CAAFlog » Professional Responsibility

In this post I noted news reporting about a military legal ethics inquiry connected to the ongoing case of Marine Major Mark Thompson (CAAFlog news page), our #7 Military Justice Story of 2016. Such ethics inquiries are notoriously opaque.

That inquiry is now over. Stars and Stripes reports here that:

The ethics probe into Navy-Marine Corps Court of Criminal Appeals Judge Cmdr. Aaron Rugh was closed after the investigation “found that the available evidence failed to support a violation” of the Rules of Professional Responsibility governing Navy lawyers, according to a memo signed by Vice Adm. J.W. Crawford III, the Navy Judge Advocate.

“Accordingly, no further inquiry will be conducted and the matter is now closed,” said the brief memo dated Monday and received Tuesday by Stars and Stripes.

The Washington Post’s Jonathan Woodrow Cox – whose reporting led to this prosecution of Major Thompson – also writes about the end of the inquiry here.

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.

In a published decision in United State v. Vidal, 75 M.J. 686, No. 20130892 (A. Ct. Crim. App. Jun. 21, 2016) (link to slip op.), a three-judge panel of the Army CCA orders a DuBay hearing to determine whether the appellant’s civilian appellate defense counsel has a conflict of interest.

A general court-martial composed of members with enlisted representation convicted Staff Sergeant Vidal, contrary to his pleas of not guilty, of numerous offenses in connection with a single sexual encounter in Afghanistan involving two junior soldiers, one male (SPC JA) and the other female (SPC JO). Vidal was sentenced to confinement for 15 years, reduction to E-1, total forfeitures, and a dishonorable discharge. The other male soldier, SPC JA, was a co-accused (both were accused of sexually assaulting SPC JO), and was administratively discharged in lieu of trial by court-martial after Vidal’s trial concluded.

The civilian counsel representing Vidal on appeal did not represent him at trial, but did represent SPC JA and successfully obtained the administrative discharge for SPC JA. The civilian then undertook representation of Vidal for post-trial matters and for appeal, first seeking a post-trial administrative discharge for Vidal and then arguing on appeal that Vidal received ineffective assistance of counsel at trial. The ineffective assistance claim was based upon the failure of Vidal’s trial defense counsel to seek SPC JO’s (the alleged victim’s) mental health records that were – the appeal asserts – completely exculpatory and instrumental in obtaining the administrative discharge. However, the civilian attorney had knowledge of the contents of the records (from his representation of the co-accused) but seemingly did not make full use of that knowledge during his post-trial representation of Vidal.

Accordingly, the CCA finds that:

[B]y arguing that the trial defense counsel was ineffective and lost appellant’s chance at an administrative discharge, it appeared he was also arguing his own ineffectiveness during post-trial representation of appellant. This presented us with what appeared to be a conflict of interest.

Slip op. at 5.

Significantly, the opinion “only attempts to identify potential conflicts of interest,” and the CCA observes that “nothing in this opinion should be construed as a finding of misconduct.” Slip op. at 11 n.7 (emphasis in original).

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I’m not bad. I’m just drawn that way.

Jessica RabbitWho Framed Roger Rabbit, Touchstone Pictures (1988).

There have been plenty of scandals in the military justice system over the past eighteen months. Examples include discovery issues (like BowserStellato, and Hudgins), judicial bias (like Kish, Williams, and Loiacono), prosecutorial misconduct (like Salyer, Frey, Hornback, and Porter), unlawful command influence by senior Government officials, the disintegration of high-profile cases (like Sinclair and Tate), and outright absurdity (like Sauk and the Pendleton search).

As we’ve written about these scandals, numerous (mostly pseudonymous) commenters have called for a heavy-handed response: criminal prosecution or professional discipline of the military attorneys involved.

I think such a response would be patently unfair.

Americans are right to expect that our military justice system will work better than it does. That is, as I wrote last year, a reason to take a hard look at the leadership within the military’s legal communities. After all, accountability is (supposed to be) king in military service:

Accountability. DoD employees are required to accept responsibility for their decisions and the resulting consequences. This includes avoiding even the appearance of impropriety because appearances affect public confidence. Accountability promotes careful, well thought-out decision-making and limits thoughtless action.

JER, § 12-401(d). But there is a big difference between a stupid legal argument and an unethical or criminal legal argument. Even the best lawyers make mistakes – sometimes big mistakes – and it is simply not unethical for an attorney to make a bad argument, or even to persist in that argument beyond the bounds of sensibility.

There’s no evidence that the many recent military justice scandals are the product of anything more than bad argument. They only look nefarious because they’re drawn that way. I’m willing to acknowledge some responsibility for that, as I’m doing much of the drawing through blunt analysis (often written with the benefit of hindsight). But so far as anything I’ve written might be interpreted as a call for suspension, disbarment, or criminal prosecution of military lawyers who make mistakes in the course of presenting a case, that’s not my intent.

We lawyers often use awfully strong language to describe a losing proposition:

When a decision is announced, even in very complicated cases where batteries of lawyers have bombarded each other and the judges for weeks with careful argument and high megaton precedent, the opinion solemnly says that the losing argument was without merit, or devoid of merit, or had no merit.

David Mellinkoff, The Conscience of a Lawyer 8 (West Publishing 1973) (emphasis in original). So maybe the calls for discipline are hyperbolic. They certainly should be. There are important lessons that all of us can learn from these mistakes. We should give the attorneys who made them a chance to learn as well.

All the talk in this post about possibility of military discipline for General Petraeus reminded me about Colonel Spelman’s collateral challenge to the Army’s judge advocate professional responsibility system, last discussed in this 2013 post.

The Colonel – an Army judge advocate currently serving on the retired list – pleaded guilty at a general court-martial in 2012 to adultery and related charges (we mentioned the case in this post). He was subsequently notified that the Judge Advocate General of the Army (TJAG) intended to withdraw his 27(b) certification, indefinitely suspend him from practice under TJAG and before Army courts-martial, and notify his state licensing authorities. In response, the Colonel filed suit against TJAG in United States District Court for the District of Columbia, alleging violations of the Administrative Procedure Act and seeking a temporary restraining order and a preliminary injunction.

District Judge Richard J. Leon denied the request for a preliminary injunction (discussed in my 2013 post). Then, on August 21, 2014, Judge Leon granted the Government summary judgment. Judge Leon’s ruling is available here. Best I can tell, the Colonel has not appealed. Analysis of the ruling follows.

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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 »

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.$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 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 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.