CAAFlog » Professional Responsibility

This December will be the third anniversary of our coverage of the continuing saga of civilian defense counsel Earle Partington, who was subjected to professional discipline by the Judge Advocate General of the Navy and then sued the JAG in federal court over that action (see all of our Partington coverage at this link; or read just this post for a background of the case).

But Mr. Partington now has company in his fight against the military justice system’s professional responsibility process. An Army judge advocate named Colonel Spelman, who pleaded guilty to adultery at a general court-martial last year (we mentioned the case in this post), was notified that the Army JAG intended to withdraw his 27(b) certification, indefinitely suspend him from practice under the JAG and before Army courts-martial, and notify his state licensing authorities of all that. In response, Colonel Spelman filed suit against the JAG in United States District Court for the District of Columbia (the “D.C. Circuit”), alleging violations of the Administrative Procedure Act and seeking a temporary restraining order and a preliminary injunction.

In an opinion dated November 2, 2013 (available here), District Judge Leon denied Colonel Spelman’s request for a PI and TRO.

Judge Leon’s opinion has the following interesting analysis:

Here, plaintiff alleges that he will be irreparably harmed by defendant’s imposition of professional discipline and subsequent notification of his court-martial conviction to his respective bar licensing authorities. According to plaintiff, if this Court does not issue preliminary injunctive relief, “[he] will be confronted with a situation in which the defendant has taken action without authorization, yet the plaintiff will [sic] no recourse, either with the Army, with his state and federal bar disciplinary authorities, or with respect to his reputation in his community and with his clients.” See PI Mot. at 16. I disagree.

Plaintiff’s allegations as to irreparable harm are not persuasive. First, preliminary injunctive relief cannot prevent TJAG from withdrawing plaintiffs certification under UCMJ Article 27(b) and indefinitely suspending him from practicing before Army Courts or under TJAG. Clearly, TJAG has that authority. Indeed, that disciplinary action was effectively taken by TJAG prior to the TRO hearing on August 26,2013, leaving as the only remaining issue TJAG’s notification of plaintiff’s bar licensing authorities. Plaintiff understandably fears that such notification could lead to reciprocal sanctions by his bar licensing authorities as well as possible reputational injury. See Pl.’s Reply [Dkt. # 13] at 9-11. This fear alone, however, is not enough to warrant such extraordinary relief, especially where plaintiff has not offered any evidence to substantiate his claim that such harm will likely occur. See Comm. in Solidarity with People of El Sal. (CISPES) v. Sessions, 929 F.2d 742,745-46 (D.C. Cir. 1991) (declining to issue injunctive relief “to prevent injuries neither extant nor presently threatened, but only merely feared”). Indeed, plaintiff acknowledged that he had already notified his bar licensing authorities and clients in 2012 of his general court-martial conviction, Compl. para. 43, and none of the authorities in the three states where plaintiff is licensed have taken any action, to date,
against him, Compl. para. 97. Moreover, as to possible reputational damage within his community, plaintiff has offered no evidence that such harm has either occurred or would likely be irreparable in nature. See Sampson v. Murray, 415 U.S. 61, 91 (1974); Deaver v. Seymour, 822 F.2d 66,69 (D.C. Cir. 1987).

Having failed to establish that irreparable injury would likely result from a denial of plaintiff s motion, the Court need not reach the other factors necessary to warrant preliminary injunctive relief. See CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738,747 (D.C. Cir. 1995).

Of note, Judge Leon was last mentioned in this post, as he ruled in favor of LtCol Mori (of Salyer fame) in his pursuit of remedial promotion consideration.

We’ll keep an eye on this case.

In the long-running professional responsibility case of Partington v. Houck, et al., the D.C. Circuit Court of Appeals issued this order denying this petition for an en banc rehearing.

All of our coverage of the Partington case, beginning with this post in December 2010, can be found here.

The D.C. Circuit Court of Appeals decision in favor of defendants can be read here.

http://www.cadc.uscourts.gov/internet/opinions.nsf/1719421F8AF61C1D85257BB1005178B2/$file/12-5038-1447998.pdf

Judge Sentelle writes for the court, which affirms the lower court.

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.

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.