Disqualification of Counsel

Overview of disqualification of counsel:

Disqualification of Counsel

Disqualification of Counsel

1. militarydefenselawyers188Due to defect in appointment or lack of qualifications.

a. Wright v. United States, 2 M.J. 9 (C.M.A. 1976). Defects in appointment or qualifications of trial counsel are matters of procedure to be tested for prejudice and have no jurisdictional significance.

b. United States v. Harness, 44 M.J. 593 (N-M. Ct. Crim. App. 1996). Presence of defense counsel who was neither graduate of accredited law school nor properly admitted to practice did not constitute ineffective assistance of counsel under Sixth Amendment. Performance of defense counsel measured by combined efforts of entire defense team.

c. Inactive status. United States v. Steele, 53 M.J. 274 (C.A.A.F. 2000).
Inactive status of civilian attorney in states in which he is licensed to practice
does not bar practice before military courts-martial.

d. Not sworn. United States v. Roach, No. S31143, 2007 CCA LEXIS 402
(A.F. Ct. Crim. App. Sep. 13, 2007) (unpublished). The assistant trial counsel in
the case had not been sworn under Article 42(a), UCMJ, prior to serving on the
court-martial. The defect was not caught until after trial. The lack of qualified
counsel is not a jurisdictional defect requiring reversal, so the error was tested for
prejudice. The defense did not object or raise the issue in clemency, and the
accused’s pleas were voluntary and provident. Therefore there was no prejudice.

 

2. Accuser. United States v. Reist, 50 M.J. 108 (C.A.A.F. 1999). Assistant TC signed
charge sheet and was present in court, identified as “accuser” on the record, and argued at
sentencing that accused’s conduct was “cowardly criminal conduct of a sexual pervert.”
While ATC was accuser under Article 1(9), UCMJ, and clearly disqualified to act as
ATC (RCM 504(d)(4)(A)), the court held defense waived the issue, and found no plain
error.

3. Due to prior duty on opposite side. United States v. Smith, 26 M.J. 152 (C.M.A.
1988) (trial counsel who had been a member of the Trial Defense Service and acted as a
sounding board for part of the defense case was not disqualified); United States v. Sparks,
29 M.J. 52 (C.M.A. 1989) (despite Article 27 violation, accused cannot complain when,
“after full disclosure and inquiry by military judge,” he gives informed consent to
representation by defense counsel who previously acted for prosecution).

4. Due to potential disqualification as witness. United States v. Baca, 27 M.J. 110
(C.M.A. 1988). Although the accused is not fully and absolutely entitled to counsel of
choice, he is absolutely entitled to retain an established relationship with counsel absent
demonstrated good cause.

5. Due to duty as an investigating officer. United States v. Strother, 60 M.J. 476
(C.A.A.F. 2005). Trial counsel had served as the command SJA and, in that capacity,
conducted interviews involving the accused’s misconduct and discussed various aspects
of the case, including procedural matters, substantive issues, and investigative options,
with the officer ordered to conduct the preliminary inquiry. During this preliminary
inquiry, a new SJA arrived and the trial assumed other legal duties. Upon completion of
the preliminary inquiry, charges were preferred and an Article 32 investigation directed.
At this time, trial counsel was detailed to the case. At trial and on appeal, defense
asserted that the trial counsel was disqualified as a matter of due process and because
under Article 27(a)(2) he acted as an “investigating officer.” Article 27(a)(2) states that
no person who has acted as an investigating officer may later act as a trial counsel. While
“investigating officer” is not defined in Article 27, the CAAF, after a thorough historical
discussion on the “investigating officer” disqualification, interpreted the language to
apply to an Article 32 investigating officer. The CAAF then held trial counsel’s
involvement did not interfere with the accused’s due process rights and that the accused
did not “demonstrate that the [TC’s] activities so departed from the normal role of
prosecutor as to make him a de facto Article 32 ‘investigating officer.’”

6. Due to incompetence. United States v. Galinato, 28 M.J. 1049 (N.M.C.M.R. 1989).
Military judge had discretion to remove accused’s counsel of choice, and to appoint
different counsel, where counsel of choice had effectively withdrawn from proceedings.

7. Due to conflict of interest.

a. United States v. Humpherys, 57 M.J. 83 (C.A.A.F. 2002). Assistant trial
counsel (ATC) previously represented accused in legal assistance matter (child
support issue). At trial, defense moved to disqualify ATC alleging that ATC
used information from this prior representation while interviewing the accused’s
wife (a potential defense sentencing witness). Military judge denied motion to
disqualify ATC because: (1) the charges did not relate to the period of time of the
prior representation; (2) the subject matter of prior representation had no
substantial relationship to any matter at issue in the court-martial; and (3)
military judge accepted ATC’s representation that she did not recall the specifics
of the prior representation. When the defense called the wife as a witness, the
ATC conducted cross-examination. In affirming, the court held the accused

failed to demonstrate either (1) that the subject of the prior representation was

substantially related to the pending court-martial charges (adultery, sodomy,
violation of lawful general regulation, and false official statements); or (2) that
specific confidential information gained by ATC during the prior representation
might have been used to the disadvantage of the accused in the present case.
Accused could have requested military judge review legal assistance file, which
still existed, or accused could have testified in closed hearing with sealed record
as to the matters of prior representation. Accused’s mere conclusory assertions
were not sufficient.

b. United States v. Cain, 59 M.J. 285 (C.A.A.F. 2004). Accused alleged that
his lead trial defense counsel had a coerced, homosexual relationship with him
that created an actual conflict of interest and deprived him of effective assistance
of counsel. At DuBay hearing, the military judge found the relationship was
consensual and that accused desired continued representation by his counsel,
despite advice from two civilian counsel to fire him. ACCA held the accused did
not meet the two-pronged test to establish IAC due to an actual conflict of
interest in a guilty plea: (1) that there was an actual conflict of interest; and (2)
that the conflict adversely affected the voluntary nature of the guilty plea. The
CAAF reversed, finding that the “volatile mixture of sex and crime in the context
of the military’s treatment of fraternization and sodomy as criminal offenses”
resulted in a “uniquely proscribed relationship” that was “inherently prejudicial
and created a per se conflict of interest in counsel’s representation of the
Appellant.” The conflict resulted in ineffective assistance of counsel under the
Sixth Amendment. Findings and sentence set aside.

c. United States v. Beckley, 55 M.J. 15 (C.A.A.F. 2001). At issue was the
accused’s right to retain civilian counsel whom the military judge determined to
be disqualified because of the conflict of interest with the accused’s estranged
wife, who was represented by the lawyer’s firm in a divorce action against the
accused. After a detailed factual analysis, CAAF affirmed ACCA, holding that
the civilian counsel had an actual conflict of interest and was required to
withdraw.

d. United States v. Smith, 44 M.J. 459 (C.A.A.F. 1996). Defense counsel
previously represented another airman in companion case for Article 15
proceedings. Former client did not testify at trial, but testimony presented via
stipulation of expected testimony. Accused consented to representation. Court
held that client could not make informed decision regarding representation, even
after being advised by counsel, because counsel did not understand ramifications
of conflict issue; former client was still subject to court-martial even though
nonjudicial punishment had been imposed; and court was concerned that accused
denied fair trial because of stipulation rather than cross-examination of important
witness.

e. United States v. Rushatz, 31 M.J. 450 (C.M.A. 1990). Accused met with
legal assistance attorney who later moved to the criminal law department. The
counsel disclosed to the detailed trial counsel that he had represented the accused
on an unrelated matter. Court adopted three-part test to determine if trial counsel
disqualified: (1) was there former representation (2) was there a substantial
relationship between subject matters, and (3) was there a subsequent proceeding.
In this case, legal assistance attorney did not act as trial counsel, though he did
appear with trial counsel at Article 32.

 

f. United States v. McClain, 50 M.J. 483 (C.A.A.F. 1999). Accused
complained his lawyers were conspiring with the trial counsel. The accused also
had several disagreements with his defense counsel, and told the military judge
his counsel had lied to him. In response, one of his counsel told the military
judge that the accused has told “lies here today in court.” Nevertheless, the
military judge denied counsel’s request for release, and accused ultimately
requested both counsel represent him. The court held the issue of a conflict of
interest (because of a disagreement in strategy) was waived by the accused. The
defense was entitled to respond to the accused’s assertions.

g. United States v. Thompson, 51 M.J. 431 (C.A.A.F. 1999). A pretrial
complaint against defense counsel, made by accused’s wife, did not create a
conflict of interest disqualifying him from participation in this case. Court also
held that accused was not denied effective assistance of counsel when military
defense counsel cautioned him about retaining civilian counsel and discouraged
him from getting help from a psychologist.

h. United States v. Johnston, 51 M.J. 227 (C.A.A.F. 1999). Where detailed
defense counsel left active duty prior to preparation of a new SJA
recommendation, failure of the convening authority to detail substitute counsel
for accused deprived him of his opportunity for sentence relief with the
convening authority and was prejudicial to accused’s substantial rights.

i. Sua sponte duty to explore conflicts of interest. United States v. Murphy, 50
M.J. 4 (C.A.A.F. 1998). The Government called accused’s pretrial confinement
cell mate as a witness. He allegedly overheard the accused make incriminating
comments to another inmate and repeated this conversation to his lawyer, who
then negotiated a PTA for the witness. The witness’ counsel then withdrew
withdraw from his case. The military judge in the accused’s case was the same
judge who had presided over witness’ guilty plea, and the defense counsel who
negotiated the witness’ PTA was part of the accused’s defense team. The
defense did not impeach the witness, even though he had been convicted of
several crimes involving dishonesty and deceit. Defense counsel and the military
judge failed to discuss the potential conflict of interest on the record. The court
held the military judge had a sua sponte duty to resolve conflict questions on the
record and defense had a duty to discuss potential or actual conflicts of interest
with accused. Such multiple representation creates a presumption that a conflict
of interest existed, one that can be rebutted by the actual facts. In this case, there
was a clear conflict of interest.

j. United States v. Allred, 50 M.J. 795 (N-M. Ct. Crim. App. 1999). A
preexisting attorney-client relationship may be severed by Government only for
good cause. “Good cause” did not exist where defense counsel had entered into
relationship with accused concerning pending charges, charges were dismissed
during the time accused was medically evacuated for evaluation of heart
problems, and DC was told by SDC that, due to pending PCS, DC would not be
detailed to case if charges re-preferred. Court found that DC’s commander’s
finding of unavailability was abuse of discretion. Prejudice presumed and
findings and sentence set aside.

8. Based on bar status. United States v. Steele, 53 M.J. 274 (C.A.A.F. 2000). No error
where accused’s civilian DC was carried “inactive” by all state bars of which he was
member (and such status prohibited him from practicing law). RCM 502(d)(3)(A) requires that a CDC be a member of a bar of a federal court or bar of the highest court of

the state, or a lawyer authorized by a recognized licensing authority to practice law (and
determined by military judge qualified to represent the accused). CAAF looked to
federal case law holding that neither suspension nor disbarment creates a per se rule that
continued representation is constitutionally ineffective (CAAF also noted a Navy
instruction permits military counsel to remain “in good standing” even though they are
“inactive.”). Counsel are presumed competent once licensed.