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4. Professional Responsibility

chapter 4

Professional Responsibility

  1.       Introduction

  2.       Conflicts Between the Applicable Rules

  3.       Resolving Conflicts

  4.       The Lawyer-Client Relationship

  5.       The Lawyer as an Advocate

  6.       Obligations to Third Parties

  7.       Duties of Subordinates and Supervisors

  8.       Professional Responsibility Complaints

 

I. Introduction

A. Scope and Governing Standards

1. Regulatory Standards Imposed by the Army.

a. The Rules of Professional Conduct For Lawyers [hereinafter referred to as Army Rules] apply to:  

(1) All Army judge advocates;

(2) Civilian attorneys employed by Department of the Army;

(3) Non-Department of Defense civilian lawyers representing individuals in matters including, but not limited to, courts-martial, administrative separation boards, boards of inquiry, and disability evaluation proceedings. 

(4) Local national lawyers employed by the Department of the Army, to the extent these Rules are not inconsistent with their domestic law and professional standards, and

(5) Army legal support personnel (i.e. 27Ds, interns, paralegals). 

2. Attorneys must adhere to both the letter and the spirit of the rule.

3. Rules state a standard to be followed.

a. Provide a basis for taking action should a lawyer fail to comply or meet the standard.  Does not provide a basis for civil cause of action against either the Army or an attorney.

b. Comments are non-binding guidance.

B. State Rules.   "Every lawyer subject to these Rules is also subject to rules promulgated by his or her licensing authority or authorities."  (Comment, Army Rule 8.5).

C. Key Resources:

1. Primary

a. Army Regulation 27-26, Rules of Professional Conduct For Lawyers.

b. The ABA Standards for Criminal Justice.

c. The ABA Code of Judicial Conduct.

d. The Army Code of Judicial Conduct.

2. Secondary

a. AR 27-1, Judge Advocate Legal Service.

b. AR 27-3, The Army Legal Assistance Program.

c. AR 27-10, Military Justice.

d. American Bar Association Model Rules of Professional Conduct.

e. American Bar Association Model Code of Professional Responsibility.

f. ABA/BNA Lawyers' Manual of Professional Conduct.

g. The Legislative History of the Model Rules of Professional Conduct, ABA.

h. The Annotated Model Rules of Professional Conduct, ABA.

3. Websites

a. State ethics rules: http://www.abanet.org/cpr/links.html#States 

b. ABA Professional Conduct material:  http://www.abanet.org/cpr/pubs/ethicopinions.html

II. Conflicts Between the Applicable Rules

A. Army Rule 8.5 provides that if there is a conflict with state rules, the lawyer should seek assistance from his or her supervisory lawyer.  If not resolved, then:

1. Army Rules supersede rules of licensing jurisdiction in the performance of official duties.

2. The rules of the appropriate licensing authority will govern the conduct of the lawyer in the private practice of law unrelated to the lawyer’s official responsibilities. 

B. ABA Model Rule 8.5.  Disciplinary authority must make a choice of law:

1. For conduct in connection with a court action, apply the rules of the jurisdiction where the court sits.

2. For other conduct, apply the rules of the jurisdiction in which the lawyer principally practices.

III. Resolving Conflicts

A. Judge advocates should follow the most restrictive standard.  If a course of conduct is permitted under one standard and mandatory under another, follow the mandatory standard.

B. Employ practical alternatives, examples include:

1. Find the client new counsel.

2. Obtain exception from state bar.  See, e.g., Oregon Informal Ethics Opinion 88-19, which provides that military lawyers will not be subject to discipline in Oregon as long as their conduct is not unethical under the applicable military code of ethics.  NOTE:  Discuss this option with your technical supervisory chain, to include the Professional Responsibility Branch, if necessary.

IV. THE LAWYER-CLIENT RELATIONSHIP

A. Scope of Representation (Army Rule 1.2).

1. A client's decisions concerning the objectives of representation are controlling on counsel.  Counsel shall consult with the client as to the means by which these decisions are to be pursued.  A lawyer may, however, limit the objectives of the representation with the client's consent. 

2. Example:  Representation by Defense Counsel. 

a. Client decides --

(1) Choice of counsel.

(2) What plea to enter.

(3) Selection of trial forum.

(4) Whether to enter into pretrial agreement.

(5) Whether to testify.

b. Defense counsel decides --

(1) What motions to make.

(2) Which court members to select.

(3) Which witnesses to call.

(4) How cross-examination will be conducted.

(5) General strategic and tactical decisions.

c. Comment to Army Rule 1.2; see also Standards for Criminal Justice 4-5.2(b).

3. A lawyer should assume responsibility for technical and legal tactical issues.

4. A lawyer shall not counsel a client to engage in conduct the lawyer knows is criminal.  (Army Rule 1.2(d)).

B. The Army as the Client (Army Rule 1.13).

1. A judge advocate or other Army lawyer represents the Army acting through its authorized officials (e.g. commanders).

2. The lawyer-client relationship exists between the lawyer and the Army.

3. Regulations may authorize representation of individual clients.  For example, legal assistance attorneys and defense counsel are authorized to represent individual clients, not the Army.  (AR 27-3, para. 2-3a).

4. If not authorized to form an attorney-client relationship with the client, an Army lawyer must advise the individual that no such relationship exists between them.  (Army Rule 1.13(b)).

5. While an attorney may be permitted by law or regulation to form an attorney-client relationship, situations may arise in which doing so may lead to a conflict.  Army attorneys should exercise considerable discretion in handling the personal legal problems of Army officials, and receiving client confidences, when the Army attorney is not assigned to a client service organization such as Legal Assistance or Trial Defense Service.

6. Illegal Acts:  If an official of the Army (e.g., a commander) is acting illegally or intends to act illegally, and the action might be imputed to the Army, the lawyer shall--

a. Proceed as is reasonably necessary in the best interest of the Army.

b. Consider utilizing the following measures:

(1) Asking the official to reconsider.

(2) Advising the official to get a separate legal opinion.

(3) Advising the official that his or her personal legal interests are at risk and he or she should consult counsel.

(4) Advising the official that counsel is ethically bound to serve Army interests and must discuss the matter with supervisory lawyers.

(5) Referring the matter to or seeking guidance from higher authority in the technical chain of supervision.

c. If unsuccessful, the lawyer may terminate representation with respect to the matter in question.

C. Competence (Army Rule 1.1).

1. Competence requires legal knowledge, skill, thoroughness, and preparation to the extent reasonably necessary for representation.

a. The required proficiency is that generally afforded to clients in similar matters.

b. To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject. 

c. Supervisor makes the initial determination as to competence for a particular assignment.

d. United States v. Hanson, 24 M.J. 377 (C.M.A. 1987).  Judge believed defense counsel incompetent; properly appointed another detailed counsel without severing existing attorney-client relationship.

e. United States v. Weathersby, 48 M.J. 668 (Army Ct. Crim. App. 1998).  Lack of defense sentencing case.

f. United States v. Murphy, 50 M.J. 4 (C.A.A.F. 1998).  Lack of defense sentencing case in capital case. 

2. Principles

a. Know the law.

b. Know the consequences of conviction.

(1) United States v. Denedo, 2010 WL 996432 (UNPUBLISHED)
(N.M.Ct.Crim.App.).  A civilian defense counsel’s bad advice on immigration consequences of guilty plea did not render plea involuntary.  But see: U.S. v. Miller (duty to warn of sex registration offenses) and U.S. v. Rose (duty to answer questions about sex registration) infra.

(2) Padilla v. Kentucky, 130 S.Ct. 1473 (2010).  Padilla is a U.S. permanent resident of forty years who served in the U.S. military during Vietnam.  He was charged with felony drug trafficking, among other things.  He asked his attorney if a guilty plea would impact his immigration status, and his attorney told him he “did not have to worry about immigration status since he has been in the country so long.”  Padilla’s attorney’s advice was incorrect and but for his appeal that he pled guilty in reliance on his attorney’s advice, he would have been deported.  While the Supreme Court did not decide the ultimate issue of whether there was prejudice in this case, they did grant a new entitlement under the Sixth Amendment that Justice Scalia in his dissent terms a “Padilla warning” that now requires that where the law “is truly clear,” as the court found in this case, “the duty to give correct advice is equally clear.”  See also: United States v. Vargaspuentes, 70 M.J. 501 (A.C.C.A. 2011) addressing the need to properly advise in an immigration case.  Because the court resolved the case on other grounds, it did not substantively address counsel’s duty to investigate when a Soldier’s birthplace is listed as outside the U.S. on the ERB, but noted the point in passing.

c. Conceding guilt on lesser charge. United States v. Larson, 66 M.J. 212 (C.A.A.F. 2008).  A defense counsel may concede guilt on lesser charges to gain credibility on the main charge despite an accused’s NG plea.

d. Understanding privileges.  United States v. Paaluhi, 54 M.J. 181 (C.A.A.F. 2000).  Trial Defense Counsel erroneously interpreted possible psychotherapist-patient privilege in the military.  The CAAF reversed lower court's judgment and set-aside appellant's conviction and sentence, because defense counsel rendered ineffective assistance in improperly evaluating military privilege law.  The resulting confession secured Paaluhi’s conviction. Without his confession there might have been reasonable doubt as to his guilt. 

3. A lawyer can provide adequate representation in a wholly novel field through necessary study or consultation with a lawyer of established competence in the field in question.

4. If a lawyer becomes involved in representing a client whose needs exceed either the lawyer’s competence or authority to act, the lawyer should refer the matter to another lawyer.

5. Lawyers may give advice and assistance even if they do not have skill ordinarily required if referral or consultation with another lawyer is impractical.

D. Diligence (Army Rule 1.3).

1. Lawyers must act with reasonable diligence and promptness.

a. United States v. Gibson, 51 M.J. 198 (C.A.A.F. 1999).  Civilian defense counsel found ineffective where the CDC failed to pursue leads contained in the CID report that was provided by the trial counsel.  The accused was charged with rape and adultery.  The undeveloped information in the CID report included summarized interviews with teachers and students at the 15 year old victim’s school, that she may have alleged rape to distract school officials from her behavior, that she had a record of exaggerating her sexual experience, that she related conflicting versions of the alleged rape, and that she did not enjoy a good reputation for truthfulness.

b. Porter v. McCollum, 130 S. Ct. 447, 454 (2009).  Attorney required to perform adequate background investigation and present evidence in sentencing even if client not helpful.   Defendant’s status as a veteran and his struggles with posttraumatic stress disorder and subsequent substance, as well as his impaired mental capacity and abusive childhood is highly relevant mitigation evidence.

c. United States v. Boone, 42 M.J. 308 (Army Ct. Crim. App. 1996), rev’d 49 M.J. 187 (1998).  In cases where the client has retained civilian defense counsel, military defense counsel must not be lulled into inactivity and complete deference to their civilian counterparts; military defense counsel are not relieved of professional or ethical obligations to the client.

d. United States v. Sorbera, 43 M.J. 818 (A.F. Ct. Crim. App. 1996).  Civilian defense counsel whose advice to accused led to an additional charge provided incompetent pretrial representation.

e. United States v. McDuffie, 43 M.J. 646 (A.F. Ct. Crim. App. 1995); see also ABA Standard for Criminal Justice 4-4.3(b).  Defense counsel has no professional obligation as part of trial preparation to discuss pertinent evidentiary rules with a witness.

2. Post-trial submissions.

a. United States v. Johnston, 51 M.J. 227 (C.A.A.F. 1999).  The record of trial was returned to the convening authority for a new recommendation and action.  The new post-trial recommendation was served on the accused’s defense counsel, who was then a civilian.  Substitute counsel was not appointed.  The new recommendation was not served on the accused, nor did the defense counsel contact the accused.  No matters were submitted by the accused or counsel.  The court found the accused was not represented at a critical point in the proceedings against him in violation of Article 27 (b).

b. United States v. Wean, 45 M.J. 461 (C.A.A.F. 1997).  After post-trial 39a hearing, MJ concluded, “the collective failings and inactions . . . resulted in representation of the appellant that was lacking in legal knowledge, skill, thoroughness, and preparation.”

c. United States v. Fordyce, 69 M.J. 501 (Army Ct. Crim. App. 2010).  DC neglected to advise on waiver and Post Trial and Appellate Rights (PTAR) form did not cover it.  The court has found this to be an ongoing problem and their “patience is at a limit.” There was also a question whether the client consulted on clemency submissions.  Court highly encourages an accused co-sign R.C.M. 1105 and 1106 submissions, as well as putting it on the record the client has fully been advised of the post-trial submission process.  Court did not find counsel ineffective but found error in the post-trial handling of the case because the court was not convinced the appellant was “afforded a full opportunity to present matters to the convening authority.”  Consequently, the court set aside the action and returned it for a new one. 

3. Qualifications of Counsel. United States v. Williams, 51 M.J. 592 (N.M.Ct.Crim.App. 1999).  Appellant contended that his civilian defense counsel was ineffective per se because he was on “inactive status” with respect to his admissions to practice law in three states.  The Navy-Marine Court disagreed and found nothing in R.C.M. 502(d)(3)(A) requiring the practitioner to be able to practice in the home state.  51 M.J. at 597.  Counsel had submitted to the trial court various related documents to include one affirming that he was a “lawyer in good standing” in the state of Iowa. See also U.S. v. Morris, 54 MJ 898 (N.M.Ct.Crim.App. 2001).  DC’s inactive status with his state bar does not make him per se ineffective or deprive the appellant of the right to counsel; United States v. Steele, 53 M.J. 274 (C.A.A.F. 2000).  CDC’s inactive status with his state bar does not make him per se ineffective or deprive the appellant of the right to counsel.

4. Notification of requirement to register.  United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006).  Appellant averred he was never told that pleading to an offense of possessing child pornography would require him to register as a TX sex offender.  His failure to register led him to be incarcerated in TX.  The court failed to find IAC for failure to inform the accused.  The court did specify for cases tried after November 2006 that counsel must notify accused that any qualifying offense under DODI 1325.7 (sex + violence or minor) requires sex offender registration.

5. Obligation to answer reasonable questions.  United States v. Rose, 71 M.J. 138 (C.A.A.F. 2012).  IAC where defendant’s reasonable request for information regarding sex offender registration went unanswered which resulted in accused pleading guilty when he otherwise would not have if he had known the answer to his question.

6. Lawyers must consult with clients as often as necessary.

7. A lawyer should carry through to conclusion all matters undertaken for a client.

E. The Lawyer as Advisor.

1. A lawyer may refer to moral, economic, social, and political factors when rendering advice to clients (Army Rule 2.1).

a. Purely technical legal advice may sometimes be inadequate.

b. For a discussion of some ways such “beyond the law” topics can be integrated into client counseling, see these articles by CPT Evan Seamone: Attorney as First Responder: Recognizing the Destructive Nature of Posttraumatic Stress Disorder on the Combat Veterans’ Legal Decision-Making Process (202 Mil. L. Rev., 144-184 (2009)), Veterans’ Lawyer as Counselor: Using Therapeutic Jurisprudence to Enhance Client Counseling for Combat Veterans With Posttraumatic Stress Disorder (202 Mil. L. Rev., 185-257 (2009)), and Divine Intervention: The Ethics of Religion, Spirituality, and Clergy Collaboration in Legal Counseling (29 Quinnipiac L. Rev., 289-373 (2011)).

2. Lawyers must exercise independent judgment when advising a client (Army Rule 5.4).

a. Rule explicitly allows for individual representation when detailed or assigned.

b. Unfettered loyalty & professional independence to the same extent as lawyers in private practice when assigned individual client.

F. Communication (Army Rule 1.4).

1. Lawyers have a duty to keep clients reasonably informed about the status of a matter and to comply with client requests for information.

2. Lawyers also must explain matters to clients to permit them to make "informed decisions."

G. Confidentiality (Army Rule 1.6).

1. General rule.  A lawyer shall not reveal any information relating to the representation of a client.

a. Applies to all sources of information, not just that which comes from the client.

b. Applies to information obtained prior to formation of attorney-client relationship.

c. The duty of confidentiality continues after the lawyer-client relationship has terminated.

d. The duty also applies to Army legal support personnel.

2. Exceptions to confidentiality.

a. A client may consent to disclosure of confidences (Army Rule 1.6(a)).

b. Disclosure may be impliedly authorized in order to carry out the representation (Army Rule 1.6(a)). (See, e.g. United States v. Province, 45 M.J. 359 (C.A.A.F. 1997).

c. Disclosure is permitted to establish a claim or defense in a controversy with a client (Army Rule 1.6(b)).

d. A lawyer shall reveal:

(1) Information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(a) To prevent reasonably certain death or substantial bodily harm;

(b) To prevent the client from committing a criminal act that the lawyer believes is likely to result in the significant impairment of national security or the readiness or capability of a military unit, vessel, aircraft, or weapon system.

(2) There is no authority for revealing information of other potential offenses or past crimes under the Army Rules.  Example:  no obligation to reveal the whereabouts of a fugitive nor to disclose the location of contraband.  This conforms to the ABA Rules; see ABA Formal Opinion 84-349 (1984).

e. Compare to Mil. R. Evid. 502 - Lawyer-Client Privilege.

(1) Protects against disclosure of privileged communication between attorney and client.

(2) Does not protect against other disclosures (e.g., information gained from sources other than the client).

(3) More narrow than Rule 1.6.

H. Terminating the Relationship. (Army Rule 1.16)

1. Notwithstanding any other provision of the rule, a lawyer shall continue the representation when ordered to do so by a tribunal or other competent authority.

2. A lawyer shall seek withdrawal (or not commence representation) if -

a. the representation will violate the rules;

b. the lawyer’s physical or mental condition materially impairs her ability to represent the client; OR

c. the lawyer is dismissed by the client.

3. A lawyer may seek withdrawal if it can be accomplished without material adverse impact to the client’s interests or -

a. the client persists in a course of action which the lawyer reasonably believes to be criminal or fraudulent;

b. the client has used the lawyer’s services to perpetrate a crime or a fraud;

c. the client persists in pursuing an objective which the lawyer considers repugnant or imprudent; OR

d. other good cause for withdrawal exists.

4. A lawyer must take reasonable steps to protect a client's interests upon termination of the relationship (Army Rule 1.16).

5. Steps should include giving notice to the client, allowing time for employment of other counsel, and surrendering all papers and property.

6. United States v. Spriggs, 52 M.J. 235 (C.A.A.F. 2000).  TDS counsel represented Spriggs at a prior court-martial resulting in an acquittal.  After additional charges were preferred, including perjury charges from his first court-martial, appellant made an IMC request for his first DC.  DC had left active duty. The CAAF ruled that release of the TDS counsel from active duty constituted good cause for severance of the attorney-client relationship.  Additionally, appellant did not establish that there was an ongoing attorney-client relationship.  But see United States v. Hutchins, 69 M.J. 282 (C.A.A.F. 2011).  Court faulted the judge for not establishing reason for DC withdraw prior to DC resigning from military service after being part of the trial defense team for a year.  The court found there was not a knowing release and allowing the DC to EAS (ETS in the Army) because he had completed his commitment did not constitute “good cause.”  Unlike NMCCA, however, CAAF was unwilling to presume prejudice and did not set aside the findings or approved sentence.  CAAF has further opined, in the matter of Frank D. Wuterich, Appellant CCA 200800183, that in the event of a termination, particularly where there is a conflict involved, the military judge should ensure there is a verbatim transcript that reflects the facts, nature, type, and source of the conflict.

I. Fees and Self-Referral (Army Rule 1.5).

1. A lawyer shall not accept a gratuity, salary, or other compensation from a client for services performed as an officer of the U.S. Army.

2. A lawyer shall not receive compensation for making a referral of a client to a private practitioner.

3. A legal assistance attorney shall not receive any actual or constructive compensation or benefit for referring to a private-practitioner (including himself) a matter the lawyer first became involved with in a military legal assistance capacity.  Comment to Army Rule 1.5; see also AR 27-3, para. 4-7d & d(1).

a. Does not subsequently prohibit a reserve component lawyer from representing military personnel or dependents in a private capacity so long as the representation does not concern the “same general matter” that the attorney provided legal assistance on.  AR 27-3, para.  4-7d(2) & (3)  “Same general matter” means

(1) One or more types of cases within any one of the ten categories of legal assistance; or

(2) Which arises out of the same factual situation or course of events.

b. Prohibits lawyer from using official position to solicit or obtain clients for private practice.

J. Conflicts of Interest (Army Rules 1.7, 1.8 & 1.9).

1. Directly adverse to the current client.  A lawyer shall not represent a client if the representation of the client will be directly adverse to another client unless:

a. The lawyer reasonably believes the representation will not adversely affect the other relationship, and

b. Each client gives conformed consent in writing after consultation (Army Rule 1.7(a)).

c. If a conflict develops after representation has been undertaken, the attorney must seek to withdraw.  The Army Rules adopt an objective approach.  Relevant factors in determining whether multiple representation should be undertaken include:

(1) duration and intimacy of the lawyer's relationship with the clients involved,

(2) likelihood actual conflict will arise, and

(3) likely prejudice to the client if conflict does arise.

d. Potential conflicts in legal assistance:

(1) Estate planning.

(2) Debtor-creditor and seller-purchaser.  Compare Atlantic Richfield Co. v. Sybert, 456 A.2d 20 (1983) (no conflict) with Hill v. Okay Construction Co., 252 N.W. 2d 107 (1977) (conflict).

(3) Domestic relations.  Coulson v. Coulson, 448 N.E.2d 809 (1983); Ishmael v. Millington, 241 Cal. App. 2d 520, 50 Cal. Rptr. 592 (1966).

e. Potential conflict in criminal practice -- representing multiple accused.

(1) Ordinarily a lawyer should refuse to act for more than one of several co-defendants (Comment to Army Rule 1.7).  See Standards for Criminal Justice 4-3.5(b).

(2) Consult Army Regulation 27-10 and US Army Trial Defense Service Standard Operating Procedures before handling a co-accused situation.  Generally:

(a) Co-accused will initially be contacted by separate defense counsel.

(b) Co-accused may submit request for the same individual military counsel. 

(c) Chief, USATDS decides whether to grant the request.  No request will be granted unless each co-accused has signed a statement reflecting informed consent to multiple representation and it is clearly shown that a conflict of interest is not likely to develop.

2. Representation materially limited.  A lawyer is also precluded from representing a client if the representation would be materially limited by the lawyer's responsibility to another client, a third party, or by the lawyer's own interests (Army Rule 1.7(b)).  Example:  Defense counsel materially limited by loyalty to Army.  United States v. Bryant, 35 M.J. 739 (A.C.M.R. 1992).

a. A possible conflict does not preclude representation.

b. Representation is permitted if the lawyer reasonably believes that it will not be adversely affected by the interest and the client consents after consultation.   

3. Business transactions.  A lawyer shall not enter into a business transaction with a client (Army Rule 1.8).

4. Former client.  A lawyer who has represented a former client shall not thereafter represent another person in the same matter or use information to the disadvantage of a former client (Army Rule 1.9).

K. Imputed Disqualification (Army Rule 1.10).

1. Lawyers working in the same military law office are not automatically disqualified from representing clients with conflicting interests.  A functional analysis is required (Army Rule 1.10.  Compare ABA Model Rule 1.10.)

2. Army policy may discourage representation of both parties in certain instances, e.g.  AR 27-3, para. 4-9c. (Representation of both parties in a domestic dispute discouraged).

V. THE LAWYER AS AN ADVOCATE

A. Disclosure of Adverse Legal Authority (Army Rule 3.3).

1. A lawyer shall not knowingly fail to disclose to the tribunal, legal authority in the controlling jurisdiction, known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

2. A lawyer should disclose authority from a collateral jurisdiction if the judge "would reasonably consider it important to resolving the issue being litigated."  (Comment to Army Rule 3.3).  ABA Formal Opinion 280 (1949); ABA Informal Opinion 84-1505 (March 1984).

B. Trial Publicity (Army Rule 3.6).

1. A lawyer shall not make public statements that will have a substantial likelihood of prejudicing a proceeding.  See Gentile v. Nevada State Bar, 111 S. Ct. 2720 (1991).  Public statements include comments made through social media.

2. Other publicity considerations.

a. TJAG Memorandum on Relations with News Media - OSJA attorneys must get approval from their SJA before any information is released to the media.

b. USATDS SOP - Defense counsel must consult with their Regional Defense Counsel and the Office of the Chief, TDS, prior to release. The ultimate decision to release information rests with the defense counsel, however. 

c. Special Victims’ Counsel Handbook – Whenever possible, SVCs will coordinate media communications with their SJA.  In cases where the client does not consent to the SVC informing the SJA, SVCs are required to consult the Special Victim Counsel Office of the Program Manager. 

C. Ex Parte Discussions with Military Judge and Panel Members (Army Rule 3.5).

1. A lawyer shall not communicate ex parte with a judge or juror except as permitted by law.  See United States v. Copening, 34 M.J. 28 (C.M.A. 1992); United States v. Hamilton, 41 M.J. 22 (C.M.A. 1994).

2. It is unprofessional conduct for a prosecutor to engage in unauthorized ex parte discussions with or submission of material to a judge relating to a particular case that is or may come before the judge (Standards for Criminal Justice 3-2.8(c)).

D. Prosecutorial Disclosure (Army Rule 3.8(d)).

1. A lawyer prosecuting a criminal case shall make timely disclosure to the defense of all evidence or information known to the lawyer that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigation information known to the lawyer. 

2. This is commonly referred to as “Brady” material and failure to turn it over is a “Brady Violation” after the case Brady v. Maryland, 373 U.S. 83 (1963).

E. Handling Evidence or Contraband (Army Rule 3.4(a)).

1. If the client informs the lawyer of the existence of the evidence but does not relinquish possession.

a. Lawyer should inform the client of the lawyer's legal and ethical obligations regarding the evidence.

b. Lawyer should refrain from either taking possession or advising the client what to do regarding the evidence.

2. If the lawyer receives the evidence or contraband.

a. A lawyer shall not --

(1) Unlawfully obstruct another party's access to evidence;

(2) Unlawfully alter, destroy or conceal a document or other material having potential evidentiary value; or

(3) Assist another person to do so.

b. A lawyer who receives an item of physical evidence implicating the client in criminal conduct shall disclose the location of or shall deliver that item to proper authorities when required by law or court order (Comment, Army Rule 3.4(a)).  United States v. Rhea, 33 M.J. 413 (C.M.A. 1991) (defense counsel have a duty to surrender evidence which implicates their clients to prosecution).  But see also United States v. Province, 45 M.J. 359 (1997) (no duty where Government has equal access to evidence).

c. If a lawyer receives contraband, the lawyer has no legal right to possess it and must always surrender it to lawful authorities (Comment, Army Rule 3.4).

d. If a lawyer receives stolen property, the lawyer must surrender it to the owner or lawful authority to avoid violating the law (Comment, Army Rule 3.4).

e. Concealment, destruction, alteration, etc. could be a violation of UCMJ art. 134, Obstruction of Justice.

3. If the lawyer discloses the location of or delivers an item of physical evidence to proper authorities, it should be done in a way designed to protect the client's interests, including -

a. Client's identity.

b. Client's words concerning the item.

c. Client's privilege against self-incrimination.

d. Other confidential information.

4. Advice on handling evidence or contraband:

a. Do not accept the item.

b. Advise the client of the consequences of continued possession and voluntary turn-in.   Do not advise the client of what to do regarding the evidence.  Also advise the client of the lawyer's obligations regarding the evidence.

c. If possession cannot be avoided, turn it over to the proper authorities.

(1) Do not dispose of it or conceal it.

(2) Do not destroy or alter the evidentiary quality.

(3) Upon turn-in, refuse to disclose client identity and circumstances of your possession to the extent permitted by applicable case law.

F. Client Perjury (Army Rule 3.3; ABA Formal Opinion 87-353 (1987)).

1. A lawyer who knows that his client intends to testify falsely must

a. Advise the client not to do so and explain the consequences of doing so, including the lawyer's duty to disclose.

b. Attempt to withdraw (if the lawyer's efforts to dissuade the client from testifying falsely are unsuccessful).

c. Limit examination to truthful areas.

d. If not possible, disclose to the tribunal the client's intention to commit perjury.

2. United States v. Baker, 65 MJ 691 (C.A.A.F. 2007).  Provides additional nonbinding guidance on how defense counsel and military trial judges should handle issues of client perjury at trial.  Counsel should:

a. Conduct an investigation into all evidence prior to taking any action with regard to the alleged perjury.

b. Ethical obligations only exist if you have a “firm factual basis” to conclude that client has committed perjury.

c. Review potential consequences with client.

d. Request an on the record ex-parte discussion with the Military Judge to notify the military judge that the client will testify in narrative form without benefit of counsel without expressing why.

e. Refrain from using the perjured testimony in any way (i.e. in argument, cross or direct of other witnesses.)

3. Special Victim Counsel.  A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.  The obligations in Army Rule 3.3 apply to counsel for witnesses and victims, including Special Victim Counsel. (Comment, Army Rule 3.3)

G. Witness Perjury (Army Rule 3.3).

1. Avoiding the use of perjured testimony.

a. When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes (Army Rule 3.3).

b. "A lawyer may refuse to offer evidence that the lawyer reasonably believes is false."  (Army Rule 3.3(c)).

2. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures (Army Rule 3.3(a)(3)). This obligation ends at the conclusion of the proceeding.  (Comment—Duration of Obligation).

H. Prosecutorial Conduct.

1. The duty of the prosecutor is to seek justice, not merely to convict. ABA Standard 3-1.2c.

a. A lawyer prosecuting a criminal case shall recommend to the convening authority that any charge or specification not warranted by probable cause be withdrawn.  Military Rule 3.8(a).

b. A prosecutor should not intentionally avoid pursuit of evidence because he believes it will damage the prosecution’s case or aid the accused.  ABA Standard 3-3.11c.

c. Trial counsel should: report to the convening authority any substantial irregularity in the convening orders, charges, or allied papers . . . and bring to the attention of the convening authority any case in which trial counsel finds trial inadvisable for lack of evidence or other reasons (R.C.M. 502(d)(5) (Discussion)).

2. The use of social media in trial preparation could implicate ethical obligations. Before using social media when conducting case investigation, discovery, or trial preparation, attorneys should analyze, at minimum, whether their conduct would violate Rule 1.6 (Confidentiality of Information), Rule 4.1 (Truthfulness of Statements to Others), Rule 5.3 (Responsibility Regarding Nonlawyer Assistants), or Rule 8.4 (Misconduct).

a. As of the date of this deskbook, the American Bar Association has not issued a formal ethics opinion on trial practitioner’s use of social media, and the Army Rules of Professional Conduct fall silent on the issue as well.  ABA Formal Opinion 462 provides the ABA’s stance on judicial use of social media.

b. Some state ethics committees have addressed whether attorneys may use social media in trial preparation.  As a general rule, attorneys may access and review the public portions of a party’s social-networking pages without facing repercussions.  State ex. Rel. State Farm Fire & Cas. Co. v. Madden.   Unless your state ethics committee holds differently, attorneys should consider information as not “public” if the attorney needs to send a request to a third party, like a Facebook “friend request”, in order to access it.  

3. Cross-examination of a truthful witness.  ABA Standard 3-5.7.

a. Fair and objective cross-examination is permitted.

b. Unnecessary intimidation and humiliation of witness on cross-examination is prohibited.

c. If the prosecutor believes that the witness is truthful.

(1) Cross-examination is not precluded.

(2) But manner and tenor ought to be restricted. 

d. If the prosecutor knows that the witness is truthful, cross-examination may not be used to discredit or undermine the truth.

4. It is unprofessional conduct for a prosecutor to knowingly make false statements or representations in the course of plea discussions.  ABA Standard 3-4.1c.

5. A prosecutor may argue to the jury all reasonable inferences from the evidence in the record, but it is unprofessional conduct for the prosecutor to intentionally misstate the evidence or mislead the jury as to the inferences it may draw.  Rule 3.4(e); ABA Standard 3-5.8(a).

6. It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.  Rule 3.4(e); ABA Standard 3-5.8(b).

a. United States v. Sewell, 76 M.J. 14 (C.A.A.F. 2017).  Trial counsel used the term “we” a multitude of times, often in the context of allying himself with the panel.  The CAAF held it was improper to include the use of personal pronouns in connection with assertions that a witness was correct or to be believed.

b. United States v. Fletcher. 62 MJ 175 (C.A.A.F. 2005).  Trial counsel repeatedly vouched for the credibility of the Government’s witnesses and evidence.  For example, after discussing the testing methods and cut-off levels, she concluded, “we know that that was from an amount that’s consistent with recreational use, having fun and partying with drugs.”  She referred to another exhibit, the drug test results, personally characterizing the exhibit as “a perfect litigation package.”

7. Prosecutors should not: 

a. Make arguments calculated to inflame the passions or prejudices of the jury.  ABA Standard 3-5.8c.  United States v. Diffoot, 54 M.J. 149 (2000).  Comments made by the trial counsel during closing argument regarding accused’s ethnicity and urging a conviction based on guilt by association amounted to plain error and materially prejudiced appellant's substantial rights.

b. Make arguments that would divert the jury from its duty to decide the case on the evidence.  ABA Standard 3-5.8d.  United States v. Baer, 53 M.J. 235 (C.A.A.F. 2000).  (The CAAF held that golden rule arguments asking the members to put themselves in the victim’s place are improper and impermissible in the military justice system.  However, they did recognize the validity of an argument asking the members to imagine the victim’s fear, pain, terror and anguish.  When improper argument is made, it must be looked at in context to determine whether it substantially impacted on the right of the accused to a fair and impartial trial.  The CAAF held no such impact here and affirmed the case.)                                                                                                                                                                                                                              

c. Ask the defendant during cross-examination to comment on the truthfulness of other witnesses.  United States v. Harrison, 585 F.3d 1155 (9th Cir. 2009) (where the SAUSA asked the defendant to comment on the truthfulness of the MP’s he allegedly assaulted.)

8. Threaten Criminal Prosecution.

a. Under ABA Code DR 7-105, lawyers could not present, participate in presenting, or threaten to present criminal charges "solely to gain an advantage in a civil matter."  See Iowa State Bar v. Michelson, 345 N.W.2d 112 (Iowa 1984); TJAG Opinions, The Army Lawyer, March 1993 and May 1977.  See also United States v. Edmond, 63 M.J. 343 (C.A.A.F. 2006) where a trial counsel threatened a civilian witness (former Soldier) with prosecution by the SAUSA if he testified and then had the SAUSA reiterate the threat of prosecution.

b. There is no parallel provision in the Army Rules (or ABA Model Rules).  Threatening or filing criminal charges may, however, violate more narrow provisions of Rules 3.1, 3.3, 3.4, 3.5, 3.8, 4.4, 8.4(b), or 8.4(e).

c. Attorneys should exercise caution when writing to collect support payments or debts on behalf of clients.  See Iowa State Bar v. Michelson, 345 N.W.2d 112 (Iowa 1984); OTJAG Ethics Opinions, The Army Lawyer, March 1993, September 1978, and May 1977.

9. Prosecutors may refer to or argue facts outside the record only if the facts are matters of common public knowledge based on ordinary human experience.  ABA Standard 3-5.9.

10. Vindictive Prosecution.  To support a claim of vindictive prosecution, one must show that (1) “others similarly situated” were not charged; (2) “he has been singled out for prosecution”; and (3) “his ‘selection . . . for prosecution’ was ‘invidious or in bad faith, i.e., based on such impermissible considerations such as race, religion, or the desire to prevent his exercise of constitutional rights.’” Failure to show any of the three prongs of the test must result in the failure of a claim of vindictive prosecution.  Because the burden to establish a claim of vindictive prosecution falls on the moving party, challenging a case on grounds of vindictive prosecution can be difficult.  See Unites States v. Martinez, 2009 WL 1508451 (A.F. Ct. Crim. App. 2009).  Air Force Captain alleged that he had “identified problems with operating procedures, equipment and standard of care,” which he claimed irritated the SJA, convening authority, the Article 32 IO, the judge, TC, DC, “and a myriad of others.” 

I. Lawyer as a Witness (Army Rule 3.7).

1. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

a. The testimony relates to an uncontested issue;

b. The testimony relates to the nature and quality of legal services rendered in the case; or

c. Disqualification of the lawyer would work a substantial hardship on the client.

2. Unless the lawyer for the accused is prepared to forego impeachment of a witness by the lawyer's own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present such impeaching testimony, the lawyer should avoid interviewing a prospective witness except in the presence of a third person.  Standards for Criminal Justice 4-4.3(d).

VI. OBLIGATIONS TO THIRD PARTIES

A. Truthfulness in Statements to Others.

1. A lawyer shall not make a false statement of law or fact to third parties (Army Rule 4.1(a)).

a. Knowledge of falsity generally required.

b. Misrepresentations can occur if a lawyer affirms a false statement of another person.

2. A lawyer shall not fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act, unless disclosure is prohibited by Rule 1.6 (Army Rule 4.1(b)).

3. A lawyer also has an obligation to disclose prior misstatements.

B. Respect for the Rights of Third Parties (Army Rule 4.4).

1. A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third party or use methods of obtaining evidence that violate the rights of third parties (Army Rule 4.4).

2. Other obligations to third parties:

a. A lawyer has a duty of candor when dealing with third parties.  People v Berge, 620 P.2d 23 (Colo. 1980).

b. A lawyer is forbidden from engaging in illegal, dishonest, and fraudulent conduct.  Office of Disciplinary Counsel v Kissel, 442 A.2d 217 (Pa. 1982).

c. Lawyers must not make derogatory remarks about opposing counsel or opposing parties.  Professional Responsibility, The Army Lawyer (Sept. 1978) ("lowly, dishonest, welsher").  See also State v Turner, 538 P.2d 966 (Kan. 1975). 

d. If a lawyer receives a document or electronically stored information (including metadata) relating to the representations of the lawyer’s client and the lawyer knows or reasonably should know the document or information was sent inadvertently, he or she must promptly notify the sender.

C. Communications with Opposing Parties.

1. A lawyer shall not discuss a case with another party who is represented by an attorney (Army Rule 4.2).  See also ABA Code DR 7-104.

a. A lawyer may not accomplish communication indirectly through an agent or encourage clients to contact opposing parties. United States v. Meek, 44 M.J. 1 (C.A.A.F. 1996).) Trial counsel, following on the heels of military defense counsel, barged into a meeting between civilian defense counsel and accused.  Trial counsel proceeded to tell the accused that his civilian lawyer had not interviewed witnesses and was ineffective.  This was inappropriate contact with the accused. 

b. Communication with a party concerning matters outside the representation is permissible.

c. A lawyer may communicate with the commander of an opposing party even if the party is represented by counsel.

2. A lawyer is not precluded from communicating with an unrepresented party (Army Rule 4.3).

a. Lawyers may not state or imply that they are disinterested.

b. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. 

c. Lawyers should refrain from giving advice to unrepresented persons (Comment to Army Rule 4.3).  See also ABA Code DR 7-104(A)(2).

VII. DUTIES OF SUBORDINATES AND SUPERVISORS

A. Responsibilities of Supervisory Attorneys (Army Rule 5.1).

1. Supervisors must make reasonable efforts to ensure subordinates comply with Rules (Army Rule 5.1).  Includes nonlawyers under supervision (Army Rule 5.3).

2. A supervisor assumes imputed responsibility for acts of subordinates if:

a. The lawyer orders or ratifies a subordinate's violation, or

b. The lawyer knows of and fails to take remedial action to avoid or mitigate the consequences of a violation.

B. Responsibilities of Subordinate Attorneys (Army Rule 5.2).

1. A subordinate is bound by the Rules of Professional Conduct even if he or she acts at the direction of another.

2. Subordinate attorneys may rely on ethical judgment of a supervisor if the issue is subject to question.  If the ethical question can be answered only one way, the subordinate must comply with the Rules.

C. Unauthorized Practice of Law (Army Rule 5.5).  A lawyer shall not engage in the practice of law outside the Department of the Army without receiving prior and proper written authorization from the appropriate Senior Counsel. 

D. Responsibilities Regarding Non-Law and Law-Related Duties (Army Rule 5.7).  An Army lawyer, military or civilian, shall also be subject to these Rules with respect to non-law but official, and law-related but official, duties performed as an Army Lawyer.  Examples of law related official duties include:

1. Article 32 preliminary hearing officer.

2. Law instructor/trainer.

VIII. PROFESSIONAL RESPONSIBILITY COMPLAINTS

A. Professional Misconduct (Army Rule 8.4).

1. It is professional misconduct for a lawyer to violate or attempt to violate these rules, to do so through the acts of others, or to knowingly assist another in violating the rules.

2. A lawyer is professionally answerable for criminal acts that indicate lack of a characteristic relevant to the practice of law.  Examples include offenses involving violence, dishonesty, breach of trust, or interference with justice. 

3. A lawyer also commits professional misconduct by engaging in conduct (even if not criminal) involving dishonesty, fraud, deceit, or misrepresentation, or that is prejudicial to the administration of justice.

B. Professional misconduct distinguished from personal misconduct.

1. Cases normally in the scope of AR 27-1.

a. Dishonesty – false claims, shoplifting, obtaining false official orders, firearms violations, or illegal surveillance.

b. Crimes of a sexual nature.

c. Dealing with Subordinates – mismanaging by having personal business transactions with subordinates or imposing on subordinates for personal favors.

d. A pattern of repeated offenses, even ones of minor significance when considered separately, can also indicate indifference to ethical and/or legal obligations

2. Cases normally not normally in scope of AR 27-1.

a. Discretionary Administrative Action – OERs, NCOERs, award recommendations, pass, or leave actions.

b. DWIs or minor traffic offenses.

c. Insulting Behavior – rudeness and name-calling unless directed toward judges or investigating officers.

C. Reporting Misconduct (Army Rule 8.3).

1. A lawyer with knowledge of a violation of a Rule of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer, must report the violation.

2. Minor or inadvertent violations need not be reported.

3. Disclosure of information protected under Rule 1.6 is not required.

4.There is no requirement to confront a violator.

5. Army system implemented in AR 27-1.

a. Allegations are reviewed by several supervisory JAs up to and including DJAG before a formal preliminary screening inquiry (PSI) is ordered.

b. Increased due process protections for the accused attorney.

c. Designed to protect the interests of both the Army and the attorney.

d. OTJAG determines whether to report violation to state bar.

D. Self-Reporting Requirement (AR 27-1).

1. AR 27-1, para 11-10a.  A JA is required to self-report to OTJAG (Professional Responsibility Branch) when he is first notified that he is being investigated by his licensing authority under circumstances that could result in being disciplined as an attorney or a judge.

2. If claiming lack of notification as a defense for not self-reporting, TJAG could still, at his discretion, decide that he has lost faith and trust in the JA and could then discipline the JA IAW R.C.M. 109(a) of the UCMJ and under 10 USC 3037. 

E. Advisory Opinions (AR 27-1, para. 11-7).

1. Requests should be forwarded through technical channels to OTJAG, ATTN: Chief, Professional Responsibility Branch.

2. Opinions will be rendered only for important issues of general applicability to the JAG Corps.

F. Determining Ineffective Assistance of Counsel (IAC).                           

1. The Supreme Court has recognized that simply providing counsel is insufficient to meet the burden imposed by the Sixth Amendment of the U.S. Constitution.  “That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command.   An accused is entitled to be assisted by an attorney… who plays the role necessary to ensure that the trial is fair.”  Strickland v. Washington, 466 U.S. 668, 685 (1984). 

2. The test for determining whether counsel’s conduct has fallen below the acceptable line is measured in a two-part test.  First, the court evaluates whether counsel’s performance was deficient compared to what is expected of reasonably competent counsel, without the benefit of hindsight and using the standards in place at the time.  Second, the court examines whether appellant was harmed by the deficiency, assuming there was one.  If either prong of the test fails, then the court will not find IAC.

3. In Harrington v. Richter, 562 U.S. 86 (2011), and Premo v. Moore, 562 U.S. 115 (2011), the Supreme Court used this analysis in examining whether defense counsel was deficient for not calling a blood spatter expert or failing to attempt to suppress an admission before entering into a guilty plea.

 

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