Rule 1.12(a) provides: "Execept as stated in subparagraph c below [which deals with arbitrators], a covered USG attorney shall not represent anyone in connection with a matter in which the covered USG attorney participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person, unless all parties to the proceeding consent after disclosure."
While neither the Navy-Marine Corps Court's web site nor LEXIS includes the unpublished per curiam opinion in Moorefield, it is available on NKO. United States v. Moorefield, No. NMCCA 200600162 (N-M. Ct. Crim. App. Dec. 19, 2006) (per curiam). And its absence from public web sites is a shame, because it's quite interesting. Here's the lower court's treatment of an issue closely related to that which CAAF has now granted:
Military Judge as Staff Judge Advocate
The staff judge advocate in the appellant's present case, Colonel (Col) R. Kohlmann, USMC, presided five years earlier, as the military judge over a special court-martial of the appellant in which the appellant had been acquitted of all charges. The appellant now claims for the first time on appeal that Col. Kohlmann's participation as staff judge advocate in the present case is in contravention of RULE FOR COURTS-MARTIAL 1106(b), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2005 ed.), which states "[n]o person who has acted as . . . military judge . . . may later act as a staff judge advocate . . . to any reviewing authority in the same case." The appellant also claims that Col Kohlmann's participation was in contravention of 28 U.S.C. 21 § 455 (Disqualification of justice, judge, or magistrate judge) which requires disqualification of a federal judge where he has personal knowledge of disputed evidentiary facts concerning the proceeding. We disagree. The appellant presents no evidence that the previous court-martial which resulted in acquittal is the same case that he is now appealing. Further, the appellant provides no authority for his implied proposition that federal regulations pertaining to the conduct of federal judges apply to staff judge advocates. Finally, it is abundantly clear from a plain reading of R.C.M 1106(b) that the Rule fully anticipates that military judges will later serve as staff judge advocates, and further informs us that they are only prohibited from doing so in cases where they actually served as the military judge. This assignment of error is wholly without merit.[n1]
[n1] We note with displeasure the following unsupported claim in the appellant's brief and assignments of error. "[The military judge] studied the Appellant's history . . . in non-public court-martial sessions. . .". Appellant’s Brief at 2. Such an outrageous claim by an appellate defense attorney simply must be supported in fact or it will be deemed frivolous, as it has been here.