(1) All Army judge advocates;
(2) Civilian attorneys employed by Department of the Army;
(3) Civilian attorneys appearing before courts-martial (AR 27-1, para. 7-4; AR 27-10, para. 5-8 and App. C; Glossary, Army Rules), and
(4) Army legal support personnel (i.e. 27Ds, interns, paralegals).
Attorneys must adhere to both the letter and the spirit of the rule.
Rules state a standard to be followed.
Provide a basis for taking action should a lawyer fail to comply or meet the standard. Does not provide a basis for civil cause of action against either the Army or an attorney.
Comments are non-binding guidance.
State Rules promulgated by his or her licensing authority or authorities.” (Comment, Army Rule 8.5).
ABA Standards for Criminal Justice also apply to military judges, counsel, and clerical support personnel of Army courts-martial (AR 27-10, para. 5-8).
B. Conflicts Between the Applicable Rules.
1. Army Rule 8.5 provides that if there is a conflict with state rules, the lawyer should seek assistance from his or her supervisory lawyer. If not resolved, then:
Army Rules supersede rules of licensing jurisdiction in the performance of official duties.
Army Rules do not control if attorney is practicing in state or federal civilian courts.
ABA Model Rule 8.5. Disciplinary authority must make a choice of law:
(1) For conduct in connection with a court action, apply the rules of
the jurisdiction where the court sits.
(2) For other conduct, apply the rules of the jurisdiction in which the lawyer principally practices.
C. Resolving Conflicts.
Judge advocates should follow the most restrictive standard. If a course of conduct is permitted under one standard and mandatory under another, follow the mandatory standard.
Employ practical alternatives.
Find the client new counsel.
Obtain exception from state bar. See, e.g., Oregon Informal Ethics Opinion 88-19, which provides that military lawyers will not be subject to discipline in Oregon as long as their conduct is not unethical under the applicable military code of ethics. NOTE: Discuss this option with your technical supervisory chain, to include the Standards of Conduct Office, if necessary.