Monday, October 22, 2007

Dept. of the Navy Art. 15 "Representation"

A few posts back, we discussed, here, a recent article from the new Journal of Military and Veterans Law. The article, Sailors and Marines Have Fewer Legal Rights than other Military Members as Their Military Lawyers Are Restricted in the Pre-Article 15 Advice They May Provide, 1 J. Mil. & Vet. L. 1 (2007), discussed (among other issues) the Navy Dept's policy of restricting the ability of lawyers to form an attorney client relationship with "clients" seeking pre-Art. 15 counseling. Showing just how much CAAFlog follows every one's comments on the site, he noticed that one of the commentors recently cited a change in the JAGMAN that potentially solved the representation issue, here. "Interested" said...


I believe the new JAGMAN (Section 0131) cures the concerns raised in the article. The section redefines and broadens the scope of permissible attorney-client relationships. It provides a much more workable and realistic standard. Under the new guidance as I interpret it, defense counsels can freely consult and advise clients pre-NJP without IMC or detailing implications.

While the commenter held out hope that the Navy cured the obvious conflict between Dept. policy and almost every state bar's rule on confidentiality and attorney client relationship formation, see e.g. Calif. Bar Interim Op. No. 95-0015 (telephone legal advice "service's advisory message stating that there is no attorney-client relationship is not by itself sufficient to avoid the formation of the relationship"), alas, the cure does not appear to withstand scrutiny. The following provisions so limit the applicability of the rule in JAGMAN 0131, that NJP counseling seemingly does not even fall within the ambit of the rule on attorney-client relationships:

0131b(2)(1) "Proceeding". As used in this section, "proceeding" means a trial - level proceeding by general or special court-martial or an investigation under Article 32, UCMJ.

0131b(3) "Attorney-client relationship". For purposes of this section, an attorney-client relationship exists between the accused and requested counsel when counsel and the accused have had a privileged conversation relating to a charge pending before the proceeding, and counsel has engaged in active pretrial preparation and strategy with regard to that charge. A counsel will be deemed to have engaged in active pretrial preparation and strategy if that counsel has taken action on the case which materially limits the range of options available to the accused at the proceeding.

0131b(3)(b) Actions that, in and of themselves, will not be deemed to constitute active pretrial preparation and strategy" include, but are not limited to: discussing the legal and factual issues in the case with the accused; discussing the legal and factual issues in the case with another person under the protection of the attorney-client privilege, such as another defense counsel; performing legal research dealing with the subject matter of the case; representing the accused in the review of pretrial confinement under R.C.M. 305, MCM; representing the accused in appellate review proceedings under Article 70, UCMJ; or providing counseling to the accused concerning Article 15, UCMJ. These actions should be appraised under a totality of the circumstances test to determine if they constitute "active pretrial preparation and strategy."

(emphasis added). I don't profess to be well read on JAGMAN 0131 or clairvoyant regarding the JAG's intent in amending section 0131. But, in a Chevron world, that's girlie-man agency discretion not military deference, JO'C, I'd say the portions I read are fairly clear that the JAG did NOT intend to alter the previous policy of no A-C relationship being created at pre-mast counseling. Thoughts?

9 comments:

Interested said...

The new rules now allow a defense counsel to consider facts/evidence and actually advise the client so that the client can make an intelliegent decision regarding, amongst other things, whether to accept or refuse NJP and how to best present the case. The rule allows defense counsel to seek their teeth into the merits of the case and advise the client accordingly.

I think this was done in practice under the old artificial rules, but now doing so is consistent with regulation.

I defer to the professional responsibility folks on whether doing so obligates the attorney to be detailed or IMCed at a future court-martial.

John O'Connor said...

Thank you for differentiating between, as you appropriately call it, girlie-man Chevron deference and the military deference doctrine. As I understand it, Chevron deference goes to construing statutes and regulations. By contrast, military deference has nothing to do with construing a statute or reg, but defers to the political branches' assessment of military need when the government 's interest is relevant to a constitutional challenge (such as due process and equal protection challenges).

Interested said...

The military deference doctrine applies when the military is interpreting its own regulations. That is, the military's interpretation of its own regulations is entitled to deference.

Interested said...

Correction: While the military's interpretation of its own regulations is entitled to deference, it is better coined as agency deference rather than military deference.

No Man said...

I feel like we just witnessed a conversion in Interested's own mind. I think he now agrees that we are talking about girlie-man agency discretion here, not military deference. Only Interested knows, but very interesting to watch. Thanks for sharing, Interested. Keep the comments coming---and for those that might try to read sarcasm into this comment there is none. We here at CAAFlog think there is no such thing as a stupid comment or a bad comment (there are offensive comments and they get scuttled).

John O'Connor said...

I agree with your "correction" post, Interested.

Interested said...

The deference I am discussing (agency deference when interpreting agency regulations) is much stronger than girlie man Chevron which, off the top of my head, applies to agency interpretation of statutes.

No Man said...

Interested is apparently a Chevron continuum true believer. I agree with Interested that, if you accept there is a continuum of Chevron deference (which I don't concede really exists or should exist), Chevron with extra cheese (Seminole Rock deference) might apply in this scenario where the military is interpreting its own regulations. However, JAGMAN 0131 is in part an implementing regualtion for various statutes, inlcuding Art. 27, UCMJ. Several recent cases dealing with agencies passing regualtions that merely re-state statutes have undermined the extra cheese rationale. So the deference with extra cheese is not as clear as other cases.

If you really want to have a Chevron continuum, Chevron with extra cheese and peperoni might apply in this case where the miltiary is interpreting its own regulations that govern military personnel matters (Chappell v. Wallace and Seminole Rock make a wonderful pie). But, this blog is about military justice and not admin law, thus I digress.

Interested said...

Nicely articulated No Man. Agreed.