media publicity and notoriety are simply more important than the law, professional ethics, or even their clients for that matter.

United States v. Salameh, 856 F. Supp. 781, 784  (D.C. S.D.N.Y. 1994).

As an aside, the case is useful for its discussion of merged investigations and the need for Article 31, UCMJ, warnings.

We’ve posted it here.