Judge Advocate General's Instruction 5803.1A; Professional Conduct of Attorneys Practicing Under the Supervision of the Judge Advocate General

DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 776

Judge Advocate General's Instruction 5803.1A; Professional

Conduct of Attorneys Practicing Under the Supervision of the Judge

Advocate General

AGENCY: Department of the Navy, DOD.

ACTION: Final rule.

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SUMMARY: This rule sets forth regulations concerning the professional

conduct of attorneys practicing law under the supervision of the Judge

Advocate General of the Navy. This rule is being published to codify

the Judge Advocate General's Instruction 5803.1A, Professional Conduct

of Attorneys Practicing Under the Supervision of the Judge Advocate

General.

EFFECTIVE DATE: September 1, 1994.

FOR FURTHER INFORMATION CONTACT: CAPT P.W. Kelley, Office of the Judge

Advocate General, Administrative Law Division, 200 Stovall Street,

Alexandria, VA 22332-2400. Telephone: (703) 614-1781.

SUPPLEMENTARY INFORMATION: This part establishes policy, assigns

responsibilities, and prescribes procedures for attorneys practicing

law under the supervision of the Judge Advocate General (JAG) for

relations with non-DOD civilian counsel, petitions for outside law

practice of naval service attorneys, and a description of the complaint

processing procedure. This part ensures that attorneys practicing law

under the supervision of the JAG will be provided with rules of

professional conduct with which they must comply in order to remain in

``good standing.'' Although the rules of professional conduct do not

apply to nonlawyers, they do define the type of ethical conduct that

the public and the military community have a right to expect not only

of lawyers but also of their nonlawyer employees. It has been

determined that invitation of public comment on these changes to the

Department of the Navy's implementing instruction prior to adoption

would be impractical and unnecessary, and is therefore not required

under the public rule-making provisions of 32 CFR parts 336 and 701.

Interested persons, however, are invited to comment in writing. Written

comments received will be considered in making amendments or revisions

to 32 CFR part 776 or the naval instruction upon which it is based. It

has been determined that this final rule is not a major rule within the

criteria specified in Executive Order 12291 and does not have

substantial impact on the public. This submission is a statement of

policy and as such can be effective upon publication in the Federal

Register.

List of Subjects in 32 CFR Part 776

Conflicts of interests, Lawyers, Legal services, Reporting and

recordkeeping requirements.

For the reasons set out in the Preamble, part 776 is added to 32

CFR chapter VI to read as follows:

PART 776--PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE

SUPERVISION OF THE JUDGE ADVOCATE GENERAL

Subpart A--General, Preamble and Premises

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 part-time practice of law.

776.12 Maintenance of files.

776.13 Preamble.

776.14 Premises.

776.15-776.19 [Reserved]

Subpart B--Rules

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 interests: General rule.

776.27 Conflict of interests: Prohibited transactions.

776.28 Conflict of interests: 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 under a disability.

776.34 Safekeeping property.

776.35 Declining or terminating representation.

776.36 Advisor.

776.37 Mediation.

776.38 Evaluation for use by third persons.

776.39 Meritorious claims and contentions.

776.40 Expediting litigation.

776.41 Candor and obligations toward the tribunal.

776.42 Fairness to opposing party and counsel.

776.43 Impartiality and decorum of tribunal.

776.44 Extra-tribunal statements.

776.45 Judge advocate as witness.

776.46 Special responsibilities of a trial counsel.

776.47 Advocate in nonadjudicative proceedings.

776.48 Truthfulness in statements to others.

776.49 Communication with person represented by counsel.

776.50 Dealing with an unrepresented person.

776.51 Respect for rights of third persons.

776.52 Responsibilities of the judge advocate general and

supervisory judge advocates.

776.53 Responsibilities of a subordinate judge advocate.

776.54 Responsibilities regarding nonlawyer assistants.

776.55 Professional independence of a judge advocate.

776.56 Unauthorized practice of law.

776.57-776.65 [Reserved]

776.66 Bar admission and disciplinary matters.

776.67 Judicial and legal officials.

776.68 Reporting professional misconduct.

776.69 Misconduct.

776.70 Jurisdiction.

776.71-776.75 [Reserved]

Subpart C--Complaint Processing Procedures

776.76 Policy.

776.77 Related investigations and actions.

776.78 Informal complaints.

776.79 The complaint.

776.80 Initial screening and Rules Counsel.

776.81 Charges.

776.82 Preliminary inquiry.

776.83 Ethics investigation.

776.84 Action by JAG.

776.85 Finality.

776.86 Report to bar.

776.87-776.89 [Reserved]

Subpart D--Outside Part-Time Law Practice of Naval Service Attorneys

776.90 Background.

776.91 Definition.

776.92 Policy.

776.93 Action.

776.94 Revalidation.

776.95 Relations with non-DOD civilian counsel.

Authority: 10 U.S.C. 826, 827; Manual for Courts-Martial, United

States, 1984; Secretary of the Navy Instruction 5430.27A,

Responsibility of the Judge Advocate General for Supervision of

Certain Legal Services; U.S. Navy Regulations, 1990.

Subpart A--General, Preamble and Premises

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 (Administrative Law Division), 200 Stovall Street, Alexandria,

VA 22332-2400], which require the Judge Advocate General (JAG) to

supervise the performance of legal services under his cognizance

throughout the Department of the Navy (DON), this part is promulgated--

(a) To establish Rules of Professional Conduct for DON civilian and

military attorneys practicing under the supervision of JAG;

(b) To promulgate procedures for receiving, processing, and taking

action on complaints of professional misconduct made against attorneys

practicing under the supervision of JAG, or certified by JAG under

articles 26(b) or 27(b) of the Uniform Code of Military Justice (UCMJ)

(10 U.S.C. 826(b), 827(b)); and

(c) To prescribe limitations on, and procedures for, processing

requests to engage in the part-time outside practice of law by DON

judge advocates or civilian attorneys under the supervision of JAG.

Sec. 776.2 Applicability.

(a) This part defines the professional ethical obligations of, and

applies to:

(1) Attorneys:

(i) Certified by JAG under the provisions of article 27(b), UCMJ,

10 U.S.C. 827(b);

(ii) Designated by JAG as legal assistance attorneys;

(iii) Who practice within DON and who are certified under article

27(b), UCMJ, 10 U.S.C. 827(b), or who are designated as a legal

assistance attorney by the Judge Advocate General/Chief Counsel of

another armed force, or both; and

(2) Who are not certified in accordance with article 27(b), UCMJ,

10 U.S.C. 827(b), or designated as a legal assistance attorney, but who

practice under the supervision of JAG.

(3) Military trial and appellate judges who practice or perform

legal services under the cognizance of JAG.

(4) Reserve judge advocates of the Navy or Marine Corps on active

duty, extended active duty, active duty for training, inactive duty for

training, or when performing duties subject to the supervision of JAG.

Subpart D of this part, however, does not apply to Reserve judge

advocates unless they serve on active duty for more than 30 consecutive

days.

(5) DON civilian counsel practicing under the supervision of JAG.

(6) Civilian counsel representing individual members of the naval

service in any matter for which JAG is charged with supervising the

provision of legal services including, but not limited to, courts-

martial, administrative boards, and disability evaluation proceedings.

Subpart D of this part, however, does not apply to such counsel.

(b) Although subpart B of this part does not apply to nonlawyers,

the rules in that subpart do define the type of ethical conduct that

the public and the military community have a right to expect not only

of lawyers but also of their nonlawyer employees and associates in all

matters pertaining to professional conduct. Accordingly, subpart B

shall serve as models of ethical conduct for the following personnel

when involved with the delivery of legal services under the purview of

JAG--

(1) Navy legalmen and Marine Corps legal administrative officers

and legal service specialists;

(2) Limited duty officers (law);

(3) Legal interns; and

(4) Civilian support personnel including paralegals, legal

secretaries, legal technicians, secretaries, court-reporters, and

others holding similar positions. Attorneys who supervise nonlawyer

employees are responsible for their ethical conduct to the extent

provided for in Sec. 776.54.

Sec. 776.3 Policy.

(a) DON judge advocates and civilian attorneys to whom this part

applies shall maintain the highest standards of professional ethical

conduct. Loyalty and fidelity to the United States, to the law, to

clients both institutional and individual, and to 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 and related procedures set forth herein concern

matters solely under the purview of JAG. Whether conduct or failure to

act constitutes a violation of the duties imposed by this part is a

matter within the sole discretion of JAG or officials authorized to act

for JAG. The subpart B rules are not substitutes for, and do not take

the place of, other rules and standards governing DON personnel such as

the Government rules of ethical conduct, the Code of Conduct, the

Uniform Code of Military Justice, and the general precepts of ethical

conduct to which all officers of the Navy and Marine Corps are expected

to adhere. Similarly, action taken pursuant to this part is not

supplanted or barred by, and does not supplant or bar, the following

action from being taken by authorized officials, even if the underlying

misconduct is the same--

(1) Punitive or disciplinary action under the UCMJ; or

(2) Administrative action under the Manual For Courts-Martial or

U.S. Navy Regulations, 1990, or under other applicable authority.

Sec. 776.4 Attorney-client relationships.

(a) The executive agency to which assigned (DON in most cases) is

the client served by each DON civilian attorney or judge advocate

unless detailed to represent another client by competent authority.

Specific guidelines are contained in Sec. 776.32.

(b) DON judge advocates and civilian attorneys will not establish

attorney-client relationships with any individual unless detailed,

assigned, or otherwise authorized to do so by competent authority.

(c) Employment of non-DON civilian counsel by an individual client

does not alter the responsibilities of a DON judge advocate or civilian

attorney to that client. Specific guidance is set forth in Sec. 776.95.

Sec. 776.5 Judicial conduct.

To the extent that it does not conflict with statutes, subpart B of

this part, or regulations of the sort mentioned in Sec. 776.3(b), the

American Bar Association's Code of Judicial Conduct applies to all

military and appellate judges and to all judge advocates and other

attorneys performing judicial functions under JAG supervision within

the Department of the Navy.

Sec. 776.6 Conflict.

To the extent that a conflict exists between subpart B of this part

and the rules of other jurisdictions that regulate the professional

conduct of attorneys, subpart B of this part will govern the conduct of

attorneys engaged in legal functions under JAG supervision.

Sec. 776.7 Reporting requirements.

Individuals subject to this part shall promptly report to the Rules

Counsel (see Sec. 776.9) discipline by another jurisdiction upon

himself, herself, or another individual subject to 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

Principal Deputy Assistant Judge Advocate General (PDAJAG) (Operations

& Management); the Chief Judge, Navy-Marine Corps Trial Judiciary; and

in cases involving Marine Corps judge advocates, the Deputy Director,

Judge Advocate Division, HQMC; and such other personnel as JAG from

time-to-time may appoint. A majority of the members constitutes a

quorum. The Chairman of the Committee shall be PDAJAG (Operations &

Management). The Chairman may excuse members disqualified for cause,

illness, or exigencies of military service, and may request JAG to

appoint additional or alternative members on a temporary or permanent

basis.

(b) Purpose. (1) When requested by JAG or by the Rules Counsel, the

Committee will provide formal advisory opinions to 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 will also provide formal

advisory opinions to individuals subject to this part 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

is not violative of subpart B of this part, then no adverse action

under this part may be taken against an individual who acts consistent

with the Committee's advice.

(4) The Committee Chairman will forward copies of all opinions

issued by the Committee to the Rules Counsel.

Sec. 776.9 Rules Counsel.

Appointed by JAG to act as a special assistant for the

administration of subpart B of this part, the Rules Counsel derives

authority from JAG and, with respect to administrative matters under

this part, has ``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) In cases involving Marine Corps judge advocates, Director,

Judge Advocate Division; and

(b) In all other cases, Assistant Judge Advocate General (Civil

Law).

Sec. 776.10 Informal ethics advice.

(a) Advisors. Judge advocates may seek informal ethics advice

either from the OJAG officers named below or from their supervisory

judge advocates in the field. Within the Office of the JAG, the

following officials are designated to respond to informal, oral

inquiries concerning this part in the areas of practice indicated--

(1) Head, Military Affairs/Personnel Law Branch, Administrative Law

Division: administrative boards and related matters;

(2) Deputy Director, Criminal Law Division: military justice

matters;

(3) Deputy Director, Legal Assistance Division: legal assistance

matters; and

(4) Head, Standards of Conduct/Government Ethics Branch,

Administrative Law Division: all others.

(b) Informal advice. Informal ethics advice will not be provided by

OJAG advisors concerning matters currently in litigation.

(c) Written advice. A request for informal advice does not relieve

the requestor of the obligation to comply with subpart B of this part.

Although DON judge advocates and civilian attorneys are encouraged to

seek advice when in doubt as to their responsibilities, they remain

personally responsible for their professional conduct. If, however, a

subordinate judge advocate acts in accordance with a supervisory judge

advocate's written and reasonable resolution of an arguable question,

then no adverse action under this part may be taken against the

subordinate judge advocate. JAG is not bound by unwritten advice or by

advice provided by nonsupervisors.

Sec. 776.11 Outside part-time practice of law.

A DON attorney's primary professional responsibility is to the

executive agency to which assigned, and he or she is expected to devote

the required amount of effort and time to satisfactorily accomplish

assigned duties. The outside practice of law, therefore, must be

carefully monitored. Attorneys to whom this section applies who wish to

engage in the part-time, outside practice of law must first obtain

permission from JAG. Details are contained in Subpart D of this part.

Sec. 776.12 Maintenance of files.

Ethics complaint records and outside, part-time law practice

request files shall be maintained by the Administrative Law Division,

Office of the Judge Advocate General.

(a) Files shall be labeled with the name of the individual against

whom complaints are made, or who request permission to engage in the

part-time outside practice of law, and will contain the request,

complaint, reports of investigation, related correspondence, and allied

papers.

(b) Requests for access to such records should be referred to DAJAG

(Administrative Law Division), Office of the Judge Advocate General,

200 Stovall Street, Alexandria, Virginia 22332-2400.

(c) Local command files regarding complaints will not be

maintained. Commanding officers and other supervisory personnel may,

however, maintain their own personal files but must not share their

contents with others.

Sec. 776.13 Preamble.

(a) Rules of Professional Conduct. (1) A judge advocate in the

naval service is a representative of clients, an officer of the legal

system, a commissioned officer, and a public citizen who has a special

responsibility for the quality of justice and legal services provided

to the Department of the Navy and to individual clients. The Rules of

Professional Conduct set out in subpart B of this part govern the

ethical conduct of naval judge advocates practicing under the Uniform

Code of Military Justice, the Manual for Courts-Martial, 10 U.S.C. 1044

(Legal Assistance), other laws of the United States, and regulations of

the Department of the Navy.

(2) The rules in subpart B of this part are specifically addressed

to the conduct of judge advocates but apply to all other lawyers who

practice under the supervision of the Judge Advocate General of the

Navy. (Use of the term ``judge advocate'' in subpart B applies to all

lawyers unless otherwise indicated.)

(b) [Reserved]

Sec. 776.14 Premises.

(a) The rules in subpart B of this part are based on the premises

that follow. The interpretation of subpart B of this part should flow

from their common meaning and the comments. To the extent that any

ambiguity or conflict exists, subpart B of this part should be

interpreted consistent with this hierarchy of premises.

(1) Judge advocates must obey the law and military regulations, and

counsel clients to do so.

(2) Ethical rules must be followed.

(3) Ethical rules should be consistent with law. If law and ethics

conflict, the law prevails unless an ethical rule is constitutionally

based.

(4) A judge advocate must protect the legal rights and interests of

clients, organizational and individual.

(5) The military criminal justice system is a truth-finding process

consistent with constitutional law.

(6) A judge advocate must be honest and truthful in all dealings.

(7) A judge advocate shall not derive personal gain, other than

from the U.S. Government, from the performance of official duties.

(8) A judge advocate shall maintain the integrity of the legal and

military professions.

(b) [Reserved]

Subpart B--Rules

Sec. 776.20 Competence.

(a) Competence. A judge advocate shall provide competent, diligent,

and prompt representation to a client. Competent representation

requires the legal knowledge, skill, thoroughness, and expeditious

preparation reasonably necessary for representation. Initial

determinations as to competence of a judge advocate for a particular

assignment shall be made by a supervising judge advocate before case or

issue assignments; however, assigned judge advocates may consult with

supervisors concerning competence in a particular case.

(b) [Reserved]

Sec. 776.21 Establishment and scope of representation.

(a) Establishment and scope of representation. (1) Formation of

attorney-client relationships by judge advocates with, and

representation of, clients is permissible only when the judge advocate

is authorized to do so by competent authority.

(2) The subject matter scope of a judge advocate's representation

will be consistent with the terms of the assignment to perform specific

representational or advisory duties. A judge advocate shall inform

clients at the earliest opportunity of any limitations of

representation and professional responsibilities of the judge advocate

towards the client.

(3) A judge advocate shall follow the client's well-informed and

lawful decisions concerning case objectives, choice of counsel, forum,

pleas, whether to testify, and settlements.

(4) A judge advocate's representation of a client does not

constitute an endorsement of the client's political, economic, social,

or moral views or activities.

(5) A judge advocate shall not counsel or assist a client to engage

in conduct that the judge advocate knows is criminal or fraudulent, but

a judge advocate 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.

(b) [Reserved]

Sec. 776.22 Diligence.

(a) Diligence. A judge advocate shall act with reasonable diligence

and promptness in representing a client, and in every case shall

consult with a client as soon as practicable and as often as necessary

upon being assigned to the case or issue.

(b) [Reserved]

Sec. 776.23 Communication.

(a) Communication. (1) A judge advocate shall keep a client

reasonably informed about the status of a matter and promptly comply

with reasonable requests for information.

(2) A judge advocate shall explain a matter to the extent

reasonably necessary to permit the client to make informed decisions

regarding the representation.

(b) [Reserved]

Sec. 776.24 Fees.

In this section, the term ``judge advocate'' refers only to judge

advocates and other attorneys employed by the Department of the Navy.

The term ``lawyer'' refers to all other lawyers subject to this subpart

B.

(a) Fees. (1) A judge advocate 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 judge advocate's government duties or employment.

(2) A judge advocate shall not accept any salary or other payments

as compensation for legal services rendered, by that judge advocate in

a private capacity, to a client who is eligible for assistance under

the Department of the Navy Legal Assistance Program, unless so

authorized by the Judge Advocate General. This paragraph (a)(2) does

not apply to Reserve judge advocates not serving on extended active

duty.

(3) A Reserve 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 judge advocate'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 authorized by the Judge

Advocate General to do so.

(4) A judge advocate shall not accept any payments or benefits,

actual or constructive, directly or indirectly, for making a referral

of a client.

(5) Lawyers not employed by the Federal Government may charge fees.

Fees shall be reasonable. Factors considered in determining the

reasonableness of a fee include the following:

(i) The time and labor required, the novelty and difficulty of the

questions involved, and the skill requisite to perform the legal

service properly;

(ii) The likelihood, if apparent to the client, that the acceptance

of the particular employment will preclude other employment by the

lawyer;

(iii) The fee customarily charged in the locality for similar legal

services;

(iv) The amount involved and the results obtained;

(v) The time limitations imposed by the client or by the

circumstances;

(vi) The nature and length of the professional relationship with

the client;

(vii) The experience, reputation, and ability of the lawyer or

lawyers performing the services; and

(viii) Whether the fee is fixed or contingent.

(6) When the lawyer 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 in representation.

(7) 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)(8) 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 lawyer 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 lawyer 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.

(8) A lawyer shall not enter into an arrangement for, charge, or

collect:

(i) Any fee in a domestic relations matter, the payment or amount

of which is contingent upon the securing of a divorce or upon the

amount of alimony or support, or property settlement in lieu thereof,

or

(ii) A contingent fee for representing an accused in a criminal

case.

(9) A division of fee between lawyers who are not in the same firm

may be made only if:

(i) The division is in proportion to the services performed by each

lawyer or, by written agreement with the client, each lawyer assumes

joint responsibility for the representation;

(ii) The client is advised of and does not object to the

participation of all the lawyers involved; and

(iii) The total fee is reasonable.

(b) [Reserved]

Sec. 776.25 Confidentiality of information.

(a) Confidentiality of information. (1) A judge advocate shall not

reveal information relating to representation of a client unless the

client consents after consultation, except for disclosures that are

impliedly authorized in order to carry out the representation, and

except as stated in paragraphs (a)(2) and (a)(3) of this section.

(2) A judge advocate shall reveal such information to the extent

the judge advocate reasonably believes necessary to prevent the client

from committing a criminal act that the judge advocate believes is

likely to result in imminent death or substantial bodily harm, or

significant impairment of national security or the readiness or

capability of a military unit, vessel, aircraft, or weapon system.

(3) A judge advocate may reveal such information to the extent the

judge advocate reasonably believes necessary to establish a claim or

defense on behalf of the judge advocate in a controversy between the

judge advocate and the client, to establish a defense to a criminal

charge or civil claim against the judge advocate based upon conduct in

which the client was involved, or to respond to allegations in any

proceeding concerning the judge advocate's representation of the

client.

(b) [Reserved]

Sec. 776.26 Conflict of interests: General rule.

(a) Conflict of Interests: General rule. (1) A judge advocate shall

not represent a client if the representation of that client will be

directly adverse to another client, unless:

(i) The judge advocate reasonably believes the representation will

not adversely affect the relationship with the other client; and

(ii) Each client consents after consultation.

(2) A judge advocate shall not represent a client if the

representation of that client may be materially limited by the judge

advocate's responsibilities to another client or to a third person, or

by the judge advocate's own interests, unless:

(i) The judge advocate reasonably believes the representation will

not be adversely affected; and,

(ii) The client consents after consultation. When representation of

multiple clients in a single matter is undertaken, the consultation

shall include explanation of the implications of the common

representation and the advantages and risks involved.

(b) [Reserved]

Sec. 776.27 Conflict of interests: Prohibited transactions.

(a) Conflict of interests: Prohibited transactions. (1) Judge

advocates shall strictly adhere to current Department of the Navy

Standards of Conduct Regulations and shall not:

(i) Knowingly enter into any business transactions on behalf of, or

adverse to, a client's interest which directly or indirectly relate to

or result from the attorney-client relationship, or otherwise profit,

directly or indirectly, through knowledge acquired during the course of

the judge advocate's official duties;

(ii) Accept compensation or gifts in any form from a client or

other person or entity, other than the U.S. Government, for the

performance of official duties;

(iii) 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;

(iv) Negotiate any settlement on behalf of multiple clients in a

single matter unless each client provides his or her fully informed

consent;

(v) Represent a client whose interests are materially adverse to

the interests of a former client, unless the former client consents, or

use information from the former representation to the disadvantage of

that former client, except as permitted or required under Sec. 776.26

or when the information has become otherwise generally known;

(vi) make any referrals of legal or other business to any non-

governmental lawyer or enterprise with whom the judge advocate has any

present or expected direct or indirect personal interest; any referrals

must be made strictly without regard to personal interests of the judge

advocate, and special care shall be taken not to give preferential

treatment to Reserve judge advocates or other government attorneys in

their private capacities;

(vii) Make or negotiate an agreement giving the judge advocate

literary or media rights for a portrayal or account based in

substantial part on information relating to representation of a client;

or,

(viii) Represent a client in a matter directly adverse to a person

who the judge advocate knows is represented by another lawyer who is

related as parent, child, sibling or spouse to the judge advocate,

except upon consent by the client after consultation regarding the

relationship.

(2) [Reserved]

(b) [Reserved]

Sec. 776.28 Conflict of interests: Former client.

(a) Conflict of interests: Former client. (1) A judge advocate who

has represented a client in a matter shall not thereafter:

(i) Represent another person in the same or a substantially related

matter in which the person's interests are materially adverse to the

interests of the former client, unless the former client consents after

consultation; or,

(ii) Use information relating to the representation to the

disadvantage of the former client or to the judge advocate's own

advantage, except as Sec. 776.25 would permit with respect to a client

or when the information has become generally known.

(2) [Reserved]

(b) [Reserved]

Sec. 776.29 Imputed disqualification: General rule.

Judge advocates 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, 776.28, or Sec. 776.37.

Sec. 776.30 Successive government and private employment.

(a) Successive government and private employment. (1) Except as the

law or regulations may otherwise expressly permit, a former judge

advocate shall not represent a private client in connection with a

matter in which the judge advocate participated personally and

substantially as a public officer or employee, unless the appropriate

government agency consents after consultation. If a former judge

advocate in a firm with which that judge advocate is associated knows

that the firm or anyone associated with the firm is undertaking or

continuing representation in such a matter:

(i) The disqualified former judge advocate 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,

(ii) Must provide written notice promptly to the appropriate

government agency to enable it to ascertain compliance with the

provisions of this section.

(2) Except as the law or regulations may otherwise expressly

permit, a former judge advocate who has information known to be

confidential government information about a person which was acquired

when the former judge advocate was a public officer 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 judge advocate may continue association with

the firm only if the disqualified judge advocate is screened from any

participation in the matter and is apportioned no part of the fee or

any other benefit therefrom.

(3) Except as the law or regulations may otherwise expressly

permit, a judge advocate shall not:

(i) Participate in a matter in which the judge advocate

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 judge advocate's

stead in the matter; or,

(ii) 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

judge advocate is participating personally and substantially.

(4) As used in this section, the term ``matter'' includes:

(i) 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,

(ii) Any other matter covered by the conflict of interest rules of

the appropriate government agency.

(5) As used in this section, the term ``confidential governmental

information'' means information which has been obtained under

governmental authority and which, at the time this section is applied,

the government is prohibited by law or regulations from disclosing to

the public or has a legal privilege not to disclose, and which is not

otherwise available to the public.

(b) [Reserved]

Sec. 776.31 Former judge or arbitrator.

(a) Former judge or arbitrator. (1) Except as stated in paragraph

(a)(3) of this section, a judge advocate shall not represent anyone in

connection with a matter in which the judge advocate 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 consent after disclosure.

(2) A judge advocate 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 judge advocate is participating personally and

substantially as a judge or other adjudicative officer. A judge

advocate 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 judge advocate has notified the

judge, other adjudicative officer, or arbitrator.

(3) An arbitrator selected as a partisan of a party in a multi-

member arbitration panel is not prohibited from subsequently

representing that party.

(b) [Reserved]

Sec. 776.32 Department of the Navy as client.

(a) Department of the Navy as client. (1) Except when representing

an individual client pursuant to paragraph (a)(6) of this section, a

judge advocate for the naval service represents the Department of the

Navy (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 judge advocate for the naval service is assigned to such an

organizational element and designated to provide legal services to the

head of the organization, a lawyer-client relationship exists between

the judge advocate and the Department of the Navy 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 lawyer-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 Department of the Navy. In invoking either the

lawyer-client privilege or lawyer-client confidentiality on behalf of

the Department of the Navy, the head of the organization is subject to

being overruled by higher authority.

(2) If a judge advocate 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 Department of the Navy or a violation of law which

reasonably might be imputed to the Department, the judge advocate shall

proceed as is reasonably necessary in the best interest of the naval

service. In determining how to proceed, the judge advocate shall give

due consideration to the seriousness of the violation and its

consequences, the scope and nature of the judge advocate'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 among others:

(i) Advising the head of the organization 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 interests for the judge advocate, and

the judge advocate's responsibility is to the organization;

(ii) Asking for reconsideration of the matter by the acting

official;

(iii) Advising that a separate legal opinion on the matter be

sought for presentation to appropriate authority in the naval service;

or,

(iv) Referring the matter to, or seeking guidance from, higher

authority in the technical chain-of-command including, if warranted by

the seriousness of the matter, referral to the staff judge advocate

assigned to the staff of the acting official's next superior in the

technical chain-of-command.

(3) If, despite the judge advocate's efforts pursuant to paragraph

(a)(2) 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 judge advocate may terminate representation with respect to

the matter in question. In no event shall the lawyer participate or

assist in the illegal activity.

(4) In dealing with the officers, employees, or members of the

naval service a judge advocate shall explain the identity of the client

when it is apparent that the naval service's interests are adverse to

those of the officer's, employee's, or member's.

(5) A judge advocate representing the naval service may also

represent any of its officers, employees, or members, subject to the

provisions of Sec. 776.26 and other applicable authority. If the

Department of the Navy's consent to dual representation is required by

Sec. 776.26, the consent shall be given by an appropriate official of

the Department of the Navy other than the individual who is to be

represented.

(6) A judge advocate who has been duly assigned to represent an

individual who is subject to disciplinary action or administrative

proceedings, or to provide legal assistance to an individual, has, for

those purposes, an attorney-client relationship with that individual.

(b) [Reserved]

Sec. 776.33 Client under a disability.

(a) Client under a disability. (1) When a client's ability to make

adequately considered decisions in connection with the representation

is impaired, whether because of minority, mental disability, or for

some other reason, the judge advocate shall, as far as reasonably

possible, maintain a normal attorney-client relationship with the

client.

(2) A judge advocate may seek the appointment of a guardian or take

other protective action with respect to a client only when the judge

advocate reasonably believes that the client cannot adequately act in

the client's own interest.

(b) [Reserved]

Sec. 776.34 Safekeeping property.

Judge advocates shall not normally hold or safeguard property of a

client or third persons in connection with representational duties

under Sec. 776.27(a)(1)(iii).

Sec. 776.35 Declining or terminating representation.

(a) Declining or terminating representation. (1) Except as stated

in paragraph (a)(3) of this section, a judge advocate shall not

represent a client or, when representation has commenced, shall seek to

withdraw from the representation of a client, if:

(i) The representation will result in violation of this subpart B

or other law or regulation;

(ii) The judge advocate's physical or mental condition materially

impairs his or her ability to represent the client; or

(iii) The judge advocate is dismissed by the client.

(2) Except as stated in paragraph (a)(3) of this section, a judge

advocate 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:

(i) The client persists in a course of action involving the judge

advocate's services that the judge advocate reasonably believes is

criminal or fraudulent;

(ii) The client has used the judge advocate's services to

perpetrate a crime or fraud;

(iii) The client insists upon pursuing an objective that the judge

advocate considers repugnant or imprudent; or,

(iv) Other good cause for withdrawal exists.

(3) When ordered to do so by a tribunal or other competent

authority, a judge advocate shall continue representation

notwithstanding good cause for terminating the representation.

(4) Upon termination of representation, a judge advocate 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, if a civilian

lawyer is involved, refunding any advance payment of fee that has not

been earned. The judge advocate may retain papers relating to the

client to the extent permitted by law.

(b) [Reserved]

Sec. 776.36 Advisor.

In representing a client, a judge advocate shall exercise

independent professional judgment and render candid advice. In

rendering advice, a judge advocate should 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.

Sec. 776.37 Mediation.

(a) Mediation. (1) A judge advocate may act as a mediator between

individuals or clients if:

(i) The judge advocate 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;

(ii) The judge advocate 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,

(iii) The judge advocate reasonably believes that the mediation can

be undertaken impartially and without improper effect on other

responsibilities the judge advocate has to any of the individuals.

(2) While acting as a mediator, the judge advocate 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.

(3) A judge advocate shall withdraw as a mediator if any of the

individuals so requests, or if any of the conditions stated in

paragraph (a) of this section is no longer satisfied. Upon withdrawal,

the judge advocate shall not continue to mediate among any of the

individuals in the matter that was the subject of the mediation unless

each individual consents.

(b) [Reserved]

Sec. 776.38 Evaluation for use by third persons.

(a) Evaluation for use by third persons. (1) A judge advocate may

undertake an evaluation of a matter affecting a client for the use of

someone other than the client if:

(i) The judge advocate reasonably believes that making the

evaluation is compatible with other aspects of the judge advocate's

relationship with the client; and

(ii) The client consents after consultation.

(2) 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.

(b) [Reserved]

Sec. 776.39 Meritorious claims and contentions.

A judge advocate 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, or which includes a good-faith argument for an

extension, modification, or reversal of existing law. A judge advocate

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 to ensure that

every element of the case is established.

Sec. 776.40 Expediting litigation.

A judge advocate shall make reasonable efforts to expedite

litigation or other proceedings consistent with the interests of the

client and the judge advocate's responsibilities to tribunals.

Sec. 776.41 Candor and obligations toward the tribunal.

(a) Candor and obligations toward the tribunal. (1) A judge

advocate shall not knowingly:

(i) Make a false statement of material fact or law to a tribunal;

(ii) Fail to disclose a material fact to a tribunal when disclosure

is necessary to avoid assisting a criminal or fraudulent act by the

client;

(iii) Fail to disclose to the tribunal legal authority in the

controlling jurisdiction known to the judge advocate to be directly

adverse to the position of the client and not disclosed by opposing

counsel;

(iv) Offer evidence that the judge advocate knows to be false (if a

judge advocate has offered material evidence and comes to know of its

falsity, the judge advocate shall take reasonable remedial measures);

or

(v) Disobey an order imposed by a tribunal unless done openly

before the tribunal in a good-faith assertion that no valid order

should exist.

(2) 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.

(3) A judge advocate may refuse to offer evidence that the judge

advocate reasonably believes is false.

(4) In an ex parte proceeding, a judge advocate shall inform the

tribunal of all material facts known to the judge advocate which are

necessary to enable the tribunal to make an informed decision, whether

or not the facts are adverse.

(b) [Reserved]

Sec. 776.42 Fairness to opposing party and counsel.

(a) Fairness to opposing party and counsel. (1) A judge advocate

shall not:

(i) Unlawfully obstruct another party's access to evidence or

unlawfully alter, destroy, or conceal a document or other material

having potential evidentiary value; a judge advocate shall not counsel

or assist another person to do any such act;

(ii) Falsify evidence, counsel or assist a witness to testify

falsely, or offer an inducement to a witness that is prohibited by law;

(iii) In pretrial procedure, make a frivolous discovery request or

fail to make reasonably diligent effort to comply with a legally proper

discovery request by an opposing party;

(iv) In trial, allude to any matter that the judge advocate 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

(v) Request a person other than a client to refrain from

voluntarily giving relevant information to another party unless:

(A) The person is a relative, an employee, or other agent of a

client; and

(B) The judge advocate reasonably believes that the person's

interests will not be adversely affected by refraining from giving such

information.

(2) [Reserved]

(b) [Reserved]

Sec. 776.43 Impartiality and decorum of the tribunal.

(a) Impartiality and decorum the tribunal. (1) A judge advocate

shall not:

(i) 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;

(ii) Communicate ex parte with such a person except as permitted by

law or regulation; or

(iii) Engage in conduct intended to disrupt a tribunal.

(2) [Reserved]

(b) [Reserved]

Sec. 776.44 Extra-tribunal statements.

(a) Extra-tribunal statements. (1) A judge advocate 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 judge advocate knows or reasonably should

know that it will have a substantial likelihood of materially

prejudicing an adjudicative proceeding or an official review process

thereof.

(2) 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 or any other proceeding

that could result in incarceration, discharge from the naval service,

or other adverse personnel action, and the statement relates to:

(i) The character, credibility, reputation, or criminal record of a

party, suspect in a criminal investigation, or witness, or the identity

of a witness, or the expected testimony of a party or witness;

(ii) 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;

(iii) The performance or results of any 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;

(iv) 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;

(v) Information the judge advocate 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;

(vi) 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

(vii) The credibility, reputation, motives, or character of

civilian or military officials of the Department of Defense.

(3) Notwithstanding paragraphs (a)(1) and (a)(2) (i) through (v) of

this section, a judge advocate involved in the investigation or

litigation of a matter may state without elaboration:

(i) The general nature of the claim or defense;

(ii) The information contained in a public record;

(iii) 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, the identity of the

persons involved;

(iv) The scheduling or result of any step in litigation;

(v) A request for assistance in obtaining evidence and information

necessary thereto;

(vi) 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

(vii) In a criminal case:

(A) The identity, duty station, occupation, and family status of

the accused;

(B) If the accused has not been apprehended, information necessary

to aid in apprehension of that person;

(C) The fact, time, and place of apprehension; and

(D) The identity of investigating and apprehending officers or

agencies and the length of the investigation.

(4) The protection and release of information in matters pertaining

to the Department of the Navy 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.

(b) [Reserved]

Sec. 776.45 Judge advocate as witness.

(a) Judge advocate as witness. (1) A judge advocate shall not act

as advocate at a trial in which the judge advocate is likely to be a

necessary witness except when:

(i) The testimony relates to an uncontested issue;

(ii) The testimony relates to the nature and quality of legal

services rendered in the case; or

(iii) Disqualification of the judge advocate would work substantial

hardship on the client.

(2) A judge advocate may act as advocate in a trial in which

another judge advocate or lawyer in the judge advocate's office is

likely to be called as a witness, unless precluded from doing so by

Sec. 776.26 or Sec. 776.28.

(b) [Reserved]

Sec. 776.46 Special responsibilities of a trial counsel.

(a) Special responsibilities of a trial counsel. (1) A trial

counsel shall:

(i) Recommend to the convening authority that any charge or

specification not warranted by the evidence be withdrawn;

(ii) 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;

(iii) Not seek to obtain from an unrepresented accused a waiver of

important pretrial rights;

(iv) Make timely disclosure to the defense of all evidence or

information known to the judge advocate 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 judge advocate, except when the judge advocate

is relieved of this responsibility by a protective order or regulation;

and

(v) Exercise reasonable care to prevent investigators, law

enforcement personnel, employees, or other persons assisting or

associated with the judge advocate in a criminal case from making an

extrajudicial statement that the trial counsel would be prohibited from

making under Sec. 776.44.

(2) [Reserved]

(b) [Reserved]

Sec. 776.47 Advocate in nonadjudicative proceedings.

A judge advocate representing a client before a legislative or

administrative tribunal in a nonadjudicative proceeding shall disclose

that the appearance is in a representative capacity and shall conform

to the provisions of Sec. 776.41, Sec. 776.42, and Sec. 776.43.

Sec. 776.48 Truthfulness in statements to others.

(a) Truthfulness in statements to others. In the course of

representing a client a judge advocate 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.

(b) [Reserved]

Sec. 776.49 Communication with person represented by counsel.

In representing a client, a judge advocate shall not communicate

about the subject of the representation with a party the judge advocate

knows to be represented by another judge advocate in the matter, unless

the judge advocate has the consent of the other judge advocate or is

authorized by law to do so.

Sec. 776.50 Dealing with an unrepresented person.

When dealing on behalf of a client with a person who is not

represented by counsel, a judge advocate shall not state or imply that

the judge advocate is disinterested. When the judge advocate knows or

reasonably should know that the unrepresented person misunderstands the

judge advocate's role in the matter, the judge advocate shall make

reasonable efforts to correct the misunderstanding.

Sec. 776.51 Respect for rights of third persons.

In representing a client, a judge advocate 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.

Sec. 776.52 Responsibilities of the Judge Advocate General and

supervisory judge advocates.

(a) Responsibilities of the Judge Advocate General and supervisory

judge advocates. (1) The Judge Advocate General and supervisory judge

advocates shall make reasonable efforts to ensure that all judge

advocates conform to this subpart.

(2) A judge advocate having direct supervisory authority over

another judge advocate shall make reasonable efforts to ensure that the

other judge advocate conforms to this subpart.

(3) A supervisory judge advocate shall be responsible for another

subordinate judge advocate's violation of this subpart if:

(i) The supervisory judge advocate orders or, with knowledge of the

specific conduct, ratifies the conduct involved; or

(ii) The supervisory judge advocate has direct supervisory

authority over the other judge advocate and knows of the conduct at a

time when its consequences can be avoided or mitigated but fails to

take reasonable remedial action.

(4) A supervisory judge advocate is responsible for ensuring that

the subordinate judge advocate is properly trained and is competent to

perform the duties to which the subordinate judge advocate is assigned.

(b) [Reserved]

Sec. 776.53 Responsibilities of a subordinate judge advocate.

(a) Responsibilities of a subordinate judge advocate. (1) A judge

advocate is bound by this subpart notwithstanding that the judge

advocate acted at the direction of another person.

(2) In recognition of a judge advocate's unique dual role as a

commissioned officer and lawyer, subordinate judge advocates shall obey

lawful directives and regulations of supervisory judge advocates when

not inconsistent with this subpart or the duty of a judge advocate to

exercise independent professional judgment as to the best interest of

an individual client.

(3) A subordinate judge advocate does not violate this subpart if

that judge advocate acts in accordance with a supervisory judge

advocate's written and reasonable resolution of an arguable question of

professional duty.

(b) [Reserved]

Sec. 776.54 Responsibilities regarding nonlawyer assistants.

(a) Responsibilities regarding nonlawyer assistants

(1) With respect to a nonlawyer under the authority, supervision,

or direction of a judge advocate:

(i) The senior supervisory judge advocate in an office shall make

reasonable efforts to ensure that the person's conduct is compatible

with the professional obligations of the judge advocate;

(ii) A judge advocate having direct supervisory authority over the

nonlawyer shall make reasonable efforts to ensure that the person's

conduct is compatible with the professional obligations of the judge

advocate; and

(iii) A judge advocate shall be responsible for conduct of such a

person that would be a violation of this subpart B if engaged in by a

judge advocate if:

(A) The judge advocate orders or, with the knowledge of the

specific conduct, ratifies the conduct involved; or

(B) The judge advocate 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.

(2) [Reserved]

(b) [Reserved]

Sec. 776.55 Professional independence of a judge advocate.

(a) Professional independence of a judge advocate. (1)

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 Department of the Navy is expected to exercise unfettered loyalty

and professional independence during the representation consistent with

this subpart and remains ultimately responsible for acting in the best

interest of the individual client.

(2) The exercise of professional judgment in accordance with

paragraph (a)(1) of this section shall not, standing alone, be a basis

for an adverse evaluation or other prejudicial action.

(b) [Reserved]

Sec. 776.56 Unauthorized practice of law.

(a) Unauthorized practice of law. (1) A judge advocate shall not:

(i) 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

(ii) Assist a person who is not a member of the bar in the

performance of activity that constitutes the unauthorized practice of

law.

(2) [Reserved]

(b) [Reserved]

Secs. 776.57-776.65 [Reserved]

Sec. 776.66 Bar admission and disciplinary matters.

(a) Bar admission and disciplinary matters. (1) A judge advocate in

connection with a bar admission application, application for

appointment or for active duty as a judge advocate, certification by

the Judge Advocate General, or a disciplinary matter, shall not:

(i) Knowingly make a false statement of fact; or

(ii) 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 section does not require

disclosure of information otherwise protected by Sec. 776.25.

(2) [Reserved]

(b) [Reserved]

Sec. 776.67 Judicial and legal officials.

A judge advocate shall not make a statement that the judge advocate

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.

Sec. 776.68 Reporting professional misconduct.

(a) Reporting professional misconduct. (1) A judge advocate having

knowledge that another judge advocate has committed a violation of this

subpart that raises a substantial question as to that judge advocate's

honesty, trustworthiness, or fitness as a judge advocate in other

respects, shall report such a violation pursuant to regulations

promulgated by the Judge Advocate General.

(2) A judge advocate 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 a violation pursuant to regulations promulgated by the Judge

Advocate General.

(3) This section does not require disclosure of information

otherwise protected by Sec. 776.25.

(b) [Reserved]

Sec. 776.69 Misconduct.

(a) Misconduct. (1) It is professional misconduct for a judge

advocate to:

(i) Violate or attempt to violate this subpart, knowingly assist or

induce another to do so, or do so through the acts of another;

(ii) Commit a criminal act that reflects adversely on the judge

advocate's honesty, trustworthiness, or fitness as a judge advocate in

other respects;

(iii) Engage in conduct involving dishonesty, fraud, deceit, or

misrepresentation;

(iv) Engage in conduct that is prejudicial to the administration of

justice;

(v) State or imply an ability to influence improperly a government

agency or official; or

(vi) Knowingly assist a judge or judicial officer in conduct that

is a violation of applicable rules of judicial conduct or other law.

(2) [Reserved]

(b) [Reserved]

Sec. 776.70 Jurisdiction.

Judge advocates shall be governed by this part.

Secs. 776.71-776.75 [Reserved]

Subpart C--Complaint Processing Procedures

Sec. 776.76 Policy.

(a) It is JAG's policy to expeditiously and fairly investigate and

resolve all allegations of professional impropriety lodged against

attorneys under JAG supervision. (As used hereinafter, the term ``judge

advocates'' refers to all attorneys under JAG supervision.)

(b) JAG approval will be obtained through the Rules Counsel before

conducting any formal investigation or preliminary inquiry into an

alleged violation of subpart B or the Code of Judicial Conduct. The

preliminary inquiry and subsequent investigation will be conducted

according to the procedures set forth in this part.

Sec. 776.77 Related investigations and actions.

Acts or omissions may constitute professional misconduct, criminal

misconduct, or poor performance of duty. Care must be taken to

distinguish among the different aspects of a judge advocate's conduct

to determine who may take official action.

(a) Legal ethics and questions involving the professional

misconduct of judge advocates are within the exclusive province of JAG.

Ethical or professional misconduct will not be attributed to any judge

advocate in any official record without a final JAG determination, made

under this part, that such misconduct has occurred.

(b) Poor performance is properly addressed by the judge advocate's

reporting senior through a variety of administrative actions, including

fitness reports. Criminal misconduct is properly addressed by the judge

advocate's commander through disciplinary action under the UCMJ or

through referral to appropriate civil authority.

(c) Prior JAG approval is not required to investigate allegations

of criminal conduct or poor performance of duty involving judge

advocates.

(d) 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) Inquiries into professional misconduct allegations will

normally be held in abeyance until related criminal investigations are

completed.

Sec. 776.78 Informal complaints.

Informal, anonymous, or ``hot line'' type complaints alleging

professional misconduct must be referred to appropriate authority (such

as the JAG Inspector General or the concerned commander) for

appropriate inquiry. Such complaints are not, by themselves, cognizable

under this part but may, if reasonably confirmed upon appropriate

inquiry, be the basis of a formal complaint described in Sec. 776.79.

Sec. 776.79 The complaint.

The complaint shall--

(a) Be in writing and signed by the complainant;

(b) State that the complainant has personal knowledge, or has

otherwise received reliable information indicating, that:

(1) The judge advocate concerned is, or has been, engaged in

misconduct that demonstrates a lack of integrity or a failure to meet

the ethical standards of the profession, or both; or

(2) The judge advocate concerned is ethically, professionally, or

morally unqualified to perform his or her duties; and

(c) 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 attorney concerned. Supporting

statements, if any, should be attached to the complaint.

Sec. 776.80 Initial screening and Rules Counsel.

(a) The complaint shall be forwarded to the Judge Advocate General

(Administrative Law Division) with a copy to the judge advocate

concerned. The complaint shall be logged and then forwarded to the

Rules Counsel.

(1) In cases involving Marine Corps judge advocates, the Director,

Judge Advocate Division shall act as Rules Counsel.

(2) In all other cases, the Assistant Judge Advocate General (Civil

Law) shall act as Rules Counsel.

(b) The Rules Counsel shall review the complaint to determine

whether, if true,--

(1) It alleges ineffective assistance of counsel, or other

violations of subpart B of this part, as a matter of defense in a

court-martial, administrative board, or nonjudicial punishment

proceeding and, if so, the Rules Counsel shall forward it to the proper

appellate authority for appropriate action and return;

(2) In other cases, it establishes probable cause to believe that a

violation of subpart B of this part or of the Code of Judicial Conduct

has occurred.

(c) The Rules Counsel shall close the file without further action

if the complaint does not establish probable cause to believe that a

violation has occurred. The Rules Counsel shall notify the judge

advocate concerned that the file has been closed.

Sec. 776.81 Charges.

(a) If the Rules Counsel determines that probable cause is

established, he or she shall draft charges alleging violations of

subpart B of this part or of the Code of Judicial Conduct and forward

the charges, together with the original complaint and any allied

papers--

(1) In cases involving Marine Corps judge advocates not serving as

defense counsel or attached to Navy units, to the officer exercising

general court-martial jurisdiction (OEGCMJ) over the concerned judge

advocate, and request, on behalf of JAG, that the OEGCMJ appoint a

judge advocate (normally the concerned officer's supervisor) to conduct

a preliminary inquiry into the matter;

(2) In all other cases, to the supervisory judge advocate in the

charged judge advocate's chain of command (or such other officer as JAG

may designate), and direct, on behalf of JAG, the supervisory judge

advocate to conduct a preliminary inquiry into the matter.

(b) The Rules Counsel shall provide a copy of the charges,

complaint, and any allied papers to the judge advocate against whom the

complaint is made and notify him or her that a preliminary inquiry will

be conducted.

(c) The Rules Counsel shall also provide a copy of the charges to

the commanding officer, or equivalent, of the judge advocate concerned

if the complaint involves a judge advocate on active duty and the

commanding officer is not the officer appointed to conduct the

preliminary inquiry.

(d) The Rules Counsel shall also forward a copy of the charges:

(1) In cases involving Navy or Marine Corps judge advocates serving

in Naval Legal Service Command units, to Commander, Naval Legal Service

Command (COMNAVLEGSVCCOM);

(2) In cases involving Navy judge advocates serving in Marine Corps

units, or involving Marine Corps judge advocates serving in Navy units

to the Commandant of the Marine Corps (Attn: JA);

(3) In cases involving members of the Navy-Marine Corps trial

judiciary, to the Trial Judiciary Chief Judge; and

(4) To the appropriate attorney discipline section if the complaint

involves judge advocates certified by the Judge Advocates General/Chief

Counsel of the other uniformed services.

Sec. 776.82 Preliminary inquiry.

(a) The purpose of the preliminary inquiry is to determine whether

questioned conduct may constitute a violation of subpart B of this part

or the Code of Judicial Conduct. The preliminary inquiry is not an

``ethical investigation'' that State licensing authorities might

require lawyers to report.

(b) Upon receipt of the complaint and charges, the officer

appointed to conduct the preliminary inquiry (PIO) shall promptly

investigate the charges following generally the procedures set forth in

the Manual of the Judge Advocate General [available from Office of the

Judge Advocate General, Administrative Law Division, 200 Stovall

Street, Alexandria, VA 22332-2400] for the conduct of fact-finding

bodies not required to conduct a hearing. Reports of investigation by

other authorities such as state bar associations may 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;

(3) Provide the judge advocate concerned an opportunity to review

all evidence, affidavits, and statements collected and a reasonable

period of time (normally not exceeding 7 days) to submit a written

statement or any other written material that the judge advocate 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, and shall take one of the following actions:

(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 shall forward (via the OEGCMJ in

appropriate Marine Corps cases) the results of the preliminary inquiry

to the Rules Counsel together with his or her recommendation that the

file be closed, providing copies to all parties to whom the charges

were previously sent.

(2) If the PIO determines by a preponderance of the evidence that a

violation did occur, and that corrective action other than counseling

may be warranted, he or she shall forward (via the OEGCMJ in

appropriate Marine Corps cases) the results of the preliminary inquiry

to the Rules Counsel together with all related materials and his or her

recommendations. The PIO will provide copies of the materials forwarded

to all parties to whom the charges were sent.

(e) The Rules Counsel shall review all reports of preliminary

inquiries forwarded pursuant to paragraph (d) of this section.

(1) If the Rules Counsel determines that no further action is

warranted, he or she shall close the file and notify the judge advocate

concerned, his or her commanding officer, and all officials previously

provided copies of the complaint. This action does not prevent command

authority from taking appropriate disciplinary or administrative

action.

(2) If the Rules Counsel determines that further action is

warranted, he or she shall--

(i) In cases involving Marine Corps judge advocates not serving as

defense counsel or attached to Navy units, request, on behalf of JAG,

that the OEGCMJ appoint a disinterested judge advocate (normally senior

to the concerned judge advocate and not previously involved in the

case) to initiate an ethics investigation into the matter;

(ii) In all other cases, appoint, on behalf of JAG, a disinterested

judge advocate (normally senior to the individual whose conduct is

being investigated and not previously involved in the case) to initiate

an ethics investigation; and

(iii) Notify all interested command officials.

Sec. 776.83 Ethics investigation.

(a) Whenever an ethics investigation is initiated, the concerned

judge advocate will be so notified in writing by the Rules Counsel.

(b) The concerned judge advocate will also be provided written

notice of his or her right to request a hearing before the

investigating officer; to inspect all evidence gathered; to present

written or oral statements or materials for consideration; to call

witnesses at his or her own expense (local military witnesses should be

made available at no cost); to be assisted by counsel (paragraph (c) of

this section); to challenge the investigating officer for cause (such

challenges must be made in writing and sent to the Rules Counsel via

the challenged officer); and to waive any or all of these rights.

(c) The respondent 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 military respondent, military counsel--

(i) Detailed by the cognizant naval legal service office, law

center, or legal service support section; or

(ii) Requested by the respondent, if such counsel is attached to

the cognizant naval legal service office, legal service support

section, law center, or to a Navy or Marine Corps activity located

within 100 miles of the hearing site at the time of the scheduled

hearing, and if such counsel is reasonably available as determined by

the requested counsel's reporting senior in his or her sole discretion.

There is no right to detailed counsel if requested counsel is

unavailable.

(d) If a hearing is requested, the investigating officer will

conduct it after reasonable notice to the judge advocate 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 concerned judge advocate or his or

her counsel may question witnesses that may 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 concerned judge

advocate shall be considered.

(e) After completing the hearing, the investigating officer shall

prepare a summary of the evidence and forward it together with his or

her recommendations to the Rules Counsel via--

(1) In cases involving Navy or Marine Corps judge advocates serving

with Naval Legal Service Command units, Commander, Naval Legal Service

Command;

(2) In cases involving Navy judge advocates serving with Marine

Corps units, the Commandant of the Marine Corps (Attn: JA);

(3) In cases involving Navy or Marine Corps judge advocates serving

in subordinate Navy fleet or staff billets, the fleet or staff judge

advocate attached to the appropriate second-echelon commander;

(4) In cases involving members of the Navy-Marine Corps Trial

Judiciary, the Trial Judiciary Chief Judge;

(5) In cases involving Marine Corps judge advocates serving in

defense billets, via the Marine Corps defense service chain of command;

(6) In cases involving Marine Corps judge advocates not serving in

defense counsel billets or in Navy units, via the OEGCMJ over the

concerned judge advocate; and

(7) The appropriate attorney discipline section if the complaint

involves judge advocates certified by the Judge Advocates General/Chief

Counsel of the other uniformed services.

(f) A copy of the report shall be provided to the concerned judge

advocate and to all authorities previously provided copies of the

charges who are not via addressees.

(g) The Rules Counsel shall review the report and either forward it

to JAG together with his or her recommendations or return it, via the

appropriate chain, to the investigating officer for further inquiry

into specified areas.

Sec. 776.84 Action by JAG.

(a) JAG is not bound by the Rules Counsel's or investigating

officer's recommendations, but will base his action on the record as a

whole.

(b) JAG may, but is not required to, refer any case to the

Professional Responsibility Committee for an advisory opinion on

interpretation of the rules in subpart B of this part or their

application to the facts of a particular case.

(c) Upon receipt of the investigation, and any requested advisory

opinion, JAG will take such action, as JAG considers appropriate in

JAG's sole discretion. JAG may, for example--

(1) Return the report for further inquiry into specified areas;

(2) If JAG considers the allegations to be unfounded, or that no

further action is warranted, JAG will direct the Rules Counsel to make

the appropriate file entries and to notify all interested parties

accordingly;

(3) If JAG considers the allegations to be supported by clear and

convincing evidence, JAG may take appropriate corrective action

including, but not limited to:

(i) Limiting the concerned judge advocate to practice under direct

supervision of a superior judge advocate;

(ii) Limiting the concerned judge advocate to practicing in certain

areas or forbidding him or her from practicing in certain areas;

(iii) Suspending or revoking the concerned judge advocate's

authority to provide legal assistance;

(iv) If JAG finds that the misconduct so adversely affects the

judge advocate's continuing ability to practice law in the naval

service that certification under article 27(b), UCMJ, 10 U.S.C. 827(b),

should be suspended, JAG may direct such certification to be suspended

for a prescribed period;

(v) If JAG finds that the misconduct so prejudices the reputation

of the judge advocate community, the administration of military

justice, the practice of law under the cognizance of JAG, or the armed

services as a whole, that certification under article 27(b), UCMJ, 10

U.S.C. 827(b), is no longer appropriate, JAG may direct such

certification to be removed; or

(vi) In the case of a judge, if JAG finds that the misconduct so

prejudices the reputation of military trial and appellate judges that

certification under article 26(b), UCMJ, 10 U.S.C. 826(b), is no longer

appropriate, direct such certification to be removed; and

(vii) Direct 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;

to make entries in and to close the file; to notify the individual

concerned as well as any officials previously provided copies of the

complaint; and notify appropriate tribunals and authorities of any

action taken to suspend, decertify, or limit the practice of an

attorney as counsel before courts-martial or the Navy-Marine Corps

Court of Military Review, administrative boards, or as a legal

assistance attorney.

Sec. 776.85 Finality.

Any action taken by JAG is final subject to any remedies afforded

by Navy Regulations to the concerned counsel.

Sec. 776.86 Report to bar.

Upon determination by JAG that a violation of subpart B of this

part or the Code of Judicial Conduct has occurred, JAG may cause the

Rules Counsel to report that fact to the licensing authorities of the

attorney concerned. If so reported, notice to the concerned attorney

shall be provided by the Rules Counsel.

Secs. 776.87-776.89 [Reserved]

Subpart D--Outside Part-Time Law Practice of Naval Service

Attorneys

Sec. 776.90 Background.

(a) A DON attorney's primary professional responsibility is to DON,

and he or she is expected to devote the required level of time and

effort to satisfactorily accomplish assigned duties. In addition to the

obligations of an attorney engaged in the outside practice of law to

comply with local bar rules governing professional responsibility and

conduct, DON attorneys remain bound by subpart B of this part.

(b) Outside employment of DON personnel, both military and

civilian, is limited by Executive Order 12731, 55 FR 42547, 3 CFR, 1990

Comp., p. 306, and Secretary of the Navy Instruction 5370.2J, Standards

of Conduct [available on request from the Office of the Judge Advocate

General, Administrative Law Division, 200 Stovall Street, Alexandria,

VA 22332-2400]. Additionally, section 0710 of the Manual of the Judge

Advocate General prohibits active duty judge advocates and civilian

attorneys under the supervision of JAG from accepting or receiving,

directly or indirectly, any fee or compensation of any nature for legal

services rendered to those persons eligible for legal assistance under

article 0706 of the Manual of the Judge Advocate General, whether or

not the service is rendered during duty hours, or is part of official

duties.

(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

DON 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 DON attorney's

special ethical responsibilities and loyalties.

Sec. 776.91 Definition.

Outside part-time law practice is defined as any regular provision

of legal advice, counsel, assistance or representation, with or without

compensation, that is not performed pursuant or incident to duties as a

naval service attorney. Occasional uncompensated assistance rendered to

relatives or friends is excluded from this definition. 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 part.

Sec. 776.92 Policy.

(a) As a general rule, JAG will not approve requests to practice

law part-time in association with lawyers or firms which represent

clients with interests adverse to DON.

(b) 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. Furthermore, because any outside law practice is

necessarily beyond the scope of a DON attorney's official duties, the

requesting attorney should consider obtaining personal malpractice

insurance coverage.

Sec. 776.93 Action.

(a) DON attorneys to whom this enclosure applies who contemplate

engaging in an outside part-time law practice must first obtain

approval from JAG. Requests should be forwarded in the form provided in

Judge Advocate General Instruction 5803.1A [the form is available on

request from the Administrative Law Division] to the Administrative Law

Division, via the attorney's chain of command. Marine Corps attorneys

will also include Commandant of the Marine Corps (JAR) as a via

addressee.

(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; or

(2) Forward the request recommending approval and providing such

other information as may be relevant.

(c) 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. 776.94 Revalidation.

(a) Attorneys to whom permission is given to engage in the outside

part-time practice of law will notify 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) 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 1 October each year.

Sec. 776.95 Relations with non-DON civilian counsel.

Employment of non-DON civilian counsel by an individual client

alters no responsibilities of a DON attorney to that client.

(a) When civilian counsel is retained by an individual client, the

DON attorney assigned to that client shall inform civilian counsel--

(1) Of the contents of this part;

(2) That subpart B of this part applies to civilian counsel

practicing before military tribunals, courts, or boards as a condition

of such practice; and

(3) That subpart B of this part takes precedence over other rules

of professional conduct that might otherwise apply.

(b) If an individual client designates civilian counsel as chief

counsel, the detailed DON attorney must defer to civilian counsel in

any conflict over trial tactics. If, however, counsel have ``co-

counsel'' status, then conflict in proposed trial tactics requires the

client to be consulted to resolve the conflict.

(c) If civilian counsel has, in the opinion of the DON attorney,

acted contrary to the requirements of subpart B of this part, the

matter should first be discussed with civilian counsel. If not resolved

between counsel, the client must be informed of the matter by the DON

attorney. If, after being apprised of possible misconduct, the client

approves of the questioned conduct, the judge advocate shall attempt to

withdraw from the case in accordance with Sec. 776.35. The client shall

be informed of such intent to withdraw prior to action by the judge

advocate.

Dated: August 19, 1994.

Lewis T. Booker, Jr.,

LCDR, JAGC, USN, Federal Register Liaison Officer.

[FR Doc. 94-21610 Filed 8-31-94; 8:45 am]

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