In this post, I discuss the unique rules of professional responsibility imposed on judge advocates practicing within a military context.
Photo by Spc. Daniel Herrera, U.S. Army, is licensed under CC 2.0.
Judge advocates, like all lawyers, have professional rules of ethics with which they must comply. The nature of military service, however, presents its own unique challenges with regard to professional responsibility. In this post, I will discuss some of the unique responsibilities of military service imposes upon the practicing attorney.
Principles of Professional Responsibility
In the civilian world, there are four fundamental principles of attorney professional responsibility.
- Competence: an attorney has the responsibility to handle cases in a competent manner. If not competent in the area of law in which he or she is practicing, an attorney has the responsibility to become competent.
- Client: an attorney has the responsibility to look out for the best interests of the client.
- Conflicts: an attorney must avoid conflicts of interest. An attorney cannot represent a client where other interests would prevent his or her full devotion to the client.
- Confidentiality: an attorney must keep client communications in the strictest of confidence.
Judge advocates are governed by the same principles, but the application of these principles may differ as a result of the unique demands of military service.
Sources of Guidance
Like the civilian attorney, the military attorney can look to the American Bar Association (e.g, ABA’s Model Rules of Professional Conduct, Model Code of Professional Responsibility, and Standards for Criminal Justice) and his or her own state bar—even Army lawyers depend on individual states for their legal license—for guidance in fulfilling his or her professional responsibilities. Unique to the Army lawyer, however, Army Regulation 27-26 guides the judge advocate in fulfilling his or her unique professional responsibilities as a judge advocate.
The Attorney-Client Relationship in the Army
Section 1.1 of Army Regulation 27-26 addresses attorney competence, stating that the attorney must have the necessary knowledge, skill, and resources to competently represent his or her client. If the attorney lacks this, he or she can decline representation. This rule is similar to that which governs civilian practice, though, as a practical matter, the nature of military service makes it much more difficult to decline representation.
Tactics v. Strategy
Section 1.2 discusses the scope of representation. There is a distinction between tactics and strategy in legal representation with the former reserved for the attorney and the latter for the client. Tactical decisions address single-mission-type decisions and include what witnesses to call, in what order to call them, and what motions to make.
Strategy, however, addresses the overall goal of the representation. Strategic decisions include how to plead, whether the client should testify, and who should serve as the client’s attorney. While generally made with the assistance of an attorney, the client is responsible for the strategic decisions.
Confidentiality and Professional Responsibility
Section 1.6 addresses the issues of confidentiality. Confidentiality applies to all information and binds both attorneys and legal personnel, such as paralegals and legal administrators. Confidentiality also survives the attorney-client relationship, meaning that the attorney must still keep the information confidential even after the representation has concluded.
As in the civilian world, however, there are a few situations in which the attorney is not bound by the duty of confidentiality. The first is necessity. If the attorney cannot adequately represent the interests of the client without divulging confidential information, the duty of confidentiality does not apply. Additionally, necessity may require the divulgence of confidential information where the attorney is forced to defend a claim of ineffective assistance of counsel.
Necessity, however, allows but does not require the attorney to divulge client communications. Where a future crime may occur, however, an attorney must divulge. An attorney must disclose client communications if there is
- An imminent threat of death or severe bodily harm to a third party or the client; or
- An imminent threat of a significant impairment of readiness or national security.
While the first obligatory disclosure should be familiar to all attorneys—both private and government attorneys—the last disclosure obligation is unique to the military. This exception, however, is not libertine; the impairment to readiness must be significant. A soldier’s expressed intention to go AWOL, for example, would likely not be a significant impairment in most situations.
Section 1.13 discusses the institutional relationships between the judge advocate and the Army. Judge advocates serving as legal assistance attorneys, defense counsel, or special victim counsel represent individual soldiers. All other judge advocates represent the Army—not any commander or individual solider. This is somewhat similar to the corporate in-house counsel role that represents the corporation and not any one individual executive.
So, if a solider, particularly a commander, informs a judge advocate of his or her intention to perform an illegal act that would bind the Army, the judge advocate must take the following steps:
- Ask the soldier to reconsider the intended course of action;
- Advise a different course of action;
- Advise the soldier to seek personal counsel;
- Explain to the commander that judge advocates are ethically bound to serve the interests of the Army, not individual soldiers; and
- Take the matter to the judge advocate’s technical chain of command—that is, the chain of command within the JAG Corps, outside the normal command structure.
Professional Responsibility in Sum
I hope this post has shed some light on some of the unique professional responsibilities of an Army JAG officer. If you have any questions or comments, please feel free to post them below.