Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, 25537-25559 [2013-09676]

Download as PDF Vol. 78 Wednesday, No. 84 May 1, 2013 Part II Department of Defense wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 Department of the Navy 32 CFR Part 776 Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General; Proposed Rule VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\01MYP2.SGM 01MYP2 25538 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules Chiappetta, JAGC, U.S. Navy, Office of the Judge Advocate General (Administrative Law), Department of the Navy, 1322 Patterson Ave. SE., Suite 3000, Washington Navy Yard, DC 20374–5066, telephone: 703–614–7408. SUPPLEMENTARY INFORMATION: Department of the Navy [No. USN–2013–0011] RIN 0703–AA92 32 CFR Part 776 Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General Department of the Navy, DoD. Proposed rule. AGENCY: ACTION: SUMMARY: The Department of the Navy (DoN) is revising its Rules of Professional Conduct and procedures for receiving, processing, and taking action on complaints of professional misconduct made against attorneys practicing under the supervision of the Judge Advocate General of the Navy (JAG). The revision to this part generally aligns with recent changes to the American Bar Association Model Rules of Professional Conduct. The revisions clarify when an attorney shall reveal confidential information and when such disclosure is discretionary, and allows for covered attorneys to make reasonable disclosures necessary to ensure compliance with the Rules of Professional Conduct. The revision contains administrative corrections throughout. Comment date: Interested parties should submit written comments on or before July 1, 2013. ADDRESSES: You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by any of the following methods: Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. Mail: Federal Docket Management System Office, 4800 Mark Center Drive, 2nd floor, East Tower, Suite 02G09, Alexandria, VA 22350–3100. Instructions: All submissions received must include the agency name and docket or RIN number for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at https:// www.regulations.gov as they are received without change, including any personal identifiers or contact information. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 DATES: FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Catherine K. VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 in Executive Order 12866, as amended by Executive Order 13258, and does not have substantial impact on the public. Executive Summary DEPARTMENT OF DEFENSE It has been determined that 32 CFR part 776 is not a significant regulatory action. The rule does not: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive Order. This proposed rule serves as an update to the current 32 CFR Part 776 and replaces current regulations. The revision generally aligns with the American Bar Association Model Rules of Professional Conduct. Significant updates were made to Sec. 776.25 of this part (Confidentiality), clarifying when an attorney shall reveal confidential information and when such disclosure is discretionary. The update to this part also allows covered attorneys to make reasonable disclosures necessary to ensure compliance with the Rules of Professional Conduct. Section 776.26 of this part (Conflicts, generally) was revised to require that a client give informed consent, in writing, when waiving a potential or actual conflict of interest. Section 776.42 of this part (Candor and Obligations Toward the Tribunal) is revised to clearly articulate a covered attorney’s responsibility for false evidence presented by a client, witness, or the attorney. Procedural revisions to this part include the addition of the Chief Judge of the Navy as the designated Rules Counsel for professional responsibility matters involving military judges, and the removal of the requirement to route professional responsibility complaints concerning Marine judge advocates through the General Court-Martial Convening Authority. Additional commentary and annotation applicable to the Navy JAG’s Professional Responsibility Rules are contained in JAG Instruction 5803.1[series], which can be accessed through www.jag.navy.mil. The DoN is revising 32 CFR Part 776, to comport with current policy as stated in JAG Instruction 5803.1 (Series) governing the professional conduct of attorneys practicing under the cognizance and supervision of the Judge Advocate General. This revision updates the existing part to generally align with the American Bar Association Model Rules of Professional Conduct. Interested persons are invited to comment in writing on this revision. All written comments received will be considered in making the proposed revisions to 32 CFR Part 776. It has been determined that this rule revision is not a major rule within the criteria specified PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 Matters of Regulatory Procedure Executive Order 12866, ‘‘Regulatory Planning and Review’’ Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104–4) It has been certified that 32 CFR Part 776 does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year. Public Law 96–511, ‘‘Paperwork Reduction Act’’ (44 U.S.C. Chapter 35) It has been certified that 32 CFR Part 776 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). Federalism (Executive Order 13132) It has been certified that 32 CFR Part 776 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on: (1) The States; (2) The relationship between the National Government and the States; or (3) The distribution of power and responsibilities among the various levels of government. List of Subjects in 32 CFR Part 776 Rules of Professional Conduct, and Complaint Processing Procedures. For the reasons set forth in the preamble, revise part 776 to read as follows: E:\FR\FM\01MYP2.SGM 01MYP2 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules PART 776—PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 Subpart A—General Sec. 776.1 Purpose. 776.2 Applicability. 776.3 Policy. 776.4 Attorney-client relationships. 776.5 Judicial conduct. 776.6 Conflict. 776.7 Reporting requirements. 776.8 Professional Responsibility Committee. 776.9 Rules Counsel. 776.10 Informal ethics advice. 776.11 Outside practice of law. 776.12 Maintenance of files. 776.13–776.17 [Reserved] Subpart B—Rules of Professional Conduct 776.18 Preamble. 776.19 Principles. 776.20 Competence. 776.21 Establishment and scope of representation. 776.22 Diligence. 776.23 Communication. 776.24 Fees. 776.25 Confidentiality of information. 776.26 Conflict of interest: General rule. 776.27 Conflict of interests: Prohibited transactions. 776.28 Conflict of interest: Former client. 776.29 Imputed disqualification: General rule. 776.30 Successive Government and private employment. 776.31 Former judge or arbitrator. 776.32 Department of Navy as client. 776.33 Client with diminished capacity. 776.34 Safekeeping property. 776.35 Declining or terminating representation. 776.36 Prohibited sexual relations. 776.37 Advisor. 776.38 Mediation. 776.39 Evaluation for use by third persons. 776.40 Meritorious claims and contentions. 776.41 Expediting litigation. 776.42 Candor and obligations toward the tribunal. 776.43 Fairness to opposing party and counsel. 776.44 Impartiality and decorum of the tribunal. 776.45 Extra-tribunal statements. 776.46 Attorney as witness. 776.47 Special responsibilities of a trial counsel and other government counsel. 776.48 Advocate in nonadjudicative proceedings. 776.49 Truthfulness in statements to others. 776.50 Communication with person represented by counsel. 776.51 Dealing with an unrepresented person. 776.52 Respect for rights of third persons. 776.53 Responsibilities of the Judge Advocate General and supervisory attorneys. 776.54 Responsibilities of a subordinate attorney. VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 776.55 Responsibilities regarding nonattorney assistants. 776.56 Professional independence of a covered USG attorney. 776.57 Unauthorized practice of law. 776.58–776.65 [Reserved] 776.66 Bar admission and disciplinary matters. 776.67 Judicial and legal officers. 776.68 Reporting professional misconduct. 776.69 Misconduct. 776.70 Jurisdiction. 776.71 Requirement to remain in good standing with licensing authorities. 776.72–776.75 [Reserved] Subpart C—Complaint Processing Procedures 776.76 Policy. 776.77 Related investigations and actions. 776.78 Informal complaints. 776.79 The formal complaint. 776.80 Initial screening. 776.81 Forwarding the Complaint. 776.82 Interim suspension. 776.83 Preliminary inquiry. 776.84 Ethics investigation. 776.85 Effect of separate proceeding. 776.86 Action by the Judge Advocate General. 776.87 Finality. 776.88 Report to licensing authorities. Subpart D—Outside Practice of Law 776.89 Background. 776.90 Definition. 776.91 Policy. 776.92 Action. 776.93 Revalidation. 776.94 Outside Law Practice Questionnaire and Request. Subpart E—Relations With Non-USG Counsel 776.95 Relations with Non-USG Counsel. Authority: 10 U.S.C. 806, 806a, 826, 827, 1044; Manual for Courts-Martial, United States, 2012; U.S. Navy Regulations, 1990; Department of Defense Instruction 1442.02 (series); Secretary of the Navy Instruction 5430.27 (series), Responsibility of the Judge Advocate General of the Navy and the Staff Judge Advocate to the Commandant of the Marine Corps for Supervision and Provision of Certain Legal Services. Subpart A—General § 776.1 Purpose. In furtherance of the authority citations (which, if not found in local libraries, are available from the Office of the Judge Advocate General, 1322 Patterson Avenue SE., Suite 3000, Washington Navy Yard DC 20374– 5066), which require the Judge Advocate General of the Navy (JAG) to supervise the performance of legal services under JAG cognizance throughout the Department of the Navy (DoN), this part is promulgated: (a) To establish Rules of Professional Conduct (subpart B of this part) for attorneys subject to this part; PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 25539 (b) To establish procedures for receiving, processing, and taking action on complaints of professional misconduct made against attorneys practicing under the supervision of the JAG, whether arising from professional legal activities in DoN proceedings and matters, or arising from other, non-U.S. Government related professional legal activities or personal misconduct that suggests the attorney is ethically, professionally, or morally unqualified to perform legal services within the DoN; (c) To prescribe limitations on and procedures for processing requests to engage in the outside practice of law by those DoN attorneys practicing under the supervision of the JAG; and (d) To ensure quality legal services at all proceedings under the cognizance and supervision of the JAG. § 776.2 Applicability. (a) This part applies to all ‘‘covered attorneys’’ as defined herein. (b) ‘‘Covered attorneys’’ include: (1) The following U.S. Government (USG) attorneys, referred to collectively as ‘‘covered USG attorneys’’ throughout this part: (i) All active-duty Navy judge advocates (designator 2500 or 2505) or Marine Corps judge advocates (Military Occupational Specialty (MOS) 4402 or 9914). (ii) All active-duty judge advocates of other U.S. armed forces who practice law or provide legal services under the cognizance and supervision of the JAG. (iii) All civil service and contracted civilian attorneys who practice law or perform legal services under the cognizance and supervision of the JAG. This includes civilian attorneys employed by the DoN as Executive Agent for Combatant Commands, and for whom the JAG serves as the ‘‘qualifying authority’’ under the authority citations. (iv) All Reserve or Retired judge advocates of the Navy or Marine Corps (and any other U.S. armed force), who, while performing official DoN duties, practice law, provide legal services under the cognizance and supervision of the JAG or are serving in non-legal MOS billets. (v) All other attorneys appointed by the JAG (or the Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC) in Marine Corps matters) to serve in billets or to provide legal services normally provided by Navy or Marine Corps judge advocates. This policy applies to officer and enlisted Reservists, active-duty personnel, and any other personnel who are licensed to practice law by any Federal or state authority but who are not members of E:\FR\FM\01MYP2.SGM 01MYP2 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 25540 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules the Judge Advocate General’s Corps or who do not hold the 4402 or 9914 MOS designation in the Marine Corps. (vi) All qualified volunteer attorneys that have been certified as legal assistance attorneys by the JAG, or his designee, pursuant to the authority citations. (2) The following non-U.S. Government attorneys, referred to collectively as ‘‘covered non-USG attorneys’’ throughout this part: (i) All civilian attorneys representing individuals in any matter for which the JAG is charged with supervising the provision of legal services. These matters include, but are not limited to, courts-martial, administrative separation boards or hearings, boards of inquiry, and disability evaluation proceedings. (3) The term ‘‘covered attorney’’ does not include those civil service or civilian attorneys who practice law or perform legal services under the cognizance and supervision of the General Counsel of the Navy. (c) Professional or personal misconduct unrelated to a covered attorney’s DoN activities, while normally outside the ambit of Subpart B of this part, may be reviewed under procedures established herein and may provide the basis for decisions by the JAG regarding the covered attorney’s continued qualification to provide legal services in DoN matters. (d) Although subpart B of this part do not apply to non-attorneys, they do define the type of ethical conduct that the public and the military community have a right to expect from DoN legal personnel. Accordingly, Subpart B of this part shall serve as the model of ethical conduct for the following personnel when involved with the delivery of legal services under the supervision of the JAG: (1) Navy Legalmen and Marine Corps legal administrative officers, legal service specialists, and legal services reporters; (2) Limited duty officers (LAW); (3) Legal interns; and (4) Civilian support personnel including paralegals, legal secretaries, legal technicians, secretaries, court reporters, and other personnel holding similar positions. Covered USG attorneys who supervise non-attorney DoN employees are responsible for their ethical conduct to the extent provided for in § 776.55 of this part. § 776.3 Policy. (a) Covered attorneys shall maintain the highest standards of professional ethical conduct. Loyalty and fidelity to the United States, the law, clients, both VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 institutional and individual, and the rules and principles of professional ethical conduct set forth in subpart B of this part must come before private gain or personal interest. (b) Subpart B of this part and related procedures set forth herein concern matters solely under the purview of the JAG. Whether conduct or failure to act constitutes a violation of the professional duties imposed by this part is a matter within the sole discretion of the JAG or officials authorized to act for the JAG. Subpart B of this part are not substitutes for, and do not take the place of, other rules and standards governing DoN personnel, such as the Department of Defense Joint Ethics Regulation, the Code of Conduct for members of the Armed Forces, the Uniform Code of Military Justice (UCMJ), and the general precepts of ethical conduct to which all DoN service members and employees are expected to adhere. Similarly, action taken per this part is not supplanted or barred by, and does not, even if the underlying misconduct is the same, supplant or bar the following action from being taken by authorized officials: (1) Punitive or disciplinary action under the UCMJ; or (2) Administrative action under the Manual for Courts-Martial (MCM), U.S. Navy Regulations, or under other applicable authority. (c) Inquiries into allegations of professional misconduct will normally be held in abeyance until any related criminal investigation or proceeding is complete. However, a pending criminal investigation or proceeding does not bar the initiation or completion of a professional misconduct investigation stemming from the same or related conduct or prevent the JAG from imposing professional disciplinary sanctions as provided for in this part. § 776.4 Attorney-client relationships. (a) The executive agency to which the covered USG attorney is assigned (DoN in most cases) is the client served by the covered USG attorney unless detailed to represent another client by competent authority. Specific guidelines are contained in § 776.32 of this part. (b) Covered USG attorneys will not establish attorney-client relationships with any individual unless detailed, assigned, or otherwise authorized to do so by competent authority. Wrongfully establishing an attorney-client relationship may subject the attorney to discipline administered per this part. See § 776.21 of this part. (c) Employment of a non-USG attorney by an individual client does not alter the professional responsibilities of a covered USG PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 attorney detailed or otherwise assigned by competent authority to represent that client. Specific guidance is set forth in subpart E. § 776.5 Judicial conduct. To the extent that it does not conflict with statutes, regulations, or this part, the current version of the American Bar Association Model Code of Judicial Conduct (as amended), hereafter referred to as the ‘Code of Judicial Conduct,’ applies to all military and appellate judges and to all other covered USG attorneys performing judicial functions under the JAG’s supervision within the DoN. § 776.6 Conflict. (a) To the extent that a conflict exists between this part and the rules of other jurisdictions that regulate the professional conduct of attorneys, this part will govern the conduct of covered attorneys engaged in legal functions under JAG cognizance and supervision. Specific and significant instances of conflict between the rules contained in subpart B of this part and the rules of other jurisdictions shall be reported promptly to the Rules Counsel (see § 776.9 of this part), via the supervisory attorney. See § 776.53 of this part. (b) In the case of Navy and Marine Corps personnel engaged in legal functions under Department of Defense (DoD) vice JAG cognizance and supervision (e.g., DoD Office of Military Commissions), this part and the applicable DoD professional responsibility rules apply. In such a case, to the extent that a conflict exists between Subpart B of this part and applicable DoD professional responsibility rules, the DoD rules shall take precedence. § 776.7 Reporting requirements. Covered USG attorneys shall report promptly to the Rules Counsel (see § 776.9 of this part) any disciplinary or administrative action, including initiation of investigation, by any licensing authority or Federal, State, or local bar, possessing the power to revoke, suspend, or in any way limit the authority to practice law in that jurisdiction, upon himself, herself, or another covered attorney. Failure to report such discipline or administrative action may subject the covered USG attorney to discipline administered per this part. See § 776.71 of this part. § 776.8 Professional Responsibility Committee. (a) Composition. This standing committee will consist of the Assistant Judge Advocate General (AJAG) for Military Justice; the Deputy Chiefs of E:\FR\FM\01MYP2.SGM 01MYP2 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules Staff for Naval Legal Service Offices (or Defense Services Offices, effective 1 October 2012), and Region Legal Service Offices; the Chief Judge, Navy-Marine Corps Trial Judiciary; and in cases involving Marine Corps judge advocates, the Deputy Staff Judge Advocate to the Commandant of the Marine Corps (DSJA to CMC); and such other personnel as the JAG from timeto-time may appoint. A majority of the members constitutes a quorum. The Chairman of the Committee shall be the AJAG for Military Justice. The Chairman may excuse members disqualified for cause, illness, or exigencies of military service, and may appoint additional or alternate members on a permanent basis. (b) Purpose. (1) When requested by the JAG, the SJA to CMC, or the Rules Counsel, the Committee will provide formal advisory opinions to the JAG regarding application of subpart B of this part to individual or hypothetical cases. (2) On its own motion, the Committee may also issue formal advisory opinions on ethical issues of importance to the DoN legal community. (3) Upon written request, the Committee may also provide formal advisory opinions to covered attorneys about the propriety of proposed courses of action under subpart B of this part. If such requests are predicated upon full disclosure of all relevant facts, and if the Committee advises that the proposed course of conduct does not violate subpart B of this part, then no adverse action under this instruction may be taken against a covered attorney who acts consistently with the Committee’s advice. Such requests must be made via the Rules Counsel. (4) The Chairman will forward copies of all opinions issued by the Committee to the Rules Counsel. (c) Limitation. The Committee will not normally provide ethics advice or opinions concerning professional responsibility matters that are then the subject of litigation. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.9 Rules Counsel. Appointed by JAG to act as special assistants for the administration of subpart B of this part, the Rules Counsel derive authority from JAG and, as detailed in this part, have ‘‘by direction’’ authority. The Rules Counsel shall cause opinions issued by the Professional Responsibility Committee of general interest to the DoN legal community to be published in summarized, non-personal form in suitable publications. Unless another officer is appointed by JAG to act in VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 25541 individual cases, the following officers shall act as Rules Counsel: (a) The SJA to CMC, for cases involving Marine Corps judge advocates, or civil service and contracted civilian attorneys who perform legal services under his cognizance; (b) Assistant Judge Advocate General, Chief Judge, DoN (AJAG–CJ) for cases involving Navy and Marine Corps trial and appellate judges; and (c) AJAG (Civil Law), in all other cases. attorney receives written advice on an ethical matter after full disclosure of all relevant facts and reasonably relies on such advice, no adverse action under this part will be taken against the attorney. Written advice may be sought from either a supervisory attorney or the appropriate advisor in paragraph (a) of this section. (b) The JAG is not bound by unwritten advice or by advice provided by personnel who are not supervisory attorneys or advisors. See § 776.8(b)(3) and § 776.54(c) of this part. § 776.10 § 776.11 Informal ethics advice. (a) Advisors. Covered attorneys may seek informal ethics advice either from the officers named below or from supervisory attorneys in the field. Within the Office of the Judge Advocate General (OJAG) and the Office of the SJA to CMC, the following officials are designated to respond, either orally or in writing, to informal inquiries concerning this instruction in the areas of practice indicated: (1) Director, Criminal Law Division (OJAG Code 20): Military justice matters; (2) Director, Trial Counsel Assistance Program (TCAP): Trial counsel matters; (3) Director, Defense Counsel Assistance Program (DCAP): Defense counsel matters; (4) Director, Legal Assistance Division (OJAG Code 16): Legal assistance matters; (5) The DSJA to CMC and Head, Research and Civil Law Branch (JAR), Judge Advocate (JA) Division, Headquarters United States Marine Corps (HQMC): Cases involving Marine Corps judge advocates, or civil service and contracted civilian attorneys who perform legal services under the cognizance and supervision of SJA to CMC; (6) Deputy Chief Judge, Navy-Marine Corps Trial Judiciary: judicial matters; and (7) Professional Responsibility Coordinator, Administrative Law Division (OJAG Code 13): all other matters. (b) Limitation. Informal ethics advice will not normally be provided by JAG/ HQMC advisors concerning professional responsibility matters that are then the subject of litigation. (c) Written advice. A request for informal advice does not relieve the requester of the obligation to comply with subpart B of this part. (1) Although covered attorneys are encouraged to seek advice when in doubt as to their responsibilities, they remain personally accountable for their professional conduct. If, however, an PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 Outside practice of law. A covered USG attorney’s primary professional responsibility is to the client, as defined by § 776.4 of this part, and he or she is expected to ensure that representation of such client is free from conflicts of interest and otherwise conforms to the requirements of Subpart B of this part and other regulations concerning the provision of legal services within the DoN. The outside practice of law, therefore, must be carefully monitored. Covered USG attorneys who wish to engage in the outside practice of law, including while on terminal leave, must first obtain permission from the JAG. Failure to obtain permission before engaging in the outside practice of law may subject the covered USG attorney to administrative or disciplinary action, including professional sanctions administered per subpart C of this part. Further details are contained in § 776.57 and subpart D of this part. § 776.12 Maintenance of files. Pursuant to SECNAVINST 5211.5 (series) and SECNAVINST 5212.5 (series) ethics complaint records and outside practice of law request files shall be maintained by the Office of the Chief Judge, DoN (Code 05) for judicial conduct matters; the Research and Civil Law Branch, JA Division, HQMC (JAR) for Marine matters; and the Office of the JAG, Administrative Law Division (Code 13) for all other matters. (a) Requests for access to such records should be referred to the Office of the Chief Judge, Washington Navy Yard, 1254 Charles Morris Street SE., Suite 320, Washington, DC, 20374–5124; Deputy Assistant Judge Advocate General (Administrative Law), Office of the Judge Advocate General (Code 13), 1322 Patterson Avenue SE., Suite 3000, Washington Navy Yard, DC 20374– 5066; or to Head, Research and Civil Law Branch, Office of the Staff Judge Advocate to the Commandant of the Marine Corps, Headquarters United States Marine Corps, 3000 Marine Corps E:\FR\FM\01MYP2.SGM 01MYP2 25542 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules Pentagon (Room 4D556), Washington, DC 20350–3000, as appropriate. (b) Local command files regarding professional responsibility complaints will not be maintained. Commanding officers and other supervisory attorneys may, however, maintain personal files but must not share their contents with others. (c) All records maintained under this part shall be maintained in accordance with the following procedures established by JAGINST 5801.2 (series) and DON Privacy Act Notice N05813–1: (1) Records shall be maintained for a minimum of two years; (2) Records shall be maintained for as long as an attorney remains subject to JAG-imposed limitations on practice; and (3) Records pertaining to unsubstantiated complaints, or to attorneys who are no longer subject to limitation on practice, shall be destroyed after 10 years. § 776.13–776.17 [Reserved] Subpart B—Rules of Professional Conduct wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.18 § 776.20 Preamble. (a) A covered attorney is a representative of clients, an officer of the legal system, an officer of the Federal Government, and a public citizen who has a special responsibility for the quality of justice and legal services provided to the DoN and to individual clients. These Rules of Professional Conduct (Subpart B of this part) govern the ethical conduct of covered attorneys practicing under the Uniform Code of Military Justice, the MCM, 10 U.S.C. 1044 (Legal Assistance), other laws of the United States, and regulations of the DoN. (b) Subpart B of this part not only address the professional conduct of judge advocates, but also apply to all other covered attorneys who practice under the cognizance and supervision of the Navy JAG. (c) All covered attorneys are subject to professional disciplinary action, as outlined in this part, for violation of subpart B of this part. Action on allegations of professional or personal misconduct undertaken per Subpart B of this part does not prevent other Federal, state, or local bar associations, or other licensing authorities, from taking professional disciplinary or other administrative action for the same or similar conduct. § 776.19 Principles. Subpart B of this part is based on the following principles. Interpretation of subpart B of this part should flow from VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 their common meaning. To the extent that any ambiguity or conflict exists, subpart B of this part should be interpreted consistent with these general principles. (a) Covered attorneys shall: (1) Obey the law and applicable military regulations, and counsel clients to do so. (2) Follow all applicable ethics rules. (3) Protect the legal rights and interests of clients, organizational and individual. (4) Be honest and truthful in all dealings. (5) Not derive personal gain, except as authorized, for the performance of legal services. (6) Maintain the integrity of the legal profession. (b) Ethical rules should be consistent with law. If law and ethics conflict, the law prevails unless an ethical rule is constitutionally based. (c) The military criminal justice system is a truth-finding process consistent with constitutional law. Competence. (a) Competence. A covered attorney shall provide competent, diligent, and prompt representation to a client. Competent representation requires the legal knowledge, skill, access to evidence, thoroughness, and expeditious preparation reasonably necessary for representation. Initial determinations as to competence of a covered USG attorney for a particular assignment shall be made by a supervising attorney before case or issue assignments; however, assigned attorneys may consult with supervisors concerning competence in a particular case. (b) [Reserved] § 776.21 Establishment and scope of representation. (a) Establishment and scope of representation. Formation of attorneyclient relationships by covered USG attorneys with, and representation of, clients is permissible only when the attorney is authorized to do so by competent authority. For purposes of this part, Military Rules of Evidence 502, the Manual of the Judge Advocate General (JAGINST 5800.7 series), and the Naval Legal Service Command Manual (COMNAVLEGSVCCOMINST 5800.1 series), generally define when an attorney-client relationship is formed between a covered USG attorney and a client servicemember, dependent, or employee. (b) Generally, the subject matter scope of a covered attorney’s representation will be consistent with the terms of the PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 assignment to perform specific representational or advisory duties. A covered attorney shall inform clients at the earliest opportunity of any limitations on representation and professional responsibilities of the attorney towards the client. (c) A covered attorney shall follow the client’s well-informed and lawful decisions concerning case objectives, choice of counsel, forum, pleas, whether to testify, and settlements. (d) A covered attorney’s representation of a client does not constitute an endorsement of the client’s political, economic, social, or moral views or activities. (e) A covered attorney shall not counsel or assist a client to engage in conduct that the attorney knows is criminal or fraudulent, but a covered attorney may discuss the legal and moral consequences of any proposed course of conduct with a client, and may counsel or assist a client in making a good faith effort to determine the validity, scope, meaning, or application of the law. (f) [Reserved] § 776.22 Diligence. (a) Diligence. A covered attorney shall act with reasonable diligence and promptness in representing a client, and shall consult with a client as soon as practicable and as often as necessary upon being assigned to the case or issue. (b) [Reserved] § 776.23 Communication. (a) Communication. A covered attorney shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A covered attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) [Reserved] § 776.24 Fees. (a) Fees. A covered USG attorney shall not accept any salary, fee, compensation, or other payments or benefits, directly or indirectly, other than Government compensation, for services provided in the course of the covered USG attorney’s official duties or employment. (b) A covered USG attorney shall not accept any salary or other payments as compensation for legal services rendered, by that covered USG attorney in a private capacity, to a client who is eligible for assistance under the DoN Legal Assistance Program, unless so authorized by the JAG. This rule does E:\FR\FM\01MYP2.SGM 01MYP2 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules not apply to Reserve or Retired judge advocates not then serving on extended active-duty. (c) A Reserve or Retired judge advocate, whether or not serving on extended active-duty, who has initially represented or interviewed a client or prospective client concerning a matter as part of the attorney’s official Navy or Marine Corps duties, shall not accept any salary or other payments as compensation for services rendered to that client in a private capacity concerning the same general matter for which the client was seen in an official capacity, unless so authorized by the JAG. (d) Covered non-USG attorneys may charge fees. Fees shall be reasonable. Factors considered in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the attorney or attorneys performing the services; and (8) Whether the fee is fixed or contingent. (e) When the covered non-USG attorney has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. (f) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (a)(7) of this section or other law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the covered non-USG attorney in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the covered non-USG attorney VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (g) A covered non-USG attorney shall not enter into an arrangement for, charge, or collect a contingent fee for representing an accused in a criminal case. (h) A division of fees between covered non-USG attorneys who are not in the same firm may be made only if: (1) The division is in proportion to the services performed by each attorney or, by written agreement with the client, each attorney assumes joint responsibility for the representation; (2) The client is advised of and does not object to the participation of all the attorneys involved; and (3) The total fee is reasonable. (i) Covered Non-USG Attorneys. Paragraphs (d) through (h) of this section apply only to private civilian attorneys practicing in proceedings conducted under the cognizance and supervision of the JAG. The primary purposes of paragraphs (d) through (h) of this section are not to permit the JAG to regulate fee arrangements between civilian attorneys and their clients but to provide guidance to covered USG attorneys practicing with non-USG attorneys and to supervisory attorneys who may be asked to inquire into alleged fee irregularities. Absent paragraphs (d) through (h) of this section, such supervisory attorneys have no readily available standard against which to compare allegedly questionable conduct of a civilian attorney. § 776.25 Confidentiality of information. (a) Confidentiality of information. A covered attorney shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) of this section. (b) A covered attorney shall reveal information relating to the representation of a client to the extent the covered attorney reasonably believes necessary: (1) To prevent reasonably certain death or substantial bodily harm; or (2) To prevent the client from committing a criminal act that the covered attorney reasonably believes is likely to result in the significant impairment of national security or the readiness or capability of a military unit, vessel, aircraft, or weapon system. PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 25543 (c) A covered attorney may reveal such information to the extent the covered attorney reasonably believes necessary: (1) To secure legal advice about the covered attorney’s compliance with Subpart B of this part; (2) To establish a claim or defense on behalf of the covered attorney in a controversy between the covered attorney and the client, to establish a defense to a criminal charge or civil claim against the covered attorney based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the attorney’s representation of the client; and/or (3) To comply with other law or a court order. (d) Examples of conduct likely to result in the significant impairment of national security or the readiness or capability of a military unit, vessel, aircraft, or weapon system include: Divulging the classified location of a special operations unit such that the lives of members of the unit are placed in immediate danger; sabotaging a vessel or aircraft to the extent that the vessel or aircraft could not conduct an assigned mission, or that the vessel or aircraft and crew could be lost; and compromising the security of a weapons site such that the weapons are likely to be stolen or detonated. Paragraph (b) of this section is not intended to and does not mandate the disclosure of conduct that may have a slight impact on the readiness or capability of a unit, vessel, aircraft, or weapon system. Examples of such conduct are: Absence without authority from a peacetime training exercise; intentional damage to an individually assigned weapon; and intentional minor damage to military property. § 776.26 Conflict of interest: General rule. (a) Conflict of interest: General rule. Except as provided by paragraph (b) of this section, a covered attorney shall not represent a client if the representation of that client involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) The representation of one client will be directly adverse to another client; or (2) There is a significant risk that the representation of one or more clients will be materially limited by the covered attorney’s responsibilities to another client, a former client or a third person or by a personal interest of the covered attorney. (b) Notwithstanding the existence of a concurrent conflict of interest under E:\FR\FM\01MYP2.SGM 01MYP2 25544 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules paragraph (a) of this section, a covered attorney may represent a client if: (1) The covered attorney reasonably believes that the covered attorney will be able to provide competent and diligent representation to each affected client; (2) The representation is not prohibited by law or regulation; (3) The representation does not involve the assertion of a claim by one client against another client represented by the covered attorney in the same litigation or other proceeding before a tribunal; and (4) Each affected client gives informed consent, confirmed in writing. (c) Reserve or Retired Judge Advocates. These conflict-of-interest rules apply to Reservists only while they are actually drilling or on activeduty-for-training, or, as is the case with Retirees, on extended active-duty or when performing other duties subject to JAG supervision. Therefore, unless otherwise prohibited by criminal conflict-of-interest statutes, Reserve or Retired attorneys providing legal services in their civilian capacity may represent clients, or work in firms whose attorneys represent clients, with interests adverse to the United States. (1) Reserve judge advocates who, in their civilian capacities, represent persons whose interests are adverse to the DoN will provide written notification to their supervisory attorney and commanding officer, detailing their involvement in the matter. (2) Reserve judge advocates shall refrain from undertaking any official action or representation of the DoN with respect to any particular matter in which they are providing representation or services to other clients. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.27 Conflict of interests: Prohibited transactions. (a) Conflict of interests: Prohibited transactions. Covered USG attorneys shall strictly adhere to current DoD Ethics Regulations and shall not: (1) Knowingly enter into any business transactions on behalf of, or adverse to, a client’s interest that directly or indirectly relate to or result from the attorney-client relationship; or (2) Provide any financial assistance to a client or otherwise serve in a financial or proprietorial fiduciary or bailment relationship, unless otherwise specifically authorized by competent authority. (b) No covered attorney shall: (1) Use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation, except as permitted or required by Subpart B of this part; VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 (2) Prepare an instrument giving the covered attorney or a person related to the covered attorney as parent, child, sibling, or spouse any gift from a client, including a testamentary gift, except where the client is related to the donee; (3) In the case of covered non-USG attorneys, accept compensation for representing a client from one other than the client unless the client consents after consultation, there is no interference with the covered attorney’s independence of professional judgment or with the attorney-client relationship, and information relating to representation of a client is protected as required by § 776.25 of this part; (4) Negotiate any settlement on behalf of multiple clients in a single matter unless each client provides fully informed consent; (5) Prior to the conclusion of representation of the client, make or negotiate an agreement giving a covered attorney literary or media rights for a portrayal or account based in substantial part on information relating to representation of a client; (6) Represent a client in a matter directly adverse to a person whom the covered attorney knows is represented by another attorney who is related as parent, child, sibling, or spouse to the covered attorney, except upon consent by the client after consultation regarding the relationship; or (7) Acquire a proprietary interest in the cause of action or subject matter of litigation the covered attorney is conducting for a client. (c) [Reserved] § 776.28 Conflict of interest: Former client. (a) Conflict of interest: Former client. A covered attorney who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client, unless the former client gives informed consent, confirmed in writing. (b) A covered attorney who has formerly represented a client in a matter shall not thereafter: (1) Use information relating to the representation to the disadvantage of the former client or to the covered attorney’s own advantage, except as Subpart B of this part would permit or require with respect to a client, or when the information has become generally known; or (2) Reveal information relating to the representation except as subpart B of this part would permit or require with respect to a client. (c) [Reserved] PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 § 776.29 rule. Imputed disqualification: General (a) Imputed disqualification: General rule. Covered USG attorneys working in the same military law office are not automatically disqualified from representing a client because any of them practicing alone would be prohibited from doing so by § 776.26, § 776.27, § 776.28, or § 776.38 of this part. Covered non-USG attorneys must consult their federal, state, and local bar rules governing the representation of multiple or adverse clients within the same office before such representation is initiated, as such representation may expose them to disciplinary action under the rules established by their licensing authorities. (b)(1) The circumstances of military (or Government) service may require representation of opposing sides by covered USG attorneys working in the same law office. Such representation is permissible so long as conflicts of interests are avoided and independent judgment, zealous representation, and protection of confidences are not compromised. Thus, the principle of imputed disqualification is not automatically controlling for covered USG attorneys. The knowledge, actions, and conflicts of interests of one covered USG attorney are not imputed to another simply because they operate from the same office. For example, the fact that a number of defense attorneys operate from one office and normally share clerical assistance would not prohibit them from representing coaccused at trial by court-martial. Imputed disqualification rules for nonUSG attorneys are established by their individual licensing authorities and may well proscribe all attorneys from one law office from representing a coaccused, or a party with an adverse interest to an existing client, if any attorney in the same office were so prohibited. (2) Whether a covered USG attorney is disqualified requires a functional analysis of the facts in a specific situation. The analysis should include consideration of whether the following will be compromised: Preserving attorney-client confidentiality; maintaining independence of judgment; and avoiding positions adverse to a client. See, e.g., U.S. v. Stubbs, 23 M.J. 188 (CMA 1987). (3) Preserving confidentiality is a question of access to information. Access to information, in turn, is essentially a question of fact in a particular circumstance, aided by inferences, deductions, or working presumptions that reasonably may be made about the way in which covered E:\FR\FM\01MYP2.SGM 01MYP2 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules USG attorneys work together. A covered USG attorney may have general access to files of all clients of a military law office (e.g., legal assistance attorney) and may regularly participate in discussions of their affairs; it may be inferred that such a covered USG attorney in fact is privy to all information about all the office’s clients. In contrast, another covered USG attorney (e.g., military defense counsel) may have access to the files of only a limited number of clients and participate in discussion of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a covered USG attorney in fact is privy to information about the clients actually served but not to information of other clients. Additionally, a covered USG attorney changing duty stations or changing assignments within a military office has a continuing duty to preserve confidentiality of information about a client formerly represented. See § 776.25 and § 776.28 of this part. (4) In military practice, where covered USG attorneys representing adverse interests are sometimes required to share common spaces, equipment, and clerical assistance, inadvertent disclosure of confidential or privileged material may occur. A covered attorney who mistakenly receives any such confidential or privileged materials should refrain from reviewing them (except for the limited purpose of ascertaining ownership or proper routing), notify the attorney to whom the material belongs that he or she has such material, and either follow instructions of the attorney with respect to the disposition of the materials or refrain from further reviewing or using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court. A covered attorney’s duty to provide his or her client zealous representation does not justify a rule allowing the receiving attorney to take advantage of inadvertent disclosures of privileged and/or confidential materials. This policy recognizes and reinforces the principles of: Confidentiality and the attorney-client privilege; analogous principles governing the inadvertent waiver of the attorney-client privilege; the law governing bailments and missent property; and considerations of common sense, reciprocity, and professional courtesy. (5) Maintaining independent judgment allows a covered USG attorney to consider, recommend, and carry out any appropriate course of action for a client without regard to the covered USG attorney’s personal VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 interests or the interests of another. When such independence is lacking or unlikely, representation cannot be zealous. (6) Another aspect of loyalty to a client is the general obligation of any attorney to decline subsequent representations involving positions adverse to a former client in substantially related matters. This obligation normally requires abstention from adverse representation by the individual covered attorney involved, but, in the military legal office, abstention is not required by other covered USG attorneys through imputed disqualification. § 776.30 Successive Government and private employment. (a) Successive Government and private employment. Except as the law or regulations may otherwise expressly permit, a former covered USG attorney, who has information known to be confidential Government information about a person that was acquired while a covered USG attorney, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. The former covered USG attorney may continue association with a firm, partnership, or association representing any such client only if the disqualified covered USG attorney is screened from any participation in the matter and is apportioned no part of the fee or any other benefit therefrom. (1) The disqualified former covered USG attorney must ensure that he or she is screened from any participation in the matter and is apportioned no part of the fee or any other benefit therefrom; and, (2) Must provide written notice promptly to the appropriate Government agency to enable it to ascertain compliance with the provisions of applicable law and regulations. (b) Except as the law or regulations may otherwise expressly permit, a former covered USG attorney, who has information known to be confidential Government information about a person which was acquired while a covered USG attorney, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. The former covered USG attorney may continue association with a firm, partnership, or association representing any such client only if the disqualified covered USG attorney is screened from any participation in the matter and is PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 25545 apportioned no part of the fee or any other benefit therefrom. (c) Except as the law or regulations may otherwise expressly permit, a covered USG attorney shall not: (1) Participate in a matter in which the covered USG attorney participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the covered USG attorney’s stead in the matter; or, (2) Negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the covered USG attorney is participating personally and substantially. (d) As used in this Rule, the term ‘‘matter’’ includes: (1) Any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties, and (2) Any other matter covered by the conflict-of-interest rules of the DoD, DoN, or other appropriate Government agency. (e) As used in the Rule, the term ‘‘confidential Governmental information’’ means information that has been obtained under Governmental authority and that, at the time this Rule is applied, the Government is prohibited by law or regulations from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public. (f) [Reserved] § 776.31 Former judge or arbitrator. (a) Former judge or arbitrator. Except as stated in paragraph (c) of this section, 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 give informed consent, confirmed in writing. (b) A covered USG attorney shall not negotiate for employment with any person who is involved as a party or as attorney for a party in a matter in which the covered USG attorney is participating personally and substantially as a judge or other adjudicative officer. A covered USG attorney serving as law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for employment with a party or attorney involved in a matter in which the clerk is participating E:\FR\FM\01MYP2.SGM 01MYP2 25546 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules personally and substantially, but only after the covered USG attorney has notified the judge, other adjudicative officer, or arbitrator, and been disqualified from further involvement in the matter. (c) An arbitrator selected as a partisan of a party in a multi-member arbitration panel is not prohibited from subsequently representing that party. (d) [Reserved] wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.32 Department of the Navy as client. (a) Department of the Navy as client. Except when representing an individual client pursuant to paragraph (f) of this section, a covered USG attorney represents the DoN (or the Executive agency to which assigned) acting through its authorized officials. These officials include the heads of organizational elements within the naval service, such as the commanders of fleets, divisions, ships and other heads of activities. When a covered USG attorney is assigned to such an organizational element and designated to provide legal services to the head of the organization, an attorney-client relationship exists between the covered attorney and the DoN as represented by the head of the organization as to matters within the scope of the official business of the organization. The head of the organization may not invoke the attorney-client privilege or the rule of confidentiality for the head of the organization’s own benefit but may invoke either for the benefit of the DoN. In invoking either the attorney-client privilege or attorney-client confidentiality on behalf of the DoN, the head of the organization is subject to being overruled by higher authority. (b) If a covered USG attorney knows that an officer, employee, or other member associated with the organizational client is engaged in action, intends to act or refuses to act in a matter related to the representation that is either adverse to the legal interests or obligations of the DoN or a violation of law that reasonably might be imputed to the DoN, the covered USG attorney shall proceed as is reasonably necessary in the best interest of the naval service. In determining how to proceed, the covered USG attorney shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the covered USG attorney’s representation, the responsibility in the naval service and the apparent motivation of the person involved, the policies of the naval service concerning such matters, and any other relevant considerations. Any measures taken shall be designed to minimize prejudice VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 to the interests of the naval service and the risk of revealing information relating to the representation to persons outside the service. Such measures shall include: (1) Asking for reconsideration of the matter by the acting official; (2) Advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the naval service; (3) Referring the matter to, or seeking guidance from, higher authority in the chain of command including, if warranted by the seriousness of the matter, referral to the supervisory attorney assigned to the staff of the acting official’s next superior in the chain of command; or (4) Advising the acting official that his or her personal legal interests are at risk and that he or she should consult counsel as there may exist a conflict of interest for the covered USG attorney, and the covered USG attorney’s responsibility is to the organization. (c) If, despite the covered USG attorney’s efforts per paragraph (b) of this section, the highest authority that can act concerning the matter insists upon action or refuses to act, in clear violation of law, the covered USG attorney shall terminate representation with respect to the matter in question. In no event shall the attorney participate or assist in the illegal activity. In this case, a covered USG attorney shall report such termination of representation to the attorney’s supervisory attorney or attorney representing the next superior in the chain of command. (d) In dealing with the officers, employees, or members of the naval service a covered USG attorney shall explain the identity of the client when it is apparent that the naval service’s interests are adverse to those of the officer, employee, or member. (e) A covered USG attorney representing the naval service may also represent any of its officers, employees, or members, subject to the provisions of § 776.26 of this part and other applicable authority. If the DoN’s consent to dual representation is required by § 776.26 of this part, the consent shall be given by an appropriate official of the DoN other than the individual who is to be represented. (f) A covered USG attorney who has been duly assigned to represent an individual who is subject to criminal or disciplinary action or administrative proceedings, or to provide legal assistance to an individual, has, for those purposes, an attorney-client relationship with that individual. (g) [Reserved] PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 § 776.33 Client with diminished capacity. (a) Client with diminished capacity. When a client’s capacity to make adequately considered decisions in connection with the representation is diminished, whether because of minority, mental impairment, or for some other reason, the covered attorney shall, as far as reasonably possible, maintain a normal attorney-client relationship with the client. (b) When the covered attorney reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the covered attorney may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client. (c) Information relating to the representation of a client with diminished capacity is protected by § 776.25 of this part. When taking protective action pursuant to paragraph (b) of this section, the covered attorney is impliedly authorized under § 776.25(a) of this part to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. (d) [Reserved] § 776.34 Safekeeping property. (a) Safekeeping property. Covered USG attorneys shall not normally hold or safeguard property of a client or third persons in connection with representational duties. See § 776.27 of this part. (b) [Reserved] § 776.35 Declining or terminating representation. (a) Declining or terminating representation. Except as stated in paragraph (c) of this section, a covered attorney shall not represent a client or, when representation has commenced, shall seek to withdraw from the representation of a client if: (1) The representation will result in violation of subpart B of this part or other law or regulation; (2) The covered attorney’s physical or mental condition materially impairs his or her ability to represent the client; or (3) The covered attorney is dismissed by the client. (b) Except as stated in paragraph (c) of this section, a covered attorney may seek to withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: (1) The client persists in a course of action involving the covered attorney’s E:\FR\FM\01MYP2.SGM 01MYP2 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules services that the covered attorney reasonably believes is criminal or fraudulent; (2) The client has used the covered attorney’s services to perpetrate a crime or fraud; (3) The client insists upon pursuing an objective that the covered attorney considers repugnant or imprudent; (4) In the case of covered non-USG attorneys, the representation will result in an unreasonable financial burden on the attorney or has been rendered unreasonably difficult by the client; or (5) Other good cause for withdrawal exists. (c) A covered attorney must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal or other competent authority, a covered attorney shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a covered attorney shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for assignment or employment of other counsel, and surrendering papers and property to which the client is entitled and, where a non-USG attorney provided representation, refunding any advance payment of fee that has not been earned. The covered attorney may retain papers relating to the client to the extent permitted by law. (e) [Reserved] wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.36 Prohibited sexual relations. (a) Prohibited sexual relations. A covered attorney shall not have sexual relations with a current client. A covered attorney shall not require, demand, or solicit sexual relations with a client incident to any professional representation. (b) A covered attorney shall not engage in sexual relations with another attorney currently representing a party whose interests are adverse to those of a client currently represented by the covered attorney. (c) A covered attorney shall not engage in sexual relations with a judge who is presiding or who is likely to preside over any proceeding in which the covered attorney will appear in a representative capacity. (d) A covered attorney shall not engage in sexual relations with other persons involved in the particular case, judicial or administrative proceeding, or other matter for which representation has been established, including but not limited to witnesses, victims, co- VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 accused, and court-martial or board members. (e) For purposes of this Rule, ‘‘sexual relations’’ means: (1) Sexual intercourse; or (2) Any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the covered attorney for the purpose of arousing or gratifying the sexual desire of either party. (f) [Reserved] § 776.37 Advisor. (a) Advisor. In representing a client, a covered attorney shall exercise independent professional judgment and render candid advice. In rendering advice, a covered attorney may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation. (b) [Reserved] § 776.38 Mediation. (a) Mediation. A covered attorney may act as a mediator between individuals if: (1) The covered attorney consults with each individual concerning the implications of the mediation, including the advantages and risks involved, and the effect on the attorney-client confidentiality, and obtains each individual’s consent to the mediation; (2) The covered attorney reasonably believes that the matter can be resolved on terms compatible with each individual’s best interests, that each individual will be able to make adequately informed decisions in the matter, and that there is little risk of material prejudice to the interests of any of the individuals if the contemplated resolution is unsuccessful; and, (3) The covered attorney reasonably believes that the mediation can be undertaken impartially and without improper effect on other responsibilities the covered attorney has to any of the individuals. (b) While acting as a mediator, the covered attorney shall consult with each individual concerning the decisions to be made and the considerations relevant in making them, so that each individual can make adequately informed decisions. (c) A covered attorney shall withdraw as a mediator if any of the individuals so requests, or if any of the conditions stated in paragraph (a)(1) of this section is no longer satisfied. Upon withdrawal, the covered attorney shall not represent any of the individuals in the matter that was the subject of the mediation unless each individual consents. (d) [Reserved] PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 25547 § 776.39 Evaluation for use by third persons. (a) Evaluation for use by third persons. A covered attorney may provide an evaluation of a matter affecting a client for the use of someone other than the client if: (1) The covered attorney reasonably believes that making the evaluation is compatible with other aspects of the covered attorney’s relationship with the client; and (2) The client provides informed consent, confirmed in writing. (b) Except as disclosure is required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by § 776.25 of this part. (c) [Reserved] § 776.40 Meritorious claims and contentions. (a) Meritorious claims and contentions. A covered attorney shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A covered attorney representing an accused in a criminal proceeding or the respondent in an administrative proceeding, that could result in incarceration, discharge from the Naval service, or other adverse personnel action, may nevertheless defend the client at the proceeding as to require that every element of the case is established. (b) [Reserved] § 776.41 Expediting litigation. (a) Expediting litigation. A covered attorney shall make reasonable efforts to expedite litigation or other proceedings consistent with the interests of the client. (b) [Reserved] § 776.42 Candor and obligations toward the tribunal. (a) Candor and obligations toward the tribunal. A covered attorney shall not knowingly: (1) Make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the covered attorney; (2) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the covered attorney to be directly adverse to the position of the client and not disclosed by opposing counsel; (3) Offer evidence that the covered attorney knows to be false. E:\FR\FM\01MYP2.SGM 01MYP2 25548 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules (i) If a covered attorney, the attorney’s client, or a witness called by the covered attorney, has offered material evidence and the covered attorney comes to know of its falsity, the covered attorney shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (ii) A covered attorney may refuse to offer evidence, other than the testimony of an accused in a criminal matter, that the covered attorney reasonably believes is false; or (4) Disobey an order imposed by a tribunal unless done openly before the tribunal in a good faith assertion that no valid order should exist. (b) A covered attorney who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraph (a) of this section continue to the conclusion of the proceedings, and apply even if compliance requires disclosure of information otherwise protected by § 776.25 of this part. (d) In an ex parte proceeding, a covered attorney shall inform the tribunal of all material facts known to the covered attorney that will enable the tribunal to make an informed decision, whether or not the facts are adverse. (e) [Reserved] wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.43 Fairness to opposing party and counsel. (a) Fairness to opposing party and counsel. A covered attorney shall not: (1) Unlawfully obstruct a party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A covered attorney shall not counsel or assist another person to do any such act; (2) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (3) Knowingly disobey an order of the tribunal except for an open refusal based on an assertion that no valid obligation exists; (4) In pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by a party; (5) In trial, allude to any matter that the covered attorney does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused; or (6) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (i) The person is a relative, an employee, or other agent of a client; and (ii) The covered attorney reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information. (b) [Reserved] § 776.44 Impartiality and decorum of the tribunal. (a) Impartiality and decorum of the tribunal. A covered attorney shall not: (1) Seek to influence a judge, court member, member of a tribunal, prospective court member or member of a tribunal, or other official by means prohibited by law or regulation; (2) Communicate ex parte with such a person except as permitted by law or regulation; or (3) Engage in conduct intended to disrupt a tribunal. (b) [Reserved] § 776.45 Extra-tribunal statements. (a) Extra-tribunal statements. A covered attorney shall not make an extrajudicial statement about any person or case pending investigation or adverse administrative or disciplinary proceedings that a reasonable person would expect to be disseminated by means of public communication if the covered attorney knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding or an official review process thereof. (b) A statement referred to in paragraph (a) of this section ordinarily is likely to have such an effect when it refers to a civil matter triable to a jury, a criminal matter (including before a military tribunal or commission), or any other proceeding that could result in incarceration, discharge from the naval service, or other adverse personnel action, and the statement relates to: (1) The character, credibility, reputation, or criminal record of a party, suspect in a criminal investigation, victim, or witness, or the identity of a victim or witness, or the expected testimony of a party, suspect, victim, or witness; (2) The possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by an accused or suspect or that person’s refusal or failure to make a statement; PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 (3) The performance or results of any forensic examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented; (4) Any opinion as to the guilt or innocence of an accused or suspect in a criminal case or other proceeding that could result in incarceration, discharge from the naval service, or other adverse personnel action; (5) Information the covered attorney knows or reasonably should know is likely to be inadmissible as evidence before a tribunal and would, if disclosed, create a substantial risk of materially prejudicing an impartial proceeding; (6) The fact that an accused has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the accused is presumed innocent until and unless proven guilty; or (7) The credibility, reputation, motives, or character of civilian or military officials of the DoD. (c) Notwithstanding paragraphs (a) and (b)(1) through (7) of this section, a covered attorney involved in the investigation or litigation of a matter may state without elaboration: (1) The general nature of the claim, offense, or defense; (2) The information contained in a public record; (3) That an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law or regulation, the identity of the persons involved; (4) The scheduling or result of any step in litigation; (5) A request for assistance in obtaining evidence and information necessary thereto; (6) A warning of danger concerning the behavior of the person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) In a criminal case, in addition to paragraphs (c)(1) through (6) of this section: (i) The identity, duty station, occupation, and family status of the accused; (ii) If the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) The fact, time, and place of apprehension; and (iv) The identity of investigating and apprehending officers or agencies and the length of the investigation. E:\FR\FM\01MYP2.SGM 01MYP2 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules (d) Notwithstanding paragraphs (a) and (b)(1) through (7) of this section, a covered attorney may make a statement that a reasonable covered attorney would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the covered attorney or the attorney’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (e) The protection and release of information in matters pertaining to the DoN is governed by such statutes as the Freedom of Information Act and the Privacy Act, in addition to those governing protection of national defense information. In addition, other laws and regulations may further restrict the information that can be released or the source from which it is to be released (e.g., the Manual of the Judge Advocate General). (f) [Reserved] § 776.46 Attorney as witness. (a) Attorney as witness. A covered attorney shall not act as advocate at a trial in which the covered attorney is likely to be a necessary witness except when: (1) The testimony relates to an uncontested issue; (2) The testimony relates to the nature and quality of legal services rendered in the case; or (3) Disqualification of the covered attorney would work substantial hardship on the client. (b) A covered attorney may act as advocate in a trial in which another attorney in the covered attorney’s office is likely to be called as a witness, unless precluded from doing so by § 776.26 or § 776.28 of this part. (c) [Reserved] wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.47 Special responsibilities of a trial counsel and other government counsel. (a) Special responsibilities of a trial counsel and other government counsel. A trial counsel in a criminal case shall: (1) Recommend to the convening authority that any charge or specification not supported by probable cause be withdrawn; (2) Make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (3) Not seek to obtain from an unrepresented accused a waiver of important pretrial rights; (4) Make timely disclosure to the defense of all evidence or information VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 known to the trial counsel that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigating information known to the trial counsel, except when the trial counsel is relieved of this responsibility by a protective order or regulation; (5) Exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the trial counsel from making an extrajudicial statement that the trial counsel would be prohibited from making under § 776.45 of this part; and (6) Except for statements that are necessary to inform the public of the nature and extent of the trial counsel’s actions and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused. (b)(1) Trial counsel and other government counsel shall exercise reasonable care to avoid intercepting, seizing, copying, viewing, or listening to communications protected by the attorney-client privilege during investigation of a suspected offense (particularly when conducting government-sanctioned searches where attorney-client privileged communications may be present), as well as in the preparation or prosecution of a case. Such communications expressly include, but are not limited to: (i) Land-line telephone conversations; (ii) Facsimile transmissions; (iii) U.S. mail, and; (iv) Email. (2) Trial counsel and other government counsel must not infringe upon the confidential nature of attorney-client privileged communications and are responsible for the actions of their agents or representatives when they induce or assist them in intercepting, seizing, copying, viewing, or listening to such privileged communications. (c)(1) The trial counsel represents the United States in the prosecution of special and general courts-martial. See Article 38(a), UCMJ; see also R.C.M. 103(16), 405(d)(3)(A), and 502(d)(5). Accordingly, a trial counsel has the responsibility of administering justice and is not simply an advocate. This responsibility carries with it specific obligations to see that the accused is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 25549 (i) Paragraph (a)(1) of this section recognizes that the trial counsel does not have all the authority vested in modern civilian prosecutors. (ii) The authority to convene courtsmartial, and to refer and withdraw specific charges, is vested in convening authorities. (iii) Trial counsel may have the duty, in certain circumstances, to bring to the court’s attention any charge that lacks sufficient evidence to support a conviction. See United States v. Howe, 37 M.J. 1062 (NMCMR 1993). Such action should be undertaken only after consultation with a supervisory attorney and the convening authority. See also § 776.42(d) of this part (governing ex parte proceedings). Applicable law may require other measures by the trial counsel. (iv) Knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of § 776.69 of this part. (2) Paragraph (a)(3) of this part does not apply to an accused appearing pro se with the approval of the tribunal. Nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and to remain silent. (3) The exception in paragraph (a)(4) of this section recognizes that a trial counsel may seek an appropriate protective order from the tribunal if disclosure of information to the defense could result in substantial harm to an individual or organization or to the public interest. This exception also recognizes that applicable statutes and regulations may proscribe the disclosure of certain information without proper authorization. (4) A trial counsel may comply with paragraph (a)(5) of this section in a number of ways. These include personally informing others of the trial counsel’s obligations under § 776.46 of this part, conducting training of law enforcement personnel, and appropriately supervising the activities of personnel assisting the trial counsel. (5) Paragraph (a)(6) of this part supplements § 776.45 of this part, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. A trial counsel can, and should, avoid comments that have no legitimate law enforcement purpose and have a substantial likelihood of increasing public opprobrium of the accused. Nothing in this Comment is intended to restrict the statements that a trial counsel may make that comply with § 776.45 of this part. (6) The ‘‘ABA Standards for Criminal Justice: The Prosecution Function,’’ (3d E:\FR\FM\01MYP2.SGM 01MYP2 25550 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules ed. 1993), has been used by appellate courts in analyzing issues concerning trial counsel conduct. To the extent consistent with these Rules, the ABA standards may be used to guide trial counsel in the prosecution of criminal cases. See United States v. Howe, 37 M.J. 1062 (NMCRS 1993); United States v. Dancy, 38 M.J. 1 (CMA 1993); United States v. Hamilton, 41 M.J. 22 (CMA 1994); United States v. Meek, 44 M.J. 1 (CMA 1996). (d) [Reserved] § 776.48 Advocate in nonadjudicative proceedings. (a) Advocate in nonadjudicative proceedings. A covered attorney representing a client before a legislative or administrative tribunal in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of § 776.42 (a) through (d), § 776.43 and § 776.44 of this part. (b) [Reserved] § 776.49 others. Truthfulness in statements to (a) Truthfulness in statements to others. In the course of representing a client a covered attorney shall not knowingly; (1) Make a false statement of material fact or law to a third person; or (2) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by § 776.25 of this part. (b) [Reserved] § 776.50 Communication with person represented by counsel. (a) Communication with person represented by counsel. In representing a client, a covered attorney shall not communicate about the subject of the representation with a party the covered attorney knows to be represented by another attorney in the matter, unless the covered attorney has the consent of the other attorney or is authorized by law to do so. (b) [Reserved] wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.51 person. Dealing with an unrepresented (a) Dealing with an unrepresented person. When dealing on behalf of a client with a person who is not represented by counsel, a covered attorney shall not state or imply that the covered attorney is disinterested. When the covered attorney knows or reasonably should know that the unrepresented person misunderstands the covered attorney’s role in the matter, VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 the covered attorney shall make reasonable efforts to correct the misunderstanding. (b) [Reserved] § 776.52 Respect for rights of third persons. (a) Respect for rights of third persons. In representing a client, a covered attorney shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) [Reserved] § 776.53 Responsibilities of the Judge Advocate General and supervisory attorneys. (a) Responsibilities of the Judge Advocate General and supervisory attorneys. The JAG and supervisory attorneys shall make reasonable efforts to ensure that all covered attorneys conform to Subpart B of this part. (b) A covered attorney having direct supervisory authority over another covered attorney shall make reasonable efforts to ensure that the other attorney conforms to Subpart B of this part. (c) A supervisory attorney shall be responsible for another subordinate covered attorney’s violation of Subpart B of this part if: (1) The supervisory attorney orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) The supervisory attorney has direct supervisory authority over the other attorney and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (d) A supervisory attorney is responsible for ensuring that the subordinate covered attorney is properly trained and is competent to perform the duties to which the subordinate covered attorney is assigned. (e) [Reserved] § 776.54 Responsibilities of a subordinate attorney. (a) Responsibilities of a subordinate attorney. A covered attorney is bound by this part notwithstanding that the covered attorney acted at the direction of another person. (b) In recognition of the judge advocate’s unique dual role as a commissioned officer and attorney, subordinate judge advocates shall obey lawful directives and regulations of supervisory attorneys when not inconsistent with this part or the duty of a judge advocate to exercise independent professional judgment as to the best interest of an individual client. PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 (c) A subordinate covered attorney does not violate this part if that covered attorney acts in accordance with a supervisory attorney’s written and reasonable resolution of an arguable question of professional duty. (d) [Reserved] § 776.55 Responsibilities regarding nonattorney assistants. (a) Responsibilities regarding nonattorney assistants. With respect to a non-attorney acting under the authority, supervision, or direction of a covered attorney: (1) The senior supervisory attorney in an office shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of a covered attorney; (2) A covered attorney having direct supervisory authority over the nonattorney shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of a covered attorney; and (3) A covered attorney shall be responsible for conduct of such a person that would be a violation of this part if engaged in by a covered attorney if: (i) The covered attorney orders or, with the knowledge of the specific conduct, explicitly or impliedly ratifies the conduct involved; or (ii) The covered attorney has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. (b) [Reserved] § 776.56 Professional independence of a covered USG attorney. (a) Professional independence of a covered USG attorney. Notwithstanding a judge advocate’s status as a commissioned officer subject, generally, to the authority of superiors, a judge advocate detailed or assigned to represent an individual member or employee of the DoN is expected to exercise unfettered loyalty and professional independence during the representation consistent with subpart B of this part and remains ultimately responsible for acting in the best interest of the individual client. (b) Notwithstanding a civilian USG attorney’s status as a Federal employee subject, generally, to the authority of superiors, a civilian USG attorney detailed or assigned to represent an individual member or employee of the DoN is expected to exercise unfettered loyalty and professional independence during the representation consistent with this part and remains ultimately responsible for acting in the best interest of the individual client. E:\FR\FM\01MYP2.SGM 01MYP2 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules (c) The exercise of professional judgment in accordance with paragraphs (a) or (b) of this section shall not, standing alone, be a basis for an adverse evaluation or other prejudicial action. (1) Subpart B of this part recognizes that a judge advocate is a military officer required by law to obey the lawful orders of superior officers. It also recognizes the similar status of a civilian USG attorney. Nevertheless, the practice of law requires the exercise of judgment solely for the benefit of the client and free of compromising influences and loyalties. Thus, when a covered USG attorney is assigned to represent an individual client, neither the attorney’s personal interests, the interests of other clients, nor the interests of third persons should affect loyalty to the individual client. (2) Not all direction given to a subordinate covered attorney is an attempt to influence improperly the covered attorney’s professional judgment. Each situation must be evaluated by the facts and circumstances, giving due consideration to the subordinate’s training, experience, and skill. A covered attorney subjected to outside pressures should make full disclosure of them to the client. If the covered attorney or the client believes the effectiveness of the representation has been or will be impaired thereby, the covered attorney should take proper steps to withdraw from representation of the client. (3) Additionally, a judge advocate has a responsibility to report any instances of unlawful command influence. See R.C.M. 104, MCM, 1998. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.57 Unauthorized practice of law. (a) Unauthorized practice of law. A covered USG attorney shall not: (1) Except as authorized by an appropriate military department, practice law in a jurisdiction where doing so is prohibited by the regulations of the legal profession in that jurisdiction; or (2) Assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. (3) Engage in the outside practice of law without receiving proper authorization from the JAG. (b) Limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. A covered USG attorney’s performance of legal duties pursuant to a military department’s authorization, however, is considered a Federal function and not subject to regulation by the states. Thus, a covered VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 USG attorney may perform legal assistance duties even though the covered attorney is not licensed to practice in the jurisdiction within which the covered attorney’s duty station is located. Paragraph (a)(2) of this section does not prohibit a covered USG attorney from using the services of non-attorneys and delegating functions to them, so long as the covered attorney supervises the delegated work and retains responsibility for it. See § 776.55 of this part. Likewise, it does not prohibit covered USG attorneys from providing professional advice and instruction to non-attorneys whose employment requires knowledge of law; for example, claims adjusters, social workers, accountants and persons employed in Government agencies. In addition, a covered USG attorney may counsel individuals who wish to proceed pro se or non-attorneys authorized by law or regulation to appear and represent themselves or others before military proceedings. §§ 776.58–776.65 [Reserved] 25551 own admission or discipline as well as that of others. Thus, it is a separate professional offense for a covered attorney to make a knowing misrepresentation or omission in connection with a disciplinary investigation of the covered attorney’s own conduct. (2) Subpart B of this part also requires affirmative clarification of any misunderstanding on the part of the admissions, certification, or disciplinary authority of which the person involved becomes aware. § 776.67 Judicial and legal officers. (a) Judicial and legal officers. A covered attorney shall not make a statement that the covered attorney knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, investigating officer, hearing officer, adjudicatory officer, or public legal officer, or of a candidate for election or appointment to judicial or legal office. (b) [Reserved] § 776.66 Bar admission and disciplinary matters. § 776.68 Reporting professional misconduct. (a) Bar admission and disciplinary matters. A covered attorney, in connection with any application for bar admission, appointment as a judge advocate, employment as a civilian USG attorney, certification by the JAG or his designee, or in connection with any disciplinary matter, shall not: (1) Knowingly make a false statement of fact; or (2) Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this part does not require disclosure of information otherwise protected by § 776.25 of this part. (b) The duty imposed by subpart B of this part extends to covered attorneys and other attorneys seeking admission to a bar, application for appointment as a covered USG attorney (military or civilian) or certification by the JAG or his designee. Hence, if a person makes a false statement in connection with an application for admission or certification (e.g., misstatement by a civilian attorney before a military judge regarding qualifications under R.C.M. 502), it may be the basis for subsequent disciplinary action if the person is admitted, and in any event may be relevant in a subsequent admission application. (1) The duty imposed by subpart B of this part applies to a covered attorney’s (a) Reporting professional misconduct. A covered attorney having knowledge that another covered attorney has committed a violation of subpart B of this part that raises a substantial question as to that covered attorney’s honesty, trustworthiness, or fitness as a covered attorney in other respects, shall report such violation in accordance with the procedures set forth in this part. (b) A covered attorney having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office shall report such violation in accordance with the procedures set forth in this part. (c) This part does not require disclosure of information otherwise protected by § 776.25 of this part. (d) [Reserved] PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 § 776.69 Misconduct. (a) Misconduct. It is professional misconduct for a covered attorney to: (1) Violate or attempt to violate subpart B of this part, knowingly assist or induce another to do so, or do so through the acts of another; (2) Commit a criminal act that reflects adversely on the covered attorney’s honesty, trustworthiness, or fitness as an attorney in other respects; (3) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; E:\FR\FM\01MYP2.SGM 01MYP2 25552 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules (4) Engage in conduct that is prejudicial to the administration of justice; (5) State or imply an ability to influence improperly a government agency or official; or (6) Knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. (b)(1) Judge advocates hold a commission as an officer in the Navy or Marine Corps and assume legal responsibilities going beyond those of other citizens. A judge advocate’s abuse of such commission can suggest an inability to fulfill the professional role of judge advocate and attorney. This concept has similar application to civilian USG attorneys. (2) Covered non-USG attorneys, Reservists, and Retirees (acting in their civilian capacity), like their active-duty counterparts, are expected to demonstrate model behavior and exemplary integrity at all times. The JAG may consider any and all derogatory or beneficial information about a covered attorney, for purposes of determining the attorney’s qualification, professional competence, or fitness to practice law in DoN matters, or to administer discipline under this instruction. Such consideration shall be made, except in emergency situations necessitating immediate action, according to the procedures established in this instruction. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.70 Jurisdiction. (a) Jurisdiction. All covered attorneys shall be governed by this part. (b)(1) Many covered USG attorneys practice outside the territorial limits of the jurisdiction in which they are licensed. While covered attorneys remain subject to the governing authority of the jurisdiction in which they are licensed to practice, they are also subject to subpart B of this part. (2) When covered USG attorneys are engaged in the conduct of Navy or Marine Corps legal functions, whether serving the Navy or Marine Corps as a client or serving an individual client as authorized by the Navy or Marine Corps, the provisions contained in Subpart B of this part supersede any conflicting rules applicable in jurisdictions in which the covered attorney may be licensed. However, covered attorneys practicing in State or Federal civilian court proceedings will abide by the rules adopted by that State or Federal civilian court during the proceedings. As for covered non-USG attorneys practicing under the supervision of the JAG, violation of the VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 the military judge to be qualified to represent the accused. (e)(1) Generally, the JAG relies on the licensing authority granting the certification or privilege to practice law to define the phrase ‘‘good standing.’’ However, as circumstances require, the JAG may, instead, use separate criteria to determine compliance. At a minimum, ‘‘good standing’’ means the individual: (i) Is subject to the jurisdiction’s disciplinary review process; (ii) Has not been suspended or disbarred from the practice of law within the jurisdiction; § 776.71 Requirement to remain in good (iii) Is current in the payment of all standing with licensing authorities. required fees; (a) Requirement to remain in good (iv) Has met applicable continuing standing with licensing authorities. Each legal education requirements that the officer of the Navy appointed as a jurisdiction has imposed (or the member of the JAG Corps, each officer cognizant authority has waived); and of the Marine Corps designated a judge (v) Has met such other requirements advocate, and each civil service and as the cognizant authority has set for contracted civilian attorney who eligibility to practice law. So long as practices law under the cognizance and these conditions are met, a covered USG supervision of the JAG shall maintain a attorney may be ‘‘inactive’’ as to the status considered ‘‘in good standing’’ at practice of law within a particular all times with the licensing authority jurisdiction and still be ‘‘in good admitting the individual to the practice standing’’ for purposes of subpart B of of law before the highest court of at least this part. one State, Territory, Commonwealth, or (2) Rule for Court-Martial 502(d)(3)(A) the District of Columbia. requires that any civilian defense (b) The JAG, the Staff Judge Advocate counsel representing an accused in a to the Commandant of the Marine court-martial be a member of the bar of Corps, or any other supervisory attorney a Federal court or of the bar of the may require any covered USG attorney highest court of a State. This civilian over whom they exercise authority to defense counsel qualification only has establish that the attorney continues to meaning if the attorney is a member ‘‘in be in good standing with his or her good standing,’’ and is then authorized licensing authority. Representatives of to practice law within that jurisdiction. the JAG or of the Staff Judge Advocate See United States v. Waggoner, 22 M.J. to the Commandant of the Marine 692 (AFCMR 1986). It is appropriate for Corps, may also inquire directly of any the military judge, in each and every such covered USG attorney’s licensing case, to ensure that a civilian defense authority to establish whether he or she counsel is qualified to represent the continues to be in good standing and accused. has no disciplinary action pending. (3) Failure of a judge advocate to (c) Each covered USG attorney shall comply with the requirements of immediately report to the JAG if any subpart B of this part may result in jurisdiction in which the covered USG professional disciplinary action as attorney is or has been a member in provided for in this instruction, loss of good standing commences disciplinary certification under Articles 26 and/or investigation or action against him or 27(b), UCMJ, adverse entries in military her or if the covered USG attorney is service records, and administrative disciplined, suspended, or disbarred separation under SECNAVINST 1920.6 from the practice of law in any (series) based on the officer’s failure to jurisdiction. maintain professional qualifications. In the case of civil service and contracted (d) Each covered non-USG attorney civilian attorneys practicing under the representing an accused in any courtJAG’s cognizance and supervision, martial or administrative separation failure to maintain good standing or proceeding shall be a member in good otherwise to comply with the standing with, and authorized to requirements of subpart B of this part practice law by, the bar of a Federal may result in adverse administrative court or of the bar of the highest court action under applicable personnel of a State, or a lawyer otherwise regulations, including termination of authorized by a recognized licensing employment. authority to practice law and found by provisions contained in Subpart B of this part may result in suspension from practice in DoN proceedings. (3) Covered non-USG attorneys, Reservists, or Retirees (acting in their civilian capacity) who seek to provide legal services in any DoN matter under JAG cognizance and supervision, may be precluded from such practice of law if, in the opinion of the JAG (as exercised through this instruction) the attorney’s conduct in any venue renders that attorney unable or unqualified to practice in DoN programs or proceedings. PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\01MYP2.SGM 01MYP2 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules (4) A covered USG attorney need only remain in good standing in one jurisdiction. If admitted to the practice of law in more than one jurisdiction, however, and any jurisdiction commences disciplinary action against or disciplines, suspends or disbars the covered USG attorney from the practice of law, the covered USG attorney must so advise the JAG. (5) An essential time to verify that a judge advocate is currently in good standing is upon accession. Other appropriate times for verification are before a judge advocate is promoted to a higher grade, detailed to a new command, or assigned to duties where there is a statutory requirement to be a member of the bar, such as a military judge per 10 U.S.C. 826(b). The JAG, the SJA to CMC, or any other supervisory attorney may need to verify the professional qualifications of a judge advocate, either periodically or on an occasional basis. JAGINST 5803.2 (series) establishes a biennial requirement for all covered attorneys to provide proof of good standing. (6) Certification by the United States Court of Appeals for the Armed Forces that a judge advocate is in good standing with that court will not satisfy the requirement of this section, since such status is normally dependent on Article 27, UCMJ, certification. §§ 776.72–776.75 [Reserved] Subpart C—Complaint Processing Procedures wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.76 Policy. (a) It is JAG’s policy to investigate and resolve, expeditiously and fairly, all allegations of professional impropriety lodged against covered attorneys under JAG supervision. (b) Rules Counsel approval will be obtained before conducting any preliminary inquiry or formal investigation into an alleged violation of the Rules of Professional Conduct (subpart B of this part) or the ABA Model Code of Judicial Conduct (Code of Judicial Conduct). The Rules Counsel will notify the JAG prior to the commencement of any preliminary inquiry or investigation. The preliminary inquiry and any subsequent investigation will be conducted according to the procedures set forth in this subpart. § 776.77 Related investigations and actions. Acts or omissions by covered attorneys may constitute professional misconduct, criminal misconduct, poor performance of duty, or a combination of all three. Care must be taken to VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 characterize appropriately the nature of a covered attorney’s conduct to determine who may and properly should take official action. (a) Questions of legal ethics and professional misconduct by covered attorneys are within the exclusive province of the JAG. Ethical or professional misconduct will not be attributed to any covered attorney in any official record without a final JAG determination, made in accordance with this part, that such misconduct has occurred. (b) Criminal misconduct is properly addressed by the covered USG attorney’s commander through the disciplinary process provided under the UCMJ and implementing regulations, or through referral to appropriate civil authority. (c) Poor performance of duty is properly addressed by the covered USG attorney’s reporting senior through a variety of administrative actions, including documentation in fitness reports or employee appraisals. (d) Prior JAG approval is not required to investigate allegations of criminal conduct or poor performance of duty involving covered attorneys. When, however, investigations into criminal conduct or poor performance reveal conduct that constitutes a violation of this part, or of the Code of Judicial Conduct in the case of judges, such conduct shall be reported to the Rules Counsel immediately. (e) Generally, professional responsibility complaints will be processed in accordance with this part upon receipt. Rules Counsel may, however, on a case-by-case basis, delay such processing to await the outcome of pending related criminal, administrative, or investigative proceedings. (f) Nothing in this part prevents a military judge or other appropriate official from removing a covered attorney from acting in a particular court-martial or prevents the JAG, the SJA to CMC, or the appropriate official from reassigning a covered attorney to different duties prior to, during, or subsequent to proceedings conducted under the provision of this part. § 776.78 Informal complaints. Informal, anonymous, or ‘‘hot line’’ type complaints alleging professional misconduct must be referred to the appropriate authority (such as the JAG Inspector General or the concerned supervisory attorney) for inquiry. Such complaints are not, by themselves, cognizable under this subpart but may, if reasonably confirmed, be the basis of PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 25553 a formal complaint described in § 776.79 of this part. § 776.79 The formal complaint. (a) The formal complaint shall: (1) Be in writing and be signed by the complainant; (2) State that the complainant has personal knowledge, or has otherwise received reliable information indicating, that: (i) The covered attorney concerned is, or has been, engaged in misconduct that demonstrates a lack of integrity, that constitutes a violation of this part or the Code of Judicial Conduct or a failure to meet the ethical standards of the profession; or (ii) The covered attorney concerned is ethically, professionally, or morally unqualified to perform his or her duties; and (iii) Contain a complete, factual statement of the acts or omissions constituting the substance of the complaint, as well as a description of any attempted resolution with the covered attorney concerned. Supporting statements, if any, should be attached to the complaint. (b) A complaint may be initiated by any person, including the Administrative Law Division of the Office of the Judge Advocate General (OJAG) Administrative Law Division (Code 13) or the Judge Advocate Research and Civil Law Branch, Office of the SJA to CMC, HQMC (JAR). § 776.80 Initial screening. (a) Complaints involving conduct of a Navy or Marine Corps trial or appellate judge shall be forwarded to OJAG (Code 05). All other complaints shall be forwarded to OJAG (Code 13) or, in cases involving Marine Corps judge advocates or civil service and contracted civilian attorneys who perform legal services under the cognizance and supervision of the SJA to CMC, to JAR. In cases involving Marine judge advocates, including trial and appellate judges, where the SJA to CMC is not the Rules Counsel, the cognizant Rules Counsel will notify the SJA to CMC when a complaint is received. (b) OJAG (Code 05), OJAG (Code 13), and JAR shall log all formal complaints received and will ensure a copy of the complaint and allied papers is provided to the covered attorney who is the subject of the complaint. Service of the formal complaint and other materials on the covered attorney must be accomplished through personal service or registered/certified mail sent to the covered attorney’s last known address reflected in official Navy and Marine Corps records or in the records of the E:\FR\FM\01MYP2.SGM 01MYP2 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 25554 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules state bar(s) that licensed the attorney to practice law. The covered attorney’s supervisory attorney must also be provided notice of the complaint. (c) The covered attorney concerned may elect to provide an initial statement, normally within ten calendar days from receipt, regarding the complaint for the Rules Counsel’s consideration. The covered attorney will promptly inform OJAG (Code 05), OJAG (Code 13), or JAR if he or she intends to submit any such statement. At this screening stage, forwarding of the complaint to the Rules Counsel will not be unduly delayed to await the covered attorney’s submission. (d) The cognizant Rules Counsel shall initially review the complaint, and any statement submitted by the covered attorney complained of, to determine whether it complies with the requirements set forth in paragraph (4) of this section. The Rules Counsel is not required to delay the initial review of the complaint awaiting the covered attorney’s submission. (1) Complaints that do not comply with the requirements may be returned to the complainant for correction or completion, and resubmission to OJAG (Code 05), OJAG (Code 13), or JAR. (i) If the complaint is not corrected or completed and resubmitted within 30 days of the date of its return, the Rules Counsel may close the file without further action. (ii) OJAG (Code 05), OJAG (Code 13), and JAR will maintain copies of all correspondence relating to the return and resubmission of a complaint, and shall notify the covered attorney concerned, as well as the supervisory attorney, if and when the Rules Counsel takes action to close the file. (2) Complaints that comply with the requirements shall be further reviewed by the cognizant Rules Counsel to determine whether the complaint establishes probable cause to believe that a violation of subpart B of this part or Code of Judicial Conduct has occurred. (e) The cognizant Rules Counsel shall close the file without further action if the complaint does not establish probable cause to believe a violation has occurred. The Rules Counsel shall notify the complainant, the covered attorney concerned, and the supervisory attorney, that the file has been closed. OJAG (Code 05), OJAG (Code 13), and JAR will maintain copies of all correspondence related to the closing of the file. (f) The cognizant Rules Counsel may close the file if there is a determination that the complaint establishes probable cause but the violation is of a minor or VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 technical nature appropriately addressed through corrective counseling. The Rules Counsel shall report any such decision, to include a brief summary of the case, to the JAG. (In cases relating to Marine judge advocates, including trial and appellate judges, in which the SJA to CMC is not the cognizant Rules Counsel, an information copy shall be forwarded to the SJA to CMC.) (1) The Rules Counsel shall ensure the covered attorney concerned receives appropriate counseling and shall notify the complainant, the covered attorney concerned, and the supervisory attorney that the file has been closed. OJAG (Code 05), OJAG (Code 13), and JAR will maintain copies of all correspondence related to the closing of the file. (2) The covered attorney concerned is responsible, under these circumstances, to determine if his or her Federal, state, or local licensing authority requires reporting of such action. § 776.81 Forwarding the Complaint. (a) If the Rules Counsel determines there is probable cause to believe that a violation of subpart B of this part or of the Code of Judicial Conduct has occurred, and the violation is not of a minor or technical nature, the Rules Counsel shall notify the JAG. (In cases relating to Marine Corps judge advocates, including trial and appellate judges, in which the SJA to CMC is not the cognizant Rules Counsel, the SJA to CMC shall also be notified.) The Rules Counsel shall forward the complaint and any allied papers, as follows: (1) In cases involving a military trial judge, if practicable, to a covered attorney with experience as a military trial judge (normally senior to and of the same Service (Navy or Marine Corps) as the covered attorney complained of and not previously involved in the case) and assign the officer to conduct a preliminary inquiry into the matter; (2) In cases involving a military appellate judge, if practicable, to a covered attorney with experience as a military appellate judge (normally senior to and of the same Service (Navy or Marine Corps) as the covered attorney complained of and not previously involved in the case) and assign the officer to conduct a preliminary inquiry into the matter; (3) In all other cases, to such covered attorney as the cognizant Rules Counsel may designate (normally senior to the covered attorney complained of and not previously involved in the case), and assign the officer to conduct a preliminary inquiry into the matter. (b) The Rules Counsel shall provide notice of the complaint (if not PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 previously informed) as well as notice of the preliminary inquiry: (1) To the covered attorney against whom the complaint is made as well as the supervisory attorney; (2) In cases involving a covered USG attorney on active duty or in civilian Federal service, to the commanding officer, or equivalent, of the covered USG attorney concerned; (3) In cases involving Navy or Marine Corps judge advocates serving in Naval Legal Service Command (NLSC) units, to Commander, NLSC; (4) In cases involving Navy attorneys serving in Marine Corps units, involving Marine Corps attorneys serving in Navy units, or involving Marine Corps trial and appellate judges, to the SJA to CMC (Attn: JAR); (5) In cases involving trial or appellate court judges, to either the Chief Judge, Navy-Marine Corps Trial Judiciary or Chief Judge, Navy-Marine Corps Court of Criminal Appeals, as appropriate; and (6) In cases involving covered attorneys certified by the Judge Advocates General/Chief Counsel of the other uniformed services, to the appropriate military service attorney discipline section. § 776.82 Interim suspension. (a) Where the Rules Counsel determines there is probable cause to believe that a covered attorney has committed misconduct and poses a substantial threat of irreparable harm to his or her clients or the orderly administration of military justice, the Rules Counsel shall so advise the JAG. Examples of when a covered attorney may pose a ‘‘substantial threat of irreparable harm’’ include, but are not limited to: (1) When charged with the commission of a crime which involves moral turpitude or reflects adversely upon the covered attorney’s fitness to practice law, and where substantial evidence exists to support the charge; (2) When engaged in the unauthorized practice of law (e.g., failure to maintain good standing in accordance with § 776.71 of this part); or (3) Where unable to represent client interests competently. (b) Upon receipt of information from the Rules Counsel, JAG may order the covered attorney to show cause why he or she should not face interim suspension, pending completion of a professional responsibility investigation. The covered attorney shall have 10 calendar days in which to respond. Notice of the show cause order shall be provided as outlined in § 776.81(b) of this part. E:\FR\FM\01MYP2.SGM 01MYP2 wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules (c) If an order to show cause has been issued under paragraph (b) of this section, and the period for response has passed without a response, or after consideration of any response and finding sufficient evidence demonstrating probable cause to believe that the covered attorney is guilty of misconduct and poses a substantial threat of irreparable harm to his or her client or the orderly administration of military justice, the JAG may direct an interim suspension of the covered attorney’s certification under Articles 26(b) or 27(b), UCMJ, or R.C.M. 502(d)(3), or the authority to provide legal assistance, pending the results of the investigation and final action under this part. Notice of such action shall be provided as outlined in § 776.81(b) of this part. (d) Within 10 days of the JAG’s decision to impose an interim suspension, the covered attorney may request an opportunity to be heard before an impartial officer designated by the JAG. Where so requested, that opportunity will be scheduled within 10 calendar days of the request. The designated officer shall receive any information that the covered attorney chooses to submit on the limited issue of whether to continue the interim suspension. The designated officer shall submit a recommendation to the JAG within 5 calendar days of conclusion. (e) A covered attorney may, based upon a claim of changed circumstances or newly discovered evidence, petition for dissolution or amendment of the JAG’s imposition of interim suspension. (f) Any professional responsibility investigation involving a covered attorney who has been suspended pursuant to subpart B of this part shall proceed and be concluded without appreciable delay. However, the JAG may determine it necessary to await completion of a related criminal investigation or proceeding, or completion of a professional responsibility action initiated by other licensing authorities. In such cases, the JAG shall cause the Rules Counsel to so notify the covered attorney under interim suspension as well as those officials outlined in § 776.81(b) of this part. Where necessary, continuation of the interim suspension shall be reviewed by the JAG every 6 months. § 776.83 Preliminary inquiry. (a) The purpose of the preliminary inquiry is to determine whether, in the opinion of the officer appointed to conduct the preliminary inquiry (PIO), the questioned conduct occurred and, if so, whether the preponderance of the evidence demonstrates that such VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 conduct constitutes a violation of subpart B of this part or the Code of Judicial Conduct. The PIO is to recommend appropriate action in cases of substantiated violations. (b) Upon receipt of the complaint, the PIO shall promptly investigate the allegations, generally following the format and procedures set forth in the Manual of the Judge Advocate General (JAGMAN) for the conduct of command investigations. Reports of relevant investigations by other authorities including, but not limited to, the command, the Inspector General, and State licensing authorities should be used. The PIO should also: (1) Identify and obtain sworn affidavits or statements from all relevant and material witnesses to the extent practicable; (2) Identify, gather, and preserve all other relevant and material evidence; and (3) Provide the covered attorney concerned an opportunity to review all evidence, affidavits, and statements collected and a reasonable period of time (normally not exceeding 10 calendar days) to submit a written statement or any other written material that the covered attorney wishes considered. (c) The PIO may appoint and use such assistants as may be necessary to conduct the preliminary inquiry. (d) The PIO shall personally review the results of the preliminary inquiry to determine whether, by a preponderance of the evidence, a violation of subpart B of this part or of the Code of Judicial Conduct has occurred. (1) If the PIO determines that no violation has occurred or that the violation is minor or technical in nature and warrants only corrective counseling, then he or she may recommend that the file be closed. (2) If the PIO determines by a preponderance of the evidence that a violation did occur, and that corrective action greater than counseling may be warranted, he or she shall: (i) Draft a list of substantiated violations of these Rules of Professional Conduct or the Code of Judicial Conduct; (ii) Recommend appropriate action; and (iii) Forward the preliminary inquiry to the Rules Counsel, providing copies to the covered attorney concerned and the supervisory attorney. (e) The Rules Counsel shall review all preliminary inquiries. If the report is determined by the Rules Counsel to be incomplete, the Rules Counsel shall return it to the PIO, or to another inquiry officer, for further or PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 25555 supplemental inquiry. If the report is complete, then: (1) If the Rules Counsel determines, either consistent with the PIO recommendation or through the Rules Counsel’s own review of the report, that a violation of this part has not occurred and that further action is not warranted, the Rules Counsel shall close the file and notify the complainant, the covered attorney concerned, and all officials previously provided notice of the complaint. OJAG (Code 05), OJAG (Code 13), and/or JAR, as appropriate, will maintain copies of all correspondence related to the closing of the file. (2) If the Rules Counsel determines, either consistent with a PIO recommendation or through the Rules Counsel’s own review of the report, that a violation of subpart B of this part has occurred but that the violation is of a minor or technical nature, then the Rules Counsel may determine that corrective counseling is appropriate and close the file. (i) The Rules Counsel shall report any such decision, to include a brief summary of the case, to the JAG. The Rules Counsel shall ensure that the covered attorney concerned receives appropriate counseling and shall notify the complainant, the covered attorney concerned, and all officials previously provided notice of the complaint that the file has been closed. OJAG (Code 05), OJAG (Code 13), and/or JAR, as appropriate, will maintain copies of all correspondence related to the closing of the file. (ii) The covered attorney concerned is responsible, under these circumstances, to determine if his or her Federal, state, or local licensing authority requires reporting such action. (3) If the Rules Counsel determines, either consistent with a PIO recommendation or through the Rules Counsel’s own review of the report, that further professional discipline or corrective action may be warranted, the Rules Counsel shall notify the JAG and take the following action: (i) In cases involving a military trial judge, if practicable, forward the recommendation to a covered attorney with experience as a military trial judge (normally senior to and of the same Service (Navy or Marine Corps) as the covered attorney complained of and not previously involved in the case) and assign the officer to conduct an ethics investigation into the matter (see R.C.M. 109 of reference (b)); (ii) In cases involving a military appellate judge, forward the recommendation to a covered attorney with experience as a military appellate judge (normally senior to and of the E:\FR\FM\01MYP2.SGM 01MYP2 25556 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules same Service (Navy or Marine Corps) as the covered attorney complained of and not previously involved in the case) and assign the officer to conduct an ethics investigation into the matter (see R.C.M. 109 of reference (b)); or (iii) In all other cases, assign a covered attorney (normally senior to the covered attorney complained of and not previously involved in the case) to conduct an ethics investigation. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.84 Ethics investigation. (a) When an ethics investigation is initiated, the covered attorney concerned shall be so notified, in writing, by the Rules Counsel. Notice of such action shall also be provided as outlined in § 776.81(b) of this part. (b) The covered attorney concerned will be provided written notice of the following rights in connection with the ethics investigation: (1) To request a hearing before the investigating officer (IO); (2) To inspect all evidence gathered; (3) To present written or oral statements or materials for consideration; (4) To call witnesses at his or her own expense (local military witnesses should be made available at no cost); (5) To be assisted by counsel (see paragraph (c) of this section); (6) To challenge the IO for cause (such challenges must be made in writing and sent to the Rules Counsel via the challenged officer); and (7) To waive any or all of these rights. Failure to affirmatively elect any of the rights included in this section shall be deemed a waiver by the covered attorney. (c) If a hearing is requested, the covered attorney may be represented by counsel at the hearing. Such counsel may be: (1) A civilian attorney retained at no expense to the Government; or, (2) In the case of a covered USG attorney, another USG attorney: (i) Detailed by the cognizant Naval Legal Service Office (NLSO), (or Defense Services Office (DSO), effective October 1, 2012), Law Center, or Legal Service Support Section (LSSS); or (ii) Requested by the covered attorney concerned, if such counsel is deemed reasonably available in accordance with the provisions regarding individual military counsel set forth in Chapter I of the JAGMAN. There is no right to detailed counsel if requested counsel is made available. (d) If a hearing is requested, the IO will conduct the hearing after reasonable notice to the covered attorney concerned. (1) The hearing will not be unreasonably delayed. The hearing is VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 not adversarial in nature and there is no right to subpoena witnesses. (2) Rules of evidence do not apply. (3) The covered attorney concerned or his or her counsel may question witnesses that appear. (4) The proceedings shall be recorded but no transcript of the hearing need be made. (5) Evidence gathered during, or subsequent to, the preliminary inquiry and such additional evidence as may be offered by the covered attorney shall be considered. (e) The IO may appoint and use such assistants as may be necessary to conduct the ethics investigation. (f) The IO shall prepare a report which summarizes the evidence, to include information presented at any hearing. (1) If the IO believes that no violation has occurred or, by clear and convincing evidence, that the violation has occurred but the violation is minor or technical in nature and warrants only corrective counseling, then he or she may recommend that the file be closed. (2) If the IO believes by clear and convincing evidence that a violation did occur, and that corrective action greater than counseling is warranted, he or she shall: (i) Modify, as necessary, the list of substantiated violations of this part or, in the case of a military trial or appellate judge, the Code of Judicial Conduct; (ii) Recommend appropriate action; and (iii) Forward the ethics investigation to the Rules Counsel with a copy to the attorney investigated. (g) The Rules Counsel shall review all ethics investigations. If the report is determined by the Rules Counsel to be incomplete, the Rules Counsel shall return it to the IO, or to another inquiry officer, for further or supplemental inquiry. If the report is complete, then: (1) If the Rules Counsel determines, either consistent with the IO recommendation or through the Rules Counsel’s own review of the investigation, that a violation of subpart B of this part or Code of Judicial Conduct has not occurred and that further action is not warranted, the Rules Counsel shall close the file and notify the complainant, the covered attorney concerned, and all officials previously notified of the complaint. OJAG (Code 05), OJAG (Code 13) and/ or JAR, as appropriate, will maintain copies of all correspondence related to the closing of the file. (2) If the Rules Counsel determines, either consistent with the IO recommendation or through the Rules Counsel’s own review of the PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 investigation, that a violation of this part or Code of Judicial Conduct has occurred but that the violation is of a minor or technical nature, then the Rules Counsel may determine that corrective counseling is appropriate and close the file. The Rules Counsel shall report any such decision, to include a brief summary of the case, to the JAG. (i) In cases relating to Marine judge advocates, including trial and appellate judges, in which the SJA to CMC is not the cognizant Rules Counsel, an information copy shall be forwarded to the SJA to CMC. (ii) The Rules Counsel shall ensure that the covered attorney concerned receives appropriate counseling and shall notify the complainant, the covered attorney concerned, and all officials previously notified of the complaint that the file has been closed. OJAG (Code 05), OJAG (Code 13), and/ or JAR, as appropriate, will maintain copies of all correspondence related to the closing of the file. (iii) The covered attorney concerned is responsible, under these circumstances, to determine if his or her Federal, state, or local licensing authority requires reporting such action. (3) If the Rules Counsel believes, either consistent with the IO recommendation or through the Rules Counsel’s own review of the inquiry report, that professional disciplinary action greater than corrective counseling is warranted, the Rules Counsel shall forward the investigation, with recommendations as to appropriate disposition, to the JAG. (In cases relating to Marine judge advocates, including trial and appellate judges, in which the SJA to CMC is not the cognizant Rules Counsel, an information copy shall be forwarded to the SJA to CMC.) § 776.85 Effect of separate proceeding. (a) For purposes of this section, the term ‘‘separate proceeding’’ includes, but is not limited to, court-martial, nonjudicial punishment, administrative board, or similar civilian or military proceeding. (b) In cases in which a covered attorney is determined, at a separate proceeding determined by the Rules Counsel to afford procedural protection equal to that provided by a preliminary inquiry under this part, to have committed misconduct that forms the basis for ethics charges under this part, the Rules Counsel may dispense with the preliminary inquiry and proceed directly with an ethics investigation. (c) In those cases in which a covered attorney is determined to have committed misconduct at a separate E:\FR\FM\01MYP2.SGM 01MYP2 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules proceeding which the Rules Counsel determines has afforded procedural protection equal to that provided by an ethics investigation under this part, the previous determination regarding the underlying misconduct is res judicata with respect to that issue during an ethics investigation. A subsequent ethics investigation based on such misconduct shall afford the covered attorney a hearing into whether the underlying misconduct constitutes a violation of subpart B of this part, whether the violation affects his or her fitness to practice law, and what sanctions, if any, are appropriate. (d) Notwithstanding paragraphs (b) and (c) in this section, the Rules Counsel may dispense with the preliminary inquiry and ethics investigation and, after affording the covered attorney concerned written notice and an opportunity to be heard in writing, recommend to the JAG that the covered attorney concerned be disciplined under this part when the covered attorney has been: (1) Decertified or suspended from the practice of law or otherwise subjected to professional responsibility discipline by the JAG or Chief Counsel of another Military Department; (2) Disbarred or suspended from the practice of law or otherwise subjected to professional responsibility discipline by the Court of Appeals for the Armed Forces or by any Federal, State, or local bar; or (3) Convicted of a felony (or any offense punishable by one year or more of imprisonment) in a civilian or military court that, in the opinion of the Rules Counsel, renders the attorney unqualified or incapable of properly or ethically representing the DoN or a client when the Rules Counsel has determined that the attorney was afforded procedural protection equal to that provided by an ethics investigation under this part. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.86 Action by the Judge Advocate General. (a) The JAG is not bound by the recommendation rendered by the Rules Counsel, IO, PIO, or any other interested party, but will base any action on the record as a whole. Nothing in this part limits the JAG’s authority to suspend from the practice of law in DoN matters any covered attorney alleged or found to have committed professional misconduct or violated subpart B of this part, either in DoN or civilian proceedings, as detailed in this part. (b) The JAG may, but is not required to, refer any case to the Professional Responsibility Committee for an advisory opinion on interpretation of VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 subpart B of this part or its application to the facts of a particular case. (c) Upon receipt of the ethics investigation, and any requested advisory opinion, the JAG will take such action as the JAG considers appropriate in the JAG’s sole discretion. The JAG may, for example: (1) Direct further inquiry into specified areas. (2) Determine the allegations are unfounded, or that no further action is warranted, and direct the Rules Counsel to make appropriate file entries and notify the complainant, covered attorney concerned, and all officials previously notified of the complaint. (3) Determine the allegations are supported by clear and convincing evidence, and take appropriate corrective action including, but not limited to: (i) Limiting the covered attorney to practice under direct supervision of a supervisory attorney; (ii) Limiting the covered attorney to practice in certain areas or forbidding him or her from practice in certain areas; (iii) Suspending or revoking, for a specified or indefinite period, the covered attorney’s authority to provide legal assistance; (iv) Finding that the misconduct so adversely affects the covered attorney’s ability to practice law in the naval service or so prejudices the reputation of the DoN legal community, the administration of military justice, the practice of law under the cognizance of the JAG, or the armed services as a whole, that certification under Article 27(b), UCMJ, or R.C.M. 502(d)(3), should be suspended or is no longer appropriate, and directing such certification to be suspended for a prescribed or indefinite period or permanently revoked; (v) In the case of a judge, finding that the misconduct so prejudices the reputation of military trial and/or appellate judges that certification under Article 26(b), UCMJ (10 U.S.C. 826(b)), should be suspended or is no longer appropriate, and directing such certification to be suspended for a prescribed or indefinite period or to be permanently revoked; and (vi) Directing the Rules Counsel to contact appropriate authorities such as the Chief of Naval Personnel or the Commandant of the Marine Corps so that pertinent entries in appropriate DoN records may be made; notifying the complainant, covered attorney concerned, and any officials previously provided copies of the complaint; and notifying appropriate tribunals and authorities of any action taken to PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 25557 suspend, decertify, or limit the practice of a covered attorney as counsel before courts-martial or the U.S. Navy-Marine Corps Court of Criminal Appeals, administrative boards, as a legal assistance attorney, or in any other legal proceeding or matter conducted under JAG cognizance and supervision. § 776.87 Finality. Any action taken by the JAG is final. § 776.88 Report to licensing authorities. Upon determination by the JAG that a violation of subpart B of this part or the Code of Judicial Conduct has occurred, the JAG may cause the Rules Counsel to report that fact to the Federal, State, or local bar or other licensing authority of the covered attorney concerned. If so reported, notice to the covered attorney shall be provided by the Rules Counsel. This decision in no way diminishes a covered attorney’s responsibility to report adverse professional disciplinary action as required by the attorney’s Federal, State, and local bar or other licensing authority. Subpart D—Outside Practice of Law by Covered USG Attorneys § 776.89 Background. (a) A covered USG attorney’s primary professional responsibility is to the DoN, and he or she is expected to devote the required level of time and effort to satisfactorily accomplish assigned duties. Covered USG attorneys engaged in the outside practice of law, including while on terminal leave, must comply with local bar rules governing professional responsibility and conduct and obtain proper authorization from the JAG as required by § 776.57 and § 776.88 of this part. (b) Outside employment of DoN personnel, both military and civilian, is limited by the UCMJ, MCM, and 10 U.S.C. 1044. A covered USG attorney may not provide compensated legal services, while working in a private capacity, to persons who are eligible for legal assistance, unless specifically authorized by the JAG. See § 776.24. Because of the appearance of misuse of public office for private gain, this prohibition is based upon the status of the proposed client and applies whether or not the services provided are actually available in a DoN/DoD legal assistance office. (c) Additionally, DoN officers and employees are prohibited by 18 U.S.C. 209 from receiving pay or allowances from any source other than the United States for the performance of any official service or duty unless specifically E:\FR\FM\01MYP2.SGM 01MYP2 25558 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules authorized by law. Furthermore, 18 U.S.C. 203 and 205 prohibit Federal officers and employees from personally representing or receiving, directly or indirectly, compensation for representing any other person before any Federal agency or court on matters in which the United States is a party or has an interest. (d) These limitations are particularly significant when applied to covered USG attorneys who intend to engage concurrently in a civilian law practice. In such a situation, the potential is high for actual or apparent conflict arising from the mere opportunity to obtain clients through contacts in the course of official business. Unique conflicts or adverse appearances may also develop because of a covered USG attorney’s special ethical responsibilities and loyalties. § 776.90 Definition. (a) Outside practice of law is defined as any provision of legal advice, counsel, assistance or representation, with or without compensation, that is not performed pursuant or incident to duties as a covered USG attorney (including while on terminal leave). Occasional uncompensated assistance rendered to relatives or friends is excluded from this definition (unless otherwise limited by statute or regulation). Teaching a law course as part of a program of education or training offered by an institution of higher education is not practicing law for purposes of this instruction. (b) The requirement to seek permission prior to engaging in the outside practice of law does not apply to non-USG attorneys, or to Reserve or Retired judge advocates unless serving on active duty for more than 30 consecutive days. wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 § 776.91 Policy. (a) As a general rule, the JAG will not approve requests by covered USG attorneys to practice law in association with attorneys or firms which represent clients with interests adverse to the DoN. (b) The JAG’s approval of a particular request does not constitute DoN certification of the requesting attorney’s qualifications to engage in the proposed practice or DoN endorsement of activities undertaken after such practice begins. Moreover, because any outside law practice is necessarily beyond the scope of a covered USG attorney’s official duties, the requesting attorney should consider obtaining personal malpractice insurance coverage. VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 § 776.92 Action. (a) Covered USG attorneys, who contemplate engaging in the outside practice of law, including while on terminal leave, must first obtain approval from the JAG. Requests should be forwarded in the form prescribed in § 776.94 of this part to OJAG (Code 05), JAG (Code 13), or JAR, as appropriate, via the attorney’s chain of command. (b) The requesting attorney’s commanding officer may: (1) Disapprove and return the request if he or she perceives actual or apparent conflicts of interests; (2) Recommend disapproval of the request and forward it, along with his or her rationale for such a recommendation; or (3) Forward the request recommending approval and providing such other information as may be relevant. (c) The JAG will review the request and advise applicants in writing of the decision, and of any conditions and limitations under which a particular practice may be undertaken. Until permission is granted, applicants will not commence any outside law practice. § 776.93 Revalidation. (a) Covered USG attorneys to whom permission is given to engage in the outside practice of law will notify the JAG in writing, via their chain of command, within 30 days of any material change in: (1) The nature or scope of the outside practice described in their requests, including termination, or (2) Their DoN assignment or responsibilities. (b) Covered USG attorneys to whom permission is given to engage in the outside practice of law will annually resubmit an application to continue the practice, with current information, by October 1 each year. § 776.94 Outside Law Practice Questionnaire and Request. DATE From: (Attorney Requesting Outside Practice of Law) To: Deputy Chief Judge, Navy-Marine Corps Trial Judiciary/Deputy Assistant Judge Advocate General (Administrative Law)/Head, Judge Advocate Research and Civil Law Branch, Judge Advocate Division Via: (Chain of Command) Subj: OUTSIDE PRACTICE OF LAW REQUEST ICO (Name of attorney) 1. Background Data PO 00000 a. Name, rank/pay grade: b. Current command and position: Frm 00022 Fmt 4701 Sfmt 4702 c. Description of duties and responsibilities (including collateral duty assignments): d. Describe any DoN responsibilities that require you to act officially in any way with respect to any matters in which your anticipated outside employer or clients have interests: e. Normal DoN working hours: 2. Proposed Outside Practice of Law Information a. Mailing address and phone number: b. Working hours: c. Number of hours per month: d. Description of proposed practice (indicate the type of clientele you anticipate serving, as well as the type of work that you will perform): e. Describe whether you will be a sole practitioner, or collocated, renting from, or otherwise affiliated or associated in any matter with other attorneys: f. Describe, in detail, any anticipated representation of any client before the United States or in any matter in which the United States has an interest: g. Describe the manner in which you will be compensated (hourly, by case, fixed salary, and how much of your fees will be related in any way to any representational services before the Federal Government by yourself or by another): h. Provide a description of any military-related work to which your proposed practice may be applied including, but not limited to, courtsmartial, administrative discharge boards, claims against the Department of the Navy, and so forth: 3. Attorneys With Whom Outside Practice is/will be Affiliated, Collocated, or Otherwise Associated a. Identify the type of organization with which you will be affiliated (sole practitioner, partnership, and so forth), the number of attorneys in the firm, and the names of the attorneys with whom you will be working: b. Identify the attorneys in the firm who are associated in any way with the military legal community (e.g., active, Reserve, or retired judge advocate), and specify their relationship to any of the military services: c. Identify the nature of your affiliation with the organization with which you intend to be associated (staff attorney, partner, associate, spacesharing, rental arrangement, other): d. Provide a brief description of the type of legal practice engaged in by the organization with which you intend to affiliate, including a general description of the practice, as well as the clientele: e. Describe the clientele who are military personnel or their dependents, E:\FR\FM\01MYP2.SGM 01MYP2 Federal Register / Vol. 78, No. 84 / Wednesday, May 1, 2013 / Proposed Rules and the number and type of cases handled: f. Describe whether your affiliates will refer clients to you, and the anticipated frequency of referral: g. Describe (1) Whether your associates will assist or represent clients with interests adverse to the United States or in matters in which the United States has an interest: (2) Those clients, matters, and interests in detail: (3) What support will you provide in such cases: (4) What compensation, in any form, you will receive related to such cases: 4. Desired Date of Commencement of Outside Practice a. Identify if this is your first request or an annual submission for re-approval: b. If this is an annual submission, indicate when your outside practice began: c. If this is your first request, indicate when you wish to begin your practice: 5. Conflicts of Interest and Professional Conduct (Include the following statement in your request) wreier-aviles on DSK5TPTVN1PROD with PROPOSALS2 ‘‘I certify that I have read and understand my obligations under enclosure (3) to JAGINST 5803.1 (series), DOD 5500.7–R, Joint Ethics Regulation, JAGMAN Chapter VII, the Legal Assistance Manual, and Title 18, U.S.C. 203, 205, and 209. I certify that no apparent or actual conflict of interests or professional improprieties are presented by my proposed initiation/continuation of an outside law practice. I also certify that if an apparent conflict of interest or impropriety arises during such outside practice, I will report the circumstances to my supervisory attorney immediately.’’ VerDate Mar<15>2010 14:22 Apr 30, 2013 Jkt 229001 6. Privacy Act Statement. I understand that the preceding information is gathered per the Privacy Act as follows: Authority: Information is solicited per Executive Order 12731 and DOD 5500.7–R. Primary purpose: To determine whether outside employment presents conflicts of interest with official duties. Routine use: Information will be treated as sensitive and used to determine propriety of outside employment. Disclosure: Disclosure is voluntary. Failure to provide the requested information will preclude the Judge Advocate General from approving your outside practice of law request. Signature Subpart E—Relations With Non-USG Counsel § 776.95 Relations With Non-USG Counsel. (a) This part applies to non-USG attorneys representing individuals in any matter for which the JAG is charged with supervising the provision of legal services, including but not limited to, courts-martial, administrative separation boards or hearings, boards of inquiry, and disability evaluation proceedings. (1) Employment of a non-USG attorney by an individual client does not alter the responsibilities of a covered USG attorney to that client. (2) Although a non-USG attorney is individually responsible for adhering to the contents of this part, the covered USG attorney detailed or otherwise assigned to that client shall take reasonable steps to inform the non-USG attorney: (i) Of the contents of this part; (ii) That subpart B of this part apply to civilian counsel practicing before military tribunals, courts, boards, or in any legal matter under the supervision PO 00000 Frm 00023 Fmt 4701 Sfmt 9990 25559 of the JAG as a condition of such practice; and (iii) That subpart B of this part take precedence over other rules of professional conduct that might otherwise apply, but that the attorney may still be subject to rules and discipline established by the attorney’s Federal, state, or local bar association or other licensing authority. (b) If an individual client designates a non-USG attorney as chief counsel, the detailed USG attorney must defer to civilian counsel in any conflict over trial tactics. If, however, the attorneys have ‘‘co-counsel’’ status, then conflict in proposed trial tactics requires the client to be consulted to resolve the conflict. (c) If the non-USG attorney has, in the opinion of the involved covered USG attorney, acted or failed to act in a manner which is contrary to subpart B of this part, the matter should be brought to the attention of the civilian attorney. If the matter is not resolved with the civilian counsel, the covered USG attorney should discuss the situation with the supervisory attorney. If not resolved between counsel, the client must be informed of the matter by the covered USG attorney. If, after being apprised of possible misconduct, the client approves of the questioned conduct, the covered USG attorney shall attempt to withdraw from the case in accordance with § 776.35 of this part. The client shall be informed of such intent to withdraw prior to action by the covered USG attorney. Dated: April 18, 2013. C.K. Chiappetta, Lieutenant Commander, Office of the Judge Advocate General, U.S. Navy, Federal Register Liaison Officer. [FR Doc. 2013–09676 Filed 4–30–13; 8:45 am] BILLING CODE P E:\FR\FM\01MYP2.SGM 01MYP2

Agencies

[Federal Register Volume 78, Number 84 (Wednesday, May 1, 2013)]
[Proposed Rules]
[Pages 25537-25559]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-09676]



[[Page 25537]]

Vol. 78

Wednesday,

No. 84

May 1, 2013

Part II





Department of Defense





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 Department of the Navy





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32 CFR Part 776





 Professional Conduct of Attorneys Practicing Under the Cognizance and 
Supervision of the Judge Advocate General; Proposed Rule

Federal Register / Vol. 78 , No. 84 / Wednesday, May 1, 2013 / 
Proposed Rules

[[Page 25538]]


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DEPARTMENT OF DEFENSE

Department of the Navy

[No. USN-2013-0011]
RIN 0703-AA92

32 CFR Part 776


Professional Conduct of Attorneys Practicing Under the Cognizance 
and Supervision of the Judge Advocate General

AGENCY: Department of the Navy, DoD.

ACTION: Proposed rule.

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SUMMARY: The Department of the Navy (DoN) is revising its Rules of 
Professional Conduct and procedures for receiving, processing, and 
taking action on complaints of professional misconduct made against 
attorneys practicing under the supervision of the Judge Advocate 
General of the Navy (JAG). The revision to this part generally aligns 
with recent changes to the American Bar Association Model Rules of 
Professional Conduct. The revisions clarify when an attorney shall 
reveal confidential information and when such disclosure is 
discretionary, and allows for covered attorneys to make reasonable 
disclosures necessary to ensure compliance with the Rules of 
Professional Conduct. The revision contains administrative corrections 
throughout.

DATES: Comment date: Interested parties should submit written comments 
on or before July 1, 2013.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by any of the following 
methods:
    Federal eRulemaking Portal: https://www.regulations.gov.
    Follow the instructions for submitting comments.
    Mail: Federal Docket Management System Office, 4800 Mark Center 
Drive, 2nd floor, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
    Instructions: All submissions received must include the agency name 
and docket or RIN number for this Federal Register document. The 
general policy for comments and other submissions from members of the 
public is to make these submissions available for public viewing on the 
Internet at https://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Catherine K. 
Chiappetta, JAGC, U.S. Navy, Office of the Judge Advocate General 
(Administrative Law), Department of the Navy, 1322 Patterson Ave. SE., 
Suite 3000, Washington Navy Yard, DC 20374-5066, telephone: 703-614-
7408.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    This proposed rule serves as an update to the current 32 CFR Part 
776 and replaces current regulations. The revision generally aligns 
with the American Bar Association Model Rules of Professional Conduct. 
Significant updates were made to Sec. 776.25 of this part 
(Confidentiality), clarifying when an attorney shall reveal 
confidential information and when such disclosure is discretionary. The 
update to this part also allows covered attorneys to make reasonable 
disclosures necessary to ensure compliance with the Rules of 
Professional Conduct. Section 776.26 of this part (Conflicts, 
generally) was revised to require that a client give informed consent, 
in writing, when waiving a potential or actual conflict of interest. 
Section 776.42 of this part (Candor and Obligations Toward the 
Tribunal) is revised to clearly articulate a covered attorney's 
responsibility for false evidence presented by a client, witness, or 
the attorney. Procedural revisions to this part include the addition of 
the Chief Judge of the Navy as the designated Rules Counsel for 
professional responsibility matters involving military judges, and the 
removal of the requirement to route professional responsibility 
complaints concerning Marine judge advocates through the General Court-
Martial Convening Authority. Additional commentary and annotation 
applicable to the Navy JAG's Professional Responsibility Rules are 
contained in JAG Instruction 5803.1[series], which can be accessed 
through www.jag.navy.mil.
    The DoN is revising 32 CFR Part 776, to comport with current policy 
as stated in JAG Instruction 5803.1 (Series) governing the professional 
conduct of attorneys practicing under the cognizance and supervision of 
the Judge Advocate General. This revision updates the existing part to 
generally align with the American Bar Association Model Rules of 
Professional Conduct. Interested persons are invited to comment in 
writing on this revision. All written comments received will be 
considered in making the proposed revisions to 32 CFR Part 776. It has 
been determined that this rule revision is not a major rule within the 
criteria specified in Executive Order 12866, as amended by Executive 
Order 13258, and does not have substantial impact on the public.

Matters of Regulatory Procedure

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that 32 CFR part 776 is not a significant 
regulatory action. The rule does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that 32 CFR Part 776 does not contain a 
Federal mandate that may result in the expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR Part 776 does not impose any 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995 (44 U.S.C. Chapter 35).

Federalism (Executive Order 13132)

    It has been certified that 32 CFR Part 776 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 32 CFR Part 776

    Rules of Professional Conduct, and Complaint Processing Procedures.

    For the reasons set forth in the preamble, revise part 776 to read 
as follows:

[[Page 25539]]

PART 776--PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE 
COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL

Subpart A--General
Sec.
776.1 Purpose.
776.2 Applicability.
776.3 Policy.
776.4 Attorney-client relationships.
776.5 Judicial conduct.
776.6 Conflict.
776.7 Reporting requirements.
776.8 Professional Responsibility Committee.
776.9 Rules Counsel.
776.10 Informal ethics advice.
776.11 Outside practice of law.
776.12 Maintenance of files.
776.13-776.17 [Reserved]
Subpart B--Rules of Professional Conduct
776.18 Preamble.
776.19 Principles.
776.20 Competence.
776.21 Establishment and scope of representation.
776.22 Diligence.
776.23 Communication.
776.24 Fees.
776.25 Confidentiality of information.
776.26 Conflict of interest: General rule.
776.27 Conflict of interests: Prohibited transactions.
776.28 Conflict of interest: Former client.
776.29 Imputed disqualification: General rule.
776.30 Successive Government and private employment.
776.31 Former judge or arbitrator.
776.32 Department of Navy as client.
776.33 Client with diminished capacity.
776.34 Safekeeping property.
776.35 Declining or terminating representation.
776.36 Prohibited sexual relations.
776.37 Advisor.
776.38 Mediation.
776.39 Evaluation for use by third persons.
776.40 Meritorious claims and contentions.
776.41 Expediting litigation.
776.42 Candor and obligations toward the tribunal.
776.43 Fairness to opposing party and counsel.
776.44 Impartiality and decorum of the tribunal.
776.45 Extra-tribunal statements.
776.46 Attorney as witness.
776.47 Special responsibilities of a trial counsel and other 
government counsel.
776.48 Advocate in nonadjudicative proceedings.
776.49 Truthfulness in statements to others.
776.50 Communication with person represented by counsel.
776.51 Dealing with an unrepresented person.
776.52 Respect for rights of third persons.
776.53 Responsibilities of the Judge Advocate General and 
supervisory attorneys.
776.54 Responsibilities of a subordinate attorney.
776.55 Responsibilities regarding non-attorney assistants.
776.56 Professional independence of a covered USG attorney.
776.57 Unauthorized practice of law.
776.58-776.65 [Reserved]
776.66 Bar admission and disciplinary matters.
776.67 Judicial and legal officers.
776.68 Reporting professional misconduct.
776.69 Misconduct.
776.70 Jurisdiction.
776.71 Requirement to remain in good standing with licensing 
authorities.
776.72-776.75 [Reserved]
Subpart C--Complaint Processing Procedures
776.76 Policy.
776.77 Related investigations and actions.
776.78 Informal complaints.
776.79 The formal complaint.
776.80 Initial screening.
776.81 Forwarding the Complaint.
776.82 Interim suspension.
776.83 Preliminary inquiry.
776.84 Ethics investigation.
776.85 Effect of separate proceeding.
776.86 Action by the Judge Advocate General.
776.87 Finality.
776.88 Report to licensing authorities.
Subpart D--Outside Practice of Law
776.89 Background.
776.90 Definition.
776.91 Policy.
776.92 Action.
776.93 Revalidation.
776.94 Outside Law Practice Questionnaire and Request.
Subpart E--Relations With Non-USG Counsel
776.95 Relations with Non-USG Counsel.

    Authority:  10 U.S.C. 806, 806a, 826, 827, 1044; Manual for 
Courts-Martial, United States, 2012; U.S. Navy Regulations, 1990; 
Department of Defense Instruction 1442.02 (series); Secretary of the 
Navy Instruction 5430.27 (series), Responsibility of the Judge 
Advocate General of the Navy and the Staff Judge Advocate to the 
Commandant of the Marine Corps for Supervision and Provision of 
Certain Legal Services.

Subpart A--General


Sec.  776.1  Purpose.

    In furtherance of the authority citations (which, if not found in 
local libraries, are available from the Office of the Judge Advocate 
General, 1322 Patterson Avenue SE., Suite 3000, Washington Navy Yard DC 
20374-5066), which require the Judge Advocate General of the Navy (JAG) 
to supervise the performance of legal services under JAG cognizance 
throughout the Department of the Navy (DoN), this part is promulgated:
    (a) To establish Rules of Professional Conduct (subpart B of this 
part) for attorneys subject to this part;
    (b) To establish procedures for receiving, processing, and taking 
action on complaints of professional misconduct made against attorneys 
practicing under the supervision of the JAG, whether arising from 
professional legal activities in DoN proceedings and matters, or 
arising from other, non-U.S. Government related professional legal 
activities or personal misconduct that suggests the attorney is 
ethically, professionally, or morally unqualified to perform legal 
services within the DoN;
    (c) To prescribe limitations on and procedures for processing 
requests to engage in the outside practice of law by those DoN 
attorneys practicing under the supervision of the JAG; and
    (d) To ensure quality legal services at all proceedings under the 
cognizance and supervision of the JAG.


Sec.  776.2  Applicability.

    (a) This part applies to all ``covered attorneys'' as defined 
herein.
    (b) ``Covered attorneys'' include:
    (1) The following U.S. Government (USG) attorneys, referred to 
collectively as ``covered USG attorneys'' throughout this part:
    (i) All active-duty Navy judge advocates (designator 2500 or 2505) 
or Marine Corps judge advocates (Military Occupational Specialty (MOS) 
4402 or 9914).
    (ii) All active-duty judge advocates of other U.S. armed forces who 
practice law or provide legal services under the cognizance and 
supervision of the JAG.
    (iii) All civil service and contracted civilian attorneys who 
practice law or perform legal services under the cognizance and 
supervision of the JAG. This includes civilian attorneys employed by 
the DoN as Executive Agent for Combatant Commands, and for whom the JAG 
serves as the ``qualifying authority'' under the authority citations.
    (iv) All Reserve or Retired judge advocates of the Navy or Marine 
Corps (and any other U.S. armed force), who, while performing official 
DoN duties, practice law, provide legal services under the cognizance 
and supervision of the JAG or are serving in non-legal MOS billets.
    (v) All other attorneys appointed by the JAG (or the Staff Judge 
Advocate to the Commandant of the Marine Corps (SJA to CMC) in Marine 
Corps matters) to serve in billets or to provide legal services 
normally provided by Navy or Marine Corps judge advocates. This policy 
applies to officer and enlisted Reservists, active-duty personnel, and 
any other personnel who are licensed to practice law by any Federal or 
state authority but who are not members of

[[Page 25540]]

the Judge Advocate General's Corps or who do not hold the 4402 or 9914 
MOS designation in the Marine Corps.
    (vi) All qualified volunteer attorneys that have been certified as 
legal assistance attorneys by the JAG, or his designee, pursuant to the 
authority citations.
    (2) The following non-U.S. Government attorneys, referred to 
collectively as ``covered non-USG attorneys'' throughout this part:
    (i) All civilian attorneys representing individuals in any matter 
for which the JAG is charged with supervising the provision of legal 
services. These matters include, but are not limited to, courts-
martial, administrative separation boards or hearings, boards of 
inquiry, and disability evaluation proceedings.
    (3) The term ``covered attorney'' does not include those civil 
service or civilian attorneys who practice law or perform legal 
services under the cognizance and supervision of the General Counsel of 
the Navy.
    (c) Professional or personal misconduct unrelated to a covered 
attorney's DoN activities, while normally outside the ambit of Subpart 
B of this part, may be reviewed under procedures established herein and 
may provide the basis for decisions by the JAG regarding the covered 
attorney's continued qualification to provide legal services in DoN 
matters.
    (d) Although subpart B of this part do not apply to non-attorneys, 
they do define the type of ethical conduct that the public and the 
military community have a right to expect from DoN legal personnel. 
Accordingly, Subpart B of this part shall serve as the model of ethical 
conduct for the following personnel when involved with the delivery of 
legal services under the supervision of the JAG:
    (1) Navy Legalmen and Marine Corps legal administrative officers, 
legal service specialists, and legal services reporters;
    (2) Limited duty officers (LAW);
    (3) Legal interns; and
    (4) Civilian support personnel including paralegals, legal 
secretaries, legal technicians, secretaries, court reporters, and other 
personnel holding similar positions. Covered USG attorneys who 
supervise non-attorney DoN employees are responsible for their ethical 
conduct to the extent provided for in Sec.  776.55 of this part.


Sec.  776.3  Policy.

    (a) Covered attorneys shall maintain the highest standards of 
professional ethical conduct. Loyalty and fidelity to the United 
States, the law, clients, both institutional and individual, and the 
rules and principles of professional ethical conduct set forth in 
subpart B of this part must come before private gain or personal 
interest.
    (b) Subpart B of this part and related procedures set forth herein 
concern matters solely under the purview of the JAG. Whether conduct or 
failure to act constitutes a violation of the professional duties 
imposed by this part is a matter within the sole discretion of the JAG 
or officials authorized to act for the JAG. Subpart B of this part are 
not substitutes for, and do not take the place of, other rules and 
standards governing DoN personnel, such as the Department of Defense 
Joint Ethics Regulation, the Code of Conduct for members of the Armed 
Forces, the Uniform Code of Military Justice (UCMJ), and the general 
precepts of ethical conduct to which all DoN service members and 
employees are expected to adhere. Similarly, action taken per this part 
is not supplanted or barred by, and does not, even if the underlying 
misconduct is the same, supplant or bar the following action from being 
taken by authorized officials:
    (1) Punitive or disciplinary action under the UCMJ; or
    (2) Administrative action under the Manual for Courts-Martial 
(MCM), U.S. Navy Regulations, or under other applicable authority.
    (c) Inquiries into allegations of professional misconduct will 
normally be held in abeyance until any related criminal investigation 
or proceeding is complete. However, a pending criminal investigation or 
proceeding does not bar the initiation or completion of a professional 
misconduct investigation stemming from the same or related conduct or 
prevent the JAG from imposing professional disciplinary sanctions as 
provided for in this part.


Sec.  776.4  Attorney-client relationships.

    (a) The executive agency to which the covered USG attorney is 
assigned (DoN in most cases) is the client served by the covered USG 
attorney unless detailed to represent another client by competent 
authority. Specific guidelines are contained in Sec.  776.32 of this 
part.
    (b) Covered USG attorneys will not establish attorney-client 
relationships with any individual unless detailed, assigned, or 
otherwise authorized to do so by competent authority. Wrongfully 
establishing an attorney-client relationship may subject the attorney 
to discipline administered per this part. See Sec.  776.21 of this 
part.
    (c) Employment of a non-USG attorney by an individual client does 
not alter the professional responsibilities of a covered USG attorney 
detailed or otherwise assigned by competent authority to represent that 
client. Specific guidance is set forth in subpart E.


Sec.  776.5  Judicial conduct.

    To the extent that it does not conflict with statutes, regulations, 
or this part, the current version of the American Bar Association Model 
Code of Judicial Conduct (as amended), hereafter referred to as the 
`Code of Judicial Conduct,' applies to all military and appellate 
judges and to all other covered USG attorneys performing judicial 
functions under the JAG's supervision within the DoN.


Sec.  776.6  Conflict.

    (a) To the extent that a conflict exists between this part and the 
rules of other jurisdictions that regulate the professional conduct of 
attorneys, this part will govern the conduct of covered attorneys 
engaged in legal functions under JAG cognizance and supervision. 
Specific and significant instances of conflict between the rules 
contained in subpart B of this part and the rules of other 
jurisdictions shall be reported promptly to the Rules Counsel (see 
Sec.  776.9 of this part), via the supervisory attorney. See Sec.  
776.53 of this part.
    (b) In the case of Navy and Marine Corps personnel engaged in legal 
functions under Department of Defense (DoD) vice JAG cognizance and 
supervision (e.g., DoD Office of Military Commissions), this part and 
the applicable DoD professional responsibility rules apply. In such a 
case, to the extent that a conflict exists between Subpart B of this 
part and applicable DoD professional responsibility rules, the DoD 
rules shall take precedence.


Sec.  776.7  Reporting requirements.

    Covered USG attorneys shall report promptly to the Rules Counsel 
(see Sec.  776.9 of this part) any disciplinary or administrative 
action, including initiation of investigation, by any licensing 
authority or Federal, State, or local bar, possessing the power to 
revoke, suspend, or in any way limit the authority to practice law in 
that jurisdiction, upon himself, herself, or another covered attorney. 
Failure to report such discipline or administrative action may subject 
the covered USG attorney to discipline administered per this part. See 
Sec.  776.71 of this part.


Sec.  776.8  Professional Responsibility Committee.

    (a) Composition. This standing committee will consist of the 
Assistant Judge Advocate General (AJAG) for Military Justice; the 
Deputy Chiefs of

[[Page 25541]]

Staff for Naval Legal Service Offices (or Defense Services Offices, 
effective 1 October 2012), and Region Legal Service Offices; the Chief 
Judge, Navy-Marine Corps Trial Judiciary; and in cases involving Marine 
Corps judge advocates, the Deputy Staff Judge Advocate to the 
Commandant of the Marine Corps (DSJA to CMC); and such other personnel 
as the JAG from time-to-time may appoint. A majority of the members 
constitutes a quorum. The Chairman of the Committee shall be the AJAG 
for Military Justice. The Chairman may excuse members disqualified for 
cause, illness, or exigencies of military service, and may appoint 
additional or alternate members on a permanent basis.
    (b) Purpose. (1) When requested by the JAG, the SJA to CMC, or the 
Rules Counsel, the Committee will provide formal advisory opinions to 
the JAG regarding application of subpart B of this part to individual 
or hypothetical cases.
    (2) On its own motion, the Committee may also issue formal advisory 
opinions on ethical issues of importance to the DoN legal community.
    (3) Upon written request, the Committee may also provide formal 
advisory opinions to covered attorneys about the propriety of proposed 
courses of action under subpart B of this part. If such requests are 
predicated upon full disclosure of all relevant facts, and if the 
Committee advises that the proposed course of conduct does not violate 
subpart B of this part, then no adverse action under this instruction 
may be taken against a covered attorney who acts consistently with the 
Committee's advice. Such requests must be made via the Rules Counsel.
    (4) The Chairman will forward copies of all opinions issued by the 
Committee to the Rules Counsel.
    (c) Limitation. The Committee will not normally provide ethics 
advice or opinions concerning professional responsibility matters that 
are then the subject of litigation.


Sec.  776.9  Rules Counsel.

    Appointed by JAG to act as special assistants for the 
administration of subpart B of this part, the Rules Counsel derive 
authority from JAG and, as detailed in this part, have ``by direction'' 
authority. The Rules Counsel shall cause opinions issued by the 
Professional Responsibility Committee of general interest to the DoN 
legal community to be published in summarized, non-personal form in 
suitable publications. Unless another officer is appointed by JAG to 
act in individual cases, the following officers shall act as Rules 
Counsel:
    (a) The SJA to CMC, for cases involving Marine Corps judge 
advocates, or civil service and contracted civilian attorneys who 
perform legal services under his cognizance;
    (b) Assistant Judge Advocate General, Chief Judge, DoN (AJAG-CJ) 
for cases involving Navy and Marine Corps trial and appellate judges; 
and
    (c) AJAG (Civil Law), in all other cases.


Sec.  776.10  Informal ethics advice.

    (a) Advisors. Covered attorneys may seek informal ethics advice 
either from the officers named below or from supervisory attorneys in 
the field. Within the Office of the Judge Advocate General (OJAG) and 
the Office of the SJA to CMC, the following officials are designated to 
respond, either orally or in writing, to informal inquiries concerning 
this instruction in the areas of practice indicated:
    (1) Director, Criminal Law Division (OJAG Code 20): Military 
justice matters;
    (2) Director, Trial Counsel Assistance Program (TCAP): Trial 
counsel matters;
    (3) Director, Defense Counsel Assistance Program (DCAP): Defense 
counsel matters;
    (4) Director, Legal Assistance Division (OJAG Code 16): Legal 
assistance matters;
    (5) The DSJA to CMC and Head, Research and Civil Law Branch (JAR), 
Judge Advocate (JA) Division, Headquarters United States Marine Corps 
(HQMC): Cases involving Marine Corps judge advocates, or civil service 
and contracted civilian attorneys who perform legal services under the 
cognizance and supervision of SJA to CMC;
    (6) Deputy Chief Judge, Navy-Marine Corps Trial Judiciary: judicial 
matters; and
    (7) Professional Responsibility Coordinator, Administrative Law 
Division (OJAG Code 13): all other matters.
    (b) Limitation. Informal ethics advice will not normally be 
provided by JAG/HQMC advisors concerning professional responsibility 
matters that are then the subject of litigation.
    (c) Written advice. A request for informal advice does not relieve 
the requester of the obligation to comply with subpart B of this part.
    (1) Although covered attorneys are encouraged to seek advice when 
in doubt as to their responsibilities, they remain personally 
accountable for their professional conduct. If, however, an attorney 
receives written advice on an ethical matter after full disclosure of 
all relevant facts and reasonably relies on such advice, no adverse 
action under this part will be taken against the attorney. Written 
advice may be sought from either a supervisory attorney or the 
appropriate advisor in paragraph (a) of this section.
    (b) The JAG is not bound by unwritten advice or by advice provided 
by personnel who are not supervisory attorneys or advisors. See Sec.  
776.8(b)(3) and Sec.  776.54(c) of this part.


Sec.  776.11  Outside practice of law.

    A covered USG attorney's primary professional responsibility is to 
the client, as defined by Sec.  776.4 of this part, and he or she is 
expected to ensure that representation of such client is free from 
conflicts of interest and otherwise conforms to the requirements of 
Subpart B of this part and other regulations concerning the provision 
of legal services within the DoN. The outside practice of law, 
therefore, must be carefully monitored. Covered USG attorneys who wish 
to engage in the outside practice of law, including while on terminal 
leave, must first obtain permission from the JAG. Failure to obtain 
permission before engaging in the outside practice of law may subject 
the covered USG attorney to administrative or disciplinary action, 
including professional sanctions administered per subpart C of this 
part. Further details are contained in Sec.  776.57 and subpart D of 
this part.


Sec.  776.12  Maintenance of files.

    Pursuant to SECNAVINST 5211.5 (series) and SECNAVINST 5212.5 
(series) ethics complaint records and outside practice of law request 
files shall be maintained by the Office of the Chief Judge, DoN (Code 
05) for judicial conduct matters; the Research and Civil Law Branch, JA 
Division, HQMC (JAR) for Marine matters; and the Office of the JAG, 
Administrative Law Division (Code 13) for all other matters.
    (a) Requests for access to such records should be referred to the 
Office of the Chief Judge, Washington Navy Yard, 1254 Charles Morris 
Street SE., Suite 320, Washington, DC, 20374-5124; Deputy Assistant 
Judge Advocate General (Administrative Law), Office of the Judge 
Advocate General (Code 13), 1322 Patterson Avenue SE., Suite 3000, 
Washington Navy Yard, DC 20374-5066; or to Head, Research and Civil Law 
Branch, Office of the Staff Judge Advocate to the Commandant of the 
Marine Corps, Headquarters United States Marine Corps, 3000 Marine 
Corps

[[Page 25542]]

Pentagon (Room 4D556), Washington, DC 20350-3000, as appropriate.
    (b) Local command files regarding professional responsibility 
complaints will not be maintained. Commanding officers and other 
supervisory attorneys may, however, maintain personal files but must 
not share their contents with others.
    (c) All records maintained under this part shall be maintained in 
accordance with the following procedures established by JAGINST 5801.2 
(series) and DON Privacy Act Notice N05813-1:
    (1) Records shall be maintained for a minimum of two years;
    (2) Records shall be maintained for as long as an attorney remains 
subject to JAG-imposed limitations on practice; and
    (3) Records pertaining to unsubstantiated complaints, or to 
attorneys who are no longer subject to limitation on practice, shall be 
destroyed after 10 years.


Sec.  776.13-776.17  [Reserved]

Subpart B--Rules of Professional Conduct


Sec.  776.18  Preamble.

    (a) A covered attorney is a representative of clients, an officer 
of the legal system, an officer of the Federal Government, and a public 
citizen who has a special responsibility for the quality of justice and 
legal services provided to the DoN and to individual clients. These 
Rules of Professional Conduct (Subpart B of this part) govern the 
ethical conduct of covered attorneys practicing under the Uniform Code 
of Military Justice, the MCM, 10 U.S.C. 1044 (Legal Assistance), other 
laws of the United States, and regulations of the DoN.
    (b) Subpart B of this part not only address the professional 
conduct of judge advocates, but also apply to all other covered 
attorneys who practice under the cognizance and supervision of the Navy 
JAG.
    (c) All covered attorneys are subject to professional disciplinary 
action, as outlined in this part, for violation of subpart B of this 
part. Action on allegations of professional or personal misconduct 
undertaken per Subpart B of this part does not prevent other Federal, 
state, or local bar associations, or other licensing authorities, from 
taking professional disciplinary or other administrative action for the 
same or similar conduct.


Sec.  776.19  Principles.

    Subpart B of this part is based on the following principles. 
Interpretation of subpart B of this part should flow from their common 
meaning. To the extent that any ambiguity or conflict exists, subpart B 
of this part should be interpreted consistent with these general 
principles.
    (a) Covered attorneys shall:
    (1) Obey the law and applicable military regulations, and counsel 
clients to do so.
    (2) Follow all applicable ethics rules.
    (3) Protect the legal rights and interests of clients, 
organizational and individual.
    (4) Be honest and truthful in all dealings.
    (5) Not derive personal gain, except as authorized, for the 
performance of legal services.
    (6) Maintain the integrity of the legal profession.
    (b) Ethical rules should be consistent with law. If law and ethics 
conflict, the law prevails unless an ethical rule is constitutionally 
based.
    (c) The military criminal justice system is a truth-finding process 
consistent with constitutional law.


Sec.  776.20  Competence.

    (a) Competence. A covered attorney shall provide competent, 
diligent, and prompt representation to a client. Competent 
representation requires the legal knowledge, skill, access to evidence, 
thoroughness, and expeditious preparation reasonably necessary for 
representation. Initial determinations as to competence of a covered 
USG attorney for a particular assignment shall be made by a supervising 
attorney before case or issue assignments; however, assigned attorneys 
may consult with supervisors concerning competence in a particular 
case.
    (b) [Reserved]


Sec.  776.21  Establishment and scope of representation.

    (a) Establishment and scope of representation. Formation of 
attorney-client relationships by covered USG attorneys with, and 
representation of, clients is permissible only when the attorney is 
authorized to do so by competent authority. For purposes of this part, 
Military Rules of Evidence 502, the Manual of the Judge Advocate 
General (JAGINST 5800.7 series), and the Naval Legal Service Command 
Manual (COMNAVLEGSVCCOMINST 5800.1 series), generally define when an 
attorney-client relationship is formed between a covered USG attorney 
and a client servicemember, dependent, or employee.
    (b) Generally, the subject matter scope of a covered attorney's 
representation will be consistent with the terms of the assignment to 
perform specific representational or advisory duties. A covered 
attorney shall inform clients at the earliest opportunity of any 
limitations on representation and professional responsibilities of the 
attorney towards the client.
    (c) A covered attorney shall follow the client's well-informed and 
lawful decisions concerning case objectives, choice of counsel, forum, 
pleas, whether to testify, and settlements.
    (d) A covered attorney's representation of a client does not 
constitute an endorsement of the client's political, economic, social, 
or moral views or activities.
    (e) A covered attorney shall not counsel or assist a client to 
engage in conduct that the attorney knows is criminal or fraudulent, 
but a covered attorney may discuss the legal and moral consequences of 
any proposed course of conduct with a client, and may counsel or assist 
a client in making a good faith effort to determine the validity, 
scope, meaning, or application of the law.
    (f) [Reserved]


Sec.  776.22  Diligence.

    (a) Diligence. A covered attorney shall act with reasonable 
diligence and promptness in representing a client, and shall consult 
with a client as soon as practicable and as often as necessary upon 
being assigned to the case or issue.
    (b) [Reserved]


Sec.  776.23  Communication.

    (a) Communication. A covered attorney shall keep a client 
reasonably informed about the status of a matter and promptly comply 
with reasonable requests for information.
    (b) A covered attorney shall explain a matter to the extent 
reasonably necessary to permit the client to make informed decisions 
regarding the representation.
    (c) [Reserved]


Sec.  776.24  Fees.

    (a) Fees. A covered USG attorney shall not accept any salary, fee, 
compensation, or other payments or benefits, directly or indirectly, 
other than Government compensation, for services provided in the course 
of the covered USG attorney's official duties or employment.
    (b) A covered USG attorney shall not accept any salary or other 
payments as compensation for legal services rendered, by that covered 
USG attorney in a private capacity, to a client who is eligible for 
assistance under the DoN Legal Assistance Program, unless so authorized 
by the JAG. This rule does

[[Page 25543]]

not apply to Reserve or Retired judge advocates not then serving on 
extended active-duty.
    (c) A Reserve or Retired judge advocate, whether or not serving on 
extended active-duty, who has initially represented or interviewed a 
client or prospective client concerning a matter as part of the 
attorney's official Navy or Marine Corps duties, shall not accept any 
salary or other payments as compensation for services rendered to that 
client in a private capacity concerning the same general matter for 
which the client was seen in an official capacity, unless so authorized 
by the JAG.
    (d) Covered non-USG attorneys may charge fees. Fees shall be 
reasonable. Factors considered in determining the reasonableness of a 
fee include the following:
    (1) The time and labor required, the novelty and difficulty of the 
questions involved, and the skill requisite to perform the legal 
service properly;
    (2) The likelihood, if apparent to the client, that the acceptance 
of the particular employment will preclude other employment by the 
attorney;
    (3) The fee customarily charged in the locality for similar legal 
services;
    (4) The amount involved and the results obtained;
    (5) The time limitations imposed by the client or by the 
circumstances;
    (6) The nature and length of the professional relationship with the 
client;
    (7) The experience, reputation, and ability of the attorney or 
attorneys performing the services; and
    (8) Whether the fee is fixed or contingent.
    (e) When the covered non-USG attorney has not regularly represented 
the client, the basis or rate of the fee shall be communicated to the 
client, preferably in writing, before or within a reasonable time after 
commencing the representation.
    (f) A fee may be contingent on the outcome of the matter for which 
the service is rendered, except in a matter in which a contingent fee 
is prohibited by paragraph (a)(7) of this section or other law. A 
contingent fee agreement shall be in writing and shall state the method 
by which the fee is to be determined, including the percentage or 
percentages that shall accrue to the covered non-USG attorney in the 
event of settlement, trial or appeal, litigation and other expenses to 
be deducted from the recovery, and whether such expenses are to be 
deducted before or after the contingent fee is calculated. Upon 
conclusion of a contingent fee matter, the covered non-USG attorney 
shall provide the client with a written statement stating the outcome 
of the matter and, if there is a recovery, showing the remittance to 
the client and the method of its determination.
    (g) A covered non-USG attorney shall not enter into an arrangement 
for, charge, or collect a contingent fee for representing an accused in 
a criminal case.
    (h) A division of fees between covered non-USG attorneys who are 
not in the same firm may be made only if:
    (1) The division is in proportion to the services performed by each 
attorney or, by written agreement with the client, each attorney 
assumes joint responsibility for the representation;
    (2) The client is advised of and does not object to the 
participation of all the attorneys involved; and
    (3) The total fee is reasonable.
    (i) Covered Non-USG Attorneys. Paragraphs (d) through (h) of this 
section apply only to private civilian attorneys practicing in 
proceedings conducted under the cognizance and supervision of the JAG. 
The primary purposes of paragraphs (d) through (h) of this section are 
not to permit the JAG to regulate fee arrangements between civilian 
attorneys and their clients but to provide guidance to covered USG 
attorneys practicing with non-USG attorneys and to supervisory 
attorneys who may be asked to inquire into alleged fee irregularities. 
Absent paragraphs (d) through (h) of this section, such supervisory 
attorneys have no readily available standard against which to compare 
allegedly questionable conduct of a civilian attorney.


Sec.  776.25  Confidentiality of information.

    (a) Confidentiality of information. A covered attorney shall not 
reveal information relating to representation of a client unless the 
client gives informed consent, the disclosure is impliedly authorized 
in order to carry out the representation, or the disclosure is 
permitted by paragraph (b) of this section.
    (b) A covered attorney shall reveal information relating to the 
representation of a client to the extent the covered attorney 
reasonably believes necessary:
    (1) To prevent reasonably certain death or substantial bodily harm; 
or
    (2) To prevent the client from committing a criminal act that the 
covered attorney reasonably believes is likely to result in the 
significant impairment of national security or the readiness or 
capability of a military unit, vessel, aircraft, or weapon system.
    (c) A covered attorney may reveal such information to the extent 
the covered attorney reasonably believes necessary:
    (1) To secure legal advice about the covered attorney's compliance 
with Subpart B of this part;
    (2) To establish a claim or defense on behalf of the covered 
attorney in a controversy between the covered attorney and the client, 
to establish a defense to a criminal charge or civil claim against the 
covered attorney based upon conduct in which the client was involved, 
or to respond to allegations in any proceeding concerning the 
attorney's representation of the client; and/or
    (3) To comply with other law or a court order.
    (d) Examples of conduct likely to result in the significant 
impairment of national security or the readiness or capability of a 
military unit, vessel, aircraft, or weapon system include: Divulging 
the classified location of a special operations unit such that the 
lives of members of the unit are placed in immediate danger; sabotaging 
a vessel or aircraft to the extent that the vessel or aircraft could 
not conduct an assigned mission, or that the vessel or aircraft and 
crew could be lost; and compromising the security of a weapons site 
such that the weapons are likely to be stolen or detonated. Paragraph 
(b) of this section is not intended to and does not mandate the 
disclosure of conduct that may have a slight impact on the readiness or 
capability of a unit, vessel, aircraft, or weapon system. Examples of 
such conduct are: Absence without authority from a peacetime training 
exercise; intentional damage to an individually assigned weapon; and 
intentional minor damage to military property.


Sec.  776.26  Conflict of interest: General rule.

    (a) Conflict of interest: General rule. Except as provided by 
paragraph (b) of this section, a covered attorney shall not represent a 
client if the representation of that client involves a concurrent 
conflict of interest. A concurrent conflict of interest exists if:
    (1) The representation of one client will be directly adverse to 
another client; or
    (2) There is a significant risk that the representation of one or 
more clients will be materially limited by the covered attorney's 
responsibilities to another client, a former client or a third person 
or by a personal interest of the covered attorney.
    (b) Notwithstanding the existence of a concurrent conflict of 
interest under

[[Page 25544]]

paragraph (a) of this section, a covered attorney may represent a 
client if:
    (1) The covered attorney reasonably believes that the covered 
attorney will be able to provide competent and diligent representation 
to each affected client;
    (2) The representation is not prohibited by law or regulation;
    (3) The representation does not involve the assertion of a claim by 
one client against another client represented by the covered attorney 
in the same litigation or other proceeding before a tribunal; and
    (4) Each affected client gives informed consent, confirmed in 
writing.
    (c) Reserve or Retired Judge Advocates. These conflict-of-interest 
rules apply to Reservists only while they are actually drilling or on 
active-duty-for-training, or, as is the case with Retirees, on extended 
active-duty or when performing other duties subject to JAG supervision. 
Therefore, unless otherwise prohibited by criminal conflict-of-interest 
statutes, Reserve or Retired attorneys providing legal services in 
their civilian capacity may represent clients, or work in firms whose 
attorneys represent clients, with interests adverse to the United 
States.
    (1) Reserve judge advocates who, in their civilian capacities, 
represent persons whose interests are adverse to the DoN will provide 
written notification to their supervisory attorney and commanding 
officer, detailing their involvement in the matter.
    (2) Reserve judge advocates shall refrain from undertaking any 
official action or representation of the DoN with respect to any 
particular matter in which they are providing representation or 
services to other clients.


Sec.  776.27  Conflict of interests: Prohibited transactions.

    (a) Conflict of interests: Prohibited transactions. Covered USG 
attorneys shall strictly adhere to current DoD Ethics Regulations and 
shall not:
    (1) Knowingly enter into any business transactions on behalf of, or 
adverse to, a client's interest that directly or indirectly relate to 
or result from the attorney-client relationship; or
    (2) Provide any financial assistance to a client or otherwise serve 
in a financial or proprietorial fiduciary or bailment relationship, 
unless otherwise specifically authorized by competent authority.
    (b) No covered attorney shall:
    (1) Use information relating to representation of a client to the 
disadvantage of the client unless the client consents after 
consultation, except as permitted or required by Subpart B of this 
part;
    (2) Prepare an instrument giving the covered attorney or a person 
related to the covered attorney as parent, child, sibling, or spouse 
any gift from a client, including a testamentary gift, except where the 
client is related to the donee;
    (3) In the case of covered non-USG attorneys, accept compensation 
for representing a client from one other than the client unless the 
client consents after consultation, there is no interference with the 
covered attorney's independence of professional judgment or with the 
attorney-client relationship, and information relating to 
representation of a client is protected as required by Sec.  776.25 of 
this part;
    (4) Negotiate any settlement on behalf of multiple clients in a 
single matter unless each client provides fully informed consent;
    (5) Prior to the conclusion of representation of the client, make 
or negotiate an agreement giving a covered attorney literary or media 
rights for a portrayal or account based in substantial part on 
information relating to representation of a client;
    (6) Represent a client in a matter directly adverse to a person 
whom the covered attorney knows is represented by another attorney who 
is related as parent, child, sibling, or spouse to the covered 
attorney, except upon consent by the client after consultation 
regarding the relationship; or
    (7) Acquire a proprietary interest in the cause of action or 
subject matter of litigation the covered attorney is conducting for a 
client.
    (c) [Reserved]


Sec.  776.28  Conflict of interest: Former client.

    (a) Conflict of interest: Former client. A covered attorney who has 
formerly represented a client in a matter shall not thereafter 
represent another person in the same or a substantially related matter 
in which that person's interests are materially adverse to the 
interests of the former client, unless the former client gives informed 
consent, confirmed in writing.
    (b) A covered attorney who has formerly represented a client in a 
matter shall not thereafter:
    (1) Use information relating to the representation to the 
disadvantage of the former client or to the covered attorney's own 
advantage, except as Subpart B of this part would permit or require 
with respect to a client, or when the information has become generally 
known; or
    (2) Reveal information relating to the representation except as 
subpart B of this part would permit or require with respect to a 
client.
    (c) [Reserved]


Sec.  776.29  Imputed disqualification: General rule.

    (a) Imputed disqualification: General rule. Covered USG attorneys 
working in the same military law office are not automatically 
disqualified from representing a client because any of them practicing 
alone would be prohibited from doing so by Sec.  776.26, Sec.  776.27, 
Sec.  776.28, or Sec.  776.38 of this part. Covered non-USG attorneys 
must consult their federal, state, and local bar rules governing the 
representation of multiple or adverse clients within the same office 
before such representation is initiated, as such representation may 
expose them to disciplinary action under the rules established by their 
licensing authorities.
    (b)(1) The circumstances of military (or Government) service may 
require representation of opposing sides by covered USG attorneys 
working in the same law office. Such representation is permissible so 
long as conflicts of interests are avoided and independent judgment, 
zealous representation, and protection of confidences are not 
compromised. Thus, the principle of imputed disqualification is not 
automatically controlling for covered USG attorneys. The knowledge, 
actions, and conflicts of interests of one covered USG attorney are not 
imputed to another simply because they operate from the same office. 
For example, the fact that a number of defense attorneys operate from 
one office and normally share clerical assistance would not prohibit 
them from representing co-accused at trial by court-martial. Imputed 
disqualification rules for non-USG attorneys are established by their 
individual licensing authorities and may well proscribe all attorneys 
from one law office from representing a co-accused, or a party with an 
adverse interest to an existing client, if any attorney in the same 
office were so prohibited.
    (2) Whether a covered USG attorney is disqualified requires a 
functional analysis of the facts in a specific situation. The analysis 
should include consideration of whether the following will be 
compromised: Preserving attorney-client confidentiality; maintaining 
independence of judgment; and avoiding positions adverse to a client. 
See, e.g., U.S. v. Stubbs, 23 M.J. 188 (CMA 1987).
    (3) Preserving confidentiality is a question of access to 
information. Access to information, in turn, is essentially a question 
of fact in a particular circumstance, aided by inferences, deductions, 
or working presumptions that reasonably may be made about the way in 
which covered

[[Page 25545]]

USG attorneys work together. A covered USG attorney may have general 
access to files of all clients of a military law office (e.g., legal 
assistance attorney) and may regularly participate in discussions of 
their affairs; it may be inferred that such a covered USG attorney in 
fact is privy to all information about all the office's clients. In 
contrast, another covered USG attorney (e.g., military defense counsel) 
may have access to the files of only a limited number of clients and 
participate in discussion of the affairs of no other clients; in the 
absence of information to the contrary, it should be inferred that such 
a covered USG attorney in fact is privy to information about the 
clients actually served but not to information of other clients. 
Additionally, a covered USG attorney changing duty stations or changing 
assignments within a military office has a continuing duty to preserve 
confidentiality of information about a client formerly represented. See 
Sec.  776.25 and Sec.  776.28 of this part.
    (4) In military practice, where covered USG attorneys representing 
adverse interests are sometimes required to share common spaces, 
equipment, and clerical assistance, inadvertent disclosure of 
confidential or privileged material may occur. A covered attorney who 
mistakenly receives any such confidential or privileged materials 
should refrain from reviewing them (except for the limited purpose of 
ascertaining ownership or proper routing), notify the attorney to whom 
the material belongs that he or she has such material, and either 
follow instructions of the attorney with respect to the disposition of 
the materials or refrain from further reviewing or using the materials 
until a definitive resolution of the proper disposition of the 
materials is obtained from a court. A covered attorney's duty to 
provide his or her client zealous representation does not justify a 
rule allowing the receiving attorney to take advantage of inadvertent 
disclosures of privileged and/or confidential materials. This policy 
recognizes and reinforces the principles of: Confidentiality and the 
attorney-client privilege; analogous principles governing the 
inadvertent waiver of the attorney-client privilege; the law governing 
bailments and missent property; and considerations of common sense, 
reciprocity, and professional courtesy.
    (5) Maintaining independent judgment allows a covered USG attorney 
to consider, recommend, and carry out any appropriate course of action 
for a client without regard to the covered USG attorney's personal 
interests or the interests of another. When such independence is 
lacking or unlikely, representation cannot be zealous.
    (6) Another aspect of loyalty to a client is the general obligation 
of any attorney to decline subsequent representations involving 
positions adverse to a former client in substantially related matters. 
This obligation normally requires abstention from adverse 
representation by the individual covered attorney involved, but, in the 
military legal office, abstention is not required by other covered USG 
attorneys through imputed disqualification.


Sec.  776.30  Successive Government and private employment.

    (a) Successive Government and private employment. Except as the law 
or regulations may otherwise expressly permit, a former covered USG 
attorney, who has information known to be confidential Government 
information about a person that was acquired while a covered USG 
attorney, may not represent a private client whose interests are 
adverse to that person in a matter in which the information could be 
used to the material disadvantage of that person. The former covered 
USG attorney may continue association with a firm, partnership, or 
association representing any such client only if the disqualified 
covered USG attorney is screened from any participation in the matter 
and is apportioned no part of the fee or any other benefit therefrom.
    (1) The disqualified former covered USG attorney must ensure that 
he or she is screened from any participation in the matter and is 
apportioned no part of the fee or any other benefit therefrom; and,
    (2) Must provide written notice promptly to the appropriate 
Government agency to enable it to ascertain compliance with the 
provisions of applicable law and regulations.
    (b) Except as the law or regulations may otherwise expressly 
permit, a former covered USG attorney, who has information known to be 
confidential Government information about a person which was acquired 
while a covered USG attorney, may not represent a private client whose 
interests are adverse to that person in a matter in which the 
information could be used to the material disadvantage of that person. 
The former covered USG attorney may continue association with a firm, 
partnership, or association representing any such client only if the 
disqualified covered USG attorney is screened from any participation in 
the matter and is apportioned no part of the fee or any other benefit 
therefrom.
    (c) Except as the law or regulations may otherwise expressly 
permit, a covered USG attorney shall not:
    (1) Participate in a matter in which the covered USG attorney 
participated personally and substantially while in private practice or 
nongovernmental employment, unless under applicable law no one is, or 
by lawful delegation may be, authorized to act in the covered USG 
attorney's stead in the matter; or,
    (2) Negotiate for private employment with any person who is 
involved as a party or as attorney for a party in a matter in which the 
covered USG attorney is participating personally and substantially.
    (d) As used in this Rule, the term ``matter'' includes:
    (1) Any judicial or other proceeding, application, request for a 
ruling or other determination, contract, claim, controversy, 
investigation, charge, accusation, arrest, or other particular matter 
involving a specific party or parties, and
    (2) Any other matter covered by the conflict-of-interest rules of 
the DoD, DoN, or other appropriate Government agency.
    (e) As used in the Rule, the term ``confidential Governmental 
information'' means information that has been obtained under 
Governmental authority and that, at the time this Rule is applied, the 
Government is prohibited by law or regulations from disclosing to the 
public or has a legal privilege not to disclose, and that is not 
otherwise available to the public.
    (f) [Reserved]


Sec.  776.31  Former judge or arbitrator.

    (a) Former judge or arbitrator. Except as stated in paragraph (c) 
of this section, 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 give informed consent, confirmed in writing.
    (b) A covered USG attorney shall not negotiate for employment with 
any person who is involved as a party or as attorney for a party in a 
matter in which the covered USG attorney is participating personally 
and substantially as a judge or other adjudicative officer. A covered 
USG attorney serving as law clerk to a judge, other adjudicative 
officer, or arbitrator may negotiate for employment with a party or 
attorney involved in a matter in which the clerk is participating

[[Page 25546]]

personally and substantially, but only after the covered USG attorney 
has notified the judge, other adjudicative officer, or arbitrator, and 
been disqualified from further involvement in the matter.
    (c) An arbitrator selected as a partisan of a party in a multi-
member arbitration panel is not prohibited from subsequently 
representing that party.
    (d) [Reserved]


Sec.  776.32  Department of the Navy as client.

    (a) Department of the Navy as client. Except when representing an 
individual client pursuant to paragraph (f) of this section, a covered 
USG attorney represents the DoN (or the Executive agency to which 
assigned) acting through its authorized officials. These officials 
include the heads of organizational elements within the naval service, 
such as the commanders of fleets, divisions, ships and other heads of 
activities. When a covered USG attorney is assigned to such an 
organizational element and designated to provide legal services to the 
head of the organization, an attorney-client relationship exists 
between the covered attorney and the DoN as represented by the head of 
the organization as to matters within the scope of the official 
business of the organization. The head of the organization may not 
invoke the attorney-client privilege or the rule of confidentiality for 
the head of the organization's own benefit but may invoke either for 
the benefit of the DoN. In invoking either the attorney-client 
privilege or attorney-client confidentiality on behalf of the DoN, the 
head of the organization is subject to being overruled by higher 
authority.
    (b) If a covered USG attorney knows that an officer, employee, or 
other member associated with the organizational client is engaged in 
action, intends to act or refuses to act in a matter related to the 
representation that is either adverse to the legal interests or 
obligations of the DoN or a violation of law that reasonably might be 
imputed to the DoN, the covered USG attorney shall proceed as is 
reasonably necessary in the best interest of the naval service. In 
determining how to proceed, the covered USG attorney shall give due 
consideration to the seriousness of the violation and its consequences, 
the scope and nature of the covered USG attorney's representation, the 
responsibility in the naval service and the apparent motivation of the 
person involved, the policies of the naval service concerning such 
matters, and any other relevant considerations. Any measures taken 
shall be designed to minimize prejudice to the interests of the naval 
service and the risk of revealing information relating to the 
representation to persons outside the service. Such measures shall 
include:
    (1) Asking for reconsideration of the matter by the acting 
official;
    (2) Advising that a separate legal opinion on the matter be sought 
for presentation to appropriate authority in the naval service;
    (3) Referring the matter to, or seeking guidance from, higher 
authority in the chain of command including, if warranted by the 
seriousness of the matter, referral to the supervisory attorney 
assigned to the staff of the acting official's next superior in the 
chain of command; or
    (4) Advising the acting official that his or her personal legal 
interests are at risk and that he or she should consult counsel as 
there may exist a conflict of interest for the covered USG attorney, 
and the covered USG attorney's responsibility is to the organization.
    (c) If, despite the covered USG attorney's efforts per paragraph 
(b) of this section, the highest authority that can act concerning the 
matter insists upon action or refuses to act, in clear violation of 
law, the covered USG attorney shall terminate representation with 
respect to the matter in question. In no event shall the attorney 
participate or assist in the illegal activity. In this case, a covered 
USG attorney shall report such termination of representation to the 
attorney's supervisory attorney or attorney representing the next 
superior in the chain of command.
    (d) In dealing with the officers, employees, or members of the 
naval service a covered USG attorney shall explain the identity of the 
client when it is apparent that the naval service's interests are 
adverse to those of the officer, employee, or member.
    (e) A covered USG attorney representing the naval service may also 
represent any of its officers, employees, or members, subject to the 
provisions of Sec.  776.26 of this part and other applicable authority. 
If the DoN's consent to dual representation is required by Sec.  776.26 
of this part, the consent shall be given by an appropriate official of 
the DoN other than the individual who is to be represented.
    (f) A covered USG attorney who has been duly assigned to represent 
an individual who is subject to criminal or disciplinary action or 
administrative proceedings, or to provide legal assistance to an 
individual, has, for those purposes, an attorney-client relationship 
with that individual.
    (g) [Reserved]


Sec.  776.33  Client with diminished capacity.

    (a) Client with diminished capacity. When a client's capacity to 
make adequately considered decisions in connection with the 
representation is diminished, whether because of minority, mental 
impairment, or for some other reason, the covered attorney shall, as 
far as reasonably possible, maintain a normal attorney-client 
relationship with the client.
    (b) When the covered attorney reasonably believes that the client 
has diminished capacity, is at risk of substantial physical, financial, 
or other harm unless action is taken and cannot adequately act in the 
client's own interest, the covered attorney may take reasonably 
necessary protective action, including consulting with individuals or 
entities that have the ability to take action to protect the client.
    (c) Information relating to the representation of a client with 
diminished capacity is protected by Sec.  776.25 of this part. When 
taking protective action pursuant to paragraph (b) of this section, the 
covered attorney is impliedly authorized under Sec.  776.25(a) of this 
part to reveal information about the client, but only to the extent 
reasonably necessary to protect the client's interests.
    (d) [Reserved]


Sec.  776.34  Safekeeping property.

    (a) Safekeeping property. Covered USG attorneys shall not normally 
hold or safeguard property of a client or third persons in connection 
with representational duties. See Sec.  776.27 of this part.
    (b) [Reserved]


Sec.  776.35  Declining or terminating representation.

    (a) Declining or terminating representation. Except as stated in 
paragraph (c) of this section, a covered attorney shall not represent a 
client or, when representation has commenced, shall seek to withdraw 
from the representation of a client if:
    (1) The representation will result in violation of subpart B of 
this part or other law or regulation;
    (2) The covered attorney's physical or mental condition materially 
impairs his or her ability to represent the client; or
    (3) The covered attorney is dismissed by the client.
    (b) Except as stated in paragraph (c) of this section, a covered 
attorney may seek to withdraw from representing a client if withdrawal 
can be accomplished without material adverse effect on the interests of 
the client, or if:
    (1) The client persists in a course of action involving the covered 
attorney's

[[Page 25547]]

services that the covered attorney reasonably believes is criminal or 
fraudulent;
    (2) The client has used the covered attorney's services to 
perpetrate a crime or fraud;
    (3) The client insists upon pursuing an objective that the covered 
attorney considers repugnant or imprudent;
    (4) In the case of covered non-USG attorneys, the representation 
will result in an unreasonable financial burden on the attorney or has 
been rendered unreasonably difficult by the client; or
    (5) Other good cause for withdrawal exists.
    (c) A covered attorney must comply with applicable law requiring 
notice to or permission of a tribunal when terminating a 
representation. When ordered to do so by a tribunal or other competent 
authority, a covered attorney shall continue representation 
notwithstanding good cause for terminating the representation.
    (d) Upon termination of representation, a covered attorney shall 
take steps to the extent reasonably practicable to protect a client's 
interests, such as giving reasonable notice to the client, allowing 
time for assignment or employment of other counsel, and surrendering 
papers and property to which the client is entitled and, where a non-
USG attorney provided representation, refunding any advance payment of 
fee that has not been earned. The covered attorney may retain papers 
relating to the client to the extent permitted by law.
    (e) [Reserved]


Sec.  776.36  Prohibited sexual relations.

    (a) Prohibited sexual relations. A covered attorney shall not have 
sexual relations with a current client. A covered attorney shall not 
require, demand, or solicit sexual relations with a client incident to 
any professional representation.
    (b) A covered attorney shall not engage in sexual relations with 
another attorney currently representing a party whose interests are 
adverse to those of a client currently represented by the covered 
attorney.
    (c) A covered attorney shall not engage in sexual relations with a 
judge who is presiding or who is likely to preside over any proceeding 
in which the covered attorney will appear in a representative capacity.
    (d) A covered attorney shall not engage in sexual relations with 
other persons involved in the particular case, judicial or 
administrative proceeding, or other matter for which representation has 
been established, including but not limited to witnesses, victims, co-
accused, and court-martial or board members.
    (e) For purposes of this Rule, ``sexual relations'' means:
    (1) Sexual intercourse; or
    (2) Any touching of the sexual or other intimate parts of a person 
or causing such person to touch the sexual or other intimate parts of 
the covered attorney for the purpose of arousing or gratifying the 
sexual desire of either party.
    (f) [Reserved]


Sec.  776.37  Advisor.

    (a) Advisor. In representing a client, a covered attorney shall 
exercise independent professional judgment and render candid advice. In 
rendering advice, a covered attorney may refer not only to law but to 
other considerations such as moral, economic, social, and political 
factors that may be relevant to the client's situation.
    (b) [Reserved]


Sec.  776.38  Mediation.

    (a) Mediation. A covered attorney may act as a mediator between 
individuals if:
    (1) The covered attorney consults with each individual concerning 
the implications of the mediation, including the advantages and risks 
involved, and the effect on the attorney-client confidentiality, and 
obtains each individual's consent to the mediation;
    (2) The covered attorney reasonably believes that the matter can be 
resolved on terms compatible with each individual's best interests, 
that each individual will be able to make adequately informed decisions 
in the matter, and that there is little risk of material prejudice to 
the interests of any of the individuals if the contemplated resolution 
is unsuccessful; and,
    (3) The covered attorney reasonably believes that the mediation can 
be undertaken impartially and without improper effect on other 
responsibilities the covered attorney has to any of the individuals.
    (b) While acting as a mediator, the covered attorney shall consult 
with each individual concerning the decisions to be made and the 
considerations relevant in making them, so that each individual can 
make adequately informed decisions.
    (c) A covered attorney shall withdraw as a mediator if any of the 
individuals so requests, or if any of the conditions stated in 
paragraph (a)(1) of this section is no longer satisfied. Upon 
withdrawal, the covered attorney shall not represent any of the 
individuals in the matter that was the subject of the mediation unless 
each individual consents.
    (d) [Reserved]


Sec.  776.39  Evaluation for use by third persons.

    (a) Evaluation for use by third persons. A covered attorney may 
provide an evaluation of a matter affecting a client for the use of 
someone other than the client if:
    (1) The covered attorney reasonably believes that making the 
evaluation is compatible with other aspects of the covered attorney's 
relationship with the client; and
    (2) The client provides informed consent, confirmed in writing.
    (b) Except as disclosure is required in connection with a report of 
an evaluation, information relating to the evaluation is otherwise 
protected by Sec.  776.25 of this part.
    (c) [Reserved]


Sec.  776.40  Meritorious claims and contentions.

    (a) Meritorious claims and contentions. A covered attorney shall 
not bring or defend a proceeding, or assert or controvert an issue 
therein, unless there is a basis for doing so that is not frivolous, 
which includes a good faith argument for an extension, modification, or 
reversal of existing law. A covered attorney representing an accused in 
a criminal proceeding or the respondent in an administrative 
proceeding, that could result in incarceration, discharge from the 
Naval service, or other adverse personnel action, may nevertheless 
defend the client at the proceeding as to require that every element of 
the case is established.
    (b) [Reserved]


Sec.  776.41  Expediting litigation.

    (a) Expediting litigation. A covered attorney shall make reasonable 
efforts to expedite litigation or other proceedings consistent with the 
interests of the client.
    (b) [Reserved]


Sec.  776.42  Candor and obligations toward the tribunal.

    (a) Candor and obligations toward the tribunal. A covered attorney 
shall not knowingly:
    (1) Make a false statement of material fact or law to a tribunal or 
fail to correct a false statement of material fact or law previously 
made to the tribunal by the covered attorney;
    (2) Fail to disclose to the tribunal legal authority in the 
controlling jurisdiction known to the covered attorney to be directly 
adverse to the position of the client and not disclosed by opposing 
counsel;
    (3) Offer evidence that the covered attorney knows to be false.

[[Page 25548]]

    (i) If a covered attorney, the attorney's client, or a witness 
called by the covered attorney, has offered material evidence and the 
covered attorney comes to know of its falsity, the covered attorney 
shall take reasonable remedial measures, including, if necessary, 
disclosure to the tribunal.
    (ii) A covered attorney may refuse to offer evidence, other than 
the testimony of an accused in a criminal matter, that the covered 
attorney reasonably believes is false; or
    (4) Disobey an order imposed by a tribunal unless done openly 
before the tribunal in a good faith assertion that no valid order 
should exist.
    (b) A covered attorney who represents a client in an adjudicative 
proceeding and who knows that a person intends to engage, is engaging 
or has engaged in criminal or fraudulent conduct related to the 
proceeding shall take reasonable remedial measures, including, if 
necessary, disclosure to the tribunal.
    (c) The duties stated in paragraph (a) of this section continue to 
the conclusion of the proceedings, and apply even if compliance 
requires disclosure of information otherwise protected by Sec.  776.25 
of this part.
    (d) In an ex parte proceeding, a covered attorney shall inform the 
tribunal of all material facts known to the covered attorney that will 
enable the tribunal to make an informed decision, whether or not the 
facts are adverse.
    (e) [Reserved]


Sec.  776.43  Fairness to opposing party and counsel.

    (a) Fairness to opposing party and counsel. A covered attorney 
shall not:
    (1) Unlawfully obstruct a party's access to evidence or unlawfully 
alter, destroy, or conceal a document or other material having 
potential evidentiary value. A covered attorney shall not counsel or 
assist another person to do any such act;
    (2) Falsify evidence, counsel or assist a witness to testify 
falsely, or offer an inducement to a witness that is prohibited by law;
    (3) Knowingly disobey an order of the tribunal except for an open 
refusal based on an assertion that no valid obligation exists;
    (4) In pretrial procedure, make a frivolous discovery request or 
fail to make reasonably diligent effort to comply with a legally proper 
discovery request by a party;
    (5) In trial, allude to any matter that the covered attorney does 
not reasonably believe is relevant or that will not be supported by 
admissible evidence, assert personal knowledge of facts in issue except 
when testifying as a witness, or state a personal opinion as to the 
justness of a cause, the credibility of a witness, the culpability of a 
civil litigant, or the guilt or innocence of an accused; or
    (6) Request a person other than a client to refrain from 
voluntarily giving relevant information to another party unless:
    (i) The person is a relative, an employee, or other agent of a 
client; and
    (ii) The covered attorney reasonably believes that the person's 
interests will not be adversely affected by refraining from giving such 
information.
    (b) [Reserved]


Sec.  776.44  Impartiality and decorum of the tribunal.

    (a) Impartiality and decorum of the tribunal. A covered attorney 
shall not:
    (1) Seek to influence a judge, court member, member of a tribunal, 
prospective court member or member of a tribunal, or other official by 
means prohibited by law or regulation;
    (2) Communicate ex parte with such a person except as permitted by 
law or regulation; or
    (3) Engage in conduct intended to disrupt a tribunal.
    (b) [Reserved]


Sec.  776.45  Extra-tribunal statements.

    (a) Extra-tribunal statements. A covered attorney shall not make an 
extrajudicial statement about any person or case pending investigation 
or adverse administrative or disciplinary proceedings that a reasonable 
person would expect to be disseminated by means of public communication 
if the covered attorney knows or reasonably should know that it will 
have a substantial likelihood of materially prejudicing an adjudicative 
proceeding or an official review process thereof.
    (b) A statement referred to in paragraph (a) of this section 
ordinarily is likely to have such an effect when it refers to a civil 
matter triable to a jury, a criminal matter (including before a 
military tribunal or commission), or any other proceeding that could 
result in incarceration, discharge from the naval service, or other 
adverse personnel action, and the statement relates to:
    (1) The character, credibility, reputation, or criminal record of a 
party, suspect in a criminal investigation, victim, or witness, or the 
identity of a victim or witness, or the expected testimony of a party, 
suspect, victim, or witness;
    (2) The possibility of a plea of guilty to the offense or the 
existence or contents of any confession, admission, or statement given 
by an accused or suspect or that person's refusal or failure to make a 
statement;
    (3) The performance or results of any forensic examination or test 
or the refusal or failure of a person to submit to an examination or 
test, or the identity or nature of physical evidence expected to be 
presented;
    (4) Any opinion as to the guilt or innocence of an accused or 
suspect in a criminal case or other proceeding that could result in 
incarceration, discharge from the naval service, or other adverse 
personnel action;
    (5) Information the covered attorney knows or reasonably should 
know is likely to be inadmissible as evidence before a tribunal and 
would, if disclosed, create a substantial risk of materially 
prejudicing an impartial proceeding;
    (6) The fact that an accused has been charged with a crime, unless 
there is included therein a statement explaining that the charge is 
merely an accusation and that the accused is presumed innocent until 
and unless proven guilty; or
    (7) The credibility, reputation, motives, or character of civilian 
or military officials of the DoD.
    (c) Notwithstanding paragraphs (a) and (b)(1) through (7) of this 
section, a covered attorney involved in the investigation or litigation 
of a matter may state without elaboration:
    (1) The general nature of the claim, offense, or defense;
    (2) The information contained in a public record;
    (3) That an investigation of the matter is in progress, including 
the general scope of the investigation, the offense or claim or defense 
involved and, except when prohibited by law or regulation, the identity 
of the persons involved;
    (4) The scheduling or result of any step in litigation;
    (5) A request for assistance in obtaining evidence and information 
necessary thereto;
    (6) A warning of danger concerning the behavior of the person 
involved, when there is reason to believe that there exists the 
likelihood of substantial harm to an individual or to the public 
interest; and
    (7) In a criminal case, in addition to paragraphs (c)(1) through 
(6) of this section:
    (i) The identity, duty station, occupation, and family status of 
the accused;
    (ii) If the accused has not been apprehended, information necessary 
to aid in apprehension of that person;
    (iii) The fact, time, and place of apprehension; and
    (iv) The identity of investigating and apprehending officers or 
agencies and the length of the investigation.

[[Page 25549]]

    (d) Notwithstanding paragraphs (a) and (b)(1) through (7) of this 
section, a covered attorney may make a statement that a reasonable 
covered attorney would believe is required to protect a client from the 
substantial undue prejudicial effect of recent publicity not initiated 
by the covered attorney or the attorney's client. A statement made 
pursuant to this paragraph shall be limited to such information as is 
necessary to mitigate the recent adverse publicity.
    (e) The protection and release of information in matters pertaining 
to the DoN is governed by such statutes as the Freedom of Information 
Act and the Privacy Act, in addition to those governing protection of 
national defense information. In addition, other laws and regulations 
may further restrict the information that can be released or the source 
from which it is to be released (e.g., the Manual of the Judge Advocate 
General).
    (f) [Reserved]


Sec.  776.46  Attorney as witness.

    (a) Attorney as witness. A covered attorney shall not act as 
advocate at a trial in which the covered attorney is likely to be a 
necessary witness except when:
    (1) The testimony relates to an uncontested issue;
    (2) The testimony relates to the nature and quality of legal 
services rendered in the case; or
    (3) Disqualification of the covered attorney would work substantial 
hardship on the client.
    (b) A covered attorney may act as advocate in a trial in which 
another attorney in the covered attorney's office is likely to be 
called as a witness, unless precluded from doing so by Sec.  776.26 or 
Sec.  776.28 of this part.
    (c) [Reserved]


Sec.  776.47  Special responsibilities of a trial counsel and other 
government counsel.

    (a) Special responsibilities of a trial counsel and other 
government counsel. A trial counsel in a criminal case shall:
    (1) Recommend to the convening authority that any charge or 
specification not supported by probable cause be withdrawn;
    (2) Make reasonable efforts to assure that the accused has been 
advised of the right to, and the procedure for obtaining, counsel and 
has been given reasonable opportunity to obtain counsel;
    (3) Not seek to obtain from an unrepresented accused a waiver of 
important pretrial rights;
    (4) Make timely disclosure to the defense of all evidence or 
information known to the trial counsel that tends to negate the guilt 
of the accused or mitigates the offense, and, in connection with 
sentencing, disclose to the defense all unprivileged mitigating 
information known to the trial counsel, except when the trial counsel 
is relieved of this responsibility by a protective order or regulation;
    (5) Exercise reasonable care to prevent investigators, law 
enforcement personnel, employees, or other persons assisting or 
associated with the trial counsel from making an extrajudicial 
statement that the trial counsel would be prohibited from making under 
Sec.  776.45 of this part; and
    (6) Except for statements that are necessary to inform the public 
of the nature and extent of the trial counsel's actions and that serve 
a legitimate law enforcement purpose, refrain from making extrajudicial 
comments that have a substantial likelihood of heightening public 
condemnation of the accused.
    (b)(1) Trial counsel and other government counsel shall exercise 
reasonable care to avoid intercepting, seizing, copying, viewing, or 
listening to communications protected by the attorney-client privilege 
during investigation of a suspected offense (particularly when 
conducting government-sanctioned searches where attorney-client 
privileged communications may be present), as well as in the 
preparation or prosecution of a case. Such communications expressly 
include, but are not limited to:
    (i) Land-line telephone conversations;
    (ii) Facsimile transmissions;
    (iii) U.S. mail, and;
    (iv) Email.
    (2) Trial counsel and other government counsel must not infringe 
upon the confidential nature of attorney-client privileged 
communications and are responsible for the actions of their agents or 
representatives when they induce or assist them in intercepting, 
seizing, copying, viewing, or listening to such privileged 
communications.
    (c)(1) The trial counsel represents the United States in the 
prosecution of special and general courts-martial. See Article 38(a), 
UCMJ; see also R.C.M. 103(16), 405(d)(3)(A), and 502(d)(5). 
Accordingly, a trial counsel has the responsibility of administering 
justice and is not simply an advocate. This responsibility carries with 
it specific obligations to see that the accused is accorded procedural 
justice and that guilt is decided upon the basis of sufficient 
evidence.
    (i) Paragraph (a)(1) of this section recognizes that the trial 
counsel does not have all the authority vested in modern civilian 
prosecutors.
    (ii) The authority to convene courts-martial, and to refer and 
withdraw specific charges, is vested in convening authorities.
    (iii) Trial counsel may have the duty, in certain circumstances, to 
bring to the court's attention any charge that lacks sufficient 
evidence to support a conviction. See United States v. Howe, 37 M.J. 
1062 (NMCMR 1993). Such action should be undertaken only after 
consultation with a supervisory attorney and the convening authority. 
See also Sec.  776.42(d) of this part (governing ex parte proceedings). 
Applicable law may require other measures by the trial counsel.
    (iv) Knowing disregard of those obligations or a systematic abuse 
of prosecutorial discretion could constitute a violation of Sec.  
776.69 of this part.
    (2) Paragraph (a)(3) of this part does not apply to an accused 
appearing pro se with the approval of the tribunal. Nor does it forbid 
the lawful questioning of a suspect who has knowingly waived the rights 
to counsel and to remain silent.
    (3) The exception in paragraph (a)(4) of this section recognizes 
that a trial counsel may seek an appropriate protective order from the 
tribunal if disclosure of information to the defense could result in 
substantial harm to an individual or organization or to the public 
interest. This exception also recognizes that applicable statutes and 
regulations may proscribe the disclosure of certain information without 
proper authorization.
    (4) A trial counsel may comply with paragraph (a)(5) of this 
section in a number of ways. These include personally informing others 
of the trial counsel's obligations under Sec.  776.46 of this part, 
conducting training of law enforcement personnel, and appropriately 
supervising the activities of personnel assisting the trial counsel.
    (5) Paragraph (a)(6) of this part supplements Sec.  776.45 of this 
part, which prohibits extrajudicial statements that have a substantial 
likelihood of prejudicing an adjudicatory proceeding. A trial counsel 
can, and should, avoid comments that have no legitimate law enforcement 
purpose and have a substantial likelihood of increasing public 
opprobrium of the accused. Nothing in this Comment is intended to 
restrict the statements that a trial counsel may make that comply with 
Sec.  776.45 of this part.
    (6) The ``ABA Standards for Criminal Justice: The Prosecution 
Function,'' (3d

[[Page 25550]]

ed. 1993), has been used by appellate courts in analyzing issues 
concerning trial counsel conduct. To the extent consistent with these 
Rules, the ABA standards may be used to guide trial counsel in the 
prosecution of criminal cases. See United States v. Howe, 37 M.J. 1062 
(NMCRS 1993); United States v. Dancy, 38 M.J. 1 (CMA 1993); United 
States v. Hamilton, 41 M.J. 22 (CMA 1994); United States v. Meek, 44 
M.J. 1 (CMA 1996).
    (d) [Reserved]


Sec.  776.48  Advocate in nonadjudicative proceedings.

    (a) Advocate in nonadjudicative proceedings. A covered attorney 
representing a client before a legislative or administrative tribunal 
in a nonadjudicative proceeding shall disclose that the appearance is 
in a representative capacity and shall conform to the provisions of 
Sec.  776.42 (a) through (d), Sec.  776.43 and Sec.  776.44 of this 
part.
    (b) [Reserved]


Sec.  776.49  Truthfulness in statements to others.

    (a) Truthfulness in statements to others. In the course of 
representing a client a covered attorney shall not knowingly;
    (1) Make a false statement of material fact or law to a third 
person; or
    (2) Fail to disclose a material fact to a third person when 
disclosure is necessary to avoid assisting a criminal or fraudulent act 
by a client, unless disclosure is prohibited by Sec.  776.25 of this 
part.
    (b) [Reserved]


Sec.  776.50  Communication with person represented by counsel.

    (a) Communication with person represented by counsel. In 
representing a client, a covered attorney shall not communicate about 
the subject of the representation with a party the covered attorney 
knows to be represented by another attorney in the matter, unless the 
covered attorney has the consent of the other attorney or is authorized 
by law to do so.
    (b) [Reserved]


Sec.  776.51  Dealing with an unrepresented person.

    (a) Dealing with an unrepresented person. When dealing on behalf of 
a client with a person who is not represented by counsel, a covered 
attorney shall not state or imply that the covered attorney is 
disinterested. When the covered attorney knows or reasonably should 
know that the unrepresented person misunderstands the covered 
attorney's role in the matter, the covered attorney shall make 
reasonable efforts to correct the misunderstanding.
    (b) [Reserved]


Sec.  776.52  Respect for rights of third persons.

    (a) Respect for rights of third persons. In representing a client, 
a covered attorney shall not use means that have no substantial purpose 
other than to embarrass, delay, or burden a third person, or use 
methods of obtaining evidence that violate the legal rights of such a 
person.
    (b) [Reserved]


Sec.  776.53  Responsibilities of the Judge Advocate General and 
supervisory attorneys.

    (a) Responsibilities of the Judge Advocate General and supervisory 
attorneys. The JAG and supervisory attorneys shall make reasonable 
efforts to ensure that all covered attorneys conform to Subpart B of 
this part.
    (b) A covered attorney having direct supervisory authority over 
another covered attorney shall make reasonable efforts to ensure that 
the other attorney conforms to Subpart B of this part.
    (c) A supervisory attorney shall be responsible for another 
subordinate covered attorney's violation of Subpart B of this part if:
    (1) The supervisory attorney orders or, with knowledge of the 
specific conduct, ratifies the conduct involved; or
    (2) The supervisory attorney has direct supervisory authority over 
the other attorney and knows of the conduct at a time when its 
consequences can be avoided or mitigated but fails to take reasonable 
remedial action.
    (d) A supervisory attorney is responsible for ensuring that the 
subordinate covered attorney is properly trained and is competent to 
perform the duties to which the subordinate covered attorney is 
assigned.
    (e) [Reserved]


Sec.  776.54  Responsibilities of a subordinate attorney.

    (a) Responsibilities of a subordinate attorney. A covered attorney 
is bound by this part notwithstanding that the covered attorney acted 
at the direction of another person.
    (b) In recognition of the judge advocate's unique dual role as a 
commissioned officer and attorney, subordinate judge advocates shall 
obey lawful directives and regulations of supervisory attorneys when 
not inconsistent with this part or the duty of a judge advocate to 
exercise independent professional judgment as to the best interest of 
an individual client.
    (c) A subordinate covered attorney does not violate this part if 
that covered attorney acts in accordance with a supervisory attorney's 
written and reasonable resolution of an arguable question of 
professional duty.
    (d) [Reserved]


Sec.  776.55  Responsibilities regarding non-attorney assistants.

    (a) Responsibilities regarding non-attorney assistants. With 
respect to a non-attorney acting under the authority, supervision, or 
direction of a covered attorney:
    (1) The senior supervisory attorney in an office shall make 
reasonable efforts to ensure that the person's conduct is compatible 
with the professional obligations of a covered attorney;
    (2) A covered attorney having direct supervisory authority over the 
non-attorney shall make reasonable efforts to ensure that the person's 
conduct is compatible with the professional obligations of a covered 
attorney; and
    (3) A covered attorney shall be responsible for conduct of such a 
person that would be a violation of this part if engaged in by a 
covered attorney if:
    (i) The covered attorney orders or, with the knowledge of the 
specific conduct, explicitly or impliedly ratifies the conduct 
involved; or
    (ii) The covered attorney has direct supervisory authority over the 
person, and knows of the conduct at a time when its consequences can be 
avoided or mitigated but fails to take reasonable remedial action.
    (b) [Reserved]


Sec.  776.56  Professional independence of a covered USG attorney.

    (a) Professional independence of a covered USG attorney. 
Notwithstanding a judge advocate's status as a commissioned officer 
subject, generally, to the authority of superiors, a judge advocate 
detailed or assigned to represent an individual member or employee of 
the DoN is expected to exercise unfettered loyalty and professional 
independence during the representation consistent with subpart B of 
this part and remains ultimately responsible for acting in the best 
interest of the individual client.
    (b) Notwithstanding a civilian USG attorney's status as a Federal 
employee subject, generally, to the authority of superiors, a civilian 
USG attorney detailed or assigned to represent an individual member or 
employee of the DoN is expected to exercise unfettered loyalty and 
professional independence during the representation consistent with 
this part and remains ultimately responsible for acting in the best 
interest of the individual client.

[[Page 25551]]

    (c) The exercise of professional judgment in accordance with 
paragraphs (a) or (b) of this section shall not, standing alone, be a 
basis for an adverse evaluation or other prejudicial action.
    (1) Subpart B of this part recognizes that a judge advocate is a 
military officer required by law to obey the lawful orders of superior 
officers. It also recognizes the similar status of a civilian USG 
attorney. Nevertheless, the practice of law requires the exercise of 
judgment solely for the benefit of the client and free of compromising 
influences and loyalties. Thus, when a covered USG attorney is assigned 
to represent an individual client, neither the attorney's personal 
interests, the interests of other clients, nor the interests of third 
persons should affect loyalty to the individual client.
    (2) Not all direction given to a subordinate covered attorney is an 
attempt to influence improperly the covered attorney's professional 
judgment. Each situation must be evaluated by the facts and 
circumstances, giving due consideration to the subordinate's training, 
experience, and skill. A covered attorney subjected to outside 
pressures should make full disclosure of them to the client. If the 
covered attorney or the client believes the effectiveness of the 
representation has been or will be impaired thereby, the covered 
attorney should take proper steps to withdraw from representation of 
the client.
    (3) Additionally, a judge advocate has a responsibility to report 
any instances of unlawful command influence. See R.C.M. 104, MCM, 1998.


Sec.  776.57  Unauthorized practice of law.

    (a) Unauthorized practice of law. A covered USG attorney shall not:
    (1) Except as authorized by an appropriate military department, 
practice law in a jurisdiction where doing so is prohibited by the 
regulations of the legal profession in that jurisdiction; or
    (2) Assist a person who is not a member of the bar in the 
performance of activity that constitutes the unauthorized practice of 
law.
    (3) Engage in the outside practice of law without receiving proper 
authorization from the JAG.
    (b) Limiting the practice of law to members of the bar protects the 
public against rendition of legal services by unqualified persons. A 
covered USG attorney's performance of legal duties pursuant to a 
military department's authorization, however, is considered a Federal 
function and not subject to regulation by the states. Thus, a covered 
USG attorney may perform legal assistance duties even though the 
covered attorney is not licensed to practice in the jurisdiction within 
which the covered attorney's duty station is located. Paragraph (a)(2) 
of this section does not prohibit a covered USG attorney from using the 
services of non-attorneys and delegating functions to them, so long as 
the covered attorney supervises the delegated work and retains 
responsibility for it. See Sec.  776.55 of this part. Likewise, it does 
not prohibit covered USG attorneys from providing professional advice 
and instruction to non-attorneys whose employment requires knowledge of 
law; for example, claims adjusters, social workers, accountants and 
persons employed in Government agencies. In addition, a covered USG 
attorney may counsel individuals who wish to proceed pro se or non-
attorneys authorized by law or regulation to appear and represent 
themselves or others before military proceedings.


Sec. Sec.  776.58-776.65  [Reserved]


Sec.  776.66  Bar admission and disciplinary matters.

    (a) Bar admission and disciplinary matters. A covered attorney, in 
connection with any application for bar admission, appointment as a 
judge advocate, employment as a civilian USG attorney, certification by 
the JAG or his designee, or in connection with any disciplinary matter, 
shall not:
    (1) Knowingly make a false statement of fact; or
    (2) Fail to disclose a fact necessary to correct a misapprehension 
known by the person to have arisen in the matter, or knowingly fail to 
respond to a lawful demand for information from an admissions or 
disciplinary authority, except that this part does not require 
disclosure of information otherwise protected by Sec.  776.25 of this 
part.
    (b) The duty imposed by subpart B of this part extends to covered 
attorneys and other attorneys seeking admission to a bar, application 
for appointment as a covered USG attorney (military or civilian) or 
certification by the JAG or his designee. Hence, if a person makes a 
false statement in connection with an application for admission or 
certification (e.g., misstatement by a civilian attorney before a 
military judge regarding qualifications under R.C.M. 502), it may be 
the basis for subsequent disciplinary action if the person is admitted, 
and in any event may be relevant in a subsequent admission application.
    (1) The duty imposed by subpart B of this part applies to a covered 
attorney's own admission or discipline as well as that of others. Thus, 
it is a separate professional offense for a covered attorney to make a 
knowing misrepresentation or omission in connection with a disciplinary 
investigation of the covered attorney's own conduct.
    (2) Subpart B of this part also requires affirmative clarification 
of any misunderstanding on the part of the admissions, certification, 
or disciplinary authority of which the person involved becomes aware.


Sec.  776.67  Judicial and legal officers.

    (a) Judicial and legal officers. A covered attorney shall not make 
a statement that the covered attorney knows to be false or with 
reckless disregard as to its truth or falsity concerning the 
qualifications or integrity of a judge, investigating officer, hearing 
officer, adjudicatory officer, or public legal officer, or of a 
candidate for election or appointment to judicial or legal office.
    (b) [Reserved]


Sec.  776.68  Reporting professional misconduct.

    (a) Reporting professional misconduct. A covered attorney having 
knowledge that another covered attorney has committed a violation of 
subpart B of this part that raises a substantial question as to that 
covered attorney's honesty, trustworthiness, or fitness as a covered 
attorney in other respects, shall report such violation in accordance 
with the procedures set forth in this part.
    (b) A covered attorney having knowledge that a judge has committed 
a violation of applicable rules of judicial conduct that raises a 
substantial question as to the judge's fitness for office shall report 
such violation in accordance with the procedures set forth in this 
part.
    (c) This part does not require disclosure of information otherwise 
protected by Sec.  776.25 of this part.
    (d) [Reserved]


Sec.  776.69  Misconduct.

    (a) Misconduct. It is professional misconduct for a covered 
attorney to:
    (1) Violate or attempt to violate subpart B of this part, knowingly 
assist or induce another to do so, or do so through the acts of 
another;
    (2) Commit a criminal act that reflects adversely on the covered 
attorney's honesty, trustworthiness, or fitness as an attorney in other 
respects;
    (3) Engage in conduct involving dishonesty, fraud, deceit, or 
misrepresentation;

[[Page 25552]]

    (4) Engage in conduct that is prejudicial to the administration of 
justice;
    (5) State or imply an ability to influence improperly a government 
agency or official; or
    (6) Knowingly assist a judge or judicial officer in conduct that is 
a violation of applicable rules of judicial conduct or other law.
    (b)(1) Judge advocates hold a commission as an officer in the Navy 
or Marine Corps and assume legal responsibilities going beyond those of 
other citizens. A judge advocate's abuse of such commission can suggest 
an inability to fulfill the professional role of judge advocate and 
attorney. This concept has similar application to civilian USG 
attorneys.
    (2) Covered non-USG attorneys, Reservists, and Retirees (acting in 
their civilian capacity), like their active-duty counterparts, are 
expected to demonstrate model behavior and exemplary integrity at all 
times. The JAG may consider any and all derogatory or beneficial 
information about a covered attorney, for purposes of determining the 
attorney's qualification, professional competence, or fitness to 
practice law in DoN matters, or to administer discipline under this 
instruction. Such consideration shall be made, except in emergency 
situations necessitating immediate action, according to the procedures 
established in this instruction.


Sec.  776.70  Jurisdiction.

    (a) Jurisdiction. All covered attorneys shall be governed by this 
part.
    (b)(1) Many covered USG attorneys practice outside the territorial 
limits of the jurisdiction in which they are licensed. While covered 
attorneys remain subject to the governing authority of the jurisdiction 
in which they are licensed to practice, they are also subject to 
subpart B of this part.
    (2) When covered USG attorneys are engaged in the conduct of Navy 
or Marine Corps legal functions, whether serving the Navy or Marine 
Corps as a client or serving an individual client as authorized by the 
Navy or Marine Corps, the provisions contained in Subpart B of this 
part supersede any conflicting rules applicable in jurisdictions in 
which the covered attorney may be licensed. However, covered attorneys 
practicing in State or Federal civilian court proceedings will abide by 
the rules adopted by that State or Federal civilian court during the 
proceedings. As for covered non-USG attorneys practicing under the 
supervision of the JAG, violation of the provisions contained in 
Subpart B of this part may result in suspension from practice in DoN 
proceedings.
    (3) Covered non-USG attorneys, Reservists, or Retirees (acting in 
their civilian capacity) who seek to provide legal services in any DoN 
matter under JAG cognizance and supervision, may be precluded from such 
practice of law if, in the opinion of the JAG (as exercised through 
this instruction) the attorney's conduct in any venue renders that 
attorney unable or unqualified to practice in DoN programs or 
proceedings.


Sec.  776.71  Requirement to remain in good standing with licensing 
authorities.

    (a) Requirement to remain in good standing with licensing 
authorities. Each officer of the Navy appointed as a member of the JAG 
Corps, each officer of the Marine Corps designated a judge advocate, 
and each civil service and contracted civilian attorney who practices 
law under the cognizance and supervision of the JAG shall maintain a 
status considered ``in good standing'' at all times with the licensing 
authority admitting the individual to the practice of law before the 
highest court of at least one State, Territory, Commonwealth, or the 
District of Columbia.
    (b) The JAG, the Staff Judge Advocate to the Commandant of the 
Marine Corps, or any other supervisory attorney may require any covered 
USG attorney over whom they exercise authority to establish that the 
attorney continues to be in good standing with his or her licensing 
authority. Representatives of the JAG or of the Staff Judge Advocate to 
the Commandant of the Marine Corps, may also inquire directly of any 
such covered USG attorney's licensing authority to establish whether he 
or she continues to be in good standing and has no disciplinary action 
pending.
    (c) Each covered USG attorney shall immediately report to the JAG 
if any jurisdiction in which the covered USG attorney is or has been a 
member in good standing commences disciplinary investigation or action 
against him or her or if the covered USG attorney is disciplined, 
suspended, or disbarred from the practice of law in any jurisdiction.
    (d) Each covered non-USG attorney representing an accused in any 
court-martial or administrative separation proceeding shall be a member 
in good standing with, and authorized to practice law by, the bar of a 
Federal court or of the bar of the highest court of a State, or a 
lawyer otherwise authorized by a recognized licensing authority to 
practice law and found by the military judge to be qualified to 
represent the accused.
    (e)(1) Generally, the JAG relies on the licensing authority 
granting the certification or privilege to practice law to define the 
phrase ``good standing.'' However, as circumstances require, the JAG 
may, instead, use separate criteria to determine compliance. At a 
minimum, ``good standing'' means the individual:
    (i) Is subject to the jurisdiction's disciplinary review process;
    (ii) Has not been suspended or disbarred from the practice of law 
within the jurisdiction;
    (iii) Is current in the payment of all required fees;
    (iv) Has met applicable continuing legal education requirements 
that the jurisdiction has imposed (or the cognizant authority has 
waived); and
    (v) Has met such other requirements as the cognizant authority has 
set for eligibility to practice law. So long as these conditions are 
met, a covered USG attorney may be ``inactive'' as to the practice of 
law within a particular jurisdiction and still be ``in good standing'' 
for purposes of subpart B of this part.
    (2) Rule for Court-Martial 502(d)(3)(A) requires that any civilian 
defense counsel representing an accused in a court-martial be a member 
of the bar of a Federal court or of the bar of the highest court of a 
State. This civilian defense counsel qualification only has meaning if 
the attorney is a member ``in good standing,'' and is then authorized 
to practice law within that jurisdiction. See United States v. 
Waggoner, 22 M.J. 692 (AFCMR 1986). It is appropriate for the military 
judge, in each and every case, to ensure that a civilian defense 
counsel is qualified to represent the accused.
    (3) Failure of a judge advocate to comply with the requirements of 
subpart B of this part may result in professional disciplinary action 
as provided for in this instruction, loss of certification under 
Articles 26 and/or 27(b), UCMJ, adverse entries in military service 
records, and administrative separation under SECNAVINST 1920.6 (series) 
based on the officer's failure to maintain professional qualifications. 
In the case of civil service and contracted civilian attorneys 
practicing under the JAG's cognizance and supervision, failure to 
maintain good standing or otherwise to comply with the requirements of 
subpart B of this part may result in adverse administrative action 
under applicable personnel regulations, including termination of 
employment.

[[Page 25553]]

    (4) A covered USG attorney need only remain in good standing in one 
jurisdiction. If admitted to the practice of law in more than one 
jurisdiction, however, and any jurisdiction commences disciplinary 
action against or disciplines, suspends or disbars the covered USG 
attorney from the practice of law, the covered USG attorney must so 
advise the JAG.
    (5) An essential time to verify that a judge advocate is currently 
in good standing is upon accession. Other appropriate times for 
verification are before a judge advocate is promoted to a higher grade, 
detailed to a new command, or assigned to duties where there is a 
statutory requirement to be a member of the bar, such as a military 
judge per 10 U.S.C. 826(b). The JAG, the SJA to CMC, or any other 
supervisory attorney may need to verify the professional qualifications 
of a judge advocate, either periodically or on an occasional basis. 
JAGINST 5803.2 (series) establishes a biennial requirement for all 
covered attorneys to provide proof of good standing.
    (6) Certification by the United States Court of Appeals for the 
Armed Forces that a judge advocate is in good standing with that court 
will not satisfy the requirement of this section, since such status is 
normally dependent on Article 27, UCMJ, certification.


Sec. Sec.  776.72-776.75   [Reserved]

Subpart C--Complaint Processing Procedures


Sec.  776.76  Policy.

    (a) It is JAG's policy to investigate and resolve, expeditiously 
and fairly, all allegations of professional impropriety lodged against 
covered attorneys under JAG supervision.
    (b) Rules Counsel approval will be obtained before conducting any 
preliminary inquiry or formal investigation into an alleged violation 
of the Rules of Professional Conduct (subpart B of this part) or the 
ABA Model Code of Judicial Conduct (Code of Judicial Conduct). The 
Rules Counsel will notify the JAG prior to the commencement of any 
preliminary inquiry or investigation. The preliminary inquiry and any 
subsequent investigation will be conducted according to the procedures 
set forth in this subpart.


Sec.  776.77  Related investigations and actions.

    Acts or omissions by covered attorneys may constitute professional 
misconduct, criminal misconduct, poor performance of duty, or a 
combination of all three. Care must be taken to characterize 
appropriately the nature of a covered attorney's conduct to determine 
who may and properly should take official action.
    (a) Questions of legal ethics and professional misconduct by 
covered attorneys are within the exclusive province of the JAG. Ethical 
or professional misconduct will not be attributed to any covered 
attorney in any official record without a final JAG determination, made 
in accordance with this part, that such misconduct has occurred.
    (b) Criminal misconduct is properly addressed by the covered USG 
attorney's commander through the disciplinary process provided under 
the UCMJ and implementing regulations, or through referral to 
appropriate civil authority.
    (c) Poor performance of duty is properly addressed by the covered 
USG attorney's reporting senior through a variety of administrative 
actions, including documentation in fitness reports or employee 
appraisals.
    (d) Prior JAG approval is not required to investigate allegations 
of criminal conduct or poor performance of duty involving covered 
attorneys. When, however, investigations into criminal conduct or poor 
performance reveal conduct that constitutes a violation of this part, 
or of the Code of Judicial Conduct in the case of judges, such conduct 
shall be reported to the Rules Counsel immediately.
    (e) Generally, professional responsibility complaints will be 
processed in accordance with this part upon receipt. Rules Counsel may, 
however, on a case-by-case basis, delay such processing to await the 
outcome of pending related criminal, administrative, or investigative 
proceedings.
    (f) Nothing in this part prevents a military judge or other 
appropriate official from removing a covered attorney from acting in a 
particular court-martial or prevents the JAG, the SJA to CMC, or the 
appropriate official from reassigning a covered attorney to different 
duties prior to, during, or subsequent to proceedings conducted under 
the provision of this part.


Sec.  776.78  Informal complaints.

    Informal, anonymous, or ``hot line'' type complaints alleging 
professional misconduct must be referred to the appropriate authority 
(such as the JAG Inspector General or the concerned supervisory 
attorney) for inquiry. Such complaints are not, by themselves, 
cognizable under this subpart but may, if reasonably confirmed, be the 
basis of a formal complaint described in Sec.  776.79 of this part.


Sec.  776.79  The formal complaint.

    (a) The formal complaint shall:
    (1) Be in writing and be signed by the complainant;
    (2) State that the complainant has personal knowledge, or has 
otherwise received reliable information indicating, that:
    (i) The covered attorney concerned is, or has been, engaged in 
misconduct that demonstrates a lack of integrity, that constitutes a 
violation of this part or the Code of Judicial Conduct or a failure to 
meet the ethical standards of the profession; or
    (ii) The covered attorney concerned is ethically, professionally, 
or morally unqualified to perform his or her duties; and
    (iii) Contain a complete, factual statement of the acts or 
omissions constituting the substance of the complaint, as well as a 
description of any attempted resolution with the covered attorney 
concerned. Supporting statements, if any, should be attached to the 
complaint.
    (b) A complaint may be initiated by any person, including the 
Administrative Law Division of the Office of the Judge Advocate General 
(OJAG) Administrative Law Division (Code 13) or the Judge Advocate 
Research and Civil Law Branch, Office of the SJA to CMC, HQMC (JAR).


Sec.  776.80  Initial screening.

    (a) Complaints involving conduct of a Navy or Marine Corps trial or 
appellate judge shall be forwarded to OJAG (Code 05). All other 
complaints shall be forwarded to OJAG (Code 13) or, in cases involving 
Marine Corps judge advocates or civil service and contracted civilian 
attorneys who perform legal services under the cognizance and 
supervision of the SJA to CMC, to JAR. In cases involving Marine judge 
advocates, including trial and appellate judges, where the SJA to CMC 
is not the Rules Counsel, the cognizant Rules Counsel will notify the 
SJA to CMC when a complaint is received.
    (b) OJAG (Code 05), OJAG (Code 13), and JAR shall log all formal 
complaints received and will ensure a copy of the complaint and allied 
papers is provided to the covered attorney who is the subject of the 
complaint. Service of the formal complaint and other materials on the 
covered attorney must be accomplished through personal service or 
registered/certified mail sent to the covered attorney's last known 
address reflected in official Navy and Marine Corps records or in the 
records of the

[[Page 25554]]

state bar(s) that licensed the attorney to practice law. The covered 
attorney's supervisory attorney must also be provided notice of the 
complaint.
    (c) The covered attorney concerned may elect to provide an initial 
statement, normally within ten calendar days from receipt, regarding 
the complaint for the Rules Counsel's consideration. The covered 
attorney will promptly inform OJAG (Code 05), OJAG (Code 13), or JAR if 
he or she intends to submit any such statement. At this screening 
stage, forwarding of the complaint to the Rules Counsel will not be 
unduly delayed to await the covered attorney's submission.
    (d) The cognizant Rules Counsel shall initially review the 
complaint, and any statement submitted by the covered attorney 
complained of, to determine whether it complies with the requirements 
set forth in paragraph (4) of this section. The Rules Counsel is not 
required to delay the initial review of the complaint awaiting the 
covered attorney's submission.
    (1) Complaints that do not comply with the requirements may be 
returned to the complainant for correction or completion, and 
resubmission to OJAG (Code 05), OJAG (Code 13), or JAR.
    (i) If the complaint is not corrected or completed and resubmitted 
within 30 days of the date of its return, the Rules Counsel may close 
the file without further action.
    (ii) OJAG (Code 05), OJAG (Code 13), and JAR will maintain copies 
of all correspondence relating to the return and resubmission of a 
complaint, and shall notify the covered attorney concerned, as well as 
the supervisory attorney, if and when the Rules Counsel takes action to 
close the file.
    (2) Complaints that comply with the requirements shall be further 
reviewed by the cognizant Rules Counsel to determine whether the 
complaint establishes probable cause to believe that a violation of 
subpart B of this part or Code of Judicial Conduct has occurred.
    (e) The cognizant Rules Counsel shall close the file without 
further action if the complaint does not establish probable cause to 
believe a violation has occurred. The Rules Counsel shall notify the 
complainant, the covered attorney concerned, and the supervisory 
attorney, that the file has been closed. OJAG (Code 05), OJAG (Code 
13), and JAR will maintain copies of all correspondence related to the 
closing of the file.
    (f) The cognizant Rules Counsel may close the file if there is a 
determination that the complaint establishes probable cause but the 
violation is of a minor or technical nature appropriately addressed 
through corrective counseling. The Rules Counsel shall report any such 
decision, to include a brief summary of the case, to the JAG. (In cases 
relating to Marine judge advocates, including trial and appellate 
judges, in which the SJA to CMC is not the cognizant Rules Counsel, an 
information copy shall be forwarded to the SJA to CMC.)
    (1) The Rules Counsel shall ensure the covered attorney concerned 
receives appropriate counseling and shall notify the complainant, the 
covered attorney concerned, and the supervisory attorney that the file 
has been closed. OJAG (Code 05), OJAG (Code 13), and JAR will maintain 
copies of all correspondence related to the closing of the file.
    (2) The covered attorney concerned is responsible, under these 
circumstances, to determine if his or her Federal, state, or local 
licensing authority requires reporting of such action.


Sec.  776.81  Forwarding the Complaint.

    (a) If the Rules Counsel determines there is probable cause to 
believe that a violation of subpart B of this part or of the Code of 
Judicial Conduct has occurred, and the violation is not of a minor or 
technical nature, the Rules Counsel shall notify the JAG. (In cases 
relating to Marine Corps judge advocates, including trial and appellate 
judges, in which the SJA to CMC is not the cognizant Rules Counsel, the 
SJA to CMC shall also be notified.) The Rules Counsel shall forward the 
complaint and any allied papers, as follows:
    (1) In cases involving a military trial judge, if practicable, to a 
covered attorney with experience as a military trial judge (normally 
senior to and of the same Service (Navy or Marine Corps) as the covered 
attorney complained of and not previously involved in the case) and 
assign the officer to conduct a preliminary inquiry into the matter;
    (2) In cases involving a military appellate judge, if practicable, 
to a covered attorney with experience as a military appellate judge 
(normally senior to and of the same Service (Navy or Marine Corps) as 
the covered attorney complained of and not previously involved in the 
case) and assign the officer to conduct a preliminary inquiry into the 
matter;
    (3) In all other cases, to such covered attorney as the cognizant 
Rules Counsel may designate (normally senior to the covered attorney 
complained of and not previously involved in the case), and assign the 
officer to conduct a preliminary inquiry into the matter.
    (b) The Rules Counsel shall provide notice of the complaint (if not 
previously informed) as well as notice of the preliminary inquiry:
    (1) To the covered attorney against whom the complaint is made as 
well as the supervisory attorney;
    (2) In cases involving a covered USG attorney on active duty or in 
civilian Federal service, to the commanding officer, or equivalent, of 
the covered USG attorney concerned;
    (3) In cases involving Navy or Marine Corps judge advocates serving 
in Naval Legal Service Command (NLSC) units, to Commander, NLSC;
    (4) In cases involving Navy attorneys serving in Marine Corps 
units, involving Marine Corps attorneys serving in Navy units, or 
involving Marine Corps trial and appellate judges, to the SJA to CMC 
(Attn: JAR);
    (5) In cases involving trial or appellate court judges, to either 
the Chief Judge, Navy-Marine Corps Trial Judiciary or Chief Judge, 
Navy-Marine Corps Court of Criminal Appeals, as appropriate; and
    (6) In cases involving covered attorneys certified by the Judge 
Advocates General/Chief Counsel of the other uniformed services, to the 
appropriate military service attorney discipline section.


Sec.  776.82  Interim suspension.

    (a) Where the Rules Counsel determines there is probable cause to 
believe that a covered attorney has committed misconduct and poses a 
substantial threat of irreparable harm to his or her clients or the 
orderly administration of military justice, the Rules Counsel shall so 
advise the JAG. Examples of when a covered attorney may pose a 
``substantial threat of irreparable harm'' include, but are not limited 
to:
    (1) When charged with the commission of a crime which involves 
moral turpitude or reflects adversely upon the covered attorney's 
fitness to practice law, and where substantial evidence exists to 
support the charge;
    (2) When engaged in the unauthorized practice of law (e.g., failure 
to maintain good standing in accordance with Sec.  776.71 of this 
part); or
    (3) Where unable to represent client interests competently.
    (b) Upon receipt of information from the Rules Counsel, JAG may 
order the covered attorney to show cause why he or she should not face 
interim suspension, pending completion of a professional responsibility 
investigation. The covered attorney shall have 10 calendar days in 
which to respond. Notice of the show cause order shall be provided as 
outlined in Sec.  776.81(b) of this part.

[[Page 25555]]

    (c) If an order to show cause has been issued under paragraph (b) 
of this section, and the period for response has passed without a 
response, or after consideration of any response and finding sufficient 
evidence demonstrating probable cause to believe that the covered 
attorney is guilty of misconduct and poses a substantial threat of 
irreparable harm to his or her client or the orderly administration of 
military justice, the JAG may direct an interim suspension of the 
covered attorney's certification under Articles 26(b) or 27(b), UCMJ, 
or R.C.M. 502(d)(3), or the authority to provide legal assistance, 
pending the results of the investigation and final action under this 
part. Notice of such action shall be provided as outlined in Sec.  
776.81(b) of this part.
    (d) Within 10 days of the JAG's decision to impose an interim 
suspension, the covered attorney may request an opportunity to be heard 
before an impartial officer designated by the JAG. Where so requested, 
that opportunity will be scheduled within 10 calendar days of the 
request. The designated officer shall receive any information that the 
covered attorney chooses to submit on the limited issue of whether to 
continue the interim suspension. The designated officer shall submit a 
recommendation to the JAG within 5 calendar days of conclusion.
    (e) A covered attorney may, based upon a claim of changed 
circumstances or newly discovered evidence, petition for dissolution or 
amendment of the JAG's imposition of interim suspension.
    (f) Any professional responsibility investigation involving a 
covered attorney who has been suspended pursuant to subpart B of this 
part shall proceed and be concluded without appreciable delay. However, 
the JAG may determine it necessary to await completion of a related 
criminal investigation or proceeding, or completion of a professional 
responsibility action initiated by other licensing authorities. In such 
cases, the JAG shall cause the Rules Counsel to so notify the covered 
attorney under interim suspension as well as those officials outlined 
in Sec.  776.81(b) of this part. Where necessary, continuation of the 
interim suspension shall be reviewed by the JAG every 6 months.


Sec.  776.83  Preliminary inquiry.

    (a) The purpose of the preliminary inquiry is to determine whether, 
in the opinion of the officer appointed to conduct the preliminary 
inquiry (PIO), the questioned conduct occurred and, if so, whether the 
preponderance of the evidence demonstrates that such conduct 
constitutes a violation of subpart B of this part or the Code of 
Judicial Conduct. The PIO is to recommend appropriate action in cases 
of substantiated violations.
    (b) Upon receipt of the complaint, the PIO shall promptly 
investigate the allegations, generally following the format and 
procedures set forth in the Manual of the Judge Advocate General 
(JAGMAN) for the conduct of command investigations. Reports of relevant 
investigations by other authorities including, but not limited to, the 
command, the Inspector General, and State licensing authorities should 
be used. The PIO should also:
    (1) Identify and obtain sworn affidavits or statements from all 
relevant and material witnesses to the extent practicable;
    (2) Identify, gather, and preserve all other relevant and material 
evidence; and
    (3) Provide the covered attorney concerned an opportunity to review 
all evidence, affidavits, and statements collected and a reasonable 
period of time (normally not exceeding 10 calendar days) to submit a 
written statement or any other written material that the covered 
attorney wishes considered.
    (c) The PIO may appoint and use such assistants as may be necessary 
to conduct the preliminary inquiry.
    (d) The PIO shall personally review the results of the preliminary 
inquiry to determine whether, by a preponderance of the evidence, a 
violation of subpart B of this part or of the Code of Judicial Conduct 
has occurred.
    (1) If the PIO determines that no violation has occurred or that 
the violation is minor or technical in nature and warrants only 
corrective counseling, then he or she may recommend that the file be 
closed.
    (2) If the PIO determines by a preponderance of the evidence that a 
violation did occur, and that corrective action greater than counseling 
may be warranted, he or she shall:
    (i) Draft a list of substantiated violations of these Rules of 
Professional Conduct or the Code of Judicial Conduct;
    (ii) Recommend appropriate action; and
    (iii) Forward the preliminary inquiry to the Rules Counsel, 
providing copies to the covered attorney concerned and the supervisory 
attorney.
    (e) The Rules Counsel shall review all preliminary inquiries. If 
the report is determined by the Rules Counsel to be incomplete, the 
Rules Counsel shall return it to the PIO, or to another inquiry 
officer, for further or supplemental inquiry. If the report is 
complete, then:
    (1) If the Rules Counsel determines, either consistent with the PIO 
recommendation or through the Rules Counsel's own review of the report, 
that a violation of this part has not occurred and that further action 
is not warranted, the Rules Counsel shall close the file and notify the 
complainant, the covered attorney concerned, and all officials 
previously provided notice of the complaint. OJAG (Code 05), OJAG (Code 
13), and/or JAR, as appropriate, will maintain copies of all 
correspondence related to the closing of the file.
    (2) If the Rules Counsel determines, either consistent with a PIO 
recommendation or through the Rules Counsel's own review of the report, 
that a violation of subpart B of this part has occurred but that the 
violation is of a minor or technical nature, then the Rules Counsel may 
determine that corrective counseling is appropriate and close the file.
    (i) The Rules Counsel shall report any such decision, to include a 
brief summary of the case, to the JAG. The Rules Counsel shall ensure 
that the covered attorney concerned receives appropriate counseling and 
shall notify the complainant, the covered attorney concerned, and all 
officials previously provided notice of the complaint that the file has 
been closed. OJAG (Code 05), OJAG (Code 13), and/or JAR, as 
appropriate, will maintain copies of all correspondence related to the 
closing of the file.
    (ii) The covered attorney concerned is responsible, under these 
circumstances, to determine if his or her Federal, state, or local 
licensing authority requires reporting such action.
    (3) If the Rules Counsel determines, either consistent with a PIO 
recommendation or through the Rules Counsel's own review of the report, 
that further professional discipline or corrective action may be 
warranted, the Rules Counsel shall notify the JAG and take the 
following action:
    (i) In cases involving a military trial judge, if practicable, 
forward the recommendation to a covered attorney with experience as a 
military trial judge (normally senior to and of the same Service (Navy 
or Marine Corps) as the covered attorney complained of and not 
previously involved in the case) and assign the officer to conduct an 
ethics investigation into the matter (see R.C.M. 109 of reference (b));
    (ii) In cases involving a military appellate judge, forward the 
recommendation to a covered attorney with experience as a military 
appellate judge (normally senior to and of the

[[Page 25556]]

same Service (Navy or Marine Corps) as the covered attorney complained 
of and not previously involved in the case) and assign the officer to 
conduct an ethics investigation into the matter (see R.C.M. 109 of 
reference (b)); or
    (iii) In all other cases, assign a covered attorney (normally 
senior to the covered attorney complained of and not previously 
involved in the case) to conduct an ethics investigation.


Sec.  776.84  Ethics investigation.

    (a) When an ethics investigation is initiated, the covered attorney 
concerned shall be so notified, in writing, by the Rules Counsel. 
Notice of such action shall also be provided as outlined in Sec.  
776.81(b) of this part.
    (b) The covered attorney concerned will be provided written notice 
of the following rights in connection with the ethics investigation:
    (1) To request a hearing before the investigating officer (IO);
    (2) To inspect all evidence gathered;
    (3) To present written or oral statements or materials for 
consideration;
    (4) To call witnesses at his or her own expense (local military 
witnesses should be made available at no cost);
    (5) To be assisted by counsel (see paragraph (c) of this section);
    (6) To challenge the IO for cause (such challenges must be made in 
writing and sent to the Rules Counsel via the challenged officer); and
    (7) To waive any or all of these rights. Failure to affirmatively 
elect any of the rights included in this section shall be deemed a 
waiver by the covered attorney.
    (c) If a hearing is requested, the covered attorney may be 
represented by counsel at the hearing. Such counsel may be:
    (1) A civilian attorney retained at no expense to the Government; 
or,
    (2) In the case of a covered USG attorney, another USG attorney:
    (i) Detailed by the cognizant Naval Legal Service Office (NLSO), 
(or Defense Services Office (DSO), effective October 1, 2012), Law 
Center, or Legal Service Support Section (LSSS); or
    (ii) Requested by the covered attorney concerned, if such counsel 
is deemed reasonably available in accordance with the provisions 
regarding individual military counsel set forth in Chapter I of the 
JAGMAN. There is no right to detailed counsel if requested counsel is 
made available.
    (d) If a hearing is requested, the IO will conduct the hearing 
after reasonable notice to the covered attorney concerned.
    (1) The hearing will not be unreasonably delayed. The hearing is 
not adversarial in nature and there is no right to subpoena witnesses.
    (2) Rules of evidence do not apply.
    (3) The covered attorney concerned or his or her counsel may 
question witnesses that appear.
    (4) The proceedings shall be recorded but no transcript of the 
hearing need be made.
    (5) Evidence gathered during, or subsequent to, the preliminary 
inquiry and such additional evidence as may be offered by the covered 
attorney shall be considered.
    (e) The IO may appoint and use such assistants as may be necessary 
to conduct the ethics investigation.
    (f) The IO shall prepare a report which summarizes the evidence, to 
include information presented at any hearing.
    (1) If the IO believes that no violation has occurred or, by clear 
and convincing evidence, that the violation has occurred but the 
violation is minor or technical in nature and warrants only corrective 
counseling, then he or she may recommend that the file be closed.
    (2) If the IO believes by clear and convincing evidence that a 
violation did occur, and that corrective action greater than counseling 
is warranted, he or she shall:
    (i) Modify, as necessary, the list of substantiated violations of 
this part or, in the case of a military trial or appellate judge, the 
Code of Judicial Conduct;
    (ii) Recommend appropriate action; and
    (iii) Forward the ethics investigation to the Rules Counsel with a 
copy to the attorney investigated.
    (g) The Rules Counsel shall review all ethics investigations. If 
the report is determined by the Rules Counsel to be incomplete, the 
Rules Counsel shall return it to the IO, or to another inquiry officer, 
for further or supplemental inquiry. If the report is complete, then:
    (1) If the Rules Counsel determines, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the 
investigation, that a violation of subpart B of this part or Code of 
Judicial Conduct has not occurred and that further action is not 
warranted, the Rules Counsel shall close the file and notify the 
complainant, the covered attorney concerned, and all officials 
previously notified of the complaint. OJAG (Code 05), OJAG (Code 13) 
and/or JAR, as appropriate, will maintain copies of all correspondence 
related to the closing of the file.
    (2) If the Rules Counsel determines, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the 
investigation, that a violation of this part or Code of Judicial 
Conduct has occurred but that the violation is of a minor or technical 
nature, then the Rules Counsel may determine that corrective counseling 
is appropriate and close the file. The Rules Counsel shall report any 
such decision, to include a brief summary of the case, to the JAG.
    (i) In cases relating to Marine judge advocates, including trial 
and appellate judges, in which the SJA to CMC is not the cognizant 
Rules Counsel, an information copy shall be forwarded to the SJA to 
CMC.
    (ii) The Rules Counsel shall ensure that the covered attorney 
concerned receives appropriate counseling and shall notify the 
complainant, the covered attorney concerned, and all officials 
previously notified of the complaint that the file has been closed. 
OJAG (Code 05), OJAG (Code 13), and/or JAR, as appropriate, will 
maintain copies of all correspondence related to the closing of the 
file.
    (iii) The covered attorney concerned is responsible, under these 
circumstances, to determine if his or her Federal, state, or local 
licensing authority requires reporting such action.
    (3) If the Rules Counsel believes, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the inquiry 
report, that professional disciplinary action greater than corrective 
counseling is warranted, the Rules Counsel shall forward the 
investigation, with recommendations as to appropriate disposition, to 
the JAG. (In cases relating to Marine judge advocates, including trial 
and appellate judges, in which the SJA to CMC is not the cognizant 
Rules Counsel, an information copy shall be forwarded to the SJA to 
CMC.)


Sec.  776.85  Effect of separate proceeding.

    (a) For purposes of this section, the term ``separate proceeding'' 
includes, but is not limited to, court-martial, non-judicial 
punishment, administrative board, or similar civilian or military 
proceeding.
    (b) In cases in which a covered attorney is determined, at a 
separate proceeding determined by the Rules Counsel to afford 
procedural protection equal to that provided by a preliminary inquiry 
under this part, to have committed misconduct that forms the basis for 
ethics charges under this part, the Rules Counsel may dispense with the 
preliminary inquiry and proceed directly with an ethics investigation.
    (c) In those cases in which a covered attorney is determined to 
have committed misconduct at a separate

[[Page 25557]]

proceeding which the Rules Counsel determines has afforded procedural 
protection equal to that provided by an ethics investigation under this 
part, the previous determination regarding the underlying misconduct is 
res judicata with respect to that issue during an ethics investigation. 
A subsequent ethics investigation based on such misconduct shall afford 
the covered attorney a hearing into whether the underlying misconduct 
constitutes a violation of subpart B of this part, whether the 
violation affects his or her fitness to practice law, and what 
sanctions, if any, are appropriate.
    (d) Notwithstanding paragraphs (b) and (c) in this section, the 
Rules Counsel may dispense with the preliminary inquiry and ethics 
investigation and, after affording the covered attorney concerned 
written notice and an opportunity to be heard in writing, recommend to 
the JAG that the covered attorney concerned be disciplined under this 
part when the covered attorney has been:
    (1) Decertified or suspended from the practice of law or otherwise 
subjected to professional responsibility discipline by the JAG or Chief 
Counsel of another Military Department;
    (2) Disbarred or suspended from the practice of law or otherwise 
subjected to professional responsibility discipline by the Court of 
Appeals for the Armed Forces or by any Federal, State, or local bar; or
    (3) Convicted of a felony (or any offense punishable by one year or 
more of imprisonment) in a civilian or military court that, in the 
opinion of the Rules Counsel, renders the attorney unqualified or 
incapable of properly or ethically representing the DoN or a client 
when the Rules Counsel has determined that the attorney was afforded 
procedural protection equal to that provided by an ethics investigation 
under this part.


Sec.  776.86  Action by the Judge Advocate General.

    (a) The JAG is not bound by the recommendation rendered by the 
Rules Counsel, IO, PIO, or any other interested party, but will base 
any action on the record as a whole. Nothing in this part limits the 
JAG's authority to suspend from the practice of law in DoN matters any 
covered attorney alleged or found to have committed professional 
misconduct or violated subpart B of this part, either in DoN or 
civilian proceedings, as detailed in this part.
    (b) The JAG may, but is not required to, refer any case to the 
Professional Responsibility Committee for an advisory opinion on 
interpretation of subpart B of this part or its application to the 
facts of a particular case.
    (c) Upon receipt of the ethics investigation, and any requested 
advisory opinion, the JAG will take such action as the JAG considers 
appropriate in the JAG's sole discretion. The JAG may, for example:
    (1) Direct further inquiry into specified areas.
    (2) Determine the allegations are unfounded, or that no further 
action is warranted, and direct the Rules Counsel to make appropriate 
file entries and notify the complainant, covered attorney concerned, 
and all officials previously notified of the complaint.
    (3) Determine the allegations are supported by clear and convincing 
evidence, and take appropriate corrective action including, but not 
limited to:
    (i) Limiting the covered attorney to practice under direct 
supervision of a supervisory attorney;
    (ii) Limiting the covered attorney to practice in certain areas or 
forbidding him or her from practice in certain areas;
    (iii) Suspending or revoking, for a specified or indefinite period, 
the covered attorney's authority to provide legal assistance;
    (iv) Finding that the misconduct so adversely affects the covered 
attorney's ability to practice law in the naval service or so 
prejudices the reputation of the DoN legal community, the 
administration of military justice, the practice of law under the 
cognizance of the JAG, or the armed services as a whole, that 
certification under Article 27(b), UCMJ, or R.C.M. 502(d)(3), should be 
suspended or is no longer appropriate, and directing such certification 
to be suspended for a prescribed or indefinite period or permanently 
revoked;
    (v) In the case of a judge, finding that the misconduct so 
prejudices the reputation of military trial and/or appellate judges 
that certification under Article 26(b), UCMJ (10 U.S.C. 826(b)), should 
be suspended or is no longer appropriate, and directing such 
certification to be suspended for a prescribed or indefinite period or 
to be permanently revoked; and
    (vi) Directing the Rules Counsel to contact appropriate authorities 
such as the Chief of Naval Personnel or the Commandant of the Marine 
Corps so that pertinent entries in appropriate DoN records may be made; 
notifying the complainant, covered attorney concerned, and any 
officials previously provided copies of the complaint; and notifying 
appropriate tribunals and authorities of any action taken to suspend, 
decertify, or limit the practice of a covered attorney as counsel 
before courts-martial or the U.S. Navy-Marine Corps Court of Criminal 
Appeals, administrative boards, as a legal assistance attorney, or in 
any other legal proceeding or matter conducted under JAG cognizance and 
supervision.


Sec.  776.87  Finality.

    Any action taken by the JAG is final.


Sec.  776.88  Report to licensing authorities.

    Upon determination by the JAG that a violation of subpart B of this 
part or the Code of Judicial Conduct has occurred, the JAG may cause 
the Rules Counsel to report that fact to the Federal, State, or local 
bar or other licensing authority of the covered attorney concerned. If 
so reported, notice to the covered attorney shall be provided by the 
Rules Counsel. This decision in no way diminishes a covered attorney's 
responsibility to report adverse professional disciplinary action as 
required by the attorney's Federal, State, and local bar or other 
licensing authority.

Subpart D--Outside Practice of Law by Covered USG Attorneys


Sec.  776.89  Background.

    (a) A covered USG attorney's primary professional responsibility is 
to the DoN, and he or she is expected to devote the required level of 
time and effort to satisfactorily accomplish assigned duties. Covered 
USG attorneys engaged in the outside practice of law, including while 
on terminal leave, must comply with local bar rules governing 
professional responsibility and conduct and obtain proper authorization 
from the JAG as required by Sec.  776.57 and Sec.  776.88 of this part.
    (b) Outside employment of DoN personnel, both military and 
civilian, is limited by the UCMJ, MCM, and 10 U.S.C. 1044. A covered 
USG attorney may not provide compensated legal services, while working 
in a private capacity, to persons who are eligible for legal 
assistance, unless specifically authorized by the JAG. See Sec.  
776.24. Because of the appearance of misuse of public office for 
private gain, this prohibition is based upon the status of the proposed 
client and applies whether or not the services provided are actually 
available in a DoN/DoD legal assistance office.
    (c) Additionally, DoN officers and employees are prohibited by 18 
U.S.C. 209 from receiving pay or allowances from any source other than 
the United States for the performance of any official service or duty 
unless specifically

[[Page 25558]]

authorized by law. Furthermore, 18 U.S.C. 203 and 205 prohibit Federal 
officers and employees from personally representing or receiving, 
directly or indirectly, compensation for representing any other person 
before any Federal agency or court on matters in which the United 
States is a party or has an interest.
    (d) These limitations are particularly significant when applied to 
covered USG attorneys who intend to engage concurrently in a civilian 
law practice. In such a situation, the potential is high for actual or 
apparent conflict arising from the mere opportunity to obtain clients 
through contacts in the course of official business. Unique conflicts 
or adverse appearances may also develop because of a covered USG 
attorney's special ethical responsibilities and loyalties.


Sec.  776.90  Definition.

    (a) Outside practice of law is defined as any provision of legal 
advice, counsel, assistance or representation, with or without 
compensation, that is not performed pursuant or incident to duties as a 
covered USG attorney (including while on terminal leave). Occasional 
uncompensated assistance rendered to relatives or friends is excluded 
from this definition (unless otherwise limited by statute or 
regulation). Teaching a law course as part of a program of education or 
training offered by an institution of higher education is not 
practicing law for purposes of this instruction.
    (b) The requirement to seek permission prior to engaging in the 
outside practice of law does not apply to non-USG attorneys, or to 
Reserve or Retired judge advocates unless serving on active duty for 
more than 30 consecutive days.


Sec.  776.91  Policy.

    (a) As a general rule, the JAG will not approve requests by covered 
USG attorneys to practice law in association with attorneys or firms 
which represent clients with interests adverse to the DoN.
    (b) The JAG's approval of a particular request does not constitute 
DoN certification of the requesting attorney's qualifications to engage 
in the proposed practice or DoN endorsement of activities undertaken 
after such practice begins. Moreover, because any outside law practice 
is necessarily beyond the scope of a covered USG attorney's official 
duties, the requesting attorney should consider obtaining personal 
malpractice insurance coverage.


Sec.  776.92  Action.

    (a) Covered USG attorneys, who contemplate engaging in the outside 
practice of law, including while on terminal leave, must first obtain 
approval from the JAG. Requests should be forwarded in the form 
prescribed in Sec.  776.94 of this part to OJAG (Code 05), JAG (Code 
13), or JAR, as appropriate, via the attorney's chain of command.
    (b) The requesting attorney's commanding officer may:
    (1) Disapprove and return the request if he or she perceives actual 
or apparent conflicts of interests;
    (2) Recommend disapproval of the request and forward it, along with 
his or her rationale for such a recommendation; or
    (3) Forward the request recommending approval and providing such 
other information as may be relevant.
    (c) The JAG will review the request and advise applicants in 
writing of the decision, and of any conditions and limitations under 
which a particular practice may be undertaken. Until permission is 
granted, applicants will not commence any outside law practice.


Sec.  776.93  Revalidation.

    (a) Covered USG attorneys to whom permission is given to engage in 
the outside practice of law will notify the JAG in writing, via their 
chain of command, within 30 days of any material change in:
    (1) The nature or scope of the outside practice described in their 
requests, including termination, or
    (2) Their DoN assignment or responsibilities.
    (b) Covered USG attorneys to whom permission is given to engage in 
the outside practice of law will annually resubmit an application to 
continue the practice, with current information, by October 1 each 
year.


Sec.  776.94  Outside Law Practice Questionnaire and Request.

    DATE
From: (Attorney Requesting Outside Practice of Law)
To: Deputy Chief Judge, Navy-Marine Corps Trial Judiciary/Deputy 
Assistant Judge Advocate General (Administrative Law)/Head, Judge 
Advocate Research and Civil Law Branch, Judge Advocate Division
Via: (Chain of Command)

Subj: OUTSIDE PRACTICE OF LAW REQUEST ICO (Name of attorney)
1. Background Data
    a. Name, rank/pay grade:
    b. Current command and position:
    c. Description of duties and responsibilities (including collateral 
duty assignments):
    d. Describe any DoN responsibilities that require you to act 
officially in any way with respect to any matters in which your 
anticipated outside employer or clients have interests:
    e. Normal DoN working hours:
2. Proposed Outside Practice of Law Information
    a. Mailing address and phone number:
    b. Working hours:
    c. Number of hours per month:
    d. Description of proposed practice (indicate the type of clientele 
you anticipate serving, as well as the type of work that you will 
perform):
    e. Describe whether you will be a sole practitioner, or collocated, 
renting from, or otherwise affiliated or associated in any matter with 
other attorneys:
    f. Describe, in detail, any anticipated representation of any 
client before the United States or in any matter in which the United 
States has an interest:
    g. Describe the manner in which you will be compensated (hourly, by 
case, fixed salary, and how much of your fees will be related in any 
way to any representational services before the Federal Government by 
yourself or by another):
    h. Provide a description of any military-related work to which your 
proposed practice may be applied including, but not limited to, courts-
martial, administrative discharge boards, claims against the Department 
of the Navy, and so forth:
3. Attorneys With Whom Outside Practice is/will be Affiliated, 
Collocated, or Otherwise Associated
    a. Identify the type of organization with which you will be 
affiliated (sole practitioner, partnership, and so forth), the number 
of attorneys in the firm, and the names of the attorneys with whom you 
will be working:
    b. Identify the attorneys in the firm who are associated in any way 
with the military legal community (e.g., active, Reserve, or retired 
judge advocate), and specify their relationship to any of the military 
services:
    c. Identify the nature of your affiliation with the organization 
with which you intend to be associated (staff attorney, partner, 
associate, space-sharing, rental arrangement, other):
    d. Provide a brief description of the type of legal practice 
engaged in by the organization with which you intend to affiliate, 
including a general description of the practice, as well as the 
clientele:
    e. Describe the clientele who are military personnel or their 
dependents,

[[Page 25559]]

and the number and type of cases handled:
    f. Describe whether your affiliates will refer clients to you, and 
the anticipated frequency of referral:
    g. Describe
    (1) Whether your associates will assist or represent clients with 
interests adverse to the United States or in matters in which the 
United States has an interest:
    (2) Those clients, matters, and interests in detail:
    (3) What support will you provide in such cases:
    (4) What compensation, in any form, you will receive related to 
such cases:
4. Desired Date of Commencement of Outside Practice
    a. Identify if this is your first request or an annual submission 
for re-approval:
    b. If this is an annual submission, indicate when your outside 
practice began:
    c. If this is your first request, indicate when you wish to begin 
your practice:
5. Conflicts of Interest and Professional Conduct (Include the 
following statement in your request)
    ``I certify that I have read and understand my obligations under 
enclosure (3) to JAGINST 5803.1 (series), DOD 5500.7-R, Joint Ethics 
Regulation, JAGMAN Chapter VII, the Legal Assistance Manual, and Title 
18, U.S.C. 203, 205, and 209. I certify that no apparent or actual 
conflict of interests or professional improprieties are presented by my 
proposed initiation/continuation of an outside law practice. I also 
certify that if an apparent conflict of interest or impropriety arises 
during such outside practice, I will report the circumstances to my 
supervisory attorney immediately.''
6. Privacy Act Statement. I understand that the preceding information 
is gathered per the Privacy Act as follows:
    Authority: Information is solicited per Executive Order 12731 and 
DOD 5500.7-R.
    Primary purpose: To determine whether outside employment presents 
conflicts of interest with official duties.
    Routine use: Information will be treated as sensitive and used to 
determine propriety of outside employment.
    Disclosure: Disclosure is voluntary. Failure to provide the 
requested information will preclude the Judge Advocate General from 
approving your outside practice of law request.


Signature

Subpart E--Relations With Non-USG Counsel


Sec.  776.95  Relations With Non-USG Counsel.

    (a) This part applies to non-USG attorneys representing individuals 
in any matter for which the JAG is charged with supervising the 
provision of legal services, including but not limited to, courts-
martial, administrative separation boards or hearings, boards of 
inquiry, and disability evaluation proceedings.
    (1) Employment of a non-USG attorney by an individual client does 
not alter the responsibilities of a covered USG attorney to that 
client.
    (2) Although a non-USG attorney is individually responsible for 
adhering to the contents of this part, the covered USG attorney 
detailed or otherwise assigned to that client shall take reasonable 
steps to inform the non-USG attorney:
    (i) Of the contents of this part;
    (ii) That subpart B of this part apply to civilian counsel 
practicing before military tribunals, courts, boards, or in any legal 
matter under the supervision of the JAG as a condition of such 
practice; and
    (iii) That subpart B of this part take precedence over other rules 
of professional conduct that might otherwise apply, but that the 
attorney may still be subject to rules and discipline established by 
the attorney's Federal, state, or local bar association or other 
licensing authority.
    (b) If an individual client designates a non-USG attorney as chief 
counsel, the detailed USG attorney must defer to civilian counsel in 
any conflict over trial tactics. If, however, the attorneys have ``co-
counsel'' status, then conflict in proposed trial tactics requires the 
client to be consulted to resolve the conflict.
    (c) If the non-USG attorney has, in the opinion of the involved 
covered USG attorney, acted or failed to act in a manner which is 
contrary to subpart B of this part, the matter should be brought to the 
attention of the civilian attorney. If the matter is not resolved with 
the civilian counsel, the covered USG attorney should discuss the 
situation with the supervisory attorney. If not resolved between 
counsel, the client must be informed of the matter by the covered USG 
attorney. If, after being apprised of possible misconduct, the client 
approves of the questioned conduct, the covered USG attorney shall 
attempt to withdraw from the case in accordance with Sec.  776.35 of 
this part. The client shall be informed of such intent to withdraw 
prior to action by the covered USG attorney.

    Dated: April 18, 2013.
C.K. Chiappetta,
Lieutenant Commander, Office of the Judge Advocate General, U.S. Navy, 
Federal Register Liaison Officer.
[FR Doc. 2013-09676 Filed 4-30-13; 8:45 am]
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