Tuesday, June 12, 2007

Fascinating issue

Today's daily journal update includes a fascinating issue:

DID THE MILITARY JUDGE, IN GRANTING THE GOVERNMENT'S MOTION TO DISQUALIFY APPELLANT'S CIVILIAN COUNSEL ON THE BASIS OF AN ALLEGED VIOLATION OF THE ETHICS IN GOVERNMENT ACT (18 U.S.C. 207(a)(2)), DENY THE APPELLANT HIS SIXTH AMENDMENT RIGHT TO CIVILIAN COUNSEL OF HIS CHOICE?

United States v. Rhoades, __ M.J. ___, No. 07-0173/AR (C.A.A.F. June 6, 2007).

Unfortunately, I wasn't able to find the opinion below on ACCA's web site, so I don't know the particulars. Where is Army Lurker when we need him or her?

The issue seems reminiscent of United States v. Nguyen, 56 M.J. 252 (C.A.A.F. 2001) (summary disposition), in which CAAF ruled for the defense in a writ appeal to allow a former Navy JAG to continue representing his client as a civilian counsel.

This D.C. bar ethics opinion considers the Ethics in Government Act and Rule of Professional Conduct 1.11 implications of a military attoreny continuing to provide representation to a client after becoming a civilian attorney. The D.C. Bar ultimately concludes that the attorney may stay on the case.

2 comments:

Robert said...

I was the TDC on the case. The gist of the issue is that the former Chief of Justice for the installation left for private practice. Rhoades hired him to represent him in his criminal case. The government moved to disqualify the attorney because the offenses arose under his watch. If memory serves, his only real involvement on the government side was to tell CID to work with a particular Trial Counsel and, later, told the Trial Counsel to doublecheck the strength of the alleged confession. At trial, the government moved to recuse him and then threw a hissy fit when he litigated the issue. There were some advisory ethics opinions along the way that were overly broad in the scope of disqualification.

If you're curious about any other details on the case, let me know.

Robert said...

I should note that it was not as simple as the former COJ "switching sides". It's whether he did anything while on the government side. Also, if memory serves, there were three groups of charges/crimes. The group of charges that arose under the former COJ's watch was the first. The other two came up while he was on terminal leave. The government preferred charges related to all three groups of criminal conduct, but dismissed the earliest group of charges prior to trial. Thus, his involvement was almost nil.