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Reporting Misconduct

 

 

 
 
   
   
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(Credit: istockphoto.com/bernie_photo)

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The Judge Advocate General (TJAG) expects the daily actions of every member of the Judge Advocate Legal Services (JALS) to reflect an unwavering commitment to the highest standards of ethical conduct, founded on the premise that service to our nation is not only an honor, but a responsibility. This commitment requires steadfast integrity and absolute compliance with established professional conduct standards. The Judge Advocate General has established certain reporting requirements for misconduct so that he can evaluate, manage, and inquire into the delivery of legal services by the Judge Advocate General’s (JAG) Corps. These requirements, discussed below, are separate and apart from those found in Army Regulation (AR) 27-26, Rule 8.3, and the corresponding rules in the various states and territories.1

When and How to Report Misconduct

Scenario 1

You are Captain (CPT) John Smith currently serving as a trial counsel. When you were home on leave last week, 500 miles from your duty station, you were arrested and charged with driving while intoxicated (DWI). You intend to fight the charge. You did not tell the arresting officer that you are in the Army, so you believe the likelihood is low that the Army will learn about your arrest unless you are convicted. At physical training this morning you told your buddy, another judge advocate (JA) named CPT Jane Jones, about your arrest and charge. You also said you were not going to tell your JA supervisor about it unless you were convicted. You are aware that AR 600-20, Army Command Policy, paragraph 4-23, requires you to report to your commander, in writing, any conviction for violating a criminal law.2 Captain Jones tells you that she is not sure your position is right. She remembers hearing that JAs have to report to their legal technical chain supervisors if they have been charged with a criminal offense (other than misdemeanor traffic offenses), not just if they have been convicted. You have never heard that, so you challenge her to show you the authority for that requirement. Rather than tell you to do your own research since your career is at stake, not hers, she starts with the AR that covers just about everything related to the administration, requirements, and responsibilities of the JALS: AR 27-1, Judge Advocate Legal Services.3

Resolution to Scenario 1

Captain Jones’s research lands on paragraph 11-10, which states:

Any lawyer in JALS who has been charged with a criminal offense (other than misdemeanor traffic offenses) in any state, territory, commonwealth, or possession of the United States or in any federal court of the United States or the District of Columbia shall immediately inform, through appropriate technical channels, the Chief, Professional Responsibility Branch (PRB), of the charge. The lawyer shall thereafter promptly inform the Chief, PRB, of the disposition of the matter.4

Captain Jones is an excellent lawyer and researcher who takes her responsibility to be competent and diligent seriously, so she stays informed not just about laws and regulations but also TJAG’s policies. She remembers seeing more about this issue, so she turns to JAGCNet, a fountain of information. She quickly finds the same reporting requirement in TJAG Policy Memorandum 17-01, Professional Responsibility.5 As your friend and not as your lawyer, CPT Jones shows you your reporting requirements.

You are now embarrassed about both your failure to know your reporting requirements and your attitude about it. You and CPT Jones have a professional, candid talk about why these reporting requirements reflect the Army Values and protect you, your clients, and the integrity of the JALS. Armed with this information, you report your arrest to your supervisors. Informed about your situation, your supervisory lawyers can now assess any personal conflict that may exist and, if necessary, make reassignment decisions to protect your clients, discuss substance abuse treatment options with you, and afford you the opportunity to demonstrate your character as you deal with your DWI charge.

Scenario 2

You are Colonel (COL) Williams, an installation staff judge advocate. At the office summer picnic this afternoon, you overheard a conversation between three E-4 paralegals. They seemed to be arguing about whether their section noncommissioned officer (NCO) in charge paralegal, Sergeant First Class (SFC) Gray, is bullying Private First Class (PFC) Brown, a new paralegal who arrived three days ago. Sergeant First Class Gray is yelling and screaming at PFC Brown in front of others, including in public office spaces, and ordering him to perform dozens of pushups for no apparent reason. But it was hard to hear everything they said, so you are not sure what you heard. What do you do? Should you ask the three paralegals? It is possible that your command paralegal NCO, Sergeant Major (SGM) Johnson, is aware of the matter and hasn’t brought it to your attention just yet? You decide to ask SGM Johnson. It turns out what you think you overheard is news to him. You know it is your responsibility to look into this matter, and you decide that it would be best to try to confirm your suspicions, so you tell SGM Johnson to speak with the three paralegals. He comes back with not-so-good news: some people think SFC Gray is yelling and screaming at PFC Brown, while others view it as a loudly raised voice. Sergeant First Class Gray’s interactions with PFC Brown concern both his duty performance as a paralegal and his duty performance as a Soldier. Most agree that PFC Brown is locked in the push-up position several times a day. Everyone in the section and others in other sections are aware of it, but SGM Johnson is not ready to label it as toxic leadership or bullying until he can get more facts.

Resolution to Scenario 2

You and SGM Johnson discuss it. Because toxic leadership and bullying behavior is not unique to a law office, and some of SFC Gray’s interactions with PFC Brown concern his performance as a Soldier, should you ask the commander to conduct an AR 15-6 investigation into SFC Gray’s behavior? Perhaps, but SFC Gray is a supervisor in the JALS, as defined in AR 27-1, paragraph 12-2b; and, according to AR 27-1, Chapter 12 (Mismanagement Inquiries), TJAG has jurisdiction to inquire into mismanagement in a law office.6 Regardless, now that you have some facts, you know that you have an immediate requirement to inform the Regimental Command Sergeant Major (RCSM) because pursuant to TJAG Policy Memorandum 17-01, all allegations of misconduct or impropriety against any member of the JALS—whether criminal, professional responsibility, mismanagement, or any other type—will be reported through appropriate technical channels to the Chief, PRB, for JAs and Civilian lawyers; to the Chief Warrant Officer of the Corps for legal administrators; and to the RCSM for paralegal Soldiers.7 You inform the RCSM, and you both discuss the investigation options. You bring the PRB into the discussion, and there is a unanimous decision that it would be best to start with a command investigation into the allegations of toxic leadership and bullying. But, SFC Gray’s technical supervision of PFC Brown’s performance as a paralegal will be carved out for your review under AR 27-1, Chapter 12.8 Once the command investigation is complete, you will receive a copy, determine whether a separate Chapter 12 inquiry is still warranted and, if so, fold those findings into that inquiry.

Conclusion

As the reader can see, each scenario must be handled on a case-by-case basis. The take-away is that each member of the JALS has reporting requirements when allegations of misconduct or impropriety are involved, whether as a self-report or a supervisor’s report. TAL

 


COL (Retired) Martin was the former Chief of the Professional Responsibility Branch at the Office of The Judge Advocate General, in the Pentagon, Washington, D.C.



Notes

1.U.S Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers (28 June 2018).

2.U.S Dep’t of Army, Reg. 600-20, Army Command Policy (24 July 2020).

3. U.S Dep’t of Army, Reg. 27-1, Judge Advocate Legal Services (24 Jan. 2017) [hereinafter AR 27-1].

4. Id. para. 11-10.

5. Policy Memorandum 17-01, The Judge Advocate Gen., U.S. Army, subject: Professional Responsibility (1 Dec. 2017) [hereinafter TJAG Policy 17-01].

6. AR 27-1, supra note 3, para. 12-2b.

7. TJAG Policy 17-01, supra note 5.

8.AR 27-1, supra note 3.