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The Calm in the Storm:

 

Judge Advocates Must Have the Courage That Principled Counsel Requires

 
 
   
   
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(Credit: istockphoto.com/Arsen Volkov)

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The concept of judge advocates providing principled counsel has long been part of the culture of our Judge Advocate General’s (JAG) Corps, even though we did not term it as such. Often, we may have taken it for granted, but it was always there. We recognized it in practice and admired those who rose to those challenges. We may have studied it, but probably not in a deliberate or developmental way. Now, through Lieutenant General (LTG) Pede’s leadership and vision, we can see the advantages of a focus on the practical aspects of principled counsel. This focus prompts questions such as: What does it look like? How does it apply in different contextual situations? What are the different approaches to exercising it? How do you know when you need to take a principled stand?

Principled counsel entails many things, including: integrity, competence, the courage to choose the harder right over the easier and safer wrong, and speaking truth to power. It starts with rock-solid values and the strength of personal courage, and then it grows and builds with experience. We gain expertise from observing and learning from others and from thoughtfully reflecting on our own first-hand personal experiences. Personal experience is often the most powerful way to learn. It certainly can be the most challenging form of learning, but it also can be the most brutal of teachers. A program that captures the experiences of others in meeting the challenges of principled counsel, and then shares them as part of the leadership development process, is incredibly valuable. It softens some of the potentially hard blows of the learning process, deepens the knowledge and experience base for leaders, and broadens that throughout the Corps.

This is an exciting time to be a judge advocate in the Army JAG Corps. Everyone has their own stories about their experiences, those they served with, and the challenges they were called to meet. Like LTG Pede’s anecdote in this edition’s Court Is Assembled, these stories illustrate examples of principled counsel. Because we often take these for granted, they usually were not shared beyond our circle of friends and fellow judge advocates. What a wealth of experiences that could have been shared with the new generation of judge advocates and paralegals.

Now there is a program that allows those experiences to be highlighted. As judge advocates, if you haven’t already had to take a principled stand in your career, just wait, because you will if you are doing your job. That doesn’t mean that you have to be facing issues of great national consequence. That means trying to do the right thing in everything you do. You are not always going to get everything exactly right, but if you set that as a goal, you are going to achieve it much more often. Each time you take a principled stand, you will find the next time a little easier. The effect of successively doing the right thing—even when no one is looking—will make each succeeding time easier.

I remember my first experience with this as a judge advocate. It was my first JAG Corps assignment, and, after six months in legal assistance, I was made a trial counsel with my own special court-martial (SPCM) jurisdiction. I inherited about fourteen or fifteen cases from the previous trial counsel, who had quickly prepared all the charges immediately before his reassignment. As I worked through the cases in preparation for referral with the SPCM convening authority, I became concerned that one of the cases did not have the necessary probable cause to establish guilt. After wrestling with this for a day or two, I decided that I needed to raise this with the convening authority. At my meeting, I explained my concerns and said that I could not ethically prosecute the case. If he still wanted to go forward, I would see if someone else would take the case. I was convinced this was going to end my stint as trial counsel before it had really started. The colonel, who had served in combat in both Korea and Vietnam, looked at me for what seemed like an eternity and then he smiled and said, “Well, I’ll be. That’s never happened to me before. If you feel that strongly, I’ll dismiss the charges.” In retrospect, that clearly wasn’t a big deal in the grand scheme of things; but it was at the time, and it helped me begin to develop the confidence that I would need later in my career.

In my first job as a staff judge advocate, I worked for a commander in Europe who had the reputation as one the toughest commanders in the theater. It was a reputation that he embraced and promoted. The other members of the staff said he liked to initiate new staff members with an ordeal of trial by fire. During my first several months, I was sure I was going to be fired at any moment for telling him things that he didn’t want to hear. One day, after I had been in the job for about three months, there was a briefing by one of the staff chiefs that was not going very well. The commanding general thought the briefer was telling him what they thought he wanted to hear and not what he needed to hear. His eyes narrowed. “Stop,” he shouted. He stared at the briefer and then around the room. He jumped up from his chair and started out of the room. Then he stopped and spun around. “Some of you have a lot to learn and you are running out of time. I have only two staff officers who tell me what I need to hear, not what they think I want to hear: the Chaplain and the JAG.” I knew from then on that he appreciated my legal advice, even if he didn’t always show it.

Some advice about when you decide to make a principled stand: make sure you are right about the law and that you have looked at all of the options before rendering your advice. Being wrong can have a devastating effect on your credibility with your client, not to mention your own confidence. If your advice is not based on law or regulation, tell your client, but then explain the basis of your advice. Your client will appreciate your candor, and it will strengthen your hand when you do later rely on law or regulation.

As you move through your career in the JAG Corps, you will find that those whom you lead will expect you and the other leaders above them to exercise principled counsel. In some of the most challenging times I experienced as TJAG, I was always guided by the thought that the Corps would expect no less from me.

Who could have predicted the challenges our military and our nation are facing today? It’s times like these that make principled legal counsel to the Army even more important and challenging. Through their principled counsel judge advocates are and always have been the calm eye in the middle of the storm. When there is an accounting after it is all said and done, you want to be sure you are on the right side of the law, and the right side of history. TAL

 


MG (Ret.) Romig served as the U.S. Army’s 36th Judge Advocate General. After his military retirement, he served as Washburn University School of Law Dean until stepping down after eleven years in July 2018. MG (Ret.) Romig continues to serve as a professor on phased retirement.