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Professional Responsibility Jon Canerday OGC, National Credit Union Administration 2009 Federal Health Law Symposium
Goals of Instruction Review selected ethical rules and issues Comprehend applicability of the Rules Understand supervisory duties related to the Professional Rules of Ethics
References • Army - AR 27-26(1 May 92) • Air Force - TJAG Policy MR • Standard (TJS) (Dec 02) • Navy - JAGINST 5803.1C(9 Nov 2004) • DOD - GC Memo ( 30 Nov 1981) • ABA Model Rules of Professional Conduct
Who Do the Standards Apply to? • Service Rules of Professional Conduct • All JA’s – Active, National Guard, & Reserve • DoD civilian Attorneys • All personnel who perform duties in DoD legal offices • DOD Civilian Attorneys: • Standards of Conduct, DOD Directive 5500.7 • ABA Model Rules of Professional Conduct • Federal Ethical Considerations • State Bar Rules
Government Attorneys • Army rules apply when practicing before tribunals pursuant to UCMJ or MCM • Navy rules apply in any matter under the cognizance of TJAG • Air Force rules do not apply to non-Air Force attorneys
Effect of Rules • Rules provide a basis for taking disciplinary action • Attorneys must adhere to both letter and spirit of rules • Only rules are binding, comments are guidance
Other Sources of Ethical Rules • Service Regulations • JER • ABA Standards forCriminal Justice • Licensing Jurisdiction • Ethics Code Where Practicing
ResolvingEthical Conflicts • Practical approach • Follow the most restrictive rule • Seek alternate solutions • Alternate counsel • Opinion or waiver(Coordinate w/ Tech Chain!) • Follow Service Rule if performing official duties – unless practicing in State or Federal court
Confidentiality of Information (Rule 1.6) • General rule – A lawyer shall not reveal any information relating to the representation of a client • No distinction between confidences and secrets • Includes information obtained prior to formation of attorney client relationship
Confidentiality Rule Applies to Government Attorneys • In Re Lackey, 333 Ore. 215; 37 P. 3d 172 (2002)
Exceptions to Confidentiality • Consent • Carry out the representation • Establish a claim or defense • Required or authorized to do so by law • Future crimes
Confidentiality: Future Crimes • Lawyer reasonably believes disclosure is necessary to prevent a crime which is likely to: • Result in imminent death or substantial bodily harm, or • Significantly impair the readiness or capability of a military unit, vessel, aircraft, orweapon system.
Conflicts of Interest Rule 1.7(a) • A lawyer shall not represent a client if the representation will be directly adverse to another client unless: • The lawyer reasonably believes not adversely affect the other relationship and • Each client consents after consultation • Must withdraw if conflict develops
Representation Materially Limited Rule 1.7(b) • A lawyer is also precluded from representing a client if the representation would be materially limited by the lawyer’s responsibility to another client, a third party or by the lawyer’s own interests unless; • The lawyer reasonably believes the representation will not be adversely affected and • The client consents after consultation
Imputed DisqualificationRule 1.10 • General Rule • Not automatic • Functional analysis • Will the following be compromised: • Preserving attorney client privilege • Maintaining independence of judgment • Avoiding positions adverse to the client
Fairness to Opposing Party, Counsel Rule 3.4(a) • A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value • A lawyer can not counsel or assist another person to do such an act
Agency as the ClientRule 1.13 • USA, USAF, USMC, USN, or DoD is your client unless you are in LA or TDS • Illegal acts by officials • Ask to reconsider • Get separate legal opinion • Seek personal counsel • Consult technical supervisor
Communications with Third Parties • Communication when represented (4.2) • Only through attorney • Cannot direct another to contact party • Communication when not represented (4.3) • Cannot state disinterested • Refrain from giving advice • Respect for 3rd persons (4.4) • Embarrass, delay or burden
Impartiality, Decorum of Tribunal(Rule 3.5) • A lawyer shall not • Seek to influence a judge, court member, of other official by prohibited means • Communicate ex parte with the same • Disrupt a tribunal
“Counselor, are you trying to show contempt for this court?” “No , Your Honor, I’m trying very hard to conceal it.”
Ex parte Communication • United Sates v. Copening, 34 M.J. 28 (C.M.A. 1992). • United States v. Hamilton, 41 M.J. 22 (C.M.A. 1994).
Supervisory Responsibilities:Ensure Subordinates Comply with Rules • Includes lawyers (5.1), non-lawyers (5.3) • Training requirements – minimum 3 hours training per year for Army JAs • Imputed responsibility • Order or ratify • Failure to mitigate
Subordinate’s Responsibilities:Bound by the Rules • Follow the rules when clear • Unclear? Rely onsupervisor’s judgment
Professional Independence as a lawyer (Rule 5.4) • When representing individual clients, a lawyer is required to exercise unfettered loyalty and professional independence.
Professional Responsibility Questions and Anecdotes
One thing I supplicate your majesty: that you will give orders, under a great penalty, that no bachelors of law should be allowed to come here [the New World]; for not only are they bad themselves, but they also make and contrive a thousand inequities. Vasco Nuñez de Balboa to Ferdinand V of Spain, 1513
A man may as well open an oyster without a knife as a lawyer's mouth without a fee. Barten Holyday, Technogamia, 1618
Lawyer, n. One skilled in circumvention of the law. Litigant, n. A person about to give up his skin for the hope of retaining his bones. Litigation, n. A machine which you go into as a pig and come out of as a sausage. Ambrose Bierce, The Devil's Dictionary, 1906
I don't think you can make a lawyer honest by an act of legislature. You've got to work on his conscience. And his lack of conscience is what makes him a lawyer. Will Rogers , 15 March 1927
A lawyer with his briefcase can steal more than a hundred men with guns. Mario Puzo, The Godfather, 1969
An incompetent attorney can delay a trial for years or months. A competent attorney can delay one even longer. Evelle J. Younger, quoted in the Los Angeles Times, 3 March 1971
If you can eat sawdust without butter, you can be a success in the law. Justice Oliver Wendell Holmes (1841-1935)