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A Roadmap for Leaders of SVCs

 

 

 
 
   
   
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(Credit: istockphoto.com/AndreyPopov)

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Like many special victims’ counsel (SVC), the authors of this article work under the supervision of officers and leaders who served as trial counsel or defense counsel before the Army established the SVC program. The intent of this article is to provide supervisors with insight into the day-to-day issues SVCs face, what a typical SVC’s practice looks like, and other considerations that may affect staffing or assignments.1 Leaders looking for a detailed account of the state of the SVC program are encouraged to read Colonel Louis P. Yob’s article, The Special Victim Counsel Program at Five Years: An Overview of Its Origins and Development, in Issue 1 of the 2019 edition of The Army Lawyer.2

The SVC’s Supervisory and Technical Chains

Supervisors can help their SVCs be successful by ensuring SVCs understand the organization of the SVC Program. Special victims’ counsel who understand the structure will be in the best position to know which resource to access as issues arise. Special victims’ counsel often work alone, but should never work in isolation as they will often encounter issues of first impression and complex professional responsibility matters.

Special victims’ counsel are legal assistance attorneys who are managed and rated within their assigned Office of the Staff Judge Advocate (OSJA).3 The Chief of Legal Assistance (CLA) and Staff Judge Advocate (SJA) provide direct supervisory oversight of their SVCs.

Special victims’ counsel also have a technical chain. The technical chain consists of the CLA, the SVC Regional Manager (SVCRM), and the SVC Office of the Program Manager (SVCOPM).4 The technical chain does not include the SJA because the victim’s interests may not align with the government’s.5 The technical chain provides policy guidance, practice advice, and professional responsibility supervision to SVCs in accordance with Army Regulation 27-26.6 Technical chain supervision provided to an SVC is privileged communication.7

The SVCRM initiative was implemented in June 2018.8 It created mid-level managers in large part to more efficiently manage conflict cases. Previously, conflict cases were routed through the SVCOPM. This initiative divided the SVC Program into five geographic regions, with each region having an assigned SVC Regional Manager. Special victims’ counsel regional managers are mid-level managers in the technical chain. They assist CLAs and SVCs in their region by providing technical advice and professional responsibility supervision. They also detail clients to outside SVCs when the local office is precluded from representation due to a conflict. Regional managers also coordinate annual training for SVCs in their region and collect and analyze statistical information for their region.

The SVCOPM provides technical and policy oversight of the SVC Program for SVCs serving in the field. The SVCOPM publishes the Special Victims’ Counsel Handbook, which guides the daily practice of SVCs in the field. All SVC travel and funding is also managed through the SVCOPM.9

What Leaders Should Know About a Typical SVC Practice

Leaders who understand what a typical SVC practice looks like will be in a better position to make personnel management decisions and identify when additional support is needed.

An SVC is rarely the first point of contact in the military justice system for a victim of sexual assault. Victim advocates, healthcare providers, and military law enforcement are the first to notify almost all prospective clients of their right to an SVC. Prospective clients may choose to consult with an SVC or continue without one. Special victims’ counsel are not permitted to solicit clients.10 Prospective clients may elect to consult with an SVC at any stage of the military justice process. Some prospective clients do not request to consult with an SVC until after they have already provided a statement to law enforcement. Others wait until a trial counsel asks for input on a plea agreement or until the eve of trial. Once the prospective client has elected to consult with an SVC, the SVC will schedule an initial consultation with the prospective client. The initial consultation typically takes place in the SVC’s office within a day or two of the prospective client’s election. On rare occasions, exigencies will require an early morning consultation at a medical treatment facility.

The initial consultation should be conducted face-to-face when possible.11 There is no formula for the consultation, but it should always include checks for eligibility, conflicts of interest (via JAGCNet’s Client Information System), safety concerns, and an explanation of the SVC’s role in the military justice system.12 The SVC should also ask about collateral misconduct. Collateral misconduct is misconduct that is committed by a victim of sexual assault that has a direct nexus to the sexual assault.13 If the SVC determines collateral misconduct is an issue, the client may be referred to Trial Defense Service (TDS). The SVCOPM has developed a procedure for TDS referrals that mitigates the risk of creating a conflict within a TDS office.14 After all of the above has been explained, the prospective client may choose to become the SVC’s client.

The attorney-client relationship is governed by a document, created by the SVC, called the “Scope of Representation.” The SVCOPM provides SVCs with a template for the document in the SVC Handbook.15 In general, the Scope of Representation will outline the purpose of the relationship, the limitations of SVC representation, and when the relationship will end.16

The time commitment required for an SVC to assist a client will vary based on the client and the facts of the case. An SVC will usually be busiest within the first few days of receiving a new client and the weeks leading up to the final disposition of the case. In the early days of a new case, the SVC will spend hours talking to the client about goals, preparing them for the Criminal Investigation Command (CID) interview, if applicable, and managing expectations. The SVC will also coordinate an interview with CID and be present during the interview.17 After the CID interview and during the investigation phase, the amount of personal interaction with the client may decrease significantly.

The SVC will receive periodic updates and requests for information throughout the investigation from CID or the assigned trial counsel. All updates are passed along to the client.18 If the case is preferred and later referred, the time commitment from the SVC will likely increase again. The SVC will need to be present at the Article 32 hearing, review proposed plea agreements with the client, analyze and potentially respond to Military Rules of Evidence (MRE) 412 and 513 motions, and be with the client during government and defense interviews as well as trial preparation. The SVC will also help clients draft a victim impact statement.19

An SVC will act as the eyes and ears of the client during trial. Although victims have the right to be present in the courtroom throughout the trial, it is a right few victims exercise. Moreover, the typical SVC client is not comfortable in the courtroom and prefers to leave after testifying. The SVC will usually remain in the courtroom, ever vigilant for MRE 412 and 513 issues, and provide updates to the client. If there is a conviction, the SVC will help the client prepare a victim impact statement and submit post-trial matters to the convening authority.

The work load of an SVC is difficult to evaluate on numbers alone. The ebb and flow of the usual SVC-client relationship-cycle can allow an SVC to carry a large client load and still provide quality legal services to all of their clients. In jurisdictions with only one SVC or when SVC coverage is limited, it is common for an SVC to be assigned multiple new clients every week. The stages of some of those new clients’ journeys through the military justice system will inevitably be closely aligned and the SVC may struggle to keep up. Supervisors of SVCs should endeavor to look beyond the numbers when evaluating an SVC’s work load. An SVC that can easily manage thirty cases that trickled in over a year can also become overworked if assigned five new cases in one week.

Special victims’ counsel with a manageable workload can provide additional value to the organization as educators. Special victims’ counsel can regularly provide training to commanders, military justice practitioners, law enforcement, or U.S. Army Sexual Harassment Assault Response Prevention representatives. Encouraging and enabling SVCs to engage in these trainings can lead to increased efficiency and functionality for both military justice practitioners and victims’ services providers. For example, military justice practitioners may become more aware of their obligations toward victims and better prepared to protect their commanders from inadvertently violating a rule or regulation. These trainings also allow for a professional exchange of ideas and the opportunity to ease potential friction points between the various stakeholders.

Understanding SVC Travel Responsibilities

Special victims’ counsel frequently travel to represent their clients’ interests. Leaders should understand the various reasons SVCs may be required to travel and be in tune with the SVC’s travel schedule to prevent lapses in local coverage while the SVC is away. One solution to ensure local coverage is to have a pool of part-time SVCs available to take on new clients while the full-time SVC is away.

Typical reasons for SVC travel include the following:

  1. The client’s sexual assault allegation is investigated and prosecuted in a different geographic area than the SVC is located. The SVC may be required to travel to where the case is being investigated and prosecuted until the case reaches final disposition.
  2. The SVC Regional Manager details a conflict case to an SVC and the SVC is located in a different geographic area than the client. The SVC may have travel requirements such as meeting with the client in person for an initial consultation and as representation requires until final disposition.
  3. The SVC’s client is granted an expedited transfer to a different duty location. The SVC will retain an attorney-client relationship unless the client approves a transfer of SVC services. If the client does not approve a transfer of services, the SVC will maintain the attorney-client relationship, and will travel to the client’s new duty location as representation requires until final disposition.

Potential Friction Points

Leaders should be aware of potential friction points that may arise between an SVC and other parties involved in the military justice process. Leaders who can identify friction points will be in a stronger position to ensure relationships between parties remain professional and productive.

One potential friction point is between the SVC and military justice practitioners. It is the primary duty of an SVC to represent the interests of the victim, and a friction point may arise when an SVC’s client has a divergent interest from a military justice practitioner. For example, the SVC’s client may request the command dispose of a case through administrative action while the trial counsel would like to prosecute the case. In these situations, the SVC must advocate for their client’s desires. A trial counsel may view the SVC’s advocacy for administrative action as obstructionist, and friction between the two counsel may result.

A friction point may also arise when an SVC views that their client’s rights are violated. For example, a trial counsel may violate a victim’s right by failing to provide timely notice of preferral of charges or that an Article 32 has been scheduled. A trial counsel could also violate a victim’s right by failing to give required documentary evidence to the victim at preferral.20 These violations are typically not committed maliciously. They are usually committed due to a lack of knowledge of victims’ rights, inexperience, or oversight. These violations may nevertheless result in friction between the SVC and the military justice practitioner.

Leaders who are aware of potential friction points may be able to mitigate them by communicating expectations to the judge advocates within the OSJA. All parties bear an equal share of the burden to develop a professional working relationship. Leaders are further encouraged to empower SVCs to provide training on the SVC program and victims’ rights. Trainings may be provided within the OSJA through Leader Professional Development and roundtables. This will aid in relationship building between the sections and ensure information from the SVC program is disseminated to the involved parties. An additional benefit is training participants to work directly with their servicing SVCs to develop tenable practices and procedures within their office.

Another friction point may arise between an SVC and a commander. This can sometimes be attributed to a commander who does not fully understand the SVC’s role and responsibility to the client. For example, a commander may call the SVC seeking to understand the legal advice given to the client when the client decides to not participate in an investigation. Commanders may become frustrated when an SVC refuses to disclose privileged information. This friction point can often be avoided by the SVC explaining their ethical responsibilities to the client. In rare cases, the SVC may seek assistance from the OSJA leadership to communicate the SVC’s position to the commander.

Taking Care of Your SVCs

One of the most important things a leader can do to ensure the success of the SVC is to pick the right person for the job and monitor development through consistent communication. Maturity and professionalism are among the most crucial qualities to consider when deciding who will be a good fit as an SVC.

Being an SVC can be emotionally taxing. SVCs routinely interact with highly emotional, and often traumatized, clients on a daily basis. Additionally, the only subject matter that SVCs deal with is sexual assault. The combination of subject matter, heightened emotions of the clients, a heavy workload, and the incessant stream of new clients can all easily lead to burnout. Special victims’ counsel also operate very independently and are not usually able to share the details of cases with supervisors. To be successful, an SVC must be mature enough to realize when they need help from their technical chain, and not be afraid to ask for it.

Leaders outside of an SVC’s technical chain can also set their SVCs up for success by fostering consistent communication, scheduling regular meetings, and being genuinely interested in their wellbeing. During these meetings, leaders can ensure that SVCs have good local mentors and a healthy line of communication with their technical chain. Consistent communication also allows OSJA leadership to monitor the relationships between SVCs, trial counsel, defense counsel, law enforcement, and commanders, to help avoid the potential friction points.

Conclusion

This article provided a broad overview of information and issues for supervisors of SVCs to consider; however, the list of issues is not exhaustive and cannot replace taking the time to learn about a particular SVC’s practice. By the nature of the position, SVCs will operate very independently and may not always know when they need guidance. Selecting the right people for SVC positions and ensuring they know where to get help will sustain the success of the program and empower SVCs to provide world-class legal services. TAL

 


CPT Matthes is a battalion judge advocate at 2nd Battalion, 10th Special Forces Group Airborne, Fort Carson, Colorado. CPT Leslie is a military justice advisor for the DIVARTY and Sustainment Brigades at 25th Infantry Division, Schofield Barracks, Hawaii.



Notes

1. Personal experience is the primary source of information for this article. Both authors were serving as full-time SVCs since the summer of 2018 when this article was written. In addition to personal experience, travel to other jurisdictions and training alongside other SVCs has helped develop a comprehensive picture of the typical SVC practice and issues faced.

2. Colonel Louis P. Yob, The Special Victim Counsel Program at Five Years An Overview of Its Origin and Development, Army Law., Issue 1, at 65 (2019).

3. U.S. Army Special Victims’ Counsel Program, Special Victims’ Counsel Handbook Fourth Edition para. 1-2b. (9 June 2017) [hereinafter SVC Handbook].

4. Id. para. 1-3a.

5. Id. para. 1-3b.

6. Id.

7. Id.; U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers, r. 1.1 (28 June 2018) [hereinafter AR 27-26].

8. The SVC Handbook was published prior to the SVC Regional Manager initiative. The SVC Handbook does not provide guidance on the SVC Regional Manager initiative as of the writing of this article. The SVC Regional Manager initiative is guided by an information paper. Colonel Louis P. Yob, SVC Program Manager, subject: Special Victims’ Counsel Regional Manager Business Rules (15 June 2018).

9. SVC Handbook para. 1-6.

10. Id. para. 4-3.

11. Id. para. 42d.

12. Id. at 8-11.

13. Id. ch.8.

14. Id. para. 8-2.

15. Id. app. C, D.

16. Id. ch.11.

17. Id. para. 6-2.

18. AR 27-26, supra note 7, r. 1.4.

19. SVC Handbook para. 6-5.

20. Memorandum from Lieutenant General Flora D. Darpino to Judge Advocate Legal Service Personnel, subject: Disclosure of Information to Crime Victims—Policy Memorandum 14-09, para. 4a. (1 Oct. 2014).