Here is a link to the new Navy JAG Instruction 5803.1E, “Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General.” The revised Navy JAG PR instruction doesn’t look final, but appears to be final since it is now on the JAG/CNLSC instructions page, here. Since there is no summary of changes in the instruction, here is a rough comparison of 5803.1D and 5803.1E. The Comment period on the proposed instruction ended July 1, 2013 with only one Comment submitted (from our own Zee), see here. Oddly the plan for the rule was that it wouldn’t go final until April 2015, see here.
Gene Fidell tipped me off to the new Air Force Instruction 51-110 dated August 5, 2014: Professional Responsibility Program. The publication includes revised Rules of Professional Conduct for Air Force Judge Advocates (the old ones are available here).
Notably, Rule 3.8(d) is modified in a way that I think quite adequately addresses the concerns raised in this post from June. The old version of Rule 3.8(d) stated:
[The trial counsel in a criminal case shall:] (d) 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.
While the new version states:
[The trial counsel in a criminal case shall:] (d) 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 trial counsel, except when the trial counsel is relieved of this responsibility by a protective order of the tribunal.
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.” Read more »
Investigators raided the offices May 2 in search of a cellphone tied to a case being tried at the base, north of San Diego, Lt. Col. Clay Plummer told The Associated Press.
“This is just unacceptable,” said Plummer, the Marine Corps’ regional defense counsel for the West. “Just think of the U.S. federal Marshals or FBI raiding a public defender’s office, that’s what this is the equivalent to. It’s crazy.”
Marine Corps officials called it a “rare event” and said a neutral, independent judge advocate has been appointed to review the seized evidence to identify whether any potential privileged material was improperly disclosed. Also to be reviewed is how the search was conducted.
Officials said they could not comment further because of pending litigation and the independent review.
Defense lawyers were contacting hundreds of clients to inform them that military law enforcement officials had opened case files, Plummer said.
The search’s authorization was granted by the area commander. Two armed, uniformed officers and members of the criminal investigative division came into the building and did not allow anyone to leave while they searched for the cellphone, Plummer said. They searched every attorney’s office — including those with no relation to the case — and continued to search even after locating the cellphone, he said.
This should get interesting.
Well, this came over the transom. It’s “unclassified.” I was tempted to label it as “In the Theater of the Absurd II.” But for the moment it’s under “rants” and “professional responsibility.” Perhaps if we had more facts — anyone?
(Update 1100, 3 May. It appears the search authorization was granted by the Area Commander who likely did have the authority over the particular building, it’s contents, and the people for search authority purposes. So authority to search should be limited to whether the appropriate amount of cause existed to search, and of course how it was executed.)
It is not uncommon in the civilian community for the feds or local police to obtain a search warrant (from a independent magistrate), for a lawyers office. When that happens there’s a process and a “taint team” is used in order to try and preserve the integrity of defense counsel files.
But now, Marine CID search defense counsel offices. Some of you will recognize the spaces, but I have whited out certain parts.
My initial rant here relates to the apparent method in which the government has proceeded. At some point we may determine whether it was – ahem – warranted. To be clear this may not be as
clear cut black and white under military law or state ethics rules in terms of seeking the evidence itself.
See United States v. Rhea, 33 M.J. 313 (C.M.A. 1991). (I’m still looking for the AF case from some time ago where I thought the ADC offices were searched.)
Have they not heard of a “taint team?” While I am at times critical of AFOSI, they and their legal advisor are at least familiar with the practice when seeking information that might be subjected to a claim of attorney-client privilege. They could have given pointers. (See, United States v. Bruhn, ACM 37291 (A. F. Ct. Crim. App. February 3, 2010)(I did the writ and 32). Who knows, even the NCIS legal advisor might have raised that flag.
So, what about this. Was this considered.
The most common scenario where compromise arises in military criminal practice is in search and seizure situations. The first consideration ought to be the place or thing to be searched. For as noted, some locations or objects are much more likely than others to contain privileged information. In the military context, if the offices of an attorney, clergyman, or psychotherapist are to be searched (hopefully, a rare occurrence), many of the files and electronic media in the office may be privileged. This is especially true in the search of an attorney’s office, because most of the files will contain either client confidences or attorney work-product (discussed fully in Part IV, infra). Thus, great care should be used in these situations. In the civilian sector, the gravity and implications of such searches have been the subject of both congressional and executive concern. In fact, the Attorney General of the United States has published guidelines for federal officers who want to obtain documentary evidence from disinterested third parties (persons who are not themselves the subject of the investigation) who may also be the holders of confidential information.
Caution is required when searching businesses, home offices, or storage areas (including rented lockers) which appear to contain personal or business records. Particular objects warranting caution include business or corporate files and computers, private personal computers, personal digital assistants (like the hand-held PalmPilot TM -type computer organizers, cellular telephone memories, magnetic media (disks, tapes, memory cards, etc.), and paper documents which are marked as privileged or which appear to relate to litigation or the legal affairs of the suspect.
If investigators know or suspect, as in the case of an attorney’s office, that they are likely to come in contact with privileged matter, they must develop a plan to handle these materials properly. There are several approaches discussed below in the subsection on handling compromises. A solid first step is to devise a plan for screening the materials and removing any privileged documents after the search. Ideally, this plan should be described in the documents used to obtain the search authorization. This makes clear that the investigators are acting in good faith, and that the government recognizes the need to protect any privileged material which is discovered.
(Note who one of the authors is) Lieutenant Colonel Norman K. Thompson, USAF and Captain Joshua E. Kastenberg, USAF, ARTICLE: The Attorney-Client Privilege: Practical Military Applications of a Professional Core Value, 49 A.F. L. Rev. 1 (2000)(emphasis added).
I have referenced the U.S. Attorney’s Manual in briefs and posts. This is their approach.
Clearance with the Criminal Division. Because of the potential effects upon an attorney-client relationship that may result from the issuance of a subpoena to an attorney for information relating to the attorney’s representation of a client, the Department exercises close control over such subpoenas. Such subpoenas (for both criminal and civil matters) must first be authorized by the Assistant Attorney General for the Criminal Division before they may issue, unless the information sought falls into one of the exceptions set forth below. Unless one of the specified exceptions applies, authorization must be obtained even for a “friendly subpoena” for client-related information, that is, even in situations where the attorney witness is willing to provide the information but requests the formality of a subpoena.
Preliminary Steps. When determining whether to issue a subpoena to an attorney for information relating to the attorney’s representation of a client, the Assistant United States Attorney must strike a balance between an individual’s right to the effective assistance of counsel and the public’s interest in the fair administration of justice and effective law enforcement. To that end, all reasonable attempts shall be made to obtain the information from alternative sources before issuing the subpoena to the attorney, unless such efforts would compromise the investigation or case. These attempts shall include reasonable efforts to first obtain the information voluntarily from the attorney, unless such efforts would compromise the investigation or case, or would impair the ability to subpoena the information from the attorney in the event that the attempt to obtain the information voluntarily proves unsuccessful.
9-13.000, Guidelines for Issuing Grand Jury or Trial Subpoena to Attorneys for Information Relating to the Representation of Clients, U. S. Attorney’s Manual, Title 9. See also, 9-13.420, Searches of Premises of Subject Attorneys.
There is some criticism made about the defense counsel standing by and letting it happen. I’m not sure about this and would have to let this fester overnight.
The charges do apparently include 120.
The Article 32 is currently ongoing, and the IO has “ruled” the phone unavailable. It appears the DC declined to provide the cellphone asserting the attorney-client privilege. If so, then clearly the command and government representatives are on notice of a claim of privilege and ought to act accordingly.
And CID is searching offices of unrelated DC’s apparently.
Where will this end, maybe Col Perlak’s office?
Lessons learned: Defense counsel may not conduct an investigation, unless they want to subject their client to an orders violations. True or false?
CID and prosecutor’s may rummage through defense counsel’s offices without concern for privileged information deliberately or inadvertently viewed by outside CID and prosecutors. True of false?
All accused’s serviced at this LSSS need to question whether CID or prosecutors have had access to privileged matters about their own case during the searches. True or false?
The Navy-Marine TCAP, and other Service TCAP’s (or TJAG’s) have a protocol, similar to DOJ, for searching defense counsel’s offices. True or false?
WARNING, this might be considered a defense oriented post.
How silly does it get. Across the transom today I received these linked documents.
On 23 April 2014, ACCA issued a Order in Morse v. Biehl and Agar, Army Misc. 20140294 (23 April 2014).
(Update: the command rescinded the order to petitioner and his counsel.)
The Order granted petitioner’s request to withdraw the petition. And yes, this is the sexual assault case of LTC Morse. COL Agar is the SJA MDW if you didn’t know. So why all the fuss. The attached filings may help understand the unfathomable. I will liberally copy from the petition and brief in support and you may decide for yourself, and then decide if I have correctly titled this post. The brief begins:
In this case, the government has taken the extraordinary action of ordering the Petitioner and his assigned Trial Defense Service counsel to cease and desist in engaging in any investigation of the allegations against Petitioner, without a factual predicate of malfeasance, and simply at the behest of the purported victim. (Emphasis in original.)
Assuming the facts to be true, the facts also document the biased and ineffective CID investigations all too common in sexual assault cases, and how effective defense investigations can develop helpful information ignored or unlooked for by “trained investigators.” (See references to tunnel vision at this post.)
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).
We’ll keep an eye on this case.
The D.C. Circuit Court of Appeals decision in favor of defendants can be read here.
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.
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.