Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General, 36723-36729 [2024-09257]

Agencies

• DEPARTMENT OF DEFENSE
• Department of the Navy

[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
[Proposed Rules]
[Pages 36723-36729]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09257]


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DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 776

[Docket ID: USN-2024-HQ-0002]
RIN 0703-AB19


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

AGENCY: Department of the Navy, Department of Defense (DoD).

ACTION: Proposed rule.

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SUMMARY: This rule proposes to remove existing general information 
about the professional responsibility requirements of attorneys 
practicing under the cognizance and supervision of the Judge Advocate 
General (JAG) and includes a new requirement for all non-U.S. 
Government attorneys to file a notice of appearance before appearing in 
any matter for which the JAG is charged with supervising the provision 
of legal services. It also proposes to remove existing content relating 
to the Rules of Professional Conduct and replaces it with complaint 
processing procedures.

DATES: Comments will be accepted until July 2, 2024.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulation Identifier Number (RIN) number and title, by any of the 
following methods:
    Federal Rulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail: Department of Defense, Office of the Assistant to the 
Secretary of Defense for Privacy, Civil Liberties, and Transparency, 
Regulatory Directorate, 4800 Mark Center Drive, Mailbox #24, Suite 
08D09, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this document. The general policy is for 
submissions to be made available for public viewing at https://www.regulations.gov without change, including any personal identifiers 
or contact information.

FOR FURTHER INFORMATION CONTACT: CDR Matthew Bailey, 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: 703-614-4386.

SUPPLEMENTARY INFORMATION: 

Background

    This rule was promulgated on September 1, 1994; amended on March 
21, 2000; and further amended on November 4, 2015.

Changes Proposed in This Rule

    DoD/Navy is proposing to remove three of the current part's five 
subparts which do not affect the public and update two others to bring 
them into compliance with the current Judge Advocate General (JAG) 
Instruction pertaining to this subject matter, JAG Instruction 5803.1 
(Series), ``Professional Conduct of Attorneys Practicing Under the 
Cognizance and Supervision of the Judge Advocate General (JAG)'' 
(available at www.jag.navy.mil).
    The three subparts that are proposed to be removed (Subparts C, D, 
and E) concern internal Navy processes that are currently memorialized 
in JAG Instruction 5803.1 (series) (https://www.jag.navy.mil/library/instructions/JAGINST_5803-1E.pdf).
    The proposed revision of Subpart A (General) removes existing 
general information about the professional responsibility requirements 
of attorneys practicing under the cognizance and supervision of the JAG 
and includes a new requirement for all non-U.S. Government attorneys to 
file a notice of appearance before appearing in any matter for which 
the JAG is charged with supervising the provision of legal services.
    The proposed revision of Subpart B (Rules of Professional Conduct) 
removes existing content relating to the Rules of Professional Conduct 
and replaces it with a revised version of current Subpart C (Complaint 
Processing Procedures). The proposed revision of Subpart B (Rules) 
includes new content relating to processing professional responsibility 
complaints, interim suspensions of attorneys, ethics investigations, 
effect of separate proceedings, public notice, and requests for 
reinstatement.

Legal Authority for This Regulatory Action

    Title 10 U.S.C. 806 grants the JAG the authority to assign judge 
advocates for duty and requires the JAG to make frequent inspections in 
the field in supervision of the administration of military justice. 
Title 10 U.S.C. 806a provides that the President shall prescribe 
procedures for the investigation and disposition of charges, 
allegations, or information pertaining to the fitness of military 
judges. Title 10 U.S.C. 826 prescribes the qualifications for military 
judges in the armed forces. Title 10 U.S.C. 827 sets forth the 
requirements for the detail of trial counsel and defense counsel in the 
armed forces. Title 10 U.S.C. 1044 authorizes the Secretaries of the 
military departments to provide legal assistance to servicemembers and 
their dependents. The Manual for Courts-Martial, United States, 2019, 
is the official guide to the conduct of courts-martial in the U.S. 
armed forces (available at https://jsc.defense.gov/Portals/99/Documents/2019%20MCM%20(Final)%20(20190108).pdf?ver=2019-01-11-115724-
610). The U.S. Navy Regulations, 1990 is the principal regulatory 
document of the Department of the Navy, endowed with the sanction of 
law, as to duty, responsibility, authority, distinctions and 
relationships of various officials, organizations and individuals 
(available at https://www.secnav.navy.mil/doni/navyregs.aspx). 
Department of Defense Instruction 1442.02 (series), ``Personnel Actions 
Involving Civilian Attorneys'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/144202p.pdf), prescribes 
Department of Defense policy for personnel actions involving civilian 
attorneys and outside assignments of attorneys from the Department of 
Defense Office of the General Counsel and Defense Legal Services 
Agency. 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

[[Page 36724]]

Legal Services'' (available at https://www.secnav.navy.mil/doni/Directives/05000%20General%20Management%20Security%20and%20Safety%20Services/05400%20Organization%20and%20Functional%20Support%20Services/5430.27E.pdf), prescribes the responsibilities of the Judge Advocate 
General of the Navy and the Staff Judge Advocate to the Commandant of 
the Marine Corps for the supervision and provision of certain legal 
services. JAG Instruction 5803.1 (series) establishes rules of 
professional conduct for attorneys practicing under the cognizance of 
the Judge Advocate General of the Navy, establishes procedures for 
filing complaints of professional misconduct, and prescribes procedures 
for engaging the outside practice of law.

Expected Impact of the Proposed Rule

    This rule impacts non-U.S. Government attorneys representing 
clients in matters under the cognizance of the Judge Advocate General 
of the Navy. Clients who obtain non-USG attorneys to represent them in 
matters for which the JAG is charged with supervising the provision of 
legal services will incur costs relating to the amount of time required 
for their counsel to prepare and file a notice of appearance. The cost 
will vary widely depending on the charged rate of the attorney in 
question and the time required to prepare the notice. For purposes of 
estimating the costs involved, it is reasonable to use the mean hourly 
wage for lawyers as informed by the Bureau of Labor and Statistics, 
$78.74. Because the Navy does not keep a log of the numbers of civilian 
attorneys privately hired to represent individual clients in litigation 
that would be subject to the new notice of appearance requirement, the 
net cost to the public cannot readily be quantified. Generally, the 
time required for an attorney to prepare and file a notice of 
appearance in a case should not exceed one hour. Thus, a reasonable 
quantifiable cost to attorneys to file such notice should be the cost 
of one billable hour.
    Additionally, the proposed revision will affect members of the 
public who would benefit from being aware of the professional 
responsibility complaint procedures that cover attorneys who practice 
under the cognizance of the Judge Advocate General of the Navy. It is 
standard practice of most tribunals to require a filing of a notice of 
appearance for attorneys who are not otherwise certified to practice 
before such tribunals. Navy believes the removal of Subparts C, D, and 
E offsets the costs of preparing and filing a notice of appearance by 
reducing the amount of time required for lawyers to read and understand 
the requirements.

Regulatory Reviews

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

    Executive Orders 12866, as amended by 14094 (88 FR 21879, April 11, 
2023), and 13563 direct agencies to assess all costs and benefits of 
available regulatory alternatives and, if regulation is necessary, to 
select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distribute impacts, and equity). Executive Order 13563 emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. This rule is not a 
``significant regulatory action'' under Executive Order 12866.

Congressional Review Act

    This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

Paperwork Reduction Act

    This rule does not contain a collection of information requirement 
subject to review and approval by the Office of Management and Budget 
under the Paperwork Reduction Act.

Regulatory Flexibility Act

    The DON certifies that this action is not subject to the relevant 
provisions of the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)).

Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This proposed rule does not impose any mandates on 
small entities.

Executive Order 13132: Federalism

    The DON has determined that this action does not contain policies 
with Federalism or ``takings'' implications as those terms are defined 
in Executive Order 13132 and Executive Order 12630, respectively.

List of Subjects in 32 CFR Part 776

    Administrative practice and procedure; Conflict of interests; 
Government employees; Lawyers.

    Accordingly, 32 CFR part 776 is proposed to be revised to read as 
follows:

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

Sec.
Subpart A--General
776.1 Notice of appearance.
Subpart B--Complaint Processing Procedures
776.2 Policy.
776.3 Related investigations and actions.
776.4 Informal complaints.
776.5 The complaint.
776.6 Initial screening.
776.7 Processing the complaint.
776.8 Interim suspension.
776.9 Ethics investigation.
776.10 Effect of separate proceeding.
776.11 Action by the Judge Advocate General.
776.12 Finality.
776.13 Report to licensing authorities.
776.14 Public notice.
776.15 Requests for reinstatement.

    Authority:  10 U.S.C. 806, 806a, 826, 827, 1044.

Subpart A--General


Sec.  776.1  Notice of appearance.

    All non-U.S. Government (USG) attorneys must file a notice of 
appearance before making any appearance representing an individual in a 
matter for which the Judge Advocate General (JAG) is charged with 
supervising the provision of legal services. This notice of appearance 
must:
    (a) State the jurisdiction(s) in which they are licensed and 
eligible to practice law,
    (b) Certify that they are in good standing with each jurisdiction,
    (c) Certify that they are not subject to any order disbarring, 
suspending, or otherwise restricting them in the practice of law, and
    (d) State that they understand they are subject to the provisions 
of JAG Instruction (JAGINST) 5803.1 (series) (Professional Conduct of 
Attorneys Practicing under the Cognizance and Supervision of the Judge 
Advocate General), including those on professional disciplinary action. 
Each notice of appearance must be maintained in the official record of 
the proceeding.

[[Page 36725]]

Subpart B--Complaint Processing Procedures


Sec.  776.2   Policy.

    (a) It is the 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 
formal investigation into an alleged violation of the Rules of 
Professional Conduct set forth in JAGINST 5803.1 (series) (``the 
Rules''), or the American Bar Association (ABA) Model Code of Judicial 
Conduct (``the Code of Judicial Conduct''). The Rules Counsel (as 
designated per JAGINST 5803.1 (series)) will notify the JAG prior to 
the commencement of any investigation. Any investigation into alleged 
violations of the Rules will be conducted according to the procedures 
set forth in this enclosure.


Sec.  776.3  Related investigations and actions.

    Acts or omissions by covered attorneys may constitute professional 
misconduct, criminal misconduct, mismanagement, poor performance of 
duty, or a combination of all four. 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 JAGINST 5803.1 (series), 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 Uniform Code of Military Justice (UCMJ) and implementing 
regulations, or through referral to appropriate civil authority.
    (c) Allegations of mismanagement are properly addressed by the 
covered USG attorney's reporting senior. Mismanagement involves any 
action or omission, either intentional or negligent, which adversely 
affects the efficient and effective delivery of legal services, any 
misuse of government resources (personnel and material), or any 
activity contrary to operating principles established by Navy 
regulations or JAG policy memoranda.
    (d) 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.
    (e) Prior JAG approval is not required to investigate allegations 
of criminal conduct, mismanagement, or poor performance of duty 
involving covered attorneys. When, however, investigations into 
criminal conduct, mismanagement, or poor performance reveal conduct 
that constitutes a violation of JAGINST 5803.1 (series) or of the Code 
of Judicial Conduct in the case of judges, such conduct shall be 
reported to the Rules Counsel immediately.
    (f) Generally, professional responsibility complaints will be 
processed in accordance with JAGINST 5803.1 (series) 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.
    (g) Nothing in this part or JAGINST 5803.1 (series) 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 Staff Judge Advocate (SJA) to the Commandant of the Marine Corps 
(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 JAGINST 5803.1 (series).


Sec.  776.4  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 (IG) or the concerned supervisory 
attorney) for inquiry. Such complaints are not, by themselves, 
cognizable under JAGINST 5803.1 (series) but may, if reasonably 
confirmed, be the basis of a formal complaint described in Sec.  776.5.


Sec.  776.5  The complaint.

    (a) The complaint shall:
    (1) Be in writing, signed (by hand or electronically), and offered 
to any superior to the subject of the complaint;
    (2) Demonstrate 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 the Rules 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 account 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 and documentation, if any, should be attached to 
the complaint.
    (b) Forwarding a document that contains the information required in 
paragraphs (a)(2) and (3) of this section (e.g., a command 
investigation or non-judicial punishment package) can also serve as a 
complaint under this part.
    (c) A complaint may be initiated by any person.


Sec.  776.6   Initial screening.

    (a) Receipt of complaint. Complaints involving conduct of a Navy or 
Marine Corps trial or appellate judge shall be forwarded to the Office 
of the Judge Advocate General (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 Research and Civil Law Branch, Judge 
Advocate Division, Headquarters Marine Corps (JAR). In cases involving 
Marine Corps judge advocates, including trial and appellate judges, 
where the SJA to CMC is not the Rules Counsel, the cognizant Rules 
Counsel (per JAGINST 5803.1 (series)) will notify the SJA to CMC when a 
complaint is received. OJAG (Code 05), OJAG (Code 13), and JAR shall 
log all complaints received.
    (b) Review for compliance and sufficiency. The cognizant Rules 
Counsel shall initially review the complaint to determine whether it 
complies with the requirements set forth in Sec.  776.5. 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.
    (1) Summary dismissal. Upon initial review of a complaint, the 
cognizant Rules Counsel may summarily dismiss the complaint if the 
Rules Counsel determines the JAG does not have

[[Page 36726]]

jurisdiction or the complaint, on its face, fails to establish probable 
cause to believe a violation of the Rules or the Code of Judicial 
Conduct has occurred. A dismissal letter will be sent to the 
complainant. If, in the judgment of the Rules Counsel, it is deemed 
necessary, a copy of the dismissal letter and the complaint will be 
sent to the covered attorney for information purposes. There is no 
appeal from a summary dismissal. The SJA to the CMC may delegate this 
authority to the Deputy SJA to the CMC. No other delegations are 
authorized.
    (c) Initial notice and opportunity to comment. If Rules Counsel 
determines that the complaint complies with JAGINST 5803.1 (series) and 
contains sufficient evidence to believe probable cause to establish a 
violation of that instruction may exist, the covered attorney shall 
receive notice and an opportunity to comment. OJAG (Code 05), OJAG 
(Code 13), and JAR will ensure a copy of the complaint and allied 
papers are 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, 
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, 
or email sent in a manner that verifies receipt by the covered 
attorney. The covered attorney's supervisory attorney must also be 
provided notice of the complaint. The covered attorney concerned may 
elect to provide an initial statement, within 10 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 not to submit any such statement.
    (d) Rules counsel review. Complaints, and any statement submitted 
by the covered attorney concerned, shall be further reviewed by the 
cognizant Rules Counsel to determine whether the complaint establishes 
probable cause to believe that a violation of the Rules or the Code of 
Judicial Conduct has occurred.
    (1) 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.
    (2) 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 Corps 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.
    (3) If the Rules Counsel determines there is probable cause to 
believe a violation of the Rules or 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, forward the complaint as delineated 
in Sec.  776.7, and cause an ethics investigation to be conducted in 
accordance with Sec.  776.9 of this part. (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.)


Sec.  776.7   Processing the complaint.

    (a) The cognizant Rules Counsel shall forward the complaint, a 
Rules violation sheet describing the specific alleged violations, 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 the covered attorney complained of and not previously 
involved in the case) and assign the officer to conduct an ethics 
investigation 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 the covered attorney complained of and not 
previously involved in the case) and assign the officer to conduct an 
ethics investigation 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 an ethics investigation into the matter.
    (b) The Rules Counsel shall provide notice of the complaint (if not 
previously informed) as well as notice of the ethics investigation:
    (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.  776.8   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 JAGINST 5803.1 (series)); 
or
    (3) When unable to represent client interests competently.
    (b) Upon receipt of information from the Rules Counsel, the JAG may 
order

[[Page 36727]]

the covered attorney to show cause why he or she should not face 
interim suspension pending completion of an ethics 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.  
776.7(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 Rule for Courts-Martial (R.C.M.) 502(d)(3), or the authority to 
provide legal assistance, pending the results of the investigation and 
final action under JAGINST 5803.1 (series). Notice of such action shall 
be provided as outlined in Sec.  776.7(b).
    (d) 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.
    (e) Any ethics investigation involving a covered attorney who has 
been suspended pursuant to this rule 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.  776.7(b). Where 
necessary, continuation of the interim suspension shall be reviewed by 
the JAG every 6 months.


Sec.  776.9   Ethics investigation.

    (a) Investigation. The purpose of the ethics investigation is to 
determine whether, by clear and convincing evidence, in the opinion of 
the officer appointed to conduct the investigation (the investigating 
officer, or IO), the questioned conduct occurred and, if so, whether 
clear and convincing evidence demonstrates that such conduct 
constitutes a violation of the Rules or the Code of Judicial Conduct. 
The IO is to recommend appropriate action in cases of substantiated 
violations. Upon receipt of the complaint, the IO 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 IO should also identify and obtain sworn affidavits or 
statements from all relevant and material witnesses to the extent 
practicable, and identify, gather, and preserve all other relevant and 
material evidence.
    (b) Notice. When an ethics investigation is initiated, the covered 
attorney concerned shall be so notified, in writing, by the Rules 
Counsel as outlined in Sec.  776.7(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 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 above rights within 10 days of receipt of notice shall 
be deemed a waiver by the covered attorney.
    (c) Opportunity to be heard. 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. 
Neither the Federal nor Military Rules of Evidence 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. 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 Defense Services Office (DSO), 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) Assistants. The IO may appoint and use such assistants as may 
be necessary to conduct the ethics investigation.
    (e) Report. 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) Provide his or her detailed findings of fact and opinions, 
based on the findings of fact, on which Rules the covered attorney 
violated;
    (ii) Recommend appropriate disciplinary action; and
    (iii) Forward the ethics investigation to the Rules Counsel with a 
copy to the attorney investigated.
    (f) Rules counsel review. 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 
IO, 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 independent review of 
the investigation, that a violation of the Rules or the 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 independent review of 
the investigation, that a violation of the Rules or the Code of 
Judicial Conduct has occurred but that the violation is of a minor or 
technical nature, then the Rules Counsel may determine that corrective 
counseling is appropriate and

[[Page 36728]]

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 Corps 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 independent review of 
the investigation, 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 Corps 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.  776.10  Effect of separate proceeding.

    (a) For purposes of this section, the term ``separate proceeding'' 
includes, but is not limited to, court-martial or similar civilian 
proceeding.
    (b) In those cases in which a covered attorney is determined to 
have committed misconduct by clear and convincing evidence, or a higher 
burden of proof, at a separate proceeding which the Rules Counsel 
determines has afforded procedural due process rights 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, in accordance with Sec.  776.9, shall be convened 
to decide, based on such misconduct, whether the underlying misconduct 
constitutes a violation of these Rules, whether the violation affects 
his or her fitness to practice law, and what sanctions, if any, are 
appropriate.
    (c) Notwithstanding paragraph (b) of this section, the Rules 
Counsel may dispense with the 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 JAGINST 5803.1 (series) when the covered 
attorney has been:
    (1) Decertified or suspended from the practice of law or otherwise 
subjected to professional responsibility discipline by the Judge 
Advocate General 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 1 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 Department of the 
Navy 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.  776.11  Action by the Judge Advocate General.

    (a) The JAG is not bound by the recommendation rendered by the 
Rules Counsel, IO, or any other party, but will base any action on the 
entire administrative record as a whole. Nothing in this part or 
JAGINST 5803.1 (series) 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 the Rules, either in 
DON or civilian proceedings, as detailed in JAGINST 5803.1 (series).
    (b) The JAG may, but is not required to, refer any case to the 
Professional Responsibility Committee for an advisory opinion on 
interpretation of the Rules or their 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, 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 notified of the complaint; and notifying 
appropriate tribunals and authorities of any action taken to suspend, 
decertify, or limit the practice of a covered attorney as counsel 
before courts-martial or the U.S. Navy-Marine Corps Court of Criminal 
Appeals, administrative boards, as a legal assistance attorney, or in 
any other legal proceeding or matter conducted under JAG cognizance and 
supervision.


Sec.  776.12   Finality.

    Any action taken by the JAG is final.


Sec.  776.13  Report to licensing authorities.

    Upon determination by the JAG that a violation of the Rules or the 
Code of Judicial Conduct has occurred, the JAG may cause the Rules 
Counsel to report

[[Page 36729]]

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.


Sec.  776.14  Public notice.

    The JAG will periodically publish JAGNOTE 5803, a listing of 
attorneys whose certification or authority to practice law in any area 
under the cognizance of the JAG is currently suspended, revoked, or 
limited.


Sec.  776.15  Requests for reinstatement.

    (a) Attorneys whose certification or authority to practice law in 
any area under the cognizance of the JAG has been suspended may request 
reinstatement no earlier than 5 years after the effective date of 
suspension. Attorneys whose certification or authority to practice law 
in any area under the cognizance of the JAG has been revoked may not 
request reinstatement.
    (b) Requests for reinstatement must be signed under oath, and must 
describe with particularity the manner in which he or she meets each of 
the criteria listed as follows:
    (1) The attorney has fully complied with all conditions imposed at 
the time of the imposition of sanctions;
    (2) The attorney has not engaged in or attempted to engage in the 
unauthorized practice of law within the Department of the Navy during 
the period of suspension;
    (3) If the attorney was suffering under a physical disability or 
other infirmity at the time of the imposition of sanctions, including 
alcohol abuse, the attorney must provide independent evidence that the 
disability or infirmity has been removed. Attorneys whose disability or 
infirmity included the possession or use of controlled substances in 
violation of Article 112a, UCMJ, shall not be reinstated;
    (4) The attorney has recognized the wrongfulness and seriousness of 
the misconduct for which sanctions were imposed;
    (5) The attorney has not engaged in other professional or personal 
misconduct since sanctions were imposed;
    (6) Notwithstanding the misconduct that resulted in imposition of 
sanctions, the attorney has the requisite honesty and integrity to 
practice before general courts-martial and all other administrative and 
judicial proceedings under the cognizance of the JAG;
    (7) The attorney has kept informed about recent legal developments 
and is competent to practice before general courts-martial and all 
other administrative and judicial proceedings under the cognizance of 
the JAG; and
    (8) Sufficient time has elapsed since imposition of sanctions and 
revocation of sanctions would be appropriate in view of the seriousness 
of the misconduct that resulted in sanctions and the effect that 
revocation of sanctions would have on the reputation of the community 
of covered attorneys who practice under the cognizance and supervision 
of the JAG.
    (c) The decision whether to grant a request for reinstatement is 
solely within the discretion of the JAG. Although the JAG will consider 
the factors listed in this section and any additional information 
provided by the requesting attorney, the JAG has complete discretion to 
determine whether reinstatement would be appropriate. The JAG's 
decision is final.

    Dated: April 25, 2024.
J.E. Koningisor,
Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy, 
Federal Register Liaison Officer.
[FR Doc. 2024-09257 Filed 5-2-24; 8:45 am]
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