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The Lawyer Client Relationship

Scope of Representation (Army Rule 1.2).

A client’s decisions concerning the objectives of representation are controlling on counsel. Counsel shall consult with the client as to the means by which these decisions arec to be pursued. A lawyer may, however, limit the objectives of the representation with the client’s consent.

  1. courtmartialdefenselawyers10.59.27 2Example: Representation by Defense Counsel.
    1. Client decides —
      1. (1)  Choice of counsel.
      2. (2)  What plea to enter.
      3. (3)  Selection of trial forum.
      4. (4)  Whether to enter into pretrial agreement.
      5. (5)  Whether to testify.
    2. Defense counsel decides —
      1. (1)  What motions to make.
      2. (2)  Which court members to select.
      3. (3)  Which witnesses to call.
      4. (4)  How cross-examination will be conducted.
      5. (5)  General strategic and tactical decisions.
    3. Comment to Army Rule 1.2; see also Standards for Criminal Justice 4- 5.2(b)).
  2. A lawyer should assume responsibility for technical and legal tactical issues.
  3. A lawyer shall not counsel a client to engage in conduct the lawyer knows is criminal. (Army Rule 1.2(d))

The Army as the Client (Army Rule 1.13).

  1. A judge advocate or other Army lawyer represents the Army acting through its authorized officials (e.g. commanders).
  2. The lawyer-client relationship exists between the lawyer and the Army.
  3. Regulations may authorize representation of individual clients. For example, legal assistance attorneys and defense counsel are authorized to represent individual clients, not the Army. See AR 27-1, para. 2-5 and AR 27-3, para. 2-3a.
  4. If not authorized to form an attorney-client relationship with the client, an Army lawyer must advise the individual that no such relationship exists between them. (Army Rule 1.13(b)).
  5. While an attorney may be permitted by law or regulation to form an attorney- client relationship, situations may arise in which doing so may lead to a conflict. Army attorneys should exercise considerable discretion in handling the personal legal problems of Army officials, and receiving client confidences, when the Army attorney is not assigned to a client service organization such as Legal Assistance or Trial Defense Service.
  6. Illegal Acts: If an official of the Army (e.g., a commander) is acting illegally or intends to act illegally, and the action might be imputed to the Army, the lawyer shall–
    1. Proceed as is reasonably necessary in the best interest of the Army.
    2. Consider utilizing the following measures:
      1. (1)  Asking the official to reconsider.
      2. (2)  Advising the official to get a separate legal opinion.
      3. (3)  Advising the official that his or her personal legal interests are at risk and he or she should consult counsel.
      4. (4)  Advising the official that counsel is ethically bound to serve Army interests and must discuss the matter with supervisory lawyers.
      5. (5)  Referring the matter to or seeking guidance from higher authority in the technical chain of supervision.
    3. If unsuccessful, the lawyer may terminate representation with respect to the matter in question.

Competence (Army Rule 1.1).

Competence requires legal knowledge, skill, thoroughness, and preparation to the extent reasonably necessary for representation.

  1. courtmartialdefenselawyers11.00.50 2The required proficiency is that generally afforded to clients in similar matters.
  2. Supervisor makes the initial determination as to competence for a particular assignment.
  3. United States v. Hanson, 24 M.J. 377 (C.M.A. 1987). Judge believed defense counsel incompetent; properly appointed another detailed counsel without severing existing attorney-client relationship.
  4. United States v. Weathersby, 48 M.J. 668 (Army Ct. Crim. App. 1998). Lack of defense sentencing case.
  5. United States v. Murphy, 50 M.J. 4 (C.A.A.F. 1998). Lack of defense sentencing case in capital case.
  6. United States v. Denedo, 2010 WL 996432 (UNPUBLISHED) (N.M.Ct.Crim.App.). A civilian defense counsel’s bad advice on immigration consequences of guilty plea did not render plea involuntary.
  1. Padilla v. Kentucky, 130 S.Ct. 1473 (2010). Padilla is a U.S. permanent resident of forty years who served in the U.S. military during Vietnam. He was charged with felony drug trafficking, among other things. He asked his attorney if a guilty plea would impact his immigration status, and his attorney told him he “did not have to worry about immigration status since he has been in the country so long.” Padilla’s attorney’s advice was incorrect and but for his appeal that he pled guilty in reliance on his attorney’s advice, he would have been deported. While the Supreme Court did not decide the ultimate issue of whether there was prejudice in this case, they did grant a new entitlement under the Sixth Amendment that Justice Scalia in his dissent terms a “Padilla warning” that now requires that where the law “is truly clear,” as the court found in this case, “the duty to give correct advice is equally clear.” See also: United States v. Vargaspuentes, 70 M.J. 501 (A.C.C.A. 2011) addressing the need to properly advise in an immigration case. Because the court resolved the case on other grounds, it did not substantively address counsel’s duty to investigate when a Soldier’s birthplace is listed as outside the U.S. on the ERB, but noted the point in passing.
  2. United States v. Larson, 66 M.J. 212 (C.A.A.F. 2008). A defense counsel may concede guilt on lesser charges to gain credibility on the main charge despite an accused’s NG plea.
  3. Psychotherapist-patient privilege. United States v. Paaluhi, 54 M.J. 181 (C.A.A.F. 2000). Trial Defense Counsel erroneously interpreted possible psychotherapist-patient privilege in the military. The CAAF reversed lower court’s judgment and set-aside appellant’s conviction and sentence, because defense counsel rendered ineffective assistance in improperly evaluating military privilege law. The resulting confession secured Paaluhi’s conviction. Without his confession there might have been reasonable doubt as to his guilt.
  4. A lawyer can provide adequate representation in a wholly novel field through necessary study or consultation with a lawyer of established competence in the field in question.
  5. If a lawyer becomes involved in representing a client whose needs exceed either the lawyer’s competence or authority to act, the lawyer should refer the matter to another lawyer.
  6. Lawyers may give advice and assistance even if they do not have skill ordinarily required if referral or consultation with another lawyer is impractical.

Diligence

Lawyers must act with reasonable diligence and promptness.

  1. United States v. Gibson, 51 M.J. 198 (C.A.A.F. 1999). Civilian defense counsel found ineffective where the CDC failed to pursue leads contained in the CID report that was provided by the trial counsel. The accused was charged with rape and adultery. The undeveloped information in the CID report included summarized interviews with teachers and students at the 15 year old victim’s school, that she may have alleged rape to distract school officials from her behavior, that she had a record of exaggerating her sexual experience, that she related conflicting versions of the alleged rape, and that she did not enjoy a good reputation for truthfulness.
  2. Porter v. McCollum, 130 S. Ct. 447, 454 (2009). Attorney required to perform adequate background investigation and present evidence in sentencing even if client not helpful. Defendant’s status as a veteran and his struggles with posttraumatic stress disorder and subsequent substance, as well as his impaired mental capacity and abusive childhood is highly relevant mitigation evidence.
  3. United States v. Boone, 42 M.J. 308 (Army Ct. Crim. App. 1996), rev’d 49 M.J. 187 (1998). In cases where the client has retained civilian defense counsel, military defense counsel must not be lulled into inactivity and complete deference to their civilian counterparts; military defense counsel are not relieved of professional or ethical obligations to the client.
  4. United States v. Sorbera, 43 M.J. 818 (A.F. Ct. Crim. App. 1996). Civilian defense counsel whose advice to accused led to an additional charge provided incompetent pretrial representation.
  5. United States v. McDuffie, 43 M.J. 646 (A.F. Ct. Crim. App. 1995); see also ABA Standard for Criminal Justice 4-4.3(b). Defense counsel has no professional obligation as part of trial preparation to discuss pertinent evidentiary rules with a witness.
  6. Post-trial submissions. United States v. Johnston, 51 M.J. 227 (C.A.A.F. 1999). The record of trial was returned to the convening authority for a new recommendation and action. The new post trial recommendation was served on the accused’s defense counsel, who was then a civilian. Substitute counsel was not appointed. The new recommendation was not served on the accused, nor did the defense counsel contact the accused. No matters were submitted by the accused or counsel. The court found the accused was not represented at a critical point in the proceedings against him in violation of Article 27 (b).
  7. courtmartialdefenselawyers10.56.59 2United States v. Wean, 45 M.J. 461 (C.A.A.F. 1997). After post-trial 39a hearing, MJ concluded, “the collective failings and inactions . . . resulted in representation of the appellant that was lacking in legal knowledge, skill, thoroughness, and preparation.”
  1. United States v. Fordyce, 69 M.J. 501 (Army Ct. Crim. App. 2010). DC neglected to advise on waiver and Post Trial and Appellate Rights (PTAR) form did not cover it. The court has found this to be an ongoing problem and their “patience is at a limit.” There was also question whether client consulted on clemency submissions. Court highly encourages an accused co-sign R.C.M. 1105 and 1106 submissions, as well as putting it on the record the client has fully been advised of the post-trial submission process. Court did not find counsel ineffective but found error in the post-trial handling of the case because the court was not convinced the appellant was “afforded a full opportunity to present matters to the convening authority.” Consequently, the court set aside the action and returned it for a new one.
  2. Qualifications of Counsel. United States v. Williams, 51 M.J. 592 (N.M.Ct.Crim.App. 1999). Appellant contended that his civilian defense counsel was ineffective per se because he was on “inactive status” with respect to his admissions to practice law in three states. The Navy- Marine Court disagreed and found nothing in R.C.M. 502(d)(3)(A) requiring the practitioner to be able to practice in the home state. 51 M.J. at 597. Counsel had submitted to the trial court various related documents to include one affirming that he was a “lawyer in good standing” in the state of Iowa. See also U.S. v. Morris, 54 MJ 898 (N.M.Ct.Crim.App. 2001). DC’s inactive status with his state bar does not make him per se ineffective or deprive the appellant of the right to counsel; U.S. v. Steele, 53 M.J. 274 (2000). CDC’s inactive status with his state bar does not make him per se ineffective or deprive the appellant of the right to counsel.
  3. Notification of requirement to register. United States v. Miller, 63 M.J. 452 (C.A.A.F. 2006). Appellant averred that he was never told that pleading to an offense of possessing child pornography would require him to register as a TX sex offender. His failure to register led him to be incarcerated in TX. The court failed to find IAC for failure to inform the accused. The court did specify for cases tried after November 2006 that counsel must notify accused that any qualifying offense under DODI 1325.7 (sex + violence or minority) requires sex offender registration.
  1. Lawyers must consult with clients as often as necessary.
  2. A lawyer should carry through to conclusion all matters undertaken for a client.

The Lawyer as Advisor.

A lawyer may refer to moral, economic, social, and political factors when rendering advice to clients (Army Rule 2.1).

    1. Purely technical legal advice may sometimes be inadequate.
    2. NOT a moral advisor as such. Discuss how other factors influence the way the law will be applied.
  1. Lawyers must exercise independent judgment when advising a client (Army Rule 5.4).

a. Rule explicitly allows for individual representation when detailed or assigned.

b. Unfettered loyalty & professional independence to the same extent as lawyers in private practice when assigned individual client.

Communication (Army Rule 1.4).

    1. Lawyers have a duty to keep clients reasonably informed about the status of a matter and to comply with client requests for information.
    2. Lawyers also must explain matters to clients to permit them to make “informed decisions.”

 

Confidentiality (Army Rule 1.6).

  1. General rule. A lawyer shall not reveal any information relating to the representation of a client.
    1. Applies to all sources of information, not just that which comes from the client.
    2. Applies to information obtained prior to formation of attorney-client relationship.
    3. The duty of confidentiality continues after the lawyer-client relationship has terminated.
    4. The duty also applies to Army legal support personnel.
  2. Exceptions to confidentiality.
    1. A client may consent to disclosure of confidences (Army Rule 1.6(a)).
    2. Disclosure may be impliedly authorized in order to carry out the representation (Army Rule 1.6(a)). (See, e.g. United States v. Province, 45 M.J. 359 (C.A.A.F. 1997).
    3. Disclosure is permitted to establish a claim or defense in a controversy with a client (Army Rule 1.6(b)).
    4. Intention to commit a crime.
      1. (1)  Army Rule 1.6(b) mandates disclosure of information a lawyer reasonably believes necessary to prevent a client from committing a crime which is likely to:
        1. (a)  result in imminent death or substantial bodily harm, or
        2. (b)  significantly impair the readiness or capability of a military unit, vessel, aircraft, or weapon system.
      2. (2)  There is no authority for revealing information of other potential offenses or past crimes under the Army Rules.
        1. (a)  Example: Revealing Whereabouts of a Fugitive.
        2. (b)  ABA Formal Opinion 84-349 (1984) (withdrawing formal opinions 155 and 156, which stated that defense counsel must reveal client whereabouts — new rule is defense counsel does not disclose).

Compare to Mil. R. Evid. 502 – Lawyer-Client Privilege.

Protects against disclosure of privileged communication between attorney and client.

Does not protect against other disclosures (e.g., information gained from sources other than the client).

More narrow than Rule 1.6 (e.g., no restriction to just future crimes).

Terminating the Relationship. (Army Rule 1.16)

  1. courtmartialdefenselawyers10.53.52 2Notwithstanding any other provision of the rule, a lawyer shall continue the representation when ordered to do so by a tribunal or other competent authority.
  2. A lawyer SHALL seek withdrawal (or not commence representation) if –
    1. the representation will violate the rules
    2. the lawyer’s physical or mental condition materially impairs her ability to represent the client; OR
    3. the lawyer is dismissed by the client.
  3. A lawyer MAY seek withdrawal if it can be accomplished without material adverse impact to the client’s interests OR –
    1. the client persists in a course of action which the lawyer reasonably believes to be criminal or fraudulent;
    2. the client has used the lawyer’s services to perpetrate a crime or a fraud;
    3. the client persists in pursuing an objective which the lawyer considers repugnant or imprudent; OR
    4. other good cause for withdrawal exists.
  4. A lawyer must take reasonable steps to protect a client’s interests upon termination of the relationship (Army Rule 1.16).
  5. Steps should include giving notice to the client, allowing time for employment of other counsel, and surrendering all papers and property.
  6. 6. United States v. Spriggs, 52 M.J. 235 (C.A.A.F. 2000). TDS counsel represented Spriggs at a prior court-martial resulting in an acquittal. After additional charges were preferred, including perjury charges from his first court-martial, appellant made an IMC request for his first DC. DC had left active duty. The CAAF ruled that release of the TDS counsel from active duty constituted good cause for severance of the attorney-client relationship. Additionally, appellant did not establish that there was an ongoing attorney-client relationship. But see United States v. Hutchins, 69 M.J. 282 (C.A.A.F. 2011). Court faulted the judge for not establishing reason for DC withdraw prior to DC resigning from military service after being part of the trial defense team for a year. The court found there was not a knowing release and allowing the DC to EAS (ETS in the Army) because he had completed his commitment did not constitute “good cause.” Unlike NMCCA, however, CAAF was unwilling to presume prejudice and did not set aside the findings or approved sentence. CAAF has further opined, in the matter of Frank D. Wuterich, Appellant CCA 200800183, that in the event of a termination, particularly where there is a conflict involved, the military judge should ensure there is a verbatim transcript that reflects the facts, nature, type, and source of the conflict.

Fees and Self-Referral (Army Rule 1.5).

  1. A lawyer shall not accept a gratuity, salary or other compensation from a client for services performed as an officer of the U.S. Army.
  2. A lawyer shall not receive compensation for making a referral of a client to a private practitioner.
  3. A legal assistance attorney shall not receive any actual or constructive compensation or benefit for referring to a private-practitioner (including himself) a matter the lawyer first became involved with in a military legal assistance capacity. Comment to Army Rule 1.5; see also AR 27-3, para. 4-7d & d(1).
    1. Does not subsequently prohibit a reserve component lawyer from representing military personnel or dependents in a private capacity so long as the representation does not concern the “same general matter” that the attorney provided legal assistance on. AR 27-3, para. 4-7d(2) & (3) “Same general matter” means
      1. (1)  One or more types of cases within any one of the ten categories of legal assistance; OR
      2. (2)  Which arises out of the same factual situation or course of events.
    2. Prohibits lawyer from using official position to solicit or obtain clients for private practice.

Conflicts of Interest (Army Rules 1.7, 1.8 & 1.9).

Directly adverse to the current client. A lawyer shall not represent a client if the representation of the client will be directly adverse to another client unless:

  1. The lawyer reasonably believes the representation will not adversely affect the other relationship, and
  2. Each client consents after consultation (Army Rule 1.7(a)).

If a conflict develops after representation has been undertaken, the attorney must seek to withdraw. The Army Rules adopt an objective approach. Relevant factors in determining whether multiple representation should be undertaken include:

  1. (1)  duration and intimacy of the lawyer’s relationship with the clients involved,
  2. (2)  likelihood actual conflict will arise, and
  3. (3)  likely prejudice to the client if conflict does arise.
  1. Potential conflicts in legal assistance:

    1. (1)  Estate planning.
    2. (2)  Debtor-creditor and seller-purchaser. Compare Atlantic Richfield Co. v. Sybert, 456 A.2d 20 (1983) (no conflict) with Hill v. Okay Construction Co., 252 N.W. 2d 107 (1977) (conflict).
    3. (3)  Domestic relations. Coulson v. Coulson, 448 N.E.2d 809 (1983); Ishmael v. Millington, 241 Cal. App. 2d 520, 50 Cal. Rptr. 592 (1966).
  2. Potential conflict in criminal practice — representing multiple accused.
    1. (1)  Ordinarily a lawyer should refuse to act for more than one of several co-defendants (Comment to Army Rule 1.7). See Standards for Criminal Justice 4-3.5(b).
    2. (2)  Consult AR 27-10 and USATDS SOP for procedures on handling a co-accused situation. Generally:
      1. (a)  Co-accused will initially be contacted by separate defense counsel.
      2. (b)  Co-accused may submit request for the same individual military counsel.
      3. (c)  Chief, USATDS decides whether to grant the request. No request will be granted unless each co-accused has signed a statement reflecting informed consent to multiple representation and it is clearly shown that a conflict of interest is not likely to develop.
  3. Representation materially limited. A lawyer is also precluded from representing a client if the representation would be materially limited by the lawyer’s responsibility to another client, a third party, or by the lawyer’s own interests (Army Rule 1.7(b)). Example: Defense counsel materially limited by loyalty to Army. United States v. Bryant, 35 M.J. 739 (A.C.M.R. 1992).
    1. A possible conflict does not preclude representation.
    2. Representation is permitted if the lawyer reasonably believes that it will not be adversely affected by the interest and the client consents after consultation.
  1. Business transactions. A lawyer shall not enter into a business transaction with a client (Army Rule 1.8).
  2. Former client. A lawyer who has represented a former client shall not thereafter represent another person in the same matter or use information to the disadvantage of a former client (Army Rule 1.9).

Imputed Disqualification (Army Rule 1.10).

  1. Lawyers working in the same military law office are not automatically disqualified from representing clients with conflicting interests. A functional analysis is required (Army Rule 1.10. Compare ABA Model Rule 1.10.)
  2. Army policy may discourage representation of both parties in certain instances, e.g. AR 27-3, para. 4-9c. (Representation of both parties in a domestic dispute discouraged).