Wednesday, January 09, 2008

Stopping (or at least slowing) the revolving door

In United States v. Rhoades, __ M.J. ___, No. 07-0173/AR (C.A.A.F. Jan. 9, 2008), CAAF unanimously holds that the military judge did not abuse his discretion by precluding the former Chief of Military Justice at Fort Huachuca (gesundheit) from serving as civilian defense counsel in a case that arose during the waning days of his active duty service.

Chief Judge Effron's opinion for the court sets out a helpful overview of legal restrictions on post-government employment. The opinion also observes that the Sixth Amendment right to counsel of choice isn't absolute, but may be outweighed by the "need for fair, efficient, and orderly administration of justice." Rhoades, slip op. at 4 (quoting United States v. Campbell, 491 F.3d 1306, 1310 (11th Cir. 2007)). So "disqualification of a defendant's chosen counsel due to a 'previous or ongoing relationship with an opposing party, even when the opposing party is the Government,' does not violate the Sixth Amendment." Id. (quoting Wheat v. United States, 486 U.S. 153, 159 (1988)).

CAAF concludes "that a record that demonstrates a reasonable likelihood that counsel's representation would violate a statutory post-employment restriction designed to protect the integrity of trial proceedings is sufficient to show 'a serious potential for conflict' that may overcome the presumption in favor of the accused's counsel of choice" and that the military judge "has discretion to disqualify counsel." Id. (quoting Wheat, 486 U.S. at 164).


Christopher Mathews said...

Somewhat reminscient of United States v. Blaney, in which the accused attempted to "hire" a then-serving military judge from a sister service to serve as civilian counsel in an Air Force court-martial.

Gene Fidell said...

Why is the civilian counsel's name not stated in the opinion?

No Man said...

The esteemed Exec Dir of NIMJ knows the answer to his question, he is just repressing it. The civilian counsel was the Chief of Military Justice, not a Trial defense counsel. Work for good, name removed. Work for evil, we'll include enough uses of your name to make sure no one forgets it. Actually, I would guess that no charges came out of the investigation and why create a Richard Jewel if it was not necessary to the opinion.

Phil Cave said...

An interesting opinion in light of the various appellate cases which permit a Trial Counsel to remain on a case, even though the TC has previously represented the accused (albeit on another matter), or represented one of the prosecution's primary witnesses.

While there may be some reasons for distinctions, those cases don't leave a good feeling compared to Rhoades.

db cooper said...

I found it odd that the CAAF’s opinion cites Wheat extensively, but fails to cite the most recent Supreme Court case--US v. Gonzales-Lopez--dealing with restrictions on counsel of choice.

CAAF took the easy way out on this one by deciding that Mr. R’s representation would violate a federal (and criminal) “revolving door” statute. The statute had a built in two year time period. So if a case simply drags on long enough for the two year statutory period to lapse, then someone in Mr. R’s position could serve on the case.

A more interesting and unanswered question is whether there was a traditional conflict of interest that would have required a waiver from both the accused and the government, but which would not be subject to a two-year time period.

Anonymous said...

How broad is this revolving door restriction?

What if a client wants to keep his detailed attorney - who leaves active duty after forming an A/C relationship - as a civilian attorney? The attorney is on the same side before and after.

Anonymous said...

In answer to DB Cooper's query above:

I was detailed defense counsel. At the motion hearing to disqualify Mr. R, the government stipulated there was no actual conflict of interest. The entire issue was around the statutory disqualification and whether the charges arose under his tenure or not. Much of it actually came up in the context of alleged offenses that were never referred to trial.

Anonymous said...

I'm the same anonymous detailed defense counsel.

In answer to Mr. Fidell's question:

I can assume CAAF left out his name because Mr. R took great pains to ensure he did nothing improper on the case. He sought out an ethics opinion before even meeting with the client. At the motion session, he entered a special appearance for the purpose of the motion only, which satisfied the OSJA's concerns about the statute. I assume that if he just appeared on the case and started filing motions with no consideration to the appearance issue then CAAF might have called him out by name.

If memory serves, the final result of the disqualification was only that he was not allowed to appear on the record (i.e. in open court). The ethics opinion issued before the motion session and confirmed by the SJA after the session allowed him to consult on the case, just not appear in court or sign anything officially related to the case (such as 1105s, etc.).

Gene Fidell said...

Anonymous asks: "What if a client wants to keep his detailed attorney - who leaves active duty after forming an A/C relationship - as a civilian attorney?" No problem: see CAAF's Order in Nguyen and the D.C. Bar Ethics Committee's published opinion on the point. (Incidentally, No Man, I'm president, not Executive Director, of NIMJ.)

No Man said...

DOH! I'm just No Man Mr. President. Sorry.