[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Proposed Rules]
[Pages 37473-37491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17137]
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DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 776
RIN 0703-AA54
Professional Conduct of Attorneys Practicing Under the Cognizance
and Supervision of the Judge Advocate General
AGENCY: Department of the Navy, DOD.
ACTION: Proposed rule.
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SUMMARY: The Department of the Navy proposes to revise regulations
concerning the professional conduct of attorneys practicing law under
the cognizance and supervision of the Judge Advocate General of the
Navy. This revision will ensure the professional supervision of judge
advocates, military trial and appellate military judges, and other
lawyers who practice in Department of the Navy proceedings and other
legal programs.
DATES: Submit comments on or before September 10, 1999.
ADDRESSES: Send comments to Deputy Assistant Judge Advocate General
(Administrative Law), Office of the Judge Advocate General, Washington
Navy Yard, 1322 Patterson Avenue SE, Suite 3000, Washington, DC 20374-
5066.
FOR FURTHER INFORMATION CONTACT: Major Ed McDonnell, U.S. Marine Corps,
703-604-8228.
SUPPLEMENTARY INFORMATION: The Judge Advocate General of the Navy (JAG)
is responsible for the professional supervision and discipline of
military trial and appellate military judges, judge advocates, and
other lawyers who practice in Department of the Navy proceedings
governed by the Uniform Code of Military Justice and the Manual for
Courts-Martial. See, 10 U.S.C. 806, 806a, 826, 827, and Rule for
Courts-Martial 109. The JAG has further responsibilities to supervise
the provision of legal advice and related services in the Department of
the Navy's Legal Assistance Program and such other legal programs as
assigned by the Secretary of the Navy. See, 10 U.S.C. 1044; Article
0331, U.S. Navy Regulations (1990); Secretary of the Navy Instruction
5430.27A. To discharge these responsibilities, the JAG has prescribed
Rules of Professional Conduct (JAG Rules) for attorneys providing legal
services or otherwise practicing in proceedings under JAG cognizance
and supervision. These Rules, and the procedures by which JAG
investigates and resolves allegations of professional misconduct, are
found at 32 CFR part 776.
The Department of the Navy is proposing a complete revision of 32
CFR part 776. While there are numerous administrative changes in the
revised text, the most significant substantive proposals are as
follows:
1. The terms ``covered attorney,'' ``covered United States
Government (USG) attorney,'' and ``covered non-USG attorney'' are
introduced and incorporated throughout part 776. Currently, subpart B
to 32 CFR part 776 uses the generic term ``judge advocate'' in
fashioning rules of professional conduct, with the proviso that this
term applies to all other attorneys who practice under the supervision
of the JAG (to include civilian attorneys defending individual clients
in courts-
[[Page 37474]]
martial or administrative separation proceedings). See current
Sec. 776.13(a)(2). The proposal would utilize the new terms to define
better to whom, when, and how the JAG Rules apply. See proposed
Sec. 776.2.
2. Addition of a specific rule prohibiting sexual relations between
covered attorneys and their clients or other principals to the
particular matter which is the subject of the representation. This
proposed rule is modeled, in significant part, on Rule 1.18 of the
Revised Rules of Professional Conduct of the North Carolina State Bar.
See proposed Sec. 776.36.
3. Addition of a specific rule that requires all covered USG
attorneys to remain in good standing with state licensing authorities.
The rule would further ensure that covered non-USG attorneys
representing individual clients in court-martial or administrative
separation proceedings are members in good standing with, and
authorized to practice law by, the bar of a Federal court or of the bar
of the highest court of a State, or a lawyer otherwise authorized by a
recognized licensing authority to practice law. See proposed
Sec. 776.71.
4. Addition of a procedure wherein the JAG may impose an interim
suspension of a covered attorney where there is probable cause to
believe that the attorney has committed misconduct and poses a
substantial threat of irreparable harm to clients or the orderly
administration of military justice. See proposed Sec. 776.82.
5. Removal of subpart D, Outside Part-Time Practice of Naval
Service Attorneys. This subpart is limited in application to covered
USG attorneys, and as an internal administrative rule which does not
affect the public, need not be published in the CFR. Covered USG
attorneys who wish to engage in the part-time practice of law, outside
of their official Department of the Navy responsibilities, must still
obtain JAG approval, notice of which is contained in proposed
Sec. 776.11. Additional information for covered USG attorneys is
available in JAG Instruction 5803.1 (series).
The JAG Rules contained in subpart B are based upon the American
Bar Association's (ABA's) Model Rules of Professional Conduct. Like the
ABA's Model Rules, each JAG Rule has accompanying commentary which
explains and illustrates the meaning and purpose of the Rule. This
commentary for the JAG Rules is not reprinted in subpart B. A complete
version of the JAG Rules, with accompanying commentary, may be found in
JAG Instruction 5803.1 (series), copies of which may be obtained from
the address indicated.
Matters of Regulatory Procedure
Executive Order 12866, Regulatory Planning and Review
Revision of this part does not meet the definition of ``significant
regulatory action'' for purposes of E.O. 12866.
Regulatory Flexibility Act
Revision of this part will not have a significant economic impact
on a substantial number of small entities for purposes of the
Regulatory Flexibility Act (5 U.S.C. Chapter 6).
Paperwork Reduction Act
Revision of this part does not impose collection of information
requirements for purposes of the Paperwork Reduction Act (44 U.S.C.
Chapter 35, 5 CFR part 1320).
List of Subjects in 32 CFR Part 776
Conflict of interests, Lawyers, Legal services, Reporting and
recordkeeping requirements.
For the reasons set forth in the preamble, the Department of the
Navy proposes to revise 32 CFR part 776 to read as follows:
PART 776--PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE
COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL
Subpart A--General
Sec.
776.1 Purpose.
776.2 Applicability.
776.3 Policy.
776.4 Attorney-client relationships.
776.5 Judicial conduct.
776.6 Conflict.
776.7 Reporting requirements.
776.8 Professional Responsibility Committee.
776.9 Rules Counsel.
776.10 Informal ethics advice.
776.11 Outside part-time practice of law.
776.12 Maintenance of files.
776.13-776.17 [Reserved]
Subpart B--Rules of Professional Conduct
776.18 Preamble.
776.19 Principles.
776.20 Competence.
776.21 Establishment and scope of representation.
776.22 Diligence.
776.23 Communication.
776.24 Fees.
776.25 Confidentiality of information.
776.26 Conflict of interests: General rule.
776.27 Conflict of interests: Prohibited transactions.
776.28 Conflict of interests: Former client.
776.29 Imputed disqualification: General rule.
776.30 Successive government and private employment.
776.31 Former judge or arbitrator.
776.32 Department of Navy as client.
776.33 Client under a disability.
776.34 Safekeeping property.
776.35 Declining or terminating representation.
776.36 Prohibited sexual relations.
776.37 Advisor.
776.38 Mediation.
776.39 Evaluation for use by third persons.
776.40 Meritorious claims and contentions.
776.41 Expediting litigation.
776.42 Candor and obligations toward the tribunal.
776.43 Fairness to opposing party and counsel.
776.44 Impartiality and decorum of tribunal.
776.45 Extra-tribunal statements.
776.46 Attorney as witness.
776.47 Special responsibilities of a trial counsel.
776.48 Advocate in non-adjudicative proceedings.
776.49 Truthfulness in statements to others.
776.50 Communication with person represented by counsel.
776.51 Dealing with an unrepresented person.
776.52 Respect for rights of third persons.
776.53 Responsibilities of the Judge Advocate General and
supervisory attorneys.
776.54 Responsibilities of a subordinate attorney.
776.55 Responsibilities regarding nonattorney assistants.
776.56 Professional independence of a covered USG attorney.
776.57 Unauthorized practice of law.
776.58-776.65 [Reserved]
776.66 Bar admission and disciplinary matters.
776.67 Judicial and legal officers.
776.68 Reporting professional misconduct.
776.69 Misconduct.
776.70 Jurisdiction.
776.71 Requirement to remain in good standing with licensing
authorities.
776.72-776.75 [Reserved]
Subpart C--Complaint Processing Procedures
776.76 Policy.
776.77 Related investigations and actions.
776.78 Informal complaints.
776.79 The complaint.
776.80 Initial screening and Rules Counsel.
776.81 Charges.
776.82 Interim suspension.
776.83 Preliminary inquiry.
776.84 Ethics investigation.
776.85 Effect of separate proceeding.
776.86 Action by JAG.
776.87 Finality.
776.88 Report to licensing authorities.
Subpart D--[Reserved]
Authority: 10 U.S.C. 806, 806a, 826, 827; Manual for Courts-
Martial, United States, 1998; U.S. Navy Regulations, 1990; Secretary
of the Navy Instruction 5430.27(series), Responsibility of the Judge
Advocate General for Supervision of Certain Legal Services.
[[Page 37475]]
Subpart A--General
Sec. 776.1 Purpose.
In furtherance of the authority citations (which, if not found in
local libraries, are available from the Office of the Judge Advocate
General, Washington Navy Yard, 1322 Patterson Avenue, SE, Suite 3000,
Washington, DC 20374-5066), which require the Judge Advocate General of
the Navy (JAG) to supervise the performance of legal services under JAG
cognizance throughout the Department of the Navy (DON), this part is
promulgated:
(a) To establish Rules of Professional Conduct (subpart B of this
part) for attorneys subject to this part;
(b) To establish procedures (subpart C of this part) for receiving,
processing, and taking action on complaints of professional misconduct
made against attorneys practicing under the supervision of JAG, whether
arising from professional legal activities in DON proceedings and
matters, or arising from other, non-U.S. Government related
professional legal activities or personal misconduct which suggests the
attorney is ethically, professionally, or morally unqualified to
perform legal services within the DON; and
(c) To ensure quality legal services at all proceedings under the
cognizance and supervision of the JAG.
Sec. 776.2 Applicability.
(a) This part defines the professional ethical obligations of, and
applies to, all ``covered attorneys.''
(b) Covered attorneys include:
(1) The following U.S. Government (USG) attorneys, referred to,
collectively, as ``covered USG attorneys'' throughout this part:
(i) All active-duty Navy judge advocates (designator 2500 or 2505)
or Marine Corps judge advocates (MOS 4402 or 9914).
(ii) All active-duty judge advocates of other U.S. armed forces who
practice law or provide legal services under the cognizance and
supervision of the JAG.
(iii) All civil service and contracted civilian attorneys who
practice law or perform legal services under the cognizance and
supervision of the JAG.
(iv) All Reserve or Retired judge advocates of the Navy or Marine
Corps (and any other U.S. armed force), who, while performing official
DON duties, practice law or provide legal services under the cognizance
and supervision of the JAG.
(v) All other attorneys appointed by JAG (or the Director, Judge
Advocate (JA) Division, Headquarters Marine Corps (HQMC), in Marine
Corps matters) to serve in billets or to provide legal services
normally provided by Navy or Marine Corps judge advocates. This policy
applies to officer and enlisted reservists, to active-duty personnel,
and to any other personnel who are licensed to practice law by any
Federal or state authorities, but who are not members of the Judge
Advocate General's Corps or who do not hold the 4402 or 9914
designation in the Marine Corps.
(2) The following non-U.S. Government attorneys, referred to,
collectively, as ``covered non-USG attorneys'' throughout this part:
All civilian attorneys representing individuals in any matter for which
JAG is charged with supervising the provision of legal services. These
matters include, but are not limited to, courts-martial, administrative
separation boards or hearings, and disability evaluation proceedings.
(3) The term covered attorney does not include those civil service
or civilian attorneys who practice law or perform legal services under
the cognizance and supervision of the General Counsel of the Navy.
(c) Professional or personal misconduct unrelated to a covered
attorney's DON activities, while normally outside the ambit of these
rules, may be reviewed under procedures established in subpart C of
this part and may provide the basis for decisions by the JAG regarding
the covered attorney's continued qualification to provide legal
services in DON matters.
(d)(1) Although the rules in subpart B of this part do not apply to
non-attorneys, they do define the type of ethical conduct that the
public and the military community have a right to expect from DON legal
personnel. Accordingly, subpart B of this part shall serve as a model
of ethical conduct for the following personnel when involved with the
delivery of legal services under the supervision of the JAG:
(i) Navy legalmen and Marine Corps legal administrative officers,
legal service specialists, and legal services reporters (stenotype);
(ii) Limited duty officers (LAW);
(iii) Legal interns; and
(iv) Civilian support personnel including paralegals, legal
secretaries, legal technicians, secretaries, court reporters, and
others holding similar positions.
(2) Covered USG attorneys who supervise non-attorney DON employees
are responsible for their ethical conduct to the extent provided for in
Sec. 776.55.
Sec. 776.3 Policy.
(a) Covered attorneys shall maintain the highest standards of
professional ethical conduct. Loyalty and fidelity to the United
States, to the law, to clients both institutional and individual, and
to the rules and principles of professional ethical conduct set forth
in subpart B of this part must come before private gain or personal
interest.
(b) Whether conduct or failure to act constitutes a violation of
the professional duties imposed by this part is a matter within the
sole discretion of JAG or officials authorized to act for JAG. Rules
contained in subpart B of this part are not substitutes for, and do not
take the place of, other rules and standards governing DON personnel
such as the Department of Defense Joint Ethics Regulation, the Code of
Conduct, the Uniform Code of Military Justice (UCMJ), and the general
precepts of ethical conduct to which all DON servicemembers and
employees are expected to adhere. Similarly, action taken per this part
is not supplanted or barred by, and does not, even if the underlying
misconduct is the same, supplant or bar the following action from being
taken by authorized officials:
(1) Punitive or disciplinary action under the UCMJ; or
(2) Administrative action under the Manual for Courts-Martial, U.S.
Navy Regulations, or under other applicable authority.
(c) Inquiries into allegations of professional misconduct will
normally be held in abeyance until any related criminal investigation
or proceeding is complete. However, a pending criminal investigation or
proceeding does not bar the initiation or completion of a professional
misconduct investigation (subpart C of this part) stemming from the
same or related incidents or prevent the JAG from imposing professional
disciplinary sanctions as provided for in this part.
Sec. 776.4 Attorney-client relationships.
(a) The executive agency to which assigned (DON in most cases) is
the client served by each covered USG attorney unless detailed to
represent another client by competent authority. Specific guidelines
are contained in Sec. 776.32.
(b) Covered USG attorneys will not establish attorney-client
relationships with any individual unless detailed, assigned, or
otherwise authorized to do so by competent authority. Wrongfully
establishing an attorney-client relationship may subject the attorney
to discipline administered per this part. See Sec. 776.21.
[[Page 37476]]
(c) Employment of a non-USG attorney by an individual client does
not alter the professional responsibilities of a covered USG attorney
detailed or otherwise assigned by competent authority to represent that
client.
Sec. 776.5 Judicial conduct.
To the extent that it does not conflict with statutes, regulations,
or this part, the American Bar Association's Code of Judicial Conduct
applies to all military and appellate judges and to all other covered
USG attorneys performing judicial functions under JAG supervision
within the DON.
Sec. 776.6 Conflict.
To the extent that a conflict exists between this part and the
rules of other jurisdictions that regulate the professional conduct of
attorneys, this part will govern the conduct of covered attorneys
engaged in legal functions under JAG cognizance and supervision.
Specific and significant instances of conflict between the rules
contained in subpart B of this part and the rules of other
jurisdictions shall be reported promptly to the Rules Counsel (see
Sec. 776.9), via the supervisory attorney. See Sec. 776.53.
Sec. 776.7 Reporting requirements.
Covered USG attorneys shall report promptly to the Rules Counsel
any disciplinary or administrative action, including initiation of
investigation, by any licensing authority or Federal, State, or local
bar, possessing the power to revoke, suspend, or in any way limit the
authority to practice law in that jurisdiction, upon himself, herself,
or another covered attorney. Failure to report such discipline or
administrative action may subject the covered USG attorney to
discipline administered per this part. See Sec. 776.71.
Sec. 776.8 Professional Responsibility Committee.
(a) Composition. This standing committee will consist of the
Assistant Judge Advocate General (AJAG) for Military Justice; the Vice
Commander, Naval Legal Service Command (NLSC); the Chief Judge, Navy-
Marine Corps Trial Judiciary; and in cases involving Marine Corps judge
advocates, the Deputy Director, JA Division, HQMC; and such other
personnel as JAG from time-to-time may appoint. A majority of the
members constitutes a quorum. The Chairman of the Committee shall be
the AJAG for Military Justice. The Chairman may excuse members
disqualified for cause, illness, or exigencies of military service, and
may request JAG to appoint additional or alternate members on a
temporary or permanent basis.
(b) Purpose. (1) When requested by JAG or by the Rules Counsel, the
Committee will provide formal advisory opinions to JAG regarding
application of rules contained in subpart B of this part to individual
or hypothetical cases.
(2) On its own motion, the Committee may also issue formal advisory
opinions on ethical issues of importance to the DON legal community.
(3) Upon written request, the Committee will also provide formal
advisory opinions to covered attorneys about the propriety of proposed
courses of action. If such requests are predicated upon full disclosure
of all relevant facts, and if the Committee advises that the proposed
course of conduct is not violative of subpart B, then no adverse action
under this part may be taken against a covered attorney who acts
consistent with the Committee's advice.
(4) The Chairman will forward copies of all opinions issued by the
Committee to the Rules Counsel.
(c) Limitation. The Committee will not normally provide ethics
advice or opinions concerning professional responsibility matters
(e.g., ineffective assistance of counsel, prosecutorial misconduct,
etc.) that are then the subject of litigation.
Sec. 776.9 Rules Counsel.
Appointed by JAG to act as special assistants for the
administration of this part, the Rules Counsel derive authority from
JAG and, as detailed in this part, have ``by direction'' authority. The
Rules Counsel shall cause opinions issued by the Professional
Responsibility Committee of general interest to the DON legal community
to be published in summarized, non-personal form in suitable
publications. Unless another officer is appointed by JAG to act in
individual cases, the following officers shall act as Rules Counsel:
(a) Director, JA Division, HQMC, for cases involving Marine Corps
judge advocates, or civil service and contracted civilian attorneys who
perform legal services under his cognizance; and
(b) AJAG for Civil Law, in all other cases.
Sec. 776.10 Informal ethics advice.
(a) Advisors. Covered attorneys may seek informal ethics advice
either from the officers named below or from supervisory attorneys in
the field. Within the Office of the JAG and HQMC, the following
officials are designated to respond, either orally or in writing, to
informal inquiries concerning this part in the areas of practice
indicated:
(1) Head, Military Affairs/Personnel Law Branch, Administrative Law
Division: administrative boards and related matters;
(2) Deputy Director, Criminal Law Division: military justice
matters;
(3) Director, Legal Assistance Division: legal assistance matters;
(4) Deputy Director, JA Division, HQMC: cases involving Marine
Corps judge advocates, or civil service and contracted civilian
attorneys who perform legal services under the cognizance and
supervision of Director, JA Division, HQMC; and
(5) Head, Standards of Conduct/Government Ethics Branch,
Administrative Law Division: All other matters.
(b) Limitation. Informal ethics advice will not normally be
provided by JAG/HQMC advisors concerning professional responsibility
matters (e.g., ineffective assistance of counsel, prosecutorial
misconduct) that are then the subject of litigation.
(c) Written advice. A request for informal advice does not relieve
the requester of the obligation to comply with subpart B of this part.
Although covered attorneys are encouraged to seek advice when in doubt
as to their responsibilities, they remain personally accountable for
their professional conduct. If, however, an attorney receives written
advice on an ethical matter after full disclosure of all relevant facts
and reasonably relies on such advice, no adverse action under this part
will be taken against the attorney. Written advice may be sought from
either a supervisory attorney or the appropriate advisor in paragraph
(a) of this section. JAG is not bound by unwritten advice or by advice
provided by personnel who are not supervisory attorneys or advisors.
See Sec. 776.54.
Sec. 776.11 Outside part-time practice of law.
A covered USG attorney's primary professional responsibility is to
the executive agency to which assigned, and he or she is expected to
devote the required amount of effort and time to satisfactorily
accomplish assigned duties. The outside practice of law, therefore,
must be carefully monitored. Covered USG attorneys who wish to engage
in the part-time, outside practice of law must first obtain permission
from JAG. Failure to obtain permission before engaging in the outside
practice of law may subject the covered USG attorney to administrative
or disciplinary action, including professional sanctions administered
per subpart C of this part. Covered USG attorneys may obtain
[[Page 37477]]
further details in JAGINST 5803.1 (series). This requirement does not
apply to non-USG attorneys, or to Reserve or Retired judge advocates
unless serving on active-duty for more than 30 consecutive days.
Sec. 776.12 Maintenance of files.
Ethics complaint records shall be maintained by the Administrative
Law Division, Office of the Judge Advocate General, and, in the case of
Marine records, by the Judge Advocate Research and Civil Law Branch, JA
Division, HQMC.
(a) Requests for access to such records should be referred to
Deputy Assistant Judge Advocate General (Administrative Law), Office of
the Judge Advocate General (Code 13), Washington Navy Yard, 1322
Patterson Avenue, SE, Suite 3000, Washington, DC 20374-5066, or to
Head, Judge Advocate Research and Civil Law Branch, JA Division,
Headquarters Marine Corps, Washington, DC 20380-0001, as appropriate.
(b) Local command files regarding professional responsibility
complaints will not be maintained. Commanding officers and other
supervisory attorneys may, however, maintain personal files but must
not share their contents with others.
Secs. 776.13-Sec. 776.17 [Reserved]
Subpart B--Rules of Professional Conduct
Sec. 776.18 Preamble.
(a) A covered USG attorney is a representative of clients, an
officer of the legal system, an officer of the Federal Government, and
a public citizen who has a special responsibility for the quality of
justice and legal services provided to the DON and to individual
clients. The Rules of Professional Conduct contained in this subpart
govern the ethical conduct of covered attorneys practicing under the
Uniform Code of Military Justice, the Manual for Courts-Martial, 10
U.S.C. 1044 (Legal Assistance), other laws of the United States, and
regulations of the DON.
(b) This subpart not only addresses the professional conduct of
judge advocates, but also applies to all other covered attorneys who
practice under the cognizance and supervision of the JAG. See
Sec. 776.2.
(c) All covered attorneys are subject to professional disciplinary
action imposed by the JAG for violation of the Rules contained in this
subpart. Action by the JAG does not prevent other Federal, state, or
local bar associations or other licensing authorities from taking
professional disciplinary or other administrative action for the same
or similar acts.
Sec. 776.19 Principles.
The Rules of this subpart are based on the following principles.
Interpretation of this subpart should flow from common meaning. To the
extent that any ambiguity or conflict exists, this subpart should be
interpreted consistent with these general principles.
(a) Covered attorneys shall:
(1) Obey the law and military regulations, and counsel clients to
do so.
(2) Follow all applicable ethics rules.
(3) Protect the legal rights and interests of clients,
organizational and individual.
(4) Be honest and truthful in all dealings.
(5) Not derive personal gain, except as authorized, for the
performance of legal services.
(6) Maintain the integrity of the legal profession.
(b) Ethical rules should be consistent with law. If law and ethics
conflict, the law prevails unless an ethical rule is constitutionally
based.
(c) The military criminal justice system is a truth-finding process
consistent with constitutional law.
Sec. 776.20 Competence.
(a) Competence. A covered attorney shall provide competent,
diligent, and prompt representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
expeditious preparation reasonably necessary for representation.
Initial determinations as to competence of a covered USG attorney for a
particular assignment shall be made by a supervising attorney before
case or issue assignments; however, assigned attorneys may consult with
supervisors concerning competence in a particular case.
(b) [Reserved]
Sec. 776.21 Establishment and scope of representation.
(a) Establishment and scope of representation. (1) Formation of
attorney-client relationships by covered USG attorneys with, and
representation of, clients is permissible only when the attorney is
authorized to do so by competent authority. Military Rule of Evidence
502, the Manual of the Judge Advocate General (JAG Instruction 5800.7
(series)), and the Naval Legal Service Office and Trial Service Office
Manual, define when an attorney-client relationship is formed between a
covered USG attorney and a client servicemember, dependent, or
employee.
(2) Generally, the subject matter scope of a covered attorney's
representation will be consistent with the terms of the assignment to
perform specific representational or advisory duties. A covered
attorney shall inform clients at the earliest opportunity of any
limitations on representation and professional responsibilities of the
attorney towards the client.
(3) A covered attorney shall follow the client's well-informed and
lawful decisions concerning case objectives, choice of counsel, forum,
pleas, whether to testify, and settlements.
(4) A covered attorney's representation of a client does not
constitute an endorsement of the client's political, economic, social,
or moral views or activities.
(5) A covered attorney shall not counsel or assist a client to
engage in conduct that the attorney knows is criminal or fraudulent,
but a covered attorney may discuss the legal and moral consequences of
any proposed course of conduct with a client, and may counsel or assist
a client in making a good faith effort to determine the validity,
scope, meaning, or application of the law.
(b) [Reserved]
Sec. 776.22 Diligence.
(a) Diligence. A covered attorney shall act with reasonable
diligence and promptness in representing a client, and shall consult
with a client as soon as practicable and as often as necessary upon
being assigned to the case or issue.
(b) [Reserved]
Sec. 776.23 Communication.
(a) Communication. (1) A covered attorney shall keep a client
reasonably informed about the status of a matter and promptly comply
with reasonable requests for information.
(2) A covered attorney shall explain a matter to the extent
reasonably necessary to permit the client to make informed decisions
regarding the representation.
(b) [Reserved]
Sec. 776.24 Fees.
(a) Fees. (1) A covered USG attorney shall not accept any salary,
fee, compensation, or other payments or benefits, directly or
indirectly, other than Government compensation, for services provided
in the course of the covered USG attorney's official duties or
employment.
(2) A covered USG attorney shall not accept any salary or other
payments as compensation for legal services
[[Page 37478]]
rendered, by that covered USG attorney in a private capacity, to a
client who is eligible for assistance under the DON Legal Assistance
Program, unless so authorized by the JAG. This rule does not apply to
Reserve or Retired judge advocates not then serving on extended active-
duty.
(3) A Reserve or Retired judge advocate, whether or not serving on
extended active-duty, who has initially represented or interviewed a
client or prospective client concerning a matter as part of the
attorney's official Navy or Marine Corps duties, shall not accept any
salary or other payments as compensation for services rendered to that
client in a private capacity concerning the same general matter for
which the client was seen in an official capacity, unless so authorized
by the JAG.
(4) A covered USG attorney shall not accept any payments or
benefits, actual or constructive, directly or indirectly, for making a
referral of a client in the course of the covered USG attorney's
official duties or employment.
(5) Covered non-USG attorneys may charge fees. Fees shall be
reasonable. Factors considered in determining the reasonableness of a
fee include the following:
(i) The time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
(ii) The likelihood, if apparent to the client, that the acceptance
of the particular employment will preclude other employment by the
attorney;
(iii) the fee customarily charged in the locality for similar legal
services;
(iv) The amount involved and the results obtained;
(v) The time limitations imposed by the client or by the
circumstances;
(vi) The nature and length of the professional relationship with
the client;
(vii) The experience, reputation, and ability of the attorney or
attorneys performing the services; and
(viii) Whether the fee is fixed or contingent.
(6) When the covered non-USG attorney has not regularly represented
the client, the basis or rate of the fee shall be communicated to the
client, preferably in writing, before or within a reasonable time after
commencing the representation.
(7) A fee may be contingent on the outcome of the matter for which
the service is rendered, except in a matter in which a contingent fee
is prohibited by paragraph (a)(8) of this section or other law. A
contingent fee agreement shall be in writing and shall state the method
by which the fee is to be determined, including the percentage or
percentages that shall accrue to the covered non-USG attorney in the
event of settlement, trial or appeal, litigation and other expenses to
be deducted from the recovery, and whether such expenses are to be
deducted before or after the contingent fee is calculated. Upon
conclusion of a contingent fee matter, the covered non-USG attorney
shall provide the client with a written statement stating the outcome
of the matter and, if there is a recovery, showing the remittance to
the client and the method of its determination.
(8) A covered non-USG attorney shall not enter into an arrangement
for, charge, or collect a contingent fee for representing an accused in
a criminal case.
(9) A division of fees between covered non-USG attorneys who are
not in the same firm may be made only if:
(i) The division is in proportion to the services performed by each
attorney or, by written agreement with the client, each attorney
assumes joint responsibility for the representation;
(ii) The client is advised of and does not object to the
participation of all the attorneys involved; and
(iii) The total fee is reasonable.
(b) Applicability. Paragraphs (a)(5) Through (9) of this section
apply only to private civilian attorneys practicing in proceedings
conducted under the cognizance and supervision of the JAG. The primary
purposes of paragraphs (a)(5) Through (9) of this section are not to
permit the JAG to regulate fee arrangements between civilian attorneys
and their clients but to provide guidance to covered USG attorneys
practicing with non-USG attorneys and to supervisory attorneys who may
be asked to inquire into alleged fee irregularities. Absent paragraphs
(a)(5) Through (9) of this section, such supervisory attorneys have no
readily available standard against which to compare allegedly
questionable conduct of a civilian attorney.
Sec. 776.25 Confidentiality of information.
(a) Confidentiality of Information. (1) A covered attorney shall
not reveal information relating to representation of a client unless
the client consents after consultation, except for disclosures that are
impliedly authorized in order to carry out the representation, and
except as stated in paragraphs (a)(2) and (a)(3) of this section.
(2) A covered attorney shall reveal such information to the extent
the covered attorney reasonably believes necessary to prevent the
client from committing a criminal act that the covered attorney
believes is likely to result in imminent death or substantial bodily
harm, or significant impairment of national security or the readiness
or capability of a military unit, vessel, aircraft, or weapon system.
(3) A covered attorney may reveal such information to the extent
the covered attorney reasonably believes necessary to establish a claim
or defense on behalf of the covered attorney in a controversy between
the covered attorney and the client, to establish a defense to a
criminal charge or civil claim against the attorney based upon conduct
in which the client was involved, or to respond to allegations in any
proceeding concerning the attorney's representation of the client.
(b) Definition. Conduct likely to result in the significant
impairment of national security or the readiness or capability of a
military unit, vessel, aircraft, or weapon system include, but are not
limited to: Divulging the classified location of a special operations
unit such that the lives of members of the unit are placed in immediate
danger; sabotaging a vessel or aircraft to the extent that the vessel
or aircraft could not conduct an assigned mission, or that the vessel
or aircraft and crew could be lost; and compromising the security of a
weapons site such that the weapons are likely to be stolen or
detonated. Paragraph (a)(2) of this section is not intended to and does
not mandate the disclosure of conduct which may have a slight impact on
the readiness or capability of a unit, vessel, aircraft, or weapon
system. Examples of such conduct are: Absence without authority from a
peacetime training exercise; intentional damage to an individually
assigned weapon; and intentional minor damage to military property.
Sec. 776.26 Conflict of interest: General rule.
(a) Conflict of interest: General rule. (1) A covered attorney
shall not represent a client if the representation of that client will
be directly adverse to another client, unless:
(i) The covered attorney reasonably believes the representation
will not adversely affect the relationship with the other client; and
(ii) Each client consents after consultation.
(2) A covered attorney shall not represent a client if the
representation of that client may be materially limited by the covered
attorney's responsibilities to another client or to a third person, or
by the covered attorney's own interests, unless:
[[Page 37479]]
(i) The covered attorney reasonably believes the representation
will not be adversely affected; and,
(ii) The client consents after consultation.
(3) When representation of multiple clients in a single matter is
undertaken, the consultation shall include explanation of the
implications of the common representation and the advantages and risks
involved.
(b) Reserve judge advocates. These conflict of interest rules only
apply when Reservists are actually drilling or on active-duty for
training, or, as is the case with Retirees, on extended active-duty or
when performing other duties subject to JAG supervision. Therefore,
unless otherwise prohibited by criminal conflict of interest statutes,
Reserve or Retired attorneys providing legal services in their civilian
capacity may represent clients, or work in firms whose attorneys
represent clients, with interests adverse to the United States. Reserve
judge advocates who, in their civilian capacities, represent persons
whose interests are adverse to the DON will provide written
notification to their supervisory attorney and commanding officer,
detailing their involvement in the matter. Reserve judge advocates
shall refrain from undertaking any official action or representation of
the DON with respect to any particular matter in which they are
providing representation or services to other clients.
Sec. 776.27 Conflict of interests: Prohibited transactions.
(a) Conflict of interests: Prohibited transactions. (1) Covered USG
attorneys shall strictly adhere to current Department of Defense Ethics
Regulations and shall not:
(i) Knowingly enter into any business transactions on behalf of, or
adverse to, a client's interest which directly or indirectly relate to
or result from the attorney-client relationship, or otherwise profit,
directly or indirectly, through knowledge acquired during the course of
the covered USG attorney's official duties;
(ii) Accept compensation or gifts in any form from a client or
other person or entity, other than the U.S. Government, for the
performance of official duties;
(iii) Provide any financial assistance to a client or otherwise
serve in a financial or proprietorial fiduciary or bailment
relationship, unless otherwise specifically authorized by competent
authority; or
(iv) Make any referrals of legal or other business to any non-USG
attorney or enterprise with whom the covered USG attorney has any
present or expected direct or indirect personal interest; any referrals
must be made strictly without regard to personal interests of the
covered attorney, and special care shall be taken not to give
preferential treatment to Reserve attorneys or other covered USG
attorneys in their private capacities.
(2) No covered attorney shall:
(i) Use information relating to representation of a client to the
disadvantage of the client unless the client consents after
consultation, except as permitted or required by Sec. 776.25 or
Sec. 776.42;
(ii) Prepare an instrument giving the covered attorney or a person
related to the covered attorney as parent, child, sibling, or spouse
any gift from a client, including a testamentary gift, except where the
client is related to the donee;
(iii) In the case of covered non-USG attorneys, accept compensation
for representing a client from one other than the client unless the
client consents after consultation, there is no interference with the
covered attorney's independence of professional judgment or with the
attorney-client relationship, and information relating to
representation of a client is protected as required by Sec. 776.25;
(iv) Negotiate any settlement on behalf of multiple clients in a
single matter unless each client provides fully informed consent;
(v) Prior to the conclusion of representation of the client, make
or negotiate an agreement giving a covered attorney literary or media
rights for a portrayal or account based in substantial part on
information relating to representation of a client;
(vi) Represent a client in a matter directly adverse to a person
whom the covered attorney knows is represented by another attorney who
is related as parent, child, sibling, or spouse to the covered
attorney, except upon consent by the client after consultation
regarding the relationship; or
(vii) Acquire a proprietary interest in the cause of action or
subject matter of litigation the covered attorney is conducting for a
client.
(b) [Reserved]
Sec. 776.28 Conflict of interest: Former client.
(a) Conflict of interest: Former client. A covered attorney who has
represented a client in a matter shall not thereafter:
(1) Represent another person in the same or a substantially related
matter in which the person's interests are materially adverse to the
interests of the former client, unless the former client consents after
consultation;
(2) Use information relating to the representation to the
disadvantage of the former client or to the covered attorney's own
advantage, except as Sec. 776.25 or Sec. 776.42 would permit or require
with respect to a client or when the information has become generally
known; or
(3) Reveal information relating to the representation except as
Sec. 776.25 or Sec. 776.42 would permit or require with respect to a
client.
(b) [Reserved]
Sec. 776.29 Imputed disqualification: General rule.
(a) Imputed disqualification: General rule. Covered USG attorneys
working in the same military law office are not automatically
disqualified from representing a client because any of them practicing
alone would be prohibited from doing so by Sec. 776.26, Sec. 776.27,
Sec. 776.28, or Sec. 776.38. Covered non-USG attorneys must consult
their federal, state, and local bar rules governing the representation
of multiple or adverse clients within the same office before such
representation is initiated, as such representation may expose them to
disciplinary action under the rules established by their licensing
authority.
(b) Representing opposing side. (1) The circumstances of military
(or Government) service may require representation of opposing sides by
covered USG attorneys working in the same law office. Such
representation is permissible so long as conflicts of interests are
avoided and independent judgment, zealous representation, and
protection of confidences are not compromised. Thus, the principle of
imputed disqualification is not automatically controlling for covered
USG attorneys. The knowledge, actions, and conflicts of interests of
one covered USG attorney are not imputed to another simply because they
operate from the same office. For example, the fact that a number of
defense attorneys operate from one office and normally share clerical
assistance would not prohibit them from representing co-accused at
trial by court-martial. Imputed disqualification rules for non-USG
attorneys are established by their individual licensing authorities and
may well proscribe all attorneys from one law office from representing
a co-accused, or a party with an adverse interest to an existing
client, if any attorney in the same office were so prohibited.
(2) Whether a covered USG attorney is disqualified requires a
functional analysis of the facts in a specific situation. The analysis
should include consideration of whether the following
[[Page 37480]]
will be compromised: Preserving attorney-client confidentiality;
maintaining independence of judgment; and avoiding positions adverse to
a client. See, e.g., U.S. v. Stubbs, 23 M.J. 188 (C.M.A. 1987).
(3) Preserving confidentiality is a question of access to
information. Access to information, in turn, is essentially a question
of fact in a particular circumstance, aided by inferences, deductions,
or working presumptions that reasonably may be made about the way in
which covered USG attorneys work together. A covered USG attorney may
have general access to files of all clients of a military law office
(e.g., legal assistance attorney) and may regularly participate in
discussions of their affairs; it may be inferred that such a covered
USG attorney in fact is privy to all information about all the office's
clients. In contrast, another covered USG attorney (e.g., military
defense counsel) may have access to the files of only a limited number
of clients and participate in discussion of the affairs of no other
clients; in the absence of information to the contrary, it should be
inferred that such a covered USG attorney in fact is privy to
information about the clients actually served but not to information of
other clients. Additionally, a covered USG attorney changing duty
stations or changing assignments within a military office has a
continuing duty to preserve confidentiality of information about a
client formerly represented. See Sec. 776.25 and Sec. 776.28.7.
(4) Maintaining independent judgment allows a covered USG attorney
to consider, recommend, and carry out any appropriate course of action
for a client without regard to the covered USG attorney's personal
interests or the interests of another. When such independence is
lacking or unlikely, representation cannot be zealous.
(5) Another aspect of loyalty to a client is the general obligation
of any attorney to decline subsequent representations involving
positions adverse to a former client in substantially related matters.
This obligation normally requires abstention from adverse
representation by the individual covered attorney involved, but, in the
military legal office, abstention is not required by other covered USG
attorneys through imputed disqualification.
Sec. 776.30 Successive government and private employment.
(a) Successive government and private employment. (1) Except as the
law or regulations may otherwise expressly permit, a former covered USG
attorney shall not represent a private client in connection with a
matter in which the covered USG attorney participated personally and
substantially as a public officer or employee, unless the appropriate
Government agency consents after consultation. If a former covered USG
attorney in a firm, partnership, or association knows that another
attorney within the firm, partnership, or association is undertaking or
continuing representation in such a matter:
(i) The disqualified former covered USG attorney must ensure that
he or she is screened from any participation in the matter and is
apportioned no part of the fee or any other benefit therefrom; and,
(ii) Must provide written notice promptly to the appropriate
Government agency to enable it to ascertain compliance with the
provisions of applicable law and regulations.
(2) Except as the law or regulations may otherwise expressly
permit, a former covered USG attorney, who has information known to be
confidential Government information about a person which was acquired
while a covered USG attorney, may not represent a private client whose
interests are adverse to that person in a matter in which the
information could be used to the material disadvantage of that person.
The former covered USG attorney may continue association with a firm,
partnership, or association representing any such client only if the
disqualified covered USG attorney is screened from any participation in
the matter and is apportioned no part of the fee or any other benefit
therefrom.
(3) Except as the law or regulations may otherwise expressly
permit, a covered USG attorney shall not:
(i) Participate in a matter in which the covered USG attorney
participated personally and substantially while in private practice or
nongovernmental employment, unless under applicable law no one is, or
by lawful delegation may be, authorized to act in the covered USG
attorney's stead in the matter; or,
(ii) Negotiate for private employment with any person who is
involved as a party or as attorney for a party in a matter in which the
covered USG attorney is participating personally and substantially.
(4) As used in this section, the term matter includes:
(i) Any judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest, or other particular matter
involving a specific party or parties, and
(ii) Any other matter covered by the conflict of interest rules of
the Department of Defense, DON, or other appropriate Government agency.
(5) As used in this section, the term confidential Governmental
information means information which has been obtained under
Governmental authority and which, at the time this Rule is applied, the
Government is prohibited by law or regulations from disclosing to the
public or has a legal privilege not to disclose, and which is not
otherwise available to the public.
(b) [Reserved]
Sec. 776.31 Former judge or arbitrator.
(a) Former judge or arbitrator. (1) Except as stated in paragraph
(a)(3) of this section, a covered USG attorney shall not represent
anyone in connection with a matter in which the covered USG attorney
participated personally and substantially as a judge or other
adjudicative officer, arbitrator, or law clerk to such a person, unless
all parties to the proceeding consent after disclosure.
(2) A covered USG attorney shall not negotiate for employment with
any person who is involved as a party or as attorney for a party in a
matter in which the covered USG attorney is participating personally
and substantially as a judge or other adjudicative officer. A covered
USG attorney serving as law clerk to a judge, other adjudicative
officer, or arbitrator may negotiate for employment with a party or
attorney involved in a matter in which the clerk is participating
personally and substantially, but only after the covered USG attorney
has notified the judge, other adjudicative officer, or arbitrator, and
been disqualified from further involvement in the matter.
(3) An arbitrator selected as a partisan of a party in a multi-
member arbitration panel is not prohibited from subsequently
representing that party.
(b) [Reserved]
Sec. 776.32 Department of the Navy as client.
(a) Department of Navy as client. (1) Except when representing an
individual client pursuant to paragraph (a)(6) of this section, a
covered USG attorney represents the DON (or the Executive agency to
which assigned) acting through its authorized officials. These
officials include the heads of organizational elements within the naval
service, such as the commanders of fleets, divisions, ships and other
heads of activities. When a covered USG attorney is assigned to such an
[[Page 37481]]
organizational element and designated to provide legal services to the
head of the organization, an attorney-client relationship exists
between the covered attorney and the DON as represented by the head of
the organization as to matters within the scope of the official
business of the organization. The head of the organization may not
invoke the attorney-client privilege or the rule of confidentiality for
the head of the organization's own benefit but may invoke either for
the benefit of the DON. In invoking either the attorney-client
privilege or attorney-client confidentiality on behalf of the DON, the
head of the organization is subject to being overruled by higher
authority.
(2) If a covered USG attorney knows that an officer, employee, or
other member associated with the organizational client is engaged in
action, intends to act or refuses to act in a matter related to the
representation that is either adverse to the legal interests or
obligations of the DON or a violation of law which reasonably might be
imputed to the Department, the covered USG attorney shall proceed as is
reasonably necessary in the best interest of the naval service. In
determining how to proceed, the covered USG attorney shall give due
consideration to the seriousness of the violation and its consequences,
the scope and nature of the covered USG attorney's representation, the
responsibility in the naval service and the apparent motivation of the
person involved, the policies of the naval service concerning such
matters, and any other relevant considerations. Any measures taken
shall be designed to minimize prejudice to the interests of the naval
service and the risk of revealing information relating to the
representation to persons outside the service. Such measures shall
include among others:
(i) Asking for reconsideration of the matter by the acting
official;
(ii) Advising that a separate legal opinion on the matter be sought
for presentation to appropriate authority in the naval service;
(iii) Referring the matter to, or seeking guidance from, higher
authority in the chain of command including, if warranted by the
seriousness of the matter, referral to the supervisory attorney
assigned to the staff of the acting official's next superior in the
chain of command; or
(iv) Advising the acting official that his or her personal legal
interests are at risk and that he or she should consult counsel as
there may exist a conflict of interests for the covered USG attorney,
and the covered USG attorney's responsibility is to the organization.
(3) If, despite the covered USG attorney's efforts per paragraph
(a)(2) of this section, the highest authority that can act concerning
the matter insists upon action or refuses to act, in clear violation of
law, the covered USG attorney shall terminate representation with
respect to the matter in question. In no event shall the attorney
participate or assist in the illegal activity. In this case, a covered
USG attorney shall report such termination of representation to the
attorney's supervisory attorney or attorney representing the next
superior in the chain of command.
(4) In dealing with the officers, employees, or members of the
naval service a covered USG attorney shall explain the identity of the
client when it is apparent that the naval service's interests are
adverse to those of the officer, employee, or member.
(5) A covered USG attorney representing the naval service may also
represent any of its officers, employees, or members, subject to the
provisions of Sec. 776.26 and other applicable authority. If the DON's
consent to dual representation is required by Sec. 776.26, the consent
shall be given by an appropriate official of the DON other than the
individual who is to be represented.
(6) A covered USG attorney who has been duly assigned to represent
an individual who is subject to disciplinary action or administrative
proceedings, or to provide legal assistance to an individual, has, for
those purposes, an attorney-client relationship with that individual.
(b) [Reserved]
Sec. 776.33 Client under a disability.
(a) Client under a disability. (1) When a client's ability to make
adequately considered decisions in connection with the representation
is impaired, whether because of minority, mental disability, or for
some other reason, the covered attorney shall, as far as reasonably
possible, maintain a normal attorney-client relationship with the
client.
(2) A covered attorney may seek the appointment of a guardian or
take other protective action with respect to a client only when the
covered attorney reasonably believes that the client cannot adequately
act in the client's own interest.
(b) [Reserved]
Sec. 776.34 Safekeeping property.
(a) Safekeeping property. Covered USG attorneys shall not normally
hold or safeguard property of a client or third persons in connection
with representational duties. See Sec. 776.27.
(b) [Reserved]
Sec. 776.35 Declining or terminating representation.
(a) Declining or terminating representation. (1) Except as stated
in paragraph (a)(3) of this section, a covered attorney shall not
represent a client or, when representation has commenced, shall seek to
withdraw from the representation of a client if:
(i) The representation will result in violation of the Rules
contained in this subpart or other law or regulation;
(ii) The covered attorney's physical or mental condition materially
impairs his or her ability to represent the client; or
(iii) The covered attorney is dismissed by the client.
(2) Except as stated in paragraph (a)(3) of this section, a covered
attorney may seek to withdraw from representing a client if withdrawal
can be accomplished without material adverse effect on the interests of
the client, or if:
(i) The client persists in a course of action involving the covered
attorney's services that the covered attorney reasonably believes is
criminal or fraudulent;
(ii) The client has used the covered attorney's services to
perpetrate a crime or fraud;
(iii) The client insists upon pursuing an objective that the
covered attorney considers repugnant or imprudent;
(iv) In the case of covered non-USG attorneys, the representation
will result in an unreasonable financial burden on the attorney or has
been rendered unreasonably difficult by the client; or
(v) Other good cause for withdrawal exists.
(3) When ordered to do so by a tribunal or other competent
authority, a covered attorney shall continue representation
notwithstanding good cause for terminating the representation.
(4) Upon termination of representation, a covered attorney shall
take steps to the extent reasonably practicable to protect a client's
interests, such as giving reasonable notice to the client, allowing
time for assignment or employment of other counsel, and surrendering
papers and property to which the client is entitled and, where a non-
USG attorney provided representation, refunding any advance payment of
fee that has not been earned. The covered attorney may retain papers
relating to the client to the extent permitted by law.
(b) [Reserved]
Sec. 776.36 Prohibited sexual relations.
(a) Prohibited sexual relations. (1) A covered attorney shall not
have sexual
[[Page 37482]]
relations with a current client. A covered attorney shall not require,
demand, or solicit sexual relations with a client incident to any
professional representation.
(2) A covered attorney shall not engage in sexual relations with
another attorney currently representing a party whose interests are
adverse to those of a client currently represented by the covered
attorney.
(3) A covered attorney shall not engage in sexual relations with a
judge who is presiding or who is likely to preside over any proceeding
in which the covered attorney will appear in a representative capacity.
(4) A covered attorney shall not engage in sexual relations with
other persons involved in the particular case, judicial or
administrative proceeding, or other matter for which representation has
been established, including but not limited to witnesses, victims, co-
accuseds, and court-martial or board members.
(5) For purposes of this Rule, sexual relations means:
(i) Sexual intercourse; or
(ii) Any touching of the sexual or other intimate parts of a person
or causing such person to touch the sexual or other intimate parts of
the covered attorney for the purpose of arousing or gratifying the
sexual desire of either party.
(b) [Reserved]
Sec. 776.37 Advisor.
(a) Advisor. In representing a client, a covered attorney shall
exercise independent professional judgment and render candid advice. In
rendering advice, a covered attorney should refer not only to law but
to other considerations such as moral, economic, social, and political
factors that may be relevant to the client's situation.
(b) [Reserved]
Sec. 776.38 Mediation.
(a) Mediation. (1) A covered attorney may act as a mediator between
individuals if:
(i) The covered attorney consults with each individual concerning
the implications of the mediation, including the advantages and risks
involved, and the effect on the attorney-client confidentiality, and
obtains each individual's consent to the mediation;
(ii) The covered attorney reasonably believes that the matter can
be resolved on terms compatible with each individual's best interests,
that each individual will be able to make adequately informed decisions
in the matter, and that there is little risk of material prejudice to
the interests of any of the individuals if the contemplated resolution
is unsuccessful; and,
(iii) The covered attorney reasonably believes that the mediation
can be undertaken impartially and without improper effect on other
responsibilities the covered attorney has to any of the individuals.
(2) While acting as a mediator, the covered attorney shall consult
with each individual concerning the decisions to be made and the
considerations relevant in making them, so that each individual can
make adequately informed decisions.
(3) A covered attorney shall withdraw as a mediator if any of the
individuals so requests, or if any of the conditions stated in
paragraph (a)(1) of this section is no longer satisfied. Upon
withdrawal, the covered attorney shall not represent any of the
individuals in the matter that was the subject of the mediation unless
each individual consents.
(b) [Reserved]
Sec. 776.39 Evaluation for use by third persons.
(a) Evaluation for use by third persons. (1) A covered attorney may
undertake an evaluation of a matter affecting a client for the use of
someone other than the client if:
(i) The covered attorney reasonably believes that making the
evaluation is compatible with other aspects of the covered attorney's
relationship with the client, and,
(ii) The client consents after consultation.
(2) Except as disclosure is required in connection with a report of
an evaluation, information relating to the evaluation is otherwise
protected by Sec. 776.25.
(b) [Reserved]
Sec. 776.40 Meritorious claims and contentions.
(a) Meritorious claims and contentions. A covered attorney shall
not bring or defend a proceeding, or assert or controvert an issue
therein, unless there is a basis for doing so that is not frivolous,
which includes a good faith argument for an extension, modification, or
reversal of existing law. A covered attorney representing an accused in
a criminal proceeding or the respondent in an administrative proceeding
that could result in incarceration, discharge from the naval service,
or other adverse personnel action, may nevertheless defend the client
at the proceeding as to require that every element of the case is
established.
(b) [Reserved]
Sec. 776.41 Expediting litigation.
(a) Expediting litigation. A covered attorney shall make reasonable
efforts to expedite litigation or other proceedings consistent with the
interests of the client and the attorney's responsibilities to
tribunals.
(b) [Reserved]
Sec. 776.42 Candor and obligations toward the tribunal.
(a) Candor and obligations toward the tribunal. (1) A covered
attorney shall not knowingly:
(i) Make a false statement of material fact or law to a tribunal;
(ii) Fail to disclose a material fact to a tribunal when disclosure
is necessary to avoid assisting a criminal or fraudulent act by the
client;
(iii) Fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the covered attorney to be directly
adverse to the position of the client and not disclosed by opposing
counsel;
(iv) Offer evidence that the covered attorney knows to be false. If
a covered attorney has offered material evidence and comes to know of
its falsity, the covered attorney shall take reasonable remedial
measures; or
(v) Disobey an order imposed by a tribunal unless done openly
before the tribunal in a good faith assertion that no valid order
should exist.
(2) The duties stated in paragraph (a) of this section continue to
the conclusion of the proceedings, and apply even if compliance
requires disclosure of information otherwise protected by Sec. 776.25.
(3) A covered attorney may refuse to offer evidence that the
covered attorney reasonably believes is false.
(4) In an ex parte proceeding, a covered attorney shall inform the
tribunal of all material facts known to the covered attorney which are
necessary to enable the tribunal to make an informed decision, whether
or not the facts are adverse.
(b) [Reserved]
Sec. 776.43 Fairness to opposing party and counsel.
(a) Fairness to opposing party and counsel. A covered attorney
shall not:
(1) Unlawfully obstruct another party's access to evidence or
unlawfully alter, destroy, or conceal a document or other material
having potential evidentiary value. A covered attorney shall not
counsel or assist another person to do any such act;
(2) Falsify evidence, counsel or assist a witness to testify
falsely, or offer an inducement to a witness that is prohibited by law;
[[Page 37483]]
(3) In pretrial procedure, make a frivolous discovery request or
fail to make reasonably diligent effort to comply with a legally proper
discovery request by an opposing party;
(4) In trial, allude to any matter that the covered attorney does
not reasonably believe is relevant or that will not be supported by
admissible evidence, assert personal knowledge of facts in issue except
when testifying as a witness, or state a personal opinion as to the
justness of a cause, the credibility of a witness, the culpability of a
civil litigant, or the guilt or innocence of an accused; or
(5) Request a person other than a client to refrain from
voluntarily giving relevant information to another party unless:
(i) The person is a relative, an employee, or other agent of a
client; and
(ii) The covered attorney reasonably believes that the person's
interests will not be adversely affected by refraining from giving such
information.
(b) [Reserved]
Sec. 776.44 Impartiality and decorum of the tribunal.
(a) Impartiality and decorum of the tribunal. A covered attorney
shall not:
(1) Seek to influence a judge, court member, member of a tribunal,
prospective court member or member of a tribunal, or other official by
means prohibited by law or regulation;
(2) Communicate ex parte with such a person except as permitted by
law or regulation; or
(3) Engage in conduct intended to disrupt a tribunal.
(b) [Reserved]
Sec. 776.45 Extra-tribunal statements.
(a) Extra-tribunal statements. (1) A covered attorney shall not
make an extrajudicial statement about any person or case pending
investigation or adverse administrative or disciplinary proceedings
that a reasonable person would expect to be disseminated by means of
public communication if the covered attorney knows or reasonably should
know that it will have a substantial likelihood of materially
prejudicing an adjudicative proceeding or an official review process
thereof.
(2) A statement referred to in paragraph (a)(1) of this section
ordinarily is likely to have such an effect when it refers to a civil
matter triable to a jury, a criminal matter, or any other proceeding
that could result in incarceration, discharge from the naval service,
or other adverse personnel action, and the statement relates to:
(i) The character, credibility, reputation, or criminal record of a
party, suspect in a criminal investigation, victim, or witness, or the
identity of a victim or witness, or the expected testimony of a party,
suspect, victim, or witness;
(ii) The possibility of a plea of guilty to the offense or the
existence or contents of any confession, admission, or statement given
by an accused or suspect or that person's refusal or failure to make a
statement;
(iii) The performance or results of any forensic examination or
test or the refusal or failure of a person to submit to an examination
or test, or the identity or nature of physical evidence expected to be
presented;
(iv) Any opinion as to the guilt or innocence of an accused or
suspect in a criminal case or other proceeding that could result in
incarceration, discharge from the naval service, or other adverse
personnel action;
(v) Information the covered attorney knows or reasonably should
know is likely to be inadmissible as evidence before a tribunal and
would, if disclosed, create a substantial risk of materially
prejudicing an impartial proceeding;
(vi) The fact that an accused has been charged with a crime, unless
there is included therein a statement explaining that the charge is
merely an accusation and that the accused is presumed innocent until
and unless proven guilty; or
(vii) The credibility, reputation, motives, or character of
civilian or military officials of the Department of Defense.
(3) Notwithstanding paragraphs (a)(1) and (a)(2)(i) through (vii)
of this section, a covered attorney involved in the investigation or
litigation of a matter may state without elaboration:
(i) The general nature of the claim, offense, or defense;
(ii) The information contained in a public record;
(iii) That an investigation of the matter is in progress, including
the general scope of the investigation, the offense or claim or defense
involved and, except when prohibited by law or regulation, the identity
of the persons involved;
(iv) The scheduling or result of any step in litigation;
(v) A request for assistance in obtaining evidence and information
necessary thereto;
(vi) A warning of danger concerning the behavior of the person
involved, when there is reason to believe that there exists the
likelihood of substantial harm to an individual or to the public
interest; and
(vii) In a criminal case, in addition to paragraphs (a)(3)(i)
through (vi) of this section:
(A) The identity, duty station, occupation, and family status of
the accused;
(B) If the accused has not been apprehended, information necessary
to aid in apprehension of that person;
(C) The fact, time, and place of apprehension; and
(D) The identity of investigating and apprehending officers or
agencies and the length of the investigation.
(4) Notwithstanding paragraphs (a)(1) and (a)(2)(i) through (vii)
of this section, a covered attorney may make a statement that a
reasonable covered attorney would believe is required to protect a
client from the substantial undue prejudicial effect of recent
publicity not initiated by the covered attorney or the attorney's
client. A statement made pursuant to this paragraph shall be limited to
such information as is necessary to mitigate the recent adverse
publicity.
(5) The protection and release of information in matters pertaining
to the DON is governed by such statutes as the Freedom of Information
Act and the Privacy Act, in addition to those governing protection of
national defense information. In addition, other laws and regulations
may further restrict the information that can be released or the source
from which it is to be released (e.g., the Manual of the Judge Advocate
General).
(b) [Reserved]
Sec. 776.46 Attorney as witness.
(a) Attorney as witness. (1) A covered attorney shall not act as
advocate at a trial in which the covered attorney is likely to be a
necessary witness except when:
(i) The testimony relates to an uncontested issue;
(ii) The testimony relates to the nature and quality of legal
services rendered in the case; or
(iii) Disqualification of the covered attorney would work
substantial hardship on the client.
(2) A covered attorney may act as advocate in a trial in which
another attorney in the covered attorney's office is likely to be
called as a witness, unless precluded from doing so by Sec. 776.26 or
Sec. 776.28.
(b) [Reserved]
Sec. 776.47 Special responsibilities of a trial counsel.
(a) Special responsibilities of a trial counsel. A trial counsel
shall:
(1) Recommend to the convening authority that any charge or
[[Page 37484]]
specification not warranted by the evidence be withdrawn;
(2) Make reasonable efforts to assure that the accused has been
advised of the right to, and the procedure for obtaining, counsel and
has been given reasonable opportunity to obtain counsel;
(3) Not seek to obtain from an unrepresented accused a waiver of
important pretrial rights;
(4) Make timely disclosure to the defense of all evidence or
information known to the trial counsel that tends to negate the guilt
of the accused or mitigates the offense, and, in connection with
sentencing, disclose to the defense all unprivileged mitigating
information known to the trial counsel, except when the trial counsel
is relieved of this responsibility by a protective order or regulation;
(5) Exercise reasonable care to prevent investigators, law
enforcement personnel, employees, or other persons assisting or
associated with the trial counsel from making an extrajudicial
statement that the trial counsel would be prohibited from making under
Sec. 776.45; and
(6) Except for statements that are necessary to inform the public
of the nature and extent of the trial counsel's actions and that serve
a legitimate law enforcement purpose, refrain from making extrajudicial
comments that have a substantial likelihood of heightening public
condemnation of the accused.
(b) Role of the trial counsel. (1) The trial counsel represents the
United States in the prosecution of special and general courts-martial.
See Article 38(a), UCMJ, and R.C.M. 103(16), 405(d)(3)(A), and
502(d)(5). Accordingly, a trial counsel has the responsibility of
administering justice and is not simply an advocate. This
responsibility carries with it specific obligations to see that the
accused is accorded procedural justice and that guilt is decided upon
the basis of sufficient evidence. Paragraph (a)(1) of this section
recognizes that the trial counsel does not have all the authority
vested in modern civilian prosecutors. The authority to convene courts-
martial, and to refer and withdraw specific charges, is vested in
convening authorities. Trial counsel may have the duty, in certain
circumstances, to bring to the court's attention any charge that lacks
sufficient evidence to support a conviction. See United States v. Howe,
37 M.J. 1062 (NMCMR 1993). Such action should be undertaken only after
consultation with a supervisory attorney and the convening authority.
See also Sec. 776.42, governing ex parte proceedings. Applicable law
may require other measures by the trial counsel. Knowing disregard of
those obligations or a systematic abuse of prosecutorial discretion
could constitute a violation of Sec. 776.69.
(2) The ``ABA Standards for Criminal Justice: The Prosecution
Function,'' (3rd ed. 1993), has been used by appellate courts in
analyzing issues concerning trial counsel conduct. To the extent
consistent with this part, the ABA standards may be used to guide trial
counsel in the prosecution of criminal cases. See United States v.
Howe, 37 M.J. 1062 (NMCRS 1993); United States v. Dancy, 38 M.J. 1 (CMA
1993); United States v. Hamilton, 41 M.J. 22 (CMA 1994); United States
v. Meek, 44 M.J. 1 (CMA 1996).
Sec. 776.48 Advocate in nonadjudicative proceedings.
(a) Advocate in nonadjudicative proceedings. A covered attorney
representing a client before a legislative or administrative tribunal
in a nonadjudicative proceeding shall disclose that the appearance is
in a representative capacity and shall conform to the provisions of
Sec. 776.42, Sec. 776.43, and Sec. 776.44.
(b) [Reserved]
Sec. 776.49 Truthfulness in statements to others.
(a) Truthfulness in statements to others. In the course of
representing a client a covered attorney shall not knowingly;
(1) Make a false statement of material fact or law to a third
person; or
(2) Fail to disclose a material fact to a third person when
disclosure is necessary to avoid assisting a criminal or fraudulent act
by a client, unless disclosure is prohibited by Sec. 776.25.
(b) [Reserved]
Sec. 776.50 Communication with person representated by counsel.
(a) Communication with person represented by counsel. In
representing a client, a covered attorney shall not communicate about
the subject of the representation with a party the covered attorney
knows to be represented by another attorney in the matter, unless the
covered attorney has the consent of the other attorney or is authorized
by law to do so.
(b) [Reserved]
Sec. 776.51 Dealing with an unrepresented person.
(a) Dealing with an unrepresented person. When dealing on behalf of
a client with a person who is not represented by counsel, a covered
attorney shall not state or imply that the covered attorney is
disinterested. When the covered attorney knows or reasonably should
know that the unrepresented person misunderstands the covered
attorney's role in the matter, the covered attorney shall make
reasonable efforts to correct the misunderstanding.
(b) [Reserved]
Sec. 776.52 Respect for rights of third persons.
(a) Respect for rights of third persons. In representing a client,
a covered attorney shall not use means that have no substantial purpose
other than to embarrass, delay, or burden a third person, or use
methods of obtaining evidence that violate the legal rights of such a
person.
(b) [Reserved]
Sec. 776.53 Responsibilities of the Judge Advocate General and
supervisory attorneys.
(a) Responsibilities of the Judge Advocate General and supervisory
attorneys. (1) The JAG and supervisory attorneys shall make reasonable
efforts to ensure that all covered attorneys conform to this part.
(2) A covered attorney having direct supervisory authority over
another covered attorney shall make reasonable efforts to ensure that
the other attorney conforms to this part.
(3) A supervisory attorney shall be responsible for another
subordinate covered attorney's violation of this part if:
(i) The supervisory attorney orders or, with knowledge of the
specific conduct, ratifies the conduct involved; or
(ii) The supervisory attorney has direct supervisory authority over
the other attorney and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable
remedial action.
(4) A supervisory attorney is responsible for ensuring that the
subordinate covered attorney is properly trained and is competent to
perform the duties to which the subordinate covered attorney is
assigned.
(b) [Reserved]
Sec. 776.54 Responsibilities of a subordinate attorney.
(a) Responsibilities of a subordinate attorney. (1) A covered
attorney is bound by this part notwithstanding that the covered
attorney acted at the direction of another person.
(2) In recognition of the judge advocate's unique dual role as a
commissioned officer and attorney, subordinate judge advocates shall
obey lawful directives and regulations of supervisory attorneys when
not
[[Page 37485]]
inconsistent with this part or the duty of a judge advocate to exercise
independent professional judgment as to the best interest of an
individual client.
(3) A subordinate covered attorney does not violate this part if
that covered attorney acts in accordance with a supervisory attorney's
written and reasonable resolution of an arguable question of
professional duty. See Sec. 776.10.
(b) [Reserved]
Sec. 776.55 Responsibilities regarding non-attorney assistants.
(a) Responsibilities regarding non-attorney assistants. With
respect to a non-attorney acting under the authority, supervision, or
direction of a covered attorney:
(1) The senior supervisory attorney in an office shall make
reasonable efforts to ensure that the person's conduct is compatible
with the professional obligations of a covered attorney;
(2) A covered attorney having direct supervisory authority over the
non-attorney shall make reasonable efforts to ensure that the person's
conduct is compatible with the professional obligations of a covered
attorney; and
(3) A covered attorney shall be responsible for conduct of such a
person that would be a violation of this part if engaged in by a
covered attorney if:
(i) The covered attorney orders or, with the knowledge of the
specific conduct, explicitly or impliedly ratifies the conduct
involved; or
(ii) The covered attorney has direct supervisory authority over the
person, and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action.
(b) [Reserved]
Sec. 776.56 Professional independence of a covered USG attorney.
(a) Professional independence of a covered USG attorney. (1)
Notwithstanding a judge advocate's status as a commissioned officer
subject, generally, to the authority of superiors, a judge advocate
detailed or assigned to represent an individual member or employee of
the DON is expected to exercise unfettered loyalty and professional
independence during the representation consistent with these Rules and
remains ultimately responsible for acting in the best interest of the
individual client.
(2) Notwithstanding a civilian USG attorney's status as a Federal
employee subject, generally, to the authority of superiors, a civilian
USG attorney detailed or assigned to represent an individual member or
employee of the DON is expected to exercise unfettered loyalty and
professional independence during the representation consistent with
these Rules and remains ultimately responsible for acting in the best
interest of the individual client.
(3) The exercise of professional judgment in accordance with
paragraphs (a)(1) and (a)(2) of this section shall not, standing alone,
be a basis for an adverse evaluation or other prejudicial action.
(b) Loyalty to individual client. (1) This section recognizes that
a judge advocate is a military officer required by law to obey the
lawful orders of superior officers. It also recognizes the similar
status of a civilian USG attorney. Nevertheless, the practice of law
requires the exercise of judgment solely for the benefit of the client
and free of compromising influences and loyalties. Thus, when a covered
USG attorney is assigned to represent an individual client, neither the
attorney's personal interests, the interests of other clients, nor the
interests of third persons should affect loyalty to the individual
client.
(2) Not all direction given to a subordinate covered attorney is an
attempt to influence improperly the covered attorney's professional
judgment. Each situation must be evaluated by the facts and
circumstances, giving due consideration to the subordinate's training,
experience, and skill. A covered attorney subjected to outside
pressures should make full disclosure of them to the client. If the
covered attorney or the client believes the effectiveness of the
representation has been or will be impaired thereby, the covered
attorney should take proper steps to withdraw from representation of
the client.
(3) Additionally, a judge advocate has a responsibility to report
any instances of unlawful command influence. See R.C.M. 104, MCM, 1998.
Sec. 776.57 Unauthorized practice of law.
(a) Unauthorized practice of law. A covered USG attorney shall not:
(1) Except as authorized by an appropriate military department,
practice law in a jurisdiction where doing so is prohibited by the
regulations of the legal profession in that jurisdiction; or
(2) Assist a person who is not a member of the bar in the
performance of activity that constitutes the unauthorized practice of
law.
(b) Practice of law under JAG authorizaton. Limiting the practice
of law to members of the bar protects the public against rendition of
legal services by unqualified persons. A covered USG attorney's
performance of legal duties pursuant to a military department's
authorization, however, is considered a Federal function and not
subject to regulation by the states. Thus, a covered USG attorney may
perform legal assistance duties even though the covered attorney is not
licensed to practice in the jurisdiction within which the covered
attorney's duty station is located. Paragraph (a)(2) of this section
does not prohibit a covered USG attorney from using the services of
non-attorneys and delegating functions to them, so long as the covered
attorney supervises the delegated work and retains responsibility for
it. See Sec. 776.55. Likewise, it does not prohibit covered USG
attorneys from providing professional advice and instruction to non-
attorneys whose employment requires knowledge of law; for example,
claims adjusters, social workers, accountants and persons employed in
Government agencies. In addition, a covered USG attorney may counsel
individuals who wish to proceed pro se or non-attorneys authorized by
law or regulation to appear and represent themselves or others before
military proceedings.
Secs. 776.58-776.65 [Reserved]
Sec. 776.66 Bar admission and disciplinary matters.
(a) Bar admission and disciplinary matters. A covered attorney, in
connection with any application for bar admission, appointment as a
judge advocate, employment as a civilian USG attorney, certification by
the JAG or his designee, or in connection with any disciplinary matter,
shall not:
(1) Knowingly make a false statement of fact; or
(2) Fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly fail to
respond to a lawful demand for information from an admissions or
disciplinary authority, except that this section does not require
disclosure of information otherwise protected by Sec. 776.25.
(b) Providing information. The duty imposed by this section extends
to covered attorneys and other attorneys seeking admission to a bar,
application for appointment as a covered USG attorney (military or
civilian) or certification by the JAG or his designee. Hence, if a
person makes a false statement in connection with an application for
admission or certification (e.g., misstatement by a civilian attorney
before a military judge regarding qualifications under Rule for Courts-
Martial 502), it may be the basis
[[Page 37486]]
for subsequent disciplinary action if the person is admitted or
certified, and in any event may be relevant in a subsequent admission
application. The duty imposed by this section applies to a covered
attorney's own admission or discipline as well as that of others. Thus,
it is a separate professional offense for a covered attorney to make a
knowing misrepresentation or omission in connection with a disciplinary
investigation of the covered attorney's own conduct. This section also
requires affirmative clarification of any misunderstanding on the part
of the admissions, certification, or disciplinary authority of which
the person involved becomes aware.
Sec. 776.67 Judicial and legal officers.
(a) Judicial and legal officers. A covered attorney shall not make
a statement that the covered attorney knows to be false or with
reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge, investigating officer, hearing
officer, adjudicatory officer, or public legal officer, or of a
candidate for election or appointment to judicial or legal office.
(b) [Reserved]
Sec. 776.68 Reporting professional misconduct.
(a) Reporting professional misconduct. (1) A covered attorney
having knowledge that another covered attorney has committed a
violation of this part that raises a substantial question as to that
covered attorney's honesty, trustworthiness, or fitness as a covered
attorney in other respects, shall report such violation in accordance
with the procedures set forth in subpart C of this part.
(2) A covered attorney having knowledge that a judge has committed
a violation of applicable rules of judicial conduct that raises a
substantial question as to the judge's fitness for office shall report
such violation in accordance with the procedures set forth in subpart C
of this part.
(3) This Rule does not require disclosure of information otherwise
protected by Sec. 776.25.
(b) [Reserved]
Sec. 776.69 Misconduct.
(a) Misconduct. It is professional misconduct for a covered
attorney to:
(1) Violate or attempt to violate this subpart, knowingly assist or
induce another to do so, or do so through the acts of another;
(2) Commit a criminal act that reflects adversely on the covered
attorney's honesty, trustworthiness, or fitness as an attorney in other
respects;
(3) Engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation;
(4) Engage in conduct that is prejudicial to the administration of
justice;
(5) State or imply an ability to influence improperly a government
agency or official; or
(6) Knowingly assist a judge or judicial officer in conduct that is
a violation of applicable rules of judicial conduct or other law.
(b)Responsibilities. (1) Judge advocates hold a commission as an
officer in the Navy or Marine Corps and assume legal responsibilities
going beyond those of other citizens. A judge advocate's abuse of such
commission can suggest an inability to fulfill the professional role of
judge advocate and attorney. This concept has similar application to
civilian USG attorneys.
(2) Covered non-USG attorneys, Reservists, and Retirees (acting in
their civilian capacity), like their active-duty counterparts, are
expected to demonstrate model behavior and exemplary integrity at all
times. JAG may consider any and all derogatory or beneficial
information about a covered attorney, for purposes of determining the
attorney's qualification, professional competence, or fitness to
practice law in DON matters, or to administer discipline under this
part. Such consideration shall be made, except in emergency situations
necessitating immediate action, according to the procedures established
in subpart C of this part.
Sec. 776.70 Jurisdiction.
(a) Jurisdiction. All covered attorneys, as defined in Sec. 776.2,
shall be governed by this part.
(b) Applicability. (1) Many covered USG attorneys practice outside
the territorial limits of the jurisdiction in which they are licensed.
While covered attorneys remain subject to the governing authority of
the jurisdiction in which they are licensed to practice, they are also
subject to these Rules.
(2) When covered USG attorneys are engaged in the conduct of Navy
or Marine Corps legal functions, whether serving the Navy or Marine
Corps as a client or serving an individual client as authorized by the
Navy or Marine Corps, the rules contained in this subpart supersede any
conflicting rules applicable in jurisdictions in which the covered
attorney may be licensed. However, covered attorneys practicing in
State or Federal civilian court proceedings will abide by the rules
adopted by that State or Federal civilian court during the proceedings.
As for covered non-USG attorneys practicing under the supervision of
the JAG, violation of the rules contained in this subpart may result in
suspension from practice in DON proceedings.
(3) Covered non-USG attorneys, Reservists, or Retirees (acting in
their civilian capacity) who seek to provide legal services in any DON
matter under JAG cognizance and supervision, may be precluded from such
practice of law if, in the opinion of the JAG (as exercised through
this instruction) the attorney's conduct in any venue renders that
attorney unable or unqualified to practice in DON programs or
proceedings.
Sec. 776.71 Requirement to remain in good standing with licensing
authorities.
(a) Requirement to remain in good standing with state licensing
authority. (1) Each officer of the Navy appointed as a member of the
Judge Advocate General's Corps, each officer of the Marine Corps
designated a judge advocate, and each civil service and contracted
civilian attorney who practices law under the cognizance and
supervision of the JAG shall maintain a status considered ``in good
standing'' at all times with the licensing authority admitting the
individual to the practice of law before the highest court of at least
one State, Territory, Commonwealth, or the District of Columbia.
(2) The JAG, the Director, JA Division, HQMC, or any other
supervisory attorney may require any covered USG attorney over whom
they exercise authority to establish that the attorney continues to be
in good standing with his or her licensing authority. Representatives
of the JAG or of the Director, JA Division, HQMC, may also inquire
directly of any such covered USG attorney's licensing authority to
establish whether he or she continues to be in good standing and has no
disciplinary action pending.
(3) Each covered USG attorney shall immediately report to the JAG
if any jurisdiction in which the covered USG attorney is or has been a
member in good standing commences disciplinary investigation or action
against him or her or if the covered USG attorney is disciplined,
suspended, or disbarred from the practice of law in any jurisdiction.
(4) Each covered non-USG attorney representing an accused in any
court-martial or administrative separation proceeding shall be a member
in good standing with, and authorized to practice law by, the bar of a
Federal court or of the bar of the highest court of a State, or a
lawyer otherwise authorized by a recognized licensing
[[Page 37487]]
authority to practice law and found by the military judge to be
qualified to represent the accused.
(b) Definition. (1) The licensing authority granting the
certification or privilege to practice law within the jurisdiction
generally defines the phrase ``in good standing.'' At a minimum it
means that the individual is subject to the jurisdiction's disciplinary
review process; has not been suspended or disbarred from the practice
of law within the jurisdiction; is up-to-date in the payment of all
required fees; has met applicable continuing legal education
requirements which the jurisdiction has imposed (or the cognizant
authority has waived those requirements in the case of the individual);
and has met such other requirements as the cognizant authority has set
to remain eligible to practice law. So long as these conditions are
met, a covered USG attorney may be considered ``inactive'' as to the
practice of law within a particular jurisdiction and still be
considered ``in good standing'' for purposes of this section.
(2) Rule for Courts-Martial 502(d)(3)(A) requires that any civilian
defense counsel representing an accused in a court-martial be a member
of the bar of a Federal court or of the bar of the highest court of a
State. This civilian defense counsel qualification only has meaning if
the attorney is a member ``in good standing,'' see U.S. v. Waggoner, 22
M.J. 692 (AFCMR 1986), and is then authorized to practice law within
that jurisdiction. It is appropriate for the military judge, in each
and every case, to ensure that a civilian defense counsel is qualified
to represent the accused.
(3) Failure of a judge advocate to comply with the requirements of
this Rule may result in professional disciplinary action as provided
for in this instruction, loss of certification under Articles 26 and/or
27(b), UCMJ, adverse entries in military service records, and
administrative separation under Secretary of the Navy Instruction
1920.6(series) based on the officer's failure to maintain professional
qualifications. In the case of civil service and contracted civilian
attorneys practicing under the JAG's cognizance and supervision,
failure to maintain good standing or otherwise to comply with the
requirements of this Rule may result in adverse administrative action
under applicable personnel regulations, including termination of
employment.
(4) A covered USG attorney need only remain in good standing in one
jurisdiction. If admitted to the practice of law in more than one
jurisdiction, however, and any jurisdiction commences disciplinary
action against or disciplines, suspends or disbars the covered USG
attorney from the practice of law, the covered USG attorney must so
advise the JAG.
(5) Certification by the United States Court of Appeals for the
Armed Forces that a covered attorney is in good standing with that
court will not satisfy the requirement of this section, since such
status is normally dependent on Article 27 UCMJ certification alone.
Secs. 776.72-776.75 [Reserved]
Subpart C--Complaint Processing Procedures
Sec. 776.76 Policy.
(a) It is JAG's policy to investigate and resolve, expeditiously
and fairly, all allegations of professional impropriety lodged against
covered attorneys practicing under JAG cognizance and supervision.
(b) Rules Counsel approval will be obtained before conducting any
preliminary inquiry or formal investigation into an alleged violation
of subpart B of this part or the Code of Judicial Conduct. The Rules
Counsel will notify the JAG prior to the commencement of any
preliminary inquiry or investigation. The preliminary inquiry and any
subsequent investigation will be conducted according to the procedures
set forth in this subpart.
Sec. 776.77 Related Investigations and Actions.
Acts or omissions by covered attorneys may constitute professional
misconduct, criminal misconduct, poor performance of duty, or a
combination of all three. Care must be taken to characterize
appropriately the nature of a covered attorney's conduct to determine
who may and properly should take official action.
(a) Questions of legal ethics and professional misconduct by
covered attorneys are within the exclusive province of JAG. Ethical or
professional misconduct will not be attributed to any covered attorney
in any official record without a final JAG determination, made in
accordance with this part, that such misconduct has occurred.
(b) Criminal misconduct is properly addressed by the covered USG
attorney's commander through the disciplinary process provided under
the UCMJ and implementing regulations, or through referral to
appropriate civil authority.
(c) Poor performance of duty is properly addressed by the covered
USG attorney's reporting senior through a variety of administrative
actions, including documentation in fitness reports or employee
appraisals.
(d) Prior JAG approval is not required to investigate allegations
of criminal conduct or poor performance of duty involving covered
attorneys. When, however, investigations into criminal conduct or poor
performance reveal conduct that constitutes a violation of this part,
or of the Code of Judicial Conduct in the case of judges, such conduct
shall be reported to the Rules Counsel immediately.
(e) Inquiries into allegations of professional misconduct will
normally be held in abeyance until any related criminal investigation
or proceeding is complete. However, a pending criminal investigation or
proceeding does not bar the initiation or completion of a professional
misconduct investigation stemming from the same or related incidents or
prevent the JAG from imposing professional disciplinary sanctions as
provided for in this subpart.
Sec. 776.78 Informal complaints.
Informal, anonymous, or ``hot line'' type complaints alleging
professional misconduct must be referred to appropriate authority (such
as the JAG IG or the concerned supervisory attorney) for inquiry. Such
complaints are not, by themselves, cognizable under this subpart but
may, if reasonably confirmed, be the basis of a formal complaint
described in Sec. 776.79.
Sec. 776.79 The complaint.
(a) The complaint shall:
(1) Be in writing and be signed by the complainant;
(2) State that the complainant has personal knowledge, or has
otherwise received reliable information indicating, that:
(i) The covered attorney concerned is, or has been, engaged in
misconduct that demonstrates a lack of integrity, that constitutes a
violation of subpart B of this part or a failure to meet the ethical
standards of the profession; or
(ii) The covered attorney concerned is ethically, professionally,
or morally unqualified to perform his or her duties; and
(3) Contain a complete, factual statement of the acts or omissions
constituting the substance of the complaint, as well as a description
of any attempted resolution with the covered attorney concerned.
Supporting statements, if any, should be attached to the complaint.
(b) A complaint may be initiated by any person, including the
Administrative Law Division of the Office of JAG (JAG (13)), or the
Judge Advocate Research and Civil Law Branch, JA Division, HQMC (JAR).
[[Page 37488]]
Sec. 776.80 Initial screening and Rules Counsel.
(a) Complaints shall be forwarded to JAG(13) or, in cases involving
Marine Corps judge advocates or civil service and contracted civilian
attorneys who perform legal services under the cognizance and
supervision of Director, JA Division, HQMC, to JAR.
(b) JAG(13) and JAR shall log all complaints received and will
ensure that a copy is provided to the covered attorney who is the
subject of the complaint.
(c) The covered attorney concerned may elect to provide an initial
statement regarding the complaint for the Rules Counsel's
consideration. The covered attorney will promptly inform JAG(13) or JAR
if he or she intends to submit any such statement. At this screening
stage, forwarding of the complaint to the Rules Counsel will not be
unduly delayed to await the covered attorney's submission.
(d) The Rules Counsel shall initially review the complaint, and any
statement submitted by the covered attorney complained of, to determine
whether it complies with the requirements set forth in Sec. 776.79.
(1) Complaints that do not comply with the requirements may be
returned to the complainant for correction or completion, and
resubmission to JAG(13) or JAR. If the complaint is not corrected or
completed, and resubmitted within 30 days of the date of its return,
the Rules Counsel may close the file without further action. JAG (13)
and JAR will maintain copies of all correspondence relating to the
return and resubmission of a complaint, and shall notify the covered
attorney concerned if and when the Rules Counsel takes action to close
the file.
(2) Complaints that comply with the requirements shall be further
reviewed by the Rules Counsel to determine whether the complaint:
(i) Establishes probable cause to believe that a violation of this
part or of the Judicial Code has occurred; or
(ii) Alleges ineffective assistance of counsel, or other violations
of subpart B of this part, as a matter of defense in a court-martial,
administrative separation, or nonjudicial punishment proceeding. If so,
the Rules Counsel shall forward a copy of the complaint to the proper
appellate authority for appropriate action and comment.
(e) The Rules Counsel shall close the file without further action
if the complaint does not establish probable cause to believe that a
violation has occurred. The Rules Counsel shall notify the complainant
and the covered attorney concerned that the file has been closed.
JAG(13) and JAR will maintain copies of all correspondence related to
the closing of the file.
(f) The Rules Counsel may close the file if there is a
determination that the complaint establishes probable cause but the
violation is of a minor or technical nature appropriately addressed
through corrective counseling. The Rules Counsel shall report any such
decision to the JAG. The Rules Counsel shall ensure the covered
attorney concerned receives appropriate counseling and shall notify the
complainant and the covered attorney concerned that the file has been
closed. JAG(13) and JAR will maintain copies of all correspondence
related to the closing of the file. The covered attorney concerned is
responsible, under these circumstances, to determine if his or her
Federal, state, or local licensing authority requires reporting of such
action.
Sec. 776.81 Charges.
(a) If the Rules Counsel determines that there is probable cause to
believe that a violation of this part or of the Code of Judicial
Conduct has occurred, the Rules Counsel shall draft charges alleging
violations of this part or of the Code of Judicial Conduct and forward
the charges, together with the original complaint and any allied
papers, as follows:
(1) In cases involving Marine Corps attorneys not serving as
defense counsel or attached to Navy units, to the officer exercising
general court-martial jurisdiction (OEGCMJ) over the charged covered
attorney, and request, on behalf of JAG, that the OEGCMJ appoint a
covered attorney (normally the concerned attorney's supervisor) to
conduct a preliminary inquiry into the matter;
(2) In all other cases, to the supervisory attorney in the charged
attorney's chain of command (or such other officer as JAG may
designate), and direct, on behalf of JAG, the supervisory attorney to
conduct a preliminary inquiry into the matter.
(b) The Rules Counsel shall provide a copy of the charges,
complaint, and any allied papers to the covered attorney against whom
the complaint is made and notify him or her that a preliminary inquiry
will be conducted. Service of complaints, charges, and other materials
shall be made by personal service, or by registered or certified mail
sent to the covered attorney's last known address reflected in official
Navy or Marine Corps records or in the records of the state bar(s)
which licensed the attorney to practice law.
(c) The Rules Counsel shall also provide a copy of the charges to
the commanding officer, or equivalent, of the covered USG attorney
concerned if the complaint involves a covered USG attorney on active
duty or in civilian Federal service.
(d) The Rules Counsel shall also forward a copy of the charges as
follows:
(1) In cases involving Navy or Marine Corps judge advocates serving
in Naval Legal Service Command (NLSC) units, to Vice Commander, NLSC;
(2) In cases involving Navy attorneys serving in Marine Corps
units, or involving Marine Corps attorneys serving in Navy units, to
the Commandant of the Marine Corps (Attn: JA);
(3) In cases involving members of the Navy-Marine Corps Trial
Judiciary, to the Trial Judiciary Chief Judge; and
(4) To the appropriate military service attorney discipline section
if the complaint involves covered attorneys certified by the Judge
Advocates General/Chief Counsel of the other uniformed services.
Sec. 776.82 Interim suspension.
(a) Where the Rules Counsel determines there is probable cause to
believe that a covered attorney has committed misconduct or other
violations of this part, and poses a substantial threat of irreparable
harm to his or her clients or the orderly administration of military
justice, the Rules Counsel shall so advise the JAG. Examples of when a
covered attorney may pose a ``substantial threat of irreparable harm''
include:
(1) When charged with the commission of a crime which involves
moral turpitude or reflects adversely upon the covered attorney's
fitness to practice law, and where substantial evidence exists to
support the charge;
(2) When engaged in the unauthorized practice of law (e.g., failure
to maintain good standing in accordance with Sec. 776.71); or
(3) Where unable to represent client interests competently.
(b) Upon receipt of information from the Rules Counsel, JAG may
order the covered attorney to show cause why he or she should not face
interim suspension, pending completion of a professional responsibility
investigation. The covered attorney shall have 10 calendar days in
which to respond.
(c) If an order to show cause has been issued under paragraph (b)
of this section, and the period for response has passed without a
response, or after consideration of any response and finding sufficient
evidence demonstrating probable cause to believe that the covered
attorney is guilty of
[[Page 37489]]
misconduct and poses a substantial threat of irreparable harm to his or
her client or the orderly administration of military justice, JAG may
direct an interim suspension of the covered attorney's certification
under Articles 26(b) or 27(b), UCMJ, or R.C.M. 502(d)(3), or the
authority to provide legal assistance, pending the results of the
investigation and final action under this instruction.
(d) Within 10 days of JAG's decision to impose an interim
suspension, the covered attorney may request an opportunity to be heard
before an impartial officer designated by JAG. Where so requested, that
opportunity will be scheduled within 10 calendar days of the request.
The designated officer shall receive any information that the covered
attorney chooses to submit on the limited issue of whether to continue
the interim suspension. The designated officer shall submit a
recommendation to JAG within 5 calendar days of conclusion.
(e) A covered attorney may, based upon a claim of changed
circumstances or newly discovered evidence, petition for dissolution or
amendment of JAG's imposition of interim suspension.
(f) Any professional responsibility investigation involving a
covered attorney who has been suspended pursuant to this section shall
proceed and be concluded without appreciable delay. However, JAG may
determine it necessary to await completion of a related criminal
investigation or proceeding, or completion of a professional
responsibility action initiated by other licensing authorities. In such
cases, JAG shall cause the Rules Counsel to so notify the covered
attorney under interim suspension. Where necessary, continuation of the
interim suspension shall be reviewed by JAG every 6 months.
Sec. 776.83 Preliminary inquiry.
(a) The purpose of the preliminary inquiry is to determine whether,
in the opinion of the officer appointed to conduct the preliminary
inquiry (PIO), the questioned conduct occurred and, if so, whether it
constitutes a violation of this part or the Code of Judicial Conduct.
The PIO is to recommend appropriate action in cases of substantiated
violations.
(b) Upon receipt of the complaint and charges, the PIO shall
promptly investigate the charges, generally following the format and
procedures set forth in the Manual of the Judge Advocate General for
the conduct of command investigations. Reports of relevant
investigations by other authorities including, but not limited to,
State bar associations may be used. The PIO should also:
(1) Identify and obtain sworn affidavits or statements from all
relevant and material witnesses to the extent practicable;
(2) Identify, gather, and preserve all other relevant and material
evidence; and
(3) Provide the covered attorney concerned an opportunity to review
all evidence, affidavits, and statements collected and a reasonable
period of time (normally not exceeding 7 days) to submit a written
statement or any other written material that the covered attorney
wishes considered.
(c) The PIO may appoint and use such assistants as may be necessary
to conduct the preliminary inquiry.
(d) The PIO shall personally review the results of the preliminary
inquiry to determine whether, by a preponderance of the evidence, a
violation of this part or of the Judicial Code has occurred.
(1) If the PIO determines that no violation has occurred or that
the violation is minor or technical in nature and warrants only
corrective counseling, then he or she may recommend that the file be
closed.
(2) If the PIO determines by a preponderance of the evidence that a
violation did occur, and that corrective action greater than counseling
may be warranted, he or she shall then recommend what further action is
deemed appropriate.
(e) The PIO shall forward (via the OEGCMJ in appropriate Marine
cases) the results of the preliminary inquiry to the Rules Counsel,
providing copies to the covered attorney concerned and all parties to
whom the charges were previously sent.
(f) The Rules Counsel shall review all preliminary inquiries. If
the report is determined by the Rules Counsel to be incomplete, the
Rules Counsel shall return it to the PIO, or to another inquiry
officer, for further or supplemental inquiry. If the report is
complete, then:
(1) If the Rules Counsel determines, either consistent with the PIO
recommendation or through the Rules Counsel's own review of the report,
that a violation of this part or Code of Judicial Conduct has not
occurred and that further action is not warranted, the Rules Counsel
shall close the file and notify the complainant, the covered attorney
concerned, and all officials previously provided copies of the
complaint. JAG(13) and/or JAR, as appropriate, will maintain copies of
all correspondence related to the closing of the file.
(2) If the Rules Counsel determines, either consistent with a PIO
recommendation or through the Rules Counsel's own review of the report,
that a violation of this part has occurred but that the violation is of
a minor or technical nature, then the Rules Counsel may determine that
corrective counseling is appropriate and close the file. The Rules
Counsel shall report any such decision to the JAG. The Rules Counsel
shall ensure that the covered attorney concerned receives appropriate
counseling and shall notify the complainant, the covered attorney
concerned, and all officials previously provided copies of the
complaint that the file has been closed. JAG(13) and/or JAR, as
appropriate, will maintain copies of all correspondence related to the
closing of the file. The covered attorney concerned is responsible,
under these circumstances, to determine if his or her Federal, state,
or local licensing authority requires reporting such action.
(3) If the Rules Counsel determines, either consistent with a PIO
recommendation or through the Rules Counsel's own review of the report,
that further professional discipline or corrective action may be
warranted, the Rules Counsel shall:
(i) In cases involving Marine Corps attorneys not serving as
defense counsel or attached to Navy units, request, on behalf of JAG,
that the subject attorney's OEGCMJ appoint a disinterested covered
attorney (normally senior to the covered attorney complained of and not
previously involved in the case) to conduct an ethics investigation
into the matter;
(ii) In all other cases, appoint, on behalf of JAG, a disinterested
covered attorney (normally senior to the covered attorney complained of
and not previously involved in the case) to conduct an ethics
investigation; and
(iii) Notify those supervisory attorneys listed in paragraphs (c)
and (d) of Sec. 776.81.
Sec. 776.84 Ethics investigation.
(a) Whenever an ethics investigation is initiated, the covered
attorney concerned will be so notified, in writing, by the Rules
Counsel.
(b) The covered attorney concerned will be provided written notice
of the following rights in connection with the ethics investigation:
(1) To request a hearing before the investigating officer (IO);
(2) To inspect all evidence gathered;
(3) To present written or oral statements or materials for
consideration;
[[Page 37490]]
(4) To call witnesses at his or her own expense (local military
witnesses should be made available at no cost);
(5) To be assisted by counsel (see paragraph (c) of this section);
(6) To challenge the IO for cause (such challenges must be made in
writing and sent to the Rules Counsel via the challenged officer); and
(7) to waive any or all of these rights.
(c) The covered attorney may be represented by counsel at the
hearing. Such counsel may be:
(1) A civilian attorney retained at no expense to the Government;
or,
(2) In the case of a covered USG attorney, another USG attorney:
(i) Detailed by the cognizant Naval Legal Service Office (NLSO),
Law Center, or Legal Service Support Section (LSSS); or
(ii) Requested by the covered attorney concerned, if such counsel
is attached to the cognizant NLSO, Law Center, LSSS, or to a Navy or
Marine Corps activity located within 100 miles of the hearing site at
the time of the scheduled hearing, and if such counsel is reasonably
available, as determined by the requested counsel's reporting senior in
his or her sole discretion. There is no right to detailed counsel if
requested counsel is made available.
(d) If a hearing is requested, the IO will conduct the hearing
after reasonable notice to the covered attorney concerned. The hearing
will not be unreasonably delayed. The hearing is not adversarial in
nature and there is no right to subpoena witnesses. Rules of evidence
do not apply. The covered attorney concerned or his or her counsel may
question witnesses that appear. The proceedings shall be recorded but
no transcript of the hearing need be made. Evidence gathered during, or
subsequent to, the preliminary inquiry and such additional evidence as
may be offered by the covered attorney shall be considered.
(e) The IO may appoint and use such assistants as may be necessary
to conduct the ethics investigation.
(f) The IO shall prepare a report which summarizes the evidence, to
include information presented at any hearing.
(1) If the IO believes that no violation has occurred or that the
violation is minor or technical in nature and warrants only corrective
counseling, then he or she may recommend that the file be closed.
(2) If the IO believes that a violation did occur, and that
corrective action greater than counseling is warranted, he or she shall
then recommend what further action is deemed appropriate.
(g) The IO shall forward the ethics investigation, including the
IO's recommendations, to the Rules Counsel, as follows:
(1) In cases involving Navy or Marine Corps attorneys serving with
NLSC units, via Vice Commander, NLSC;
(2) In cases involving Navy attorneys serving with Marine Corps
units, via the Commandant of the Marine Corps (Attn: JA);
(3) In cases involving Navy or Marine Corps attorneys serving in
subordinate Navy fleet or staff billets, via the fleet or staff judge
advocate attached to the appropriate second-echelon commander;
(4) In cases involving members of the Navy-Marine Corps Trial
Judiciary, via the Trial Judiciary Chief Judge;
(5) In cases involving Marine Corps attorneys serving in defense
billets, via the Chief Defense Counsel of the Marine Corps;
(6) In cases involving Marine Corps attorneys not serving in
defense counsel billets or in Navy units, via the OEGCMJ over the
concerned attorney; and
(7) In cases involving covered attorneys certified by the Judge
Advocates General/Chief Counsel of the other U.S. Armed Forces, via the
appropriate military service attorney discipline section of that U.S.
Armed Force.
(h) The Rules Counsel shall review all ethics investigations. If
the report is determined by the Rules Counsel to be incomplete, the
Rules Counsel shall return it to the IO, or to another inquiry officer,
for further or supplemental inquiry. If the report is complete, then:
(1) If the Rules Counsel determines, either consistent with the IO
recommendation or through the Rules Counsel's own review of the
investigation, that a violation of this part or Code of Judicial
Conduct has not occurred and that further action is not warranted, the
Rules Counsel shall close the file and notify the complainant, the
covered attorney concerned, and all officials previously provided
copies of the complaint. JAG(13) and/or JAR, as appropriate, will
maintain copies of all correspondence related to the closing of the
file.
(2) If the Rules Counsel determines, either consistent with the IO
recommendation or through the Rules Counsel's own review of the
investigation, that a violation of this part or Code of Judicial
Conduct has occurred but that the violation is of a minor or technical
nature, then the Rules Counsel may determine that corrective counseling
is appropriate and close the file. The Rules Counsel shall report any
such decision to the JAG. The Rules Counsel shall ensure that the
covered attorney concerned receives appropriate counseling and shall
notify the complainant, the covered attorney concerned, and all
officials previously provided copies of the complaint that the file has
been closed. JAG(13) and/or JAR, as appropriate, will maintain copies
of all correspondence related to the closing of the file. The covered
attorney concerned is responsible, under these circumstances, to
determine if his or her Federal, state, or local licensing authority
requires reporting such action.
(3) If the Rules Counsel believes, either consistent with the IO
recommendation or through the Rules Counsel's own review of the
investigation, that professional disciplinary action greater than
corrective counseling is warranted, the Rules Counsel shall forward the
investigation, with recommendations as to appropriate disposition, to
JAG.
Sec. 776.85 Effect of separate proceeding.
(a) For purposes of this section, the term separate proceeding
includes, but is not limited to, court-martial, non-judicial
punishment, administrative board, or similar civilian or military
proceeding.
(b) In cases in which a covered attorney is determined, at a
separate proceeding determined by the Rules Counsel to afford
procedural protection equal to that provided by a preliminary inquiry
under this instruction, to have committed misconduct which forms the
basis for ethics charges under this instruction, the Rules Counsel may
dispense with the preliminary inquiry and proceed directly with an
ethics investigation.
(c) In those cases in which a covered attorney is determined to
have committed misconduct at a separate proceeding which the Rules
Counsel determines has afforded procedural protection equal to that
provided by an ethics investigation under this instruction, the
previous determination regarding the underlying misconduct is res
judicata with respect to that issue during an ethics investigation. A
subsequent ethics investigation based on such misconduct shall afford
the covered attorney a hearing into whether the underlying misconduct
constitutes a violation of this part, whether the violation affects his
or her fitness to practice law, and what sanctions, if any, are
appropriate.
(d) The Rules Counsel may dispense with the preliminary inquiry and
ethics investigation, and if warranted, recommend to JAG that the
covered attorney concerned be disciplined,
[[Page 37491]]
consistent with this subpart, after providing the covered attorney
concerned written notice and an opportunity to be heard in writing, in
those cases in which a covered attorney has been:
(1) Decertified or suspended from the practice of law or otherwise
subjected to professional responsibility discipline by the Judge
Advocate General of another Military Department;
(2) Disbarred or suspended from the practice of law or otherwise
subjected to professional responsibility discipline by the Court of
Appeals for the Armed Forces or by any Federal, State, or local bar; or
(3) Convicted of a felony (or any offense punishable by one year or
more of imprisonment) in a civilian or military court which, in the
opinion of the Rules Counsel, renders the attorney unqualified or
incapable of properly or ethically representing the DON or a client
when the Rules Counsel has determined that the attorney was afforded
procedural protection equal to that provided by an ethics investigation
under this instruction.
Sec. 776.86 Action by JAG.
(a) JAG is not bound by the recommendation rendered by the Rules
Counsel, IO, PIO, or any other interested party, but will base any
action on the record as a whole. Nothing in this instruction limits JAG
authority to suspend from the practice of law in DON matters any
covered attorney alleged or found to have committed professional
misconduct or violated this part, either in DON or civilian
proceedings.
(b) JAG may, but is not required to, refer any case to the
Professional Responsibility Committee for an advisory opinion on
interpretation of subpart B of this part or its application to the
facts of a particular case.
(c) Upon receipt of the ethics investigation, and any requested
advisory opinion, JAG will take such action as JAG considers
appropriate in JAG's sole discretion. JAG may, for example:
(1) Direct further inquiry into specified areas.
(2) Where determining the allegations to be unfounded, or that no
further action is warranted, direct the Rules Counsel to make
appropriate file entries and to notify the complainant, covered
attorney concerned, and all interested parties of such determination.
(3) Where determining the allegations to be supported by clear and
convincing evidence, take appropriate corrective action including, but
not limited to:
(i) Limiting the covered attorney to practice under direct
supervision of a supervisory attorney;
(ii) Limiting the covered attorney to practice in certain areas or
forbidding him or her from practice in certain areas;
(iii) Suspending or revoking, for a specified or indefinite period,
the covered attorney's authority to provide legal assistance;
(iv) Where finding that the misconduct so adversely affects the
covered attorney's continuing ability to practice law in the naval
service or that the misconduct so prejudices the reputation of the DON
legal community, the administration of military justice, the practice
of law under the cognizance of JAG, or the armed services as a whole,
that certification under Article 27(b), UCMJ (10 U.S.C. 827(b)), or
R.C.M. 502(b)(3), should be suspended or is no longer appropriate,
directing such certification to be suspended for a prescribed or
indefinite period or to be removed permanently;
(v) In the case of a judge, where finding that the misconduct so
prejudices the reputation of military trial and appellate judges that
certification under Article 26(b), UCMJ (10 U.S.C. 826(b)), should be
suspended or is no longer appropriate, directing such certification to
be suspended for a prescribed or indefinite period or to be removed
permanently; and
(vi) Directing the Rules Counsel to contact appropriate authorities
such as the Chief of Naval Personnel or the Commandant of the Marine
Corps so that pertinent entries in appropriate DON records may be made;
notifying the complainant, covered attorney concerned, and any
officials previously provided copies of the complaint; and notifying
appropriate tribunals and authorities of any action taken to suspend,
decertify, or limit the practice of a covered attorney as counsel
before courts-martial or the U.S. Navy-Marine Corps Court of Appeals,
administrative boards, as a legal assistance attorney, or in any other
legal proceeding or matter conducted under JAG cognizance and
supervision.
Sec. 776.87 Finality.
Any action taken by JAG is final, subject to any remedies afforded
by Navy Regulations or any other regulation to the covered attorney
concerned.
Sec. 776.88 Report to licensing authorities.
Upon determination by JAG that a violation of the Rules or the Code
of Judicial Conduct has occurred, JAG may cause the Rules Counsel to
report that fact to the Federal, state, or local bar or other licensing
authority of the covered attorney concerned. If so reported, notice to
the covered attorney shall be provided by the Rules Counsel. The JAG's
decision in no way diminishes a covered attorney's responsibility to
report adverse professional disciplinary action as required by the
attorney's Federal, state, and local bar or other licensing authority.
Subpart D--[Reserved]
Dated: July 1, 1999.
Ralph W. Corey,
Commander, Judge Advocate General's Corps, U.S. Navy, Alternate Federal
Register Liaison Officer.
[FR Doc. 99-17137 Filed 7-9-99; 8:45 am]
BILLING CODE 3810-FF-P
