2010-21499. Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General

AGENCY:

Department of the Navy, DoD.

ACTION:

Interim final rule.

SUMMARY:

The Department of the Navy (DON) is amending its rules to update existing sections relating to the professional conduct of attorneys practicing under the cognizance and supervision of the Judge Advocate General (JAG) for clients with diminished capacity. The amendment comports with current policy reflected in JAG Instruction 5803.1 (Series), Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General.

The new rule allows a covered attorney to take preventative action when the attorney reasonably believes that a client has diminished capacity and is at risk of substantial physical harm to himself or herself unless immediate action is taken. Not having this immediate change negatively impacts an attorney's ability to preserve life when a client expresses the intent to harm himself or herself or an attorney receives information about a client's suicidal intentions. The JAG has directed that this change take effect immediately as the former version of the rule potentially created a professional responsibility violation if an attorney acted to preserve life or risked the client's life.

DATES:

This interim final rule is effective August 30, 2010. Written comments received at the address indicated below by October 29, 2010 will be considered and addressed in the final rule.

ADDRESSES:

You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Mail: Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160.

Instructions: All submissions received must include the agency name and docket or RIN number for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Commander Janelle M. Beal, JAGC, U.S. Navy, Office of the Judge Advocate General (Administrative Law), Department of the Navy, 1322 Patterson Ave., SE., Suite 3000, Washington Navy Yard, DC 20374-5066, telephone: [phone].

SUPPLEMENTARY INFORMATION:

The Department of the Navy is amending 32 CFR part 776, to comport with current policy as stated in JAG Instruction 5803.1 (Series) governing the professional conduct of attorneys practicing under the cognizance and supervision of the Judge Advocate General for clients with diminished capacity. This rule updates the existing section to reflect the current policy of the Judge Advocate General to permit a covered attorney to take protective action and disclose a client's condition when he or she reasonably believes that the client has diminished capacity and is at risk of substantial physical self-harm if action is not taken. Thus, aligning the policy with ABA Model Rules of Professional Conduct (2010), Rule 1.14 (Client with Diminished Capacity). Interested persons are invited to comment in writing on this amendment. All written comments received will be considered in finalizing the amendment to 32 CFR part 776. It has been determined that this rule amendment is not a major rule within the criteria specified in Executive Order 12866, as amended by Executive Order 13258, and does not have substantial impact on the public.

Matters of Regulatory Procedure

Executive Order 12866, “Regulatory Planning and Review”

It has been determined that 32 CFR Part 776 is not a significant regulatory action. The rule does not:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

It has been certified that 32 CFR part 776 does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

It has been certified that 32 CFR part 776 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35).

Federalism (Executive Order 13132)

It has been certified that 32 CFR Part 776 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of government.

List of Subjects in 32 CFR Part 776

• Rules of Professional Conduct, and Complaint Processing Procedures

For the reasons set forth in the preamble, the Department of the Navy amends 32 CFR Part 776, as follows:

PART 776—PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL

1. The authority citation for 32 CFR Part 776 continues to read as follows:

Authority: 10 U.S.C. 806, 806a, 826, 827.

Subpart B—Rules of Professional Conduct

2. Revise § 776.33 to read as follows:

§ 776.33

Client with diminished capacity.

(a) Client with diminished capacity: (1) When a client's ability to make adequately considered decisions in connection with the representation is diminished, whether because of minority, mental impairment, or for some other reason, the covered attorney shall, as far as reasonably possible, maintain a normal attorney-client relationship with the client.

(2) When the covered attorney reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client's own interest, the covered attorney may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client.

(3) Information relating to the representation of a client with diminished capacity is protected by § 776.25 of this part. When taking protective action pursuant to paragraph (a)(2) of this section, the covered attorney is impliedly authorized under § 776.25 of this part to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.

(b) [Reserved]

Dated: August 24, 2010.

D.J. Werner,

Lieutenant Commander, Office of the Judge Advocate General, U.S. Navy, Federal Register Liaison Officer.