Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, 68387-68410 [2015-26982]

Agencies

• DEPARTMENT OF DEFENSE
• Department of the Navy

[Federal Register Volume 80, Number 213 (Wednesday, November 4, 2015)]
[Rules and Regulations]
[Pages 68387-68410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-26982]



[[Page 68387]]

Vol. 80

Wednesday,

No. 213

November 4, 2015

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; Final Rule

Federal Register / Vol. 80 , No. 213 / Wednesday, November 4, 2015 / 
Rules and Regulations

[[Page 68388]]


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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: Final rule.

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SUMMARY: The Department of the Navy (DoN) is issuing a final rule 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. The 
rule generally aligns with the American Bar Association Model Rules of 
Professional Conduct.

DATES: This rule is effective December 4, 2015.

FOR FURTHER INFORMATION CONTACT: Commander Noreen A. Hagerty-Ford, 
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: The DoN published a proposed rule at 78 FR 
25538 on May 1, 2013, to revise 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. Accordingly, the 
proposed rule amending 32 CFR part 776 is adopted as a final rule with 
minor editorial changes.

Executive Summary

    This final rule serves as an update to the current 32 CFR part 776 
and replaces current regulations. The rule generally aligns with the 
American Bar Association Model Rules of Professional Conduct. In the 
proposed rule, updates were made to Sec.  776.25 of this part 
(Confidentiality of information), clarifying when an attorney shall 
reveal confidential information and when such disclosure is 
discretionary. The update to this part allowed covered attorneys to 
make reasonable disclosures necessary to ensure compliance with the 
Rules of Professional Conduct. Section 776.26 of this part (Conflict of 
interest: General rule) 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) was 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 
included 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 https://www.jag.navy.mil.
    The revisions to this rule are part of the Department of Defense 
(DoD) retrospective plan under E.O. 13563 completed in August 2011. 
DoD's full plan can be accessed at https://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.

Public Comment Summary

    The proposed rule received one public comment in three parts. 
Following is a summary of the comment and our response.
    Comment: The first part of the comment is in regard to the judicial 
function and the appearance of improper influence. The commenter 
recommends that the Rules explicitly acknowledge that military judges 
do not have any inherent judicial authority separate from the court-
martial to which they have been detailed and when they act, they do so 
as a court-martial and not as a military judge.
    Response: We appreciate the comment; however, military judges 
remain judges, even when not performing duties associated with a 
particular referred court-martial. For purposes of the Appointments 
Clause, which provided the background upon which the comment relied, 
military judges are military officers performing judicial functions. 
For purposes of the Canons and the role they fulfill in military 
justice, military judges remain judges. While it may be true that 
military judges have limited inherent judicial authority separate from 
a court-martial, this does not diminish their status as judges nor 
relieve them of the requirement at all times to avoid conduct that 
would call into question their integrity and impartiality or cause the 
public to question the impartiality of the judiciary.
    Likewise, covered attorneys are bound by professional 
responsibility rules, such as ABA Rule 8.2, regarding statements 
concerning the qualifications and integrity of judges. Military judges, 
even when not sitting in court, are judges under the Rules, and as 
such, are entitled to both the respect due their commissions and the 
respect commanded by Rule 8.2, which places specific limits on covered 
attorneys regarding statements they make concerning judges.
    Public confidence in the independence, integrity and impartiality 
of the judiciary will not be served by noting that military judges are 
military officers performing judicial functions with limited judicial 
authority. A professional responsibility rule modification as suggested 
by the commentator could explicitly separate the military officer from 
the office he or she holds as a military judge thus creating a 
perception that a judge could be subject to pressure or inappropriate 
criticism outside an ongoing court-martial. The rules seek to maintain 
a separate and distinct place for judicial officers that does not cease 
with the referral and conclusion of a court-martial and require that a 
judge be and appear impartial, fair, and appropriate in decorum while 
avoiding an abuse of the prestige of the judicial office. We note that 
the comment suggests the rules contain adequate guidance without 
marginalizing the authority and standing of the judge.
    The second part of the comment is in regard to the special 
responsibilities of trial counsel. The commenter suggests that the 
proposed language perpetuates a misconception regarding the 
relationship between a trial counsel and a convening authority.
    Response: We appreciate this comment. As stated in the Executive 
Summary to the proposed rule, additional commentary is contained in JAG 
Instruction 5803.1. The concern raised by the comment is appropriately 
and adequately addressed in Rule 1.13, which clarifies that the trial 
counsel's client is the DoN, and that the trial counsel only maintains 
an attorney-client relationship with the DoN. The comments to Rule 3.8 
further emphasize that the trial counsel's client is the DoN.
    The last part of the comment pertains to the complaint processing 
procedures. Specifically, the commenter wishes to add language 
regarding appointment of Investigating Officers (IO) using the words 
``neutral and detached'' since it is not mentioned that IOs should be 
neutral and detached. In addition, the commenter disagrees with JAG not

[[Page 68389]]

being bound by the findings of an investigation.
    Response: We appreciate this comment. As stated in the Executive 
Summary to the proposed rule, additional commentary is contained in JAG 
Instruction 5803.1. The instruction requires investigating officers 
normally be officers who are senior to the respondent and who were not 
previously involved in the case, which adequately ensures an 
appropriate investigating officer is assigned. The complaint process is 
intended to create an administrative record for the JAG in exercising 
his authority and responsibility under SECNAVINST 5430.27D for ensuring 
the ethical and professional practice of covered attorneys. Such 
authority has not been delegated to investigating officers. The nature 
of each stage of the investigation with escalating burdens of proof is 
sufficient to provide the JAG with the information necessary to make an 
informed, independent decision.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory 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 
these Executive Orders.

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

    It has been determined 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 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR part 776 is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

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

    It has been determined 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 determined 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 32 CFR part 776 
to read as follows:

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 the 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 by Covered USG Attorneys
776.89 Background.
776.90 Definition.
776.91 Policy.

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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.
Subpart F [Reserved]

    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 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

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    (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 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 rule 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 rule in the areas of practice indicated:
    (1) Director, Criminal Law Division (OJAG Code 20): Military 
justice matters;

[[Page 68392]]

    (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. 
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. The JAG is not bound by unwritten advice or by 
advice provided by personnel who are not supervisory attorneys or 
advisors. See Sec. Sec.  776.8(b)(3) and 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 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. 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.

[[Page 68393]]

    (c) The military criminal justice system is a truth-finding process 
consistent with constitutional law.


Sec.  776.20  Competence.

    (a) 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) 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) 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) 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) 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 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

[[Page 68394]]

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) 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) 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 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) 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. 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. 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) 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

[[Page 68395]]

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) 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) Comment. (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 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) 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.

[[Page 68396]]

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 paragraph (d), 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) 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 
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) 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

[[Page 68397]]

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) 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) 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) 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 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) 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 paragraph (e), ``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) 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) 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;

[[Page 68398]]

    (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) 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) 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) 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) 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. 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. 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) 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) 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) 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

[[Page 68399]]

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.
    (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) 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) 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) 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, land-line telephone conversations, 
facsimile transmissions, U.S. mail, and Email. Trial counsel and other 
government counsel must not

[[Page 68400]]

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. Paragraph (a)(1) of this section recognizes that the trial 
counsel does not have all the authority vested in modern civilian 
prosecutors. The authority to convene courts-martial, and to refer and 
withdraw specific charges, is vested in convening authorities. 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. 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 section 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 section 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 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) 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. Sec.  776.42 (a) through (d), 776.43, 
and 776.44 of this part.
    (b) [Reserved]

Sec.  776.49  Truthfulness in statements to others.

    (a) 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) 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) 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) 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) 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) A covered attorney is bound by this part notwithstanding that 
the covered attorney acted at the direction of another person.

[[Page 68401]]

    (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) 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) 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.
    (c) The exercise of professional judgment in accordance with 
paragraph (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) 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) 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

[[Page 68402]]

admitted, and in any event may be relevant in a subsequent admission 
application. 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. 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) 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) 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) 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;
    (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 
rule. Such consideration shall be made, except in emergency situations 
necessitating immediate action, according to the procedures established 
in this rule.


Sec.  776.70  Jurisdiction.

    (a) 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 rule) 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) 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

[[Page 68403]]

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 rule, 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.
    (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

[[Page 68404]]

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
    (3) 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 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. 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. 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.) 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. 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

[[Page 68405]]

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.
    (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

[[Page 68406]]

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. 
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. 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 the Manual for 
Courts-Martial);
    (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 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 the Manual for Courts-
Martial); 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. The hearing 
will not be unreasonably delayed. The hearing is not adversarial in 
nature and there is no right to subpoena witnesses. Rules of evidence 
do not apply. The covered attorney concerned or his or her counsel may 
question witnesses that appear. The proceedings shall be recorded but 
no transcript of the hearing need be made. 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

[[Page 68407]]

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. (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.) 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. 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 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

[[Page 68408]]

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. Sec.  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 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 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 rule.
    (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:

[[Page 68409]]

    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, 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. Employment of a non-USG 
attorney by an individual client does not alter the responsibilities of 
a covered USG attorney to that client. 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:
    (1) Of the contents of this part;
    (2) 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
    (3) 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.

[[Page 68410]]

Subpart F--[Reserved]

    Dated: October 16, 2015.
N.A. Hagerty-Ford,
Commander, Office of the Judge Advocate General, U.S. Navy, Federal 
Register Liaison Officer.
[FR Doc. 2015-26982 Filed 11-3-15; 8:45 am]
 BILLING CODE 3810-FF-P