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

DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 776

RIN 0703-AA54

Professional Conduct of Attorneys Practicing Under the Cognizance

and Supervision of the Judge Advocate General

AGENCY: Department of the Navy, DOD.

ACTION: Proposed rule.

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SUMMARY: The Department of the Navy proposes to revise regulations

concerning the professional conduct of attorneys practicing law under

the cognizance and supervision of the Judge Advocate General of the

Navy. This revision will ensure the professional supervision of judge

advocates, military trial and appellate military judges, and other

lawyers who practice in Department of the Navy proceedings and other

legal programs.

DATES: Submit comments on or before September 10, 1999.

ADDRESSES: Send comments to Deputy Assistant Judge Advocate General

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

Navy Yard, 1322 Patterson Avenue SE, Suite 3000, Washington, DC 20374-

5066.

FOR FURTHER INFORMATION CONTACT: Major Ed McDonnell, U.S. Marine Corps,

703-604-8228.

SUPPLEMENTARY INFORMATION: The Judge Advocate General of the Navy (JAG)

is responsible for the professional supervision and discipline of

military trial and appellate military judges, judge advocates, and

other lawyers who practice in Department of the Navy proceedings

governed by the Uniform Code of Military Justice and the Manual for

Courts-Martial. See, 10 U.S.C. 806, 806a, 826, 827, and Rule for

Courts-Martial 109. The JAG has further responsibilities to supervise

the provision of legal advice and related services in the Department of

the Navy's Legal Assistance Program and such other legal programs as

assigned by the Secretary of the Navy. See, 10 U.S.C. 1044; Article

0331, U.S. Navy Regulations (1990); Secretary of the Navy Instruction

5430.27A. To discharge these responsibilities, the JAG has prescribed

Rules of Professional Conduct (JAG Rules) for attorneys providing legal

services or otherwise practicing in proceedings under JAG cognizance

and supervision. These Rules, and the procedures by which JAG

investigates and resolves allegations of professional misconduct, are

found at 32 CFR part 776.

The Department of the Navy is proposing a complete revision of 32

CFR part 776. While there are numerous administrative changes in the

revised text, the most significant substantive proposals are as

follows:

1. The terms ``covered attorney,'' ``covered United States

Government (USG) attorney,'' and ``covered non-USG attorney'' are

introduced and incorporated throughout part 776. Currently, subpart B

to 32 CFR part 776 uses the generic term ``judge advocate'' in

fashioning rules of professional conduct, with the proviso that this

term applies to all other attorneys who practice under the supervision

of the JAG (to include civilian attorneys defending individual clients

in courts-

[[Page 37474]]

martial or administrative separation proceedings). See current

Sec. 776.13(a)(2). The proposal would utilize the new terms to define

better to whom, when, and how the JAG Rules apply. See proposed

Sec. 776.2.

2. Addition of a specific rule prohibiting sexual relations between

covered attorneys and their clients or other principals to the

particular matter which is the subject of the representation. This

proposed rule is modeled, in significant part, on Rule 1.18 of the

Revised Rules of Professional Conduct of the North Carolina State Bar.

See proposed Sec. 776.36.

3. Addition of a specific rule that requires all covered USG

attorneys to remain in good standing with state licensing authorities.

The rule would further ensure that covered non-USG attorneys

representing individual clients in court-martial or administrative

separation proceedings are members in good standing with, and

authorized to practice law by, the bar of a Federal court or of the bar

of the highest court of a State, or a lawyer otherwise authorized by a

recognized licensing authority to practice law. See proposed

Sec. 776.71.

4. Addition of a procedure wherein the JAG may impose an interim

suspension of a covered attorney where there is probable cause to

believe that the attorney has committed misconduct and poses a

substantial threat of irreparable harm to clients or the orderly

administration of military justice. See proposed Sec. 776.82.

5. Removal of subpart D, Outside Part-Time Practice of Naval

Service Attorneys. This subpart is limited in application to covered

USG attorneys, and as an internal administrative rule which does not

affect the public, need not be published in the CFR. Covered USG

attorneys who wish to engage in the part-time practice of law, outside

of their official Department of the Navy responsibilities, must still

obtain JAG approval, notice of which is contained in proposed

Sec. 776.11. Additional information for covered USG attorneys is

available in JAG Instruction 5803.1 (series).

The JAG Rules contained in subpart B are based upon the American

Bar Association's (ABA's) Model Rules of Professional Conduct. Like the

ABA's Model Rules, each JAG Rule has accompanying commentary which

explains and illustrates the meaning and purpose of the Rule. This

commentary for the JAG Rules is not reprinted in subpart B. A complete

version of the JAG Rules, with accompanying commentary, may be found in

JAG Instruction 5803.1 (series), copies of which may be obtained from

the address indicated.

Matters of Regulatory Procedure

Executive Order 12866, Regulatory Planning and Review

Revision of this part does not meet the definition of ``significant

regulatory action'' for purposes of E.O. 12866.

Regulatory Flexibility Act

Revision of this part will not have a significant economic impact

on a substantial number of small entities for purposes of the

Regulatory Flexibility Act (5 U.S.C. Chapter 6).

Paperwork Reduction Act

Revision of this part does not impose collection of information

requirements for purposes of the Paperwork Reduction Act (44 U.S.C.

Chapter 35, 5 CFR part 1320).

List of Subjects in 32 CFR Part 776

Conflict of interests, Lawyers, Legal services, Reporting and

recordkeeping requirements.

For the reasons set forth in the preamble, the Department of the

Navy proposes to revise 32 CFR part 776 to read as follows:

PART 776--PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE

COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL

Subpart A--General

Sec.

776.1 Purpose.

776.2 Applicability.

776.3 Policy.

776.4 Attorney-client relationships.

776.5 Judicial conduct.

776.6 Conflict.

776.7 Reporting requirements.

776.8 Professional Responsibility Committee.

776.9 Rules Counsel.

776.10 Informal ethics advice.

776.11 Outside part-time practice of law.

776.12 Maintenance of files.

776.13-776.17 [Reserved]

Subpart B--Rules of Professional Conduct

776.18 Preamble.

776.19 Principles.

776.20 Competence.

776.21 Establishment and scope of representation.

776.22 Diligence.

776.23 Communication.

776.24 Fees.

776.25 Confidentiality of information.

776.26 Conflict of 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 Navy as client.

776.33 Client under a disability.

776.34 Safekeeping property.

776.35 Declining or terminating representation.

776.36 Prohibited sexual relations.

776.37 Advisor.

776.38 Mediation.

776.39 Evaluation for use by third persons.

776.40 Meritorious claims and contentions.

776.41 Expediting litigation.

776.42 Candor and obligations toward the tribunal.

776.43 Fairness to opposing party and counsel.

776.44 Impartiality and decorum of tribunal.

776.45 Extra-tribunal statements.

776.46 Attorney as witness.

776.47 Special responsibilities of a trial counsel.

776.48 Advocate in non-adjudicative proceedings.

776.49 Truthfulness in statements to others.

776.50 Communication with person represented by counsel.

776.51 Dealing with an unrepresented person.

776.52 Respect for rights of third persons.

776.53 Responsibilities of the Judge Advocate General and

supervisory attorneys.

776.54 Responsibilities of a subordinate attorney.

776.55 Responsibilities regarding nonattorney assistants.

776.56 Professional independence of a covered USG attorney.

776.57 Unauthorized practice of law.

776.58-776.65 [Reserved]

776.66 Bar admission and disciplinary matters.

776.67 Judicial and legal officers.

776.68 Reporting professional misconduct.

776.69 Misconduct.

776.70 Jurisdiction.

776.71 Requirement to remain in good standing with licensing

authorities.

776.72-776.75 [Reserved]

Subpart C--Complaint Processing Procedures

776.76 Policy.

776.77 Related investigations and actions.

776.78 Informal complaints.

776.79 The complaint.

776.80 Initial screening and Rules Counsel.

776.81 Charges.

776.82 Interim suspension.

776.83 Preliminary inquiry.

776.84 Ethics investigation.

776.85 Effect of separate proceeding.

776.86 Action by JAG.

776.87 Finality.

776.88 Report to licensing authorities.

Subpart D--[Reserved]

Authority: 10 U.S.C. 806, 806a, 826, 827; Manual for Courts-

Martial, United States, 1998; U.S. Navy Regulations, 1990; Secretary

of the Navy Instruction 5430.27(series), Responsibility of the Judge

Advocate General for Supervision of Certain Legal Services.

[[Page 37475]]

Subpart A--General

Sec. 776.1 Purpose.

In furtherance of the authority citations (which, if not found in

local libraries, are available from the Office of the Judge Advocate

General, Washington Navy Yard, 1322 Patterson Avenue, SE, Suite 3000,

Washington, DC 20374-5066), which require the Judge Advocate General of

the Navy (JAG) to supervise the performance of legal services under JAG

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

promulgated:

(a) To establish Rules of Professional Conduct (subpart B of this

part) for attorneys subject to this part;

(b) To establish procedures (subpart C of this part) for receiving,

processing, and taking action on complaints of professional misconduct

made against attorneys practicing under the supervision of JAG, whether

arising from professional legal activities in DON proceedings and

matters, or arising from other, non-U.S. Government related

professional legal activities or personal misconduct which suggests the

attorney is ethically, professionally, or morally unqualified to

perform legal services within the DON; and

(c) To ensure quality legal services at all proceedings under the

cognizance and supervision of the JAG.

Sec. 776.2 Applicability.

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

applies to, all ``covered attorneys.''

(b) Covered attorneys include:

(1) The following U.S. Government (USG) attorneys, referred to,

collectively, as ``covered USG attorneys'' throughout this part:

(i) All active-duty Navy judge advocates (designator 2500 or 2505)

or Marine Corps judge advocates (MOS 4402 or 9914).

(ii) All active-duty judge advocates of other U.S. armed forces who

practice law or provide legal services under the cognizance and

supervision of the JAG.

(iii) All civil service and contracted civilian attorneys who

practice law or perform legal services under the cognizance and

supervision of the JAG.

(iv) All Reserve or Retired judge advocates of the Navy or Marine

Corps (and any other U.S. armed force), who, while performing official

DON duties, practice law or provide legal services under the cognizance

and supervision of the JAG.

(v) All other attorneys appointed by JAG (or the Director, Judge

Advocate (JA) Division, Headquarters Marine Corps (HQMC), in Marine

Corps matters) to serve in billets or to provide legal services

normally provided by Navy or Marine Corps judge advocates. This policy

applies to officer and enlisted reservists, to active-duty personnel,

and to any other personnel who are licensed to practice law by any

Federal or state authorities, but who are not members of the Judge

Advocate General's Corps or who do not hold the 4402 or 9914

designation in the Marine Corps.

(2) The following non-U.S. Government attorneys, referred to,

collectively, as ``covered non-USG attorneys'' throughout this part:

All civilian attorneys representing individuals in any matter for which

JAG is charged with supervising the provision of legal services. These

matters include, but are not limited to, courts-martial, administrative

separation boards or hearings, and disability evaluation proceedings.

(3) The term covered attorney does not include those civil service

or civilian attorneys who practice law or perform legal services under

the cognizance and supervision of the General Counsel of the Navy.

(c) Professional or personal misconduct unrelated to a covered

attorney's DON activities, while normally outside the ambit of these

rules, may be reviewed under procedures established in subpart C of

this part and may provide the basis for decisions by the JAG regarding

the covered attorney's continued qualification to provide legal

services in DON matters.

(d)(1) Although the rules in subpart B of this part do not apply to

non-attorneys, they do define the type of ethical conduct that the

public and the military community have a right to expect from DON legal

personnel. Accordingly, subpart B of this part shall serve as a model

of ethical conduct for the following personnel when involved with the

delivery of legal services under the supervision of the JAG:

(i) Navy legalmen and Marine Corps legal administrative officers,

legal service specialists, and legal services reporters (stenotype);

(ii) Limited duty officers (LAW);

(iii) Legal interns; and

(iv) Civilian support personnel including paralegals, legal

secretaries, legal technicians, secretaries, court reporters, and

others holding similar positions.

(2) Covered USG attorneys who supervise non-attorney DON employees

are responsible for their ethical conduct to the extent provided for in

Sec. 776.55.

Sec. 776.3 Policy.

(a) Covered attorneys 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) Whether conduct or failure to act constitutes a violation of

the professional duties imposed by this part is a matter within the

sole discretion of JAG or officials authorized to act for JAG. Rules

contained in subpart B of this part are not substitutes for, and do not

take the place of, other rules and standards governing DON personnel

such as the Department of Defense Joint Ethics Regulation, the Code of

Conduct, the Uniform Code of Military Justice (UCMJ), and the general

precepts of ethical conduct to which all DON servicemembers and

employees are expected to adhere. Similarly, action taken per this part

is not supplanted or barred by, and does not, even if the underlying

misconduct is the same, supplant or bar the following action from being

taken by authorized officials:

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

(2) Administrative action under the Manual for Courts-Martial, U.S.

Navy Regulations, or under other applicable authority.

(c) Inquiries into allegations of professional misconduct will

normally be held in abeyance until any related criminal investigation

or proceeding is complete. However, a pending criminal investigation or

proceeding does not bar the initiation or completion of a professional

misconduct investigation (subpart C of this part) stemming from the

same or related incidents or prevent the JAG from imposing professional

disciplinary sanctions as provided for in this part.

Sec. 776.4 Attorney-client relationships.

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

the client served by each covered USG attorney unless detailed to

represent another client by competent authority. Specific guidelines

are contained in Sec. 776.32.

(b) Covered USG attorneys will not establish attorney-client

relationships with any individual unless detailed, assigned, or

otherwise authorized to do so by competent authority. Wrongfully

establishing an attorney-client relationship may subject the attorney

to discipline administered per this part. See Sec. 776.21.

[[Page 37476]]

(c) Employment of a non-USG attorney by an individual client does

not alter the professional responsibilities of a covered USG attorney

detailed or otherwise assigned by competent authority to represent that

client.

Sec. 776.5 Judicial conduct.

To the extent that it does not conflict with statutes, regulations,

or this part, the American Bar Association's Code of Judicial Conduct

applies to all military and appellate judges and to all other covered

USG attorneys performing judicial functions under JAG supervision

within the DON.

Sec. 776.6 Conflict.

To the extent that a conflict exists between this part and the

rules of other jurisdictions that regulate the professional conduct of

attorneys, this part will govern the conduct of covered attorneys

engaged in legal functions under JAG cognizance and supervision.

Specific and significant instances of conflict between the rules

contained in subpart B of this part and the rules of other

jurisdictions shall be reported promptly to the Rules Counsel (see

Sec. 776.9), via the supervisory attorney. See Sec. 776.53.

Sec. 776.7 Reporting requirements.

Covered USG attorneys shall report promptly to the Rules Counsel

any disciplinary or administrative action, including initiation of

investigation, by any licensing authority or Federal, State, or local

bar, possessing the power to revoke, suspend, or in any way limit the

authority to practice law in that jurisdiction, upon himself, herself,

or another covered attorney. Failure to report such discipline or

administrative action may subject the covered USG attorney to

discipline administered per this part. See Sec. 776.71.

Sec. 776.8 Professional Responsibility Committee.

(a) Composition. This standing committee will consist of the

Assistant Judge Advocate General (AJAG) for Military Justice; the Vice

Commander, Naval Legal Service Command (NLSC); the Chief Judge, Navy-

Marine Corps Trial Judiciary; and in cases involving Marine Corps judge

advocates, the Deputy Director, JA 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

the AJAG for Military Justice. The Chairman may excuse members

disqualified for cause, illness, or exigencies of military service, and

may request JAG to appoint additional or alternate 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 rules contained in 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 covered attorneys about the propriety of proposed

courses of action. 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, then no adverse action

under this part may be taken against a covered attorney who acts

consistent with the Committee's advice.

(4) The Chairman will forward copies of all opinions issued by the

Committee to the Rules Counsel.

(c) Limitation. The Committee will not normally provide ethics

advice or opinions concerning professional responsibility matters

(e.g., ineffective assistance of counsel, prosecutorial misconduct,

etc.) that are then the subject of litigation.

Sec. 776.9 Rules Counsel.

Appointed by JAG to act as special assistants for the

administration of this part, the Rules Counsel derive authority from

JAG and, as detailed in this part, have ``by direction'' authority. The

Rules Counsel shall cause opinions issued by the Professional

Responsibility Committee of general interest to the DON legal community

to be published in summarized, non-personal form in suitable

publications. Unless another officer is appointed by JAG to act in

individual cases, the following officers shall act as Rules Counsel:

(a) Director, JA Division, HQMC, for cases involving Marine Corps

judge advocates, or civil service and contracted civilian attorneys who

perform legal services under his cognizance; and

(b) AJAG for Civil Law, in all other cases.

Sec. 776.10 Informal ethics advice.

(a) Advisors. Covered attorneys may seek informal ethics advice

either from the officers named below or from supervisory attorneys in

the field. Within the Office of the JAG and HQMC, the following

officials are designated to respond, either orally or in writing, to

informal 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) Director, Legal Assistance Division: legal assistance matters;

(4) Deputy Director, JA Division, HQMC: cases involving Marine

Corps judge advocates, or civil service and contracted civilian

attorneys who perform legal services under the cognizance and

supervision of Director, JA Division, HQMC; and

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

Administrative Law Division: All other matters.

(b) Limitation. Informal ethics advice will not normally be

provided by JAG/HQMC advisors concerning professional responsibility

matters (e.g., ineffective assistance of counsel, prosecutorial

misconduct) that are then the subject of litigation.

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

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

Although covered attorneys are encouraged to seek advice when in doubt

as to their responsibilities, they remain personally accountable for

their professional conduct. If, however, an attorney receives written

advice on an ethical matter after full disclosure of all relevant facts

and reasonably relies on such advice, no adverse action under this part

will be taken against the attorney. Written advice may be sought from

either a supervisory attorney or the appropriate advisor in paragraph

(a) of this section. JAG is not bound by unwritten advice or by advice

provided by personnel who are not supervisory attorneys or advisors.

See Sec. 776.54.

Sec. 776.11 Outside part-time practice of law.

A covered USG 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. Covered USG attorneys who wish to engage

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

from JAG. Failure to obtain permission before engaging in the outside

practice of law may subject the covered USG attorney to administrative

or disciplinary action, including professional sanctions administered

per subpart C of this part. Covered USG attorneys may obtain

[[Page 37477]]

further details in JAGINST 5803.1 (series). This requirement does not

apply to non-USG attorneys, or to Reserve or Retired judge advocates

unless serving on active-duty for more than 30 consecutive days.

Sec. 776.12 Maintenance of files.

Ethics complaint records shall be maintained by the Administrative

Law Division, Office of the Judge Advocate General, and, in the case of

Marine records, by the Judge Advocate Research and Civil Law Branch, JA

Division, HQMC.

(a) Requests for access to such records should be referred to

Deputy Assistant Judge Advocate General (Administrative Law), Office of

the Judge Advocate General (Code 13), Washington Navy Yard, 1322

Patterson Avenue, SE, Suite 3000, Washington, DC 20374-5066, or to

Head, Judge Advocate Research and Civil Law Branch, JA Division,

Headquarters Marine Corps, Washington, DC 20380-0001, as appropriate.

(b) Local command files regarding professional responsibility

complaints will not be maintained. Commanding officers and other

supervisory attorneys may, however, maintain personal files but must

not share their contents with others.

Secs. 776.13-Sec. 776.17 [Reserved]

Subpart B--Rules of Professional Conduct

Sec. 776.18 Preamble.

(a) A covered USG attorney is a representative of clients, an

officer of the legal system, an officer of the Federal Government, and

a public citizen who has a special responsibility for the quality of

justice and legal services provided to the DON and to individual

clients. The Rules of Professional Conduct contained in this subpart

govern the ethical conduct of covered attorneys 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 DON.

(b) This subpart not only addresses the professional conduct of

judge advocates, but also applies to all other covered attorneys who

practice under the cognizance and supervision of the JAG. See

Sec. 776.2.

(c) All covered attorneys are subject to professional disciplinary

action imposed by the JAG for violation of the Rules contained in this

subpart. Action by the JAG does not prevent other Federal, state, or

local bar associations or other licensing authorities from taking

professional disciplinary or other administrative action for the same

or similar acts.

Sec. 776.19 Principles.

The Rules of this subpart are based on the following principles.

Interpretation of this subpart should flow from common meaning. To the

extent that any ambiguity or conflict exists, this subpart should be

interpreted consistent with these general principles.

(a) Covered attorneys shall:

(1) Obey the law and military regulations, and counsel clients to

do so.

(2) Follow all applicable ethics rules.

(3) Protect the legal rights and interests of clients,

organizational and individual.

(4) Be honest and truthful in all dealings.

(5) Not derive personal gain, except as authorized, for the

performance of legal services.

(6) Maintain the integrity of the legal profession.

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

conflict, the law prevails unless an ethical rule is constitutionally

based.

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

consistent with constitutional law.

Sec. 776.20 Competence.

(a) Competence. A covered attorney shall provide competent,

diligent, and prompt representation to a client. Competent

representation requires the legal knowledge, skill, thoroughness and

expeditious preparation reasonably necessary for representation.

Initial determinations as to competence of a covered USG attorney for a

particular assignment shall be made by a supervising attorney before

case or issue assignments; however, assigned attorneys may consult with

supervisors concerning competence in a particular case.

(b) [Reserved]

Sec. 776.21 Establishment and scope of representation.

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

attorney-client relationships by covered USG attorneys with, and

representation of, clients is permissible only when the attorney is

authorized to do so by competent authority. Military Rule of Evidence

502, the Manual of the Judge Advocate General (JAG Instruction 5800.7

(series)), and the Naval Legal Service Office and Trial Service Office

Manual, define when an attorney-client relationship is formed between a

covered USG attorney and a client servicemember, dependent, or

employee.

(2) Generally, the subject matter scope of a covered attorney's

representation will be consistent with the terms of the assignment to

perform specific representational or advisory duties. A covered

attorney shall inform clients at the earliest opportunity of any

limitations on representation and professional responsibilities of the

attorney towards the client.

(3) A covered attorney shall follow the client's well-informed and

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

pleas, whether to testify, and settlements.

(4) A covered attorney's representation of a client does not

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

or moral views or activities.

(5) A covered attorney shall not counsel or assist a client to

engage in conduct that the attorney knows is criminal or fraudulent,

but a covered attorney may discuss the legal and moral consequences of

any proposed course of conduct with a client, and may counsel or assist

a client in making a good faith effort to determine the validity,

scope, meaning, or application of the law.

(b) [Reserved]

Sec. 776.22 Diligence.

(a) Diligence. A covered attorney shall act with reasonable

diligence and promptness in representing a client, and shall consult

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

being assigned to the case or issue.

(b) [Reserved]

Sec. 776.23 Communication.

(a) Communication. (1) A covered attorney shall keep a client

reasonably informed about the status of a matter and promptly comply

with reasonable requests for information.

(2) A covered attorney 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.

(a) Fees. (1) A covered USG attorney shall not accept any salary,

fee, compensation, or other payments or benefits, directly or

indirectly, other than Government compensation, for services provided

in the course of the covered USG attorney's official duties or

employment.

(2) A covered USG attorney shall not accept any salary or other

payments as compensation for legal services

[[Page 37478]]

rendered, by that covered USG attorney in a private capacity, to a

client who is eligible for assistance under the DON Legal Assistance

Program, unless so authorized by the JAG. This rule does not apply to

Reserve or Retired judge advocates not then serving on extended active-

duty.

(3) A Reserve or Retired judge advocate, whether or not serving on

extended active-duty, who has initially represented or interviewed a

client or prospective client concerning a matter as part of the

attorney's official Navy or Marine Corps duties, shall not accept any

salary or other payments as compensation for services rendered to that

client in a private capacity concerning the same general matter for

which the client was seen in an official capacity, unless so authorized

by the JAG.

(4) A covered USG attorney shall not accept any payments or

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

referral of a client in the course of the covered USG attorney's

official duties or employment.

(5) Covered non-USG attorneys 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

attorney;

(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 attorney or

attorneys performing the services; and

(viii) Whether the fee is fixed or contingent.

(6) When the covered non-USG attorney has not regularly represented

the client, the basis or rate of the fee shall be communicated to the

client, preferably in writing, before or within a reasonable time after

commencing the representation.

(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 covered non-USG attorney in the

event of settlement, trial or appeal, litigation and other expenses to

be deducted from the recovery, and whether such expenses are to be

deducted before or after the contingent fee is calculated. Upon

conclusion of a contingent fee matter, the covered non-USG attorney

shall provide the client with a written statement stating the outcome

of the matter and, if there is a recovery, showing the remittance to

the client and the method of its determination.

(8) A covered non-USG attorney shall not enter into an arrangement

for, charge, or collect a contingent fee for representing an accused in

a criminal case.

(9) A division of fees between covered non-USG attorneys who are

not in the same firm may be made only if:

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

attorney or, by written agreement with the client, each attorney

assumes joint responsibility for the representation;

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

participation of all the attorneys involved; and

(iii) The total fee is reasonable.

(b) Applicability. Paragraphs (a)(5) Through (9) of this section

apply only to private civilian attorneys practicing in proceedings

conducted under the cognizance and supervision of the JAG. The primary

purposes of paragraphs (a)(5) Through (9) of this section are not to

permit the JAG to regulate fee arrangements between civilian attorneys

and their clients but to provide guidance to covered USG attorneys

practicing with non-USG attorneys and to supervisory attorneys who may

be asked to inquire into alleged fee irregularities. Absent paragraphs

(a)(5) Through (9) of this section, such supervisory attorneys have no

readily available standard against which to compare allegedly

questionable conduct of a civilian attorney.

Sec. 776.25 Confidentiality of information.

(a) Confidentiality of Information. (1) A covered attorney 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 covered attorney shall reveal such information to the extent

the covered attorney reasonably believes necessary to prevent the

client from committing a criminal act that the covered attorney

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 covered attorney may reveal such information to the extent

the covered attorney reasonably believes necessary to establish a claim

or defense on behalf of the covered attorney in a controversy between

the covered attorney and the client, to establish a defense to a

criminal charge or civil claim against the attorney based upon conduct

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

proceeding concerning the attorney's representation of the client.

(b) Definition. Conduct likely to result in the significant

impairment of national security or the readiness or capability of a

military unit, vessel, aircraft, or weapon system include, but are not

limited to: Divulging the classified location of a special operations

unit such that the lives of members of the unit are placed in immediate

danger; sabotaging a vessel or aircraft to the extent that the vessel

or aircraft could not conduct an assigned mission, or that the vessel

or aircraft and crew could be lost; and compromising the security of a

weapons site such that the weapons are likely to be stolen or

detonated. Paragraph (a)(2) of this section is not intended to and does

not mandate the disclosure of conduct which may have a slight impact on

the readiness or capability of a unit, vessel, aircraft, or weapon

system. Examples of such conduct are: Absence without authority from a

peacetime training exercise; intentional damage to an individually

assigned weapon; and intentional minor damage to military property.

Sec. 776.26 Conflict of interest: General rule.

(a) Conflict of interest: General rule. (1) A covered attorney

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

be directly adverse to another client, unless:

(i) The covered attorney reasonably believes the representation

will not adversely affect the relationship with the other client; and

(ii) Each client consents after consultation.

(2) A covered attorney shall not represent a client if the

representation of that client may be materially limited by the covered

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

by the covered attorney's own interests, unless:

[[Page 37479]]

(i) The covered attorney reasonably believes the representation

will not be adversely affected; and,

(ii) The client consents after consultation.

(3) 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) Reserve judge advocates. These conflict of interest rules only

apply when Reservists are actually drilling or on active-duty for

training, or, as is the case with Retirees, on extended active-duty or

when performing other duties subject to JAG supervision. Therefore,

unless otherwise prohibited by criminal conflict of interest statutes,

Reserve or Retired attorneys providing legal services in their civilian

capacity may represent clients, or work in firms whose attorneys

represent clients, with interests adverse to the United States. Reserve

judge advocates who, in their civilian capacities, represent persons

whose interests are adverse to the DON will provide written

notification to their supervisory attorney and commanding officer,

detailing their involvement in the matter. Reserve judge advocates

shall refrain from undertaking any official action or representation of

the DON with respect to any particular matter in which they are

providing representation or services to other clients.

Sec. 776.27 Conflict of interests: Prohibited transactions.

(a) Conflict of interests: Prohibited transactions. (1) Covered USG

attorneys shall strictly adhere to current Department of Defense Ethics

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 covered USG attorney'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; or

(iv) Make any referrals of legal or other business to any non-USG

attorney or enterprise with whom the covered USG attorney has any

present or expected direct or indirect personal interest; any referrals

must be made strictly without regard to personal interests of the

covered attorney, and special care shall be taken not to give

preferential treatment to Reserve attorneys or other covered USG

attorneys in their private capacities.

(2) No covered attorney shall:

(i) Use information relating to representation of a client to the

disadvantage of the client unless the client consents after

consultation, except as permitted or required by Sec. 776.25 or

Sec. 776.42;

(ii) Prepare an instrument giving the covered attorney or a person

related to the covered attorney as parent, child, sibling, or spouse

any gift from a client, including a testamentary gift, except where the

client is related to the donee;

(iii) In the case of covered non-USG attorneys, accept compensation

for representing a client from one other than the client unless the

client consents after consultation, there is no interference with the

covered attorney's independence of professional judgment or with the

attorney-client relationship, and information relating to

representation of a client is protected as required by Sec. 776.25;

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

single matter unless each client provides fully informed consent;

(v) Prior to the conclusion of representation of the client, make

or negotiate an agreement giving a covered attorney literary or media

rights for a portrayal or account based in substantial part on

information relating to representation of a client;

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

whom the covered attorney knows is represented by another attorney who

is related as parent, child, sibling, or spouse to the covered

attorney, except upon consent by the client after consultation

regarding the relationship; or

(vii) Acquire a proprietary interest in the cause of action or

subject matter of litigation the covered attorney is conducting for a

client.

(b) [Reserved]

Sec. 776.28 Conflict of interest: Former client.

(a) Conflict of interest: Former client. A covered attorney who has

represented a client in a matter shall not thereafter:

(1) 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;

(2) Use information relating to the representation to the

disadvantage of the former client or to the covered attorney's own

advantage, except as Sec. 776.25 or Sec. 776.42 would permit or require

with respect to a client or when the information has become generally

known; or

(3) Reveal information relating to the representation except as

Sec. 776.25 or Sec. 776.42 would permit or require with respect to a

client.

(b) [Reserved]

Sec. 776.29 Imputed disqualification: General rule.

(a) Imputed disqualification: General rule. Covered USG attorneys

working in the same military law office are not automatically

disqualified from representing a client because any of them practicing

alone would be prohibited from doing so by Sec. 776.26, Sec. 776.27,

Sec. 776.28, or Sec. 776.38. Covered non-USG attorneys must consult

their federal, state, and local bar rules governing the representation

of multiple or adverse clients within the same office before such

representation is initiated, as such representation may expose them to

disciplinary action under the rules established by their licensing

authority.

(b) Representing opposing side. (1) The circumstances of military

(or Government) service may require representation of opposing sides by

covered USG attorneys working in the same law office. Such

representation is permissible so long as conflicts of interests are

avoided and independent judgment, zealous representation, and

protection of confidences are not compromised. Thus, the principle of

imputed disqualification is not automatically controlling for covered

USG attorneys. The knowledge, actions, and conflicts of interests of

one covered USG attorney are not imputed to another simply because they

operate from the same office. For example, the fact that a number of

defense attorneys operate from one office and normally share clerical

assistance would not prohibit them from representing co-accused at

trial by court-martial. Imputed disqualification rules for non-USG

attorneys are established by their individual licensing authorities and

may well proscribe all attorneys from one law office from representing

a co-accused, or a party with an adverse interest to an existing

client, if any attorney in the same office were so prohibited.

(2) Whether a covered USG attorney is disqualified requires a

functional analysis of the facts in a specific situation. The analysis

should include consideration of whether the following

[[Page 37480]]

will be compromised: Preserving attorney-client confidentiality;

maintaining independence of judgment; and avoiding positions adverse to

a client. See, e.g., U.S. v. Stubbs, 23 M.J. 188 (C.M.A. 1987).

(3) Preserving confidentiality is a question of access to

information. Access to information, in turn, is essentially a question

of fact in a particular circumstance, aided by inferences, deductions,

or working presumptions that reasonably may be made about the way in

which covered USG attorneys work together. A covered USG attorney may

have general access to files of all clients of a military law office

(e.g., legal assistance attorney) and may regularly participate in

discussions of their affairs; it may be inferred that such a covered

USG attorney in fact is privy to all information about all the office's

clients. In contrast, another covered USG attorney (e.g., military

defense counsel) may have access to the files of only a limited number

of clients and participate in discussion of the affairs of no other

clients; in the absence of information to the contrary, it should be

inferred that such a covered USG attorney in fact is privy to

information about the clients actually served but not to information of

other clients. Additionally, a covered USG attorney changing duty

stations or changing assignments within a military office has a

continuing duty to preserve confidentiality of information about a

client formerly represented. See Sec. 776.25 and Sec. 776.28.7.

(4) Maintaining independent judgment allows a covered USG attorney

to consider, recommend, and carry out any appropriate course of action

for a client without regard to the covered USG attorney's personal

interests or the interests of another. When such independence is

lacking or unlikely, representation cannot be zealous.

(5) Another aspect of loyalty to a client is the general obligation

of any attorney to decline subsequent representations involving

positions adverse to a former client in substantially related matters.

This obligation normally requires abstention from adverse

representation by the individual covered attorney involved, but, in the

military legal office, abstention is not required by other covered USG

attorneys through imputed disqualification.

Sec. 776.30 Successive government and private employment.

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

law or regulations may otherwise expressly permit, a former covered USG

attorney shall not represent a private client in connection with a

matter in which the covered USG attorney participated personally and

substantially as a public officer or employee, unless the appropriate

Government agency consents after consultation. If a former covered USG

attorney in a firm, partnership, or association knows that another

attorney within the firm, partnership, or association is undertaking or

continuing representation in such a matter:

(i) The disqualified former covered USG attorney must ensure that

he or she is screened from any participation in the matter and is

apportioned no part of the fee or any other benefit therefrom; and,

(ii) Must provide written notice promptly to the appropriate

Government agency to enable it to ascertain compliance with the

provisions of applicable law and regulations.

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

permit, a former covered USG attorney, who has information known to be

confidential Government information about a person which was acquired

while a covered USG attorney, may not represent a private client whose

interests are adverse to that person in a matter in which the

information could be used to the material disadvantage of that person.

The former covered USG attorney may continue association with a firm,

partnership, or association representing any such client only if the

disqualified covered USG attorney is screened from any participation in

the matter and is apportioned no part of the fee or any other benefit

therefrom.

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

permit, a covered USG attorney shall not:

(i) Participate in a matter in which the covered USG attorney

participated personally and substantially while in private practice or

nongovernmental employment, unless under applicable law no one is, or

by lawful delegation may be, authorized to act in the covered USG

attorney's stead in the matter; or,

(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

covered USG attorney 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 Department of Defense, DON, or other 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 Rule is applied, the

Government is prohibited by law or regulations from disclosing to the

public or has a legal privilege not to disclose, and 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 covered USG attorney shall not represent

anyone in connection with a matter in which the covered USG attorney

participated personally and substantially as a judge or other

adjudicative officer, arbitrator, or law clerk to such a person, unless

all parties to the proceeding consent after disclosure.

(2) A covered USG attorney shall not negotiate for employment with

any person who is involved as a party or as attorney for a party in a

matter in which the covered USG attorney is participating personally

and substantially as a judge or other adjudicative officer. A covered

USG attorney serving as law clerk to a judge, other adjudicative

officer, or arbitrator may negotiate for employment with a party or

attorney involved in a matter in which the clerk is participating

personally and substantially, but only after the covered USG attorney

has notified the judge, other adjudicative officer, or arbitrator, and

been disqualified from further involvement in the matter.

(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 Navy as client. (1) Except when representing an

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

covered USG attorney represents the DON (or the Executive agency to

which assigned) acting through its authorized officials. These

officials include the heads of organizational elements within the naval

service, such as the commanders of fleets, divisions, ships and other

heads of activities. When a covered USG attorney is assigned to such an

[[Page 37481]]

organizational element and designated to provide legal services to the

head of the organization, an attorney-client relationship exists

between the covered attorney and the DON as represented by the head of

the organization as to matters within the scope of the official

business of the organization. The head of the organization may not

invoke the attorney-client privilege or the rule of confidentiality for

the head of the organization's own benefit but may invoke either for

the benefit of the DON. In invoking either the attorney-client

privilege or attorney-client confidentiality on behalf of the DON, the

head of the organization is subject to being overruled by higher

authority.

(2) If a covered USG attorney knows that an officer, employee, or

other member associated with the organizational client is engaged in

action, intends to act or refuses to act in a matter related to the

representation that is either adverse to the legal interests or

obligations of the DON or a violation of law which reasonably might be

imputed to the Department, the covered USG attorney shall proceed as is

reasonably necessary in the best interest of the naval service. In

determining how to proceed, the covered USG attorney shall give due

consideration to the seriousness of the violation and its consequences,

the scope and nature of the covered USG attorney's representation, the

responsibility in the naval service and the apparent motivation of the

person involved, the policies of the naval service concerning such

matters, and any other relevant considerations. Any measures taken

shall be designed to minimize prejudice to the interests of the naval

service and the risk of revealing information relating to the

representation to persons outside the service. Such measures shall

include among others:

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

official;

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

for presentation to appropriate authority in the naval service;

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

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

seriousness of the matter, referral to the supervisory attorney

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

chain of command; or

(iv) Advising the acting official that his or her personal legal

interests are at risk and that he or she should consult counsel as

there may exist a conflict of interests for the covered USG attorney,

and the covered USG attorney's responsibility is to the organization.

(3) If, despite the covered USG attorney's efforts per 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 covered USG attorney shall terminate representation with

respect to the matter in question. In no event shall the attorney

participate or assist in the illegal activity. In this case, a covered

USG attorney shall report such termination of representation to the

attorney's supervisory attorney or attorney representing the next

superior in the chain of command.

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

naval service a covered USG attorney shall explain the identity of the

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

adverse to those of the officer, employee, or member.

(5) A covered USG attorney representing the naval service may also

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

provisions of Sec. 776.26 and other applicable authority. If the DON's

consent to dual representation is required by Sec. 776.26, the consent

shall be given by an appropriate official of the DON other than the

individual who is to be represented.

(6) A covered USG attorney 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 covered attorney shall, as far as reasonably

possible, maintain a normal attorney-client relationship with the

client.

(2) A covered attorney may seek the appointment of a guardian or

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

covered attorney reasonably believes that the client cannot adequately

act in the client's own interest.

(b) [Reserved]

Sec. 776.34 Safekeeping property.

(a) Safekeeping property. Covered USG attorneys shall not normally

hold or safeguard property of a client or third persons in connection

with representational duties. See Sec. 776.27.

(b) [Reserved]

Sec. 776.35 Declining or terminating representation.

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

in paragraph (a)(3) of this section, a covered attorney shall not

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

withdraw from the representation of a client if:

(i) The representation will result in violation of the Rules

contained in this subpart or other law or regulation;

(ii) The covered attorney's physical or mental condition materially

impairs his or her ability to represent the client; or

(iii) The covered attorney is dismissed by the client.

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

attorney may seek to withdraw from representing a client if withdrawal

can be accomplished without material adverse effect on the interests of

the client, or if:

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

attorney's services that the covered attorney reasonably believes is

criminal or fraudulent;

(ii) The client has used the covered attorney's services to

perpetrate a crime or fraud;

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

covered attorney considers repugnant or imprudent;

(iv) In the case of covered non-USG attorneys, the representation

will result in an unreasonable financial burden on the attorney or has

been rendered unreasonably difficult by the client; or

(v) Other good cause for withdrawal exists.

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

authority, a covered attorney shall continue representation

notwithstanding good cause for terminating the representation.

(4) Upon termination of representation, a covered attorney shall

take steps to the extent reasonably practicable to protect a client's

interests, such as giving reasonable notice to the client, allowing

time for assignment or employment of other counsel, and surrendering

papers and property to which the client is entitled and, where a non-

USG attorney provided representation, refunding any advance payment of

fee that has not been earned. The covered attorney may retain papers

relating to the client to the extent permitted by law.

(b) [Reserved]

Sec. 776.36 Prohibited sexual relations.

(a) Prohibited sexual relations. (1) A covered attorney shall not

have sexual

[[Page 37482]]

relations with a current client. A covered attorney shall not require,

demand, or solicit sexual relations with a client incident to any

professional representation.

(2) A covered attorney shall not engage in sexual relations with

another attorney currently representing a party whose interests are

adverse to those of a client currently represented by the covered

attorney.

(3) A covered attorney shall not engage in sexual relations with a

judge who is presiding or who is likely to preside over any proceeding

in which the covered attorney will appear in a representative capacity.

(4) A covered attorney shall not engage in sexual relations with

other persons involved in the particular case, judicial or

administrative proceeding, or other matter for which representation has

been established, including but not limited to witnesses, victims, co-

accuseds, and court-martial or board members.

(5) For purposes of this Rule, sexual relations means:

(i) Sexual intercourse; or

(ii) Any touching of the sexual or other intimate parts of a person

or causing such person to touch the sexual or other intimate parts of

the covered attorney for the purpose of arousing or gratifying the

sexual desire of either party.

(b) [Reserved]

Sec. 776.37 Advisor.

(a) Advisor. In representing a client, a covered attorney shall

exercise independent professional judgment and render candid advice. In

rendering advice, a covered attorney 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.

(b) [Reserved]

Sec. 776.38 Mediation.

(a) Mediation. (1) A covered attorney may act as a mediator between

individuals if:

(i) The covered attorney consults with each individual concerning

the implications of the mediation, including the advantages and risks

involved, and the effect on the attorney-client confidentiality, and

obtains each individual's consent to the mediation;

(ii) The covered attorney reasonably believes that the matter can

be resolved on terms compatible with each individual's best interests,

that each individual will be able to make adequately informed decisions

in the matter, and that there is little risk of material prejudice to

the interests of any of the individuals if the contemplated resolution

is unsuccessful; and,

(iii) The covered attorney reasonably believes that the mediation

can be undertaken impartially and without improper effect on other

responsibilities the covered attorney has to any of the individuals.

(2) While acting as a mediator, the covered attorney shall consult

with each individual concerning the decisions to be made and the

considerations relevant in making them, so that each individual can

make adequately informed decisions.

(3) A covered attorney shall withdraw as a mediator if any of the

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

paragraph (a)(1) of this section is no longer satisfied. Upon

withdrawal, the covered attorney shall not represent any of the

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

each individual consents.

(b) [Reserved]

Sec. 776.39 Evaluation for use by third persons.

(a) Evaluation for use by third persons. (1) A covered attorney may

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

someone other than the client if:

(i) The covered attorney reasonably believes that making the

evaluation is compatible with other aspects of the covered attorney'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. 776.40 Meritorious claims and contentions.

(a) Meritorious claims and contentions. A covered attorney shall

not bring or defend a proceeding, or assert or controvert an issue

therein, unless there is a basis for doing so that is not frivolous,

which includes a good faith argument for an extension, modification, or

reversal of existing law. A covered attorney representing an accused in

a criminal proceeding or the respondent in an administrative proceeding

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

or other adverse personnel action, may nevertheless defend the client

at the proceeding as to require that every element of the case is

established.

(b) [Reserved]

Sec. 776.41 Expediting litigation.

(a) Expediting litigation. A covered attorney shall make reasonable

efforts to expedite litigation or other proceedings consistent with the

interests of the client and the attorney's responsibilities to

tribunals.

(b) [Reserved]

Sec. 776.42 Candor and obligations toward the tribunal.

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

attorney 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 covered attorney to be directly

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

counsel;

(iv) Offer evidence that the covered attorney knows to be false. If

a covered attorney has offered material evidence and comes to know of

its falsity, the covered attorney 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 covered attorney may refuse to offer evidence that the

covered attorney reasonably believes is false.

(4) In an ex parte proceeding, a covered attorney shall inform the

tribunal of all material facts known to the covered attorney which are

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

or not the facts are adverse.

(b) [Reserved]

Sec. 776.43 Fairness to opposing party and counsel.

(a) Fairness to opposing party and counsel. A covered attorney

shall not:

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

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

having potential evidentiary value. A covered attorney shall not

counsel or assist another person to do any such act;

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

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

[[Page 37483]]

(3) 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;

(4) In trial, allude to any matter that the covered attorney does

not reasonably believe is relevant or that will not be supported by

admissible evidence, assert personal knowledge of facts in issue except

when testifying as a witness, or state a personal opinion as to the

justness of a cause, the credibility of a witness, the culpability of a

civil litigant, or the guilt or innocence of an accused; or

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

voluntarily giving relevant information to another party unless:

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

client; and

(ii) The covered attorney reasonably believes that the person's

interests will not be adversely affected by refraining from giving such

information.

(b) [Reserved]

Sec. 776.44 Impartiality and decorum of the tribunal.

(a) Impartiality and decorum of the tribunal. A covered attorney

shall not:

(1) Seek to influence a judge, court member, member of a tribunal,

prospective court member or member of a tribunal, or other official by

means prohibited by law or regulation;

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

law or regulation; or

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

(b) [Reserved]

Sec. 776.45 Extra-tribunal statements.

(a) Extra-tribunal statements. (1) A covered attorney shall not

make an extrajudicial statement about any person or case pending

investigation or adverse administrative or disciplinary proceedings

that a reasonable person would expect to be disseminated by means of

public communication if the covered attorney knows or reasonably should

know that it will have a substantial likelihood of materially

prejudicing an adjudicative proceeding or an official review process

thereof.

(2) A statement referred to in paragraph (a)(1) 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, victim, or witness, or the

identity of a victim or witness, or the expected testimony of a party,

suspect, victim, 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 forensic examination or

test or the refusal or failure of a person to submit to an examination

or test, or the identity or nature of physical evidence expected to be

presented;

(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 covered attorney knows or reasonably should

know is likely to be inadmissible as evidence before a tribunal and

would, if disclosed, create a substantial risk of materially

prejudicing an impartial proceeding;

(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 (vii)

of this section, a covered attorney involved in the investigation or

litigation of a matter may state without elaboration:

(i) The general nature of the claim, offense, 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 or regulation, 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, in addition to paragraphs (a)(3)(i)

through (vi) of this section:

(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) Notwithstanding paragraphs (a)(1) and (a)(2)(i) through (vii)

of this section, a covered attorney may make a statement that a

reasonable covered attorney would believe is required to protect a

client from the substantial undue prejudicial effect of recent

publicity not initiated by the covered attorney or the attorney's

client. A statement made pursuant to this paragraph shall be limited to

such information as is necessary to mitigate the recent adverse

publicity.

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

to the DON is governed by such statutes as the Freedom of Information

Act and the Privacy Act, in addition to those governing protection of

national defense information. In addition, other laws and regulations

may further restrict the information that can be released or the source

from which it is to be released (e.g., the Manual of the Judge Advocate

General).

(b) [Reserved]

Sec. 776.46 Attorney as witness.

(a) Attorney as witness. (1) A covered attorney shall not act as

advocate at a trial in which the covered attorney is likely to be a

necessary witness except when:

(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 covered attorney would work

substantial hardship on the client.

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

another attorney in the covered attorney's office is likely to be

called as a witness, unless precluded from doing so by Sec. 776.26 or

Sec. 776.28.

(b) [Reserved]

Sec. 776.47 Special responsibilities of a trial counsel.

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

shall:

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

[[Page 37484]]

specification not warranted by the evidence be withdrawn;

(2) Make reasonable efforts to assure that the accused has been

advised of the right to, and the procedure for obtaining, counsel and

has been given reasonable opportunity to obtain counsel;

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

important pretrial rights;

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

information known to the trial counsel that tends to negate the guilt

of the accused or mitigates the offense, and, in connection with

sentencing, disclose to the defense all unprivileged mitigating

information known to the trial counsel, except when the trial counsel

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

(5) Exercise reasonable care to prevent investigators, law

enforcement personnel, employees, or other persons assisting or

associated with the trial counsel from making an extrajudicial

statement that the trial counsel would be prohibited from making under

Sec. 776.45; and

(6) Except for statements that are necessary to inform the public

of the nature and extent of the trial counsel's actions and that serve

a legitimate law enforcement purpose, refrain from making extrajudicial

comments that have a substantial likelihood of heightening public

condemnation of the accused.

(b) Role of the trial counsel. (1) The trial counsel represents the

United States in the prosecution of special and general courts-martial.

See Article 38(a), UCMJ, and R.C.M. 103(16), 405(d)(3)(A), and

502(d)(5). Accordingly, a trial counsel has the responsibility of

administering justice and is not simply an advocate. This

responsibility carries with it specific obligations to see that the

accused is accorded procedural justice and that guilt is decided upon

the basis of sufficient evidence. Paragraph (a)(1) of this section

recognizes that the trial counsel does not have all the authority

vested in modern civilian prosecutors. The authority to convene courts-

martial, and to refer and withdraw specific charges, is vested in

convening authorities. Trial counsel may have the duty, in certain

circumstances, to bring to the court's attention any charge that lacks

sufficient evidence to support a conviction. See United States v. Howe,

37 M.J. 1062 (NMCMR 1993). Such action should be undertaken only after

consultation with a supervisory attorney and the convening authority.

See also Sec. 776.42, governing ex parte proceedings. Applicable law

may require other measures by the trial counsel. Knowing disregard of

those obligations or a systematic abuse of prosecutorial discretion

could constitute a violation of Sec. 776.69.

(2) The ``ABA Standards for Criminal Justice: The Prosecution

Function,'' (3rd ed. 1993), has been used by appellate courts in

analyzing issues concerning trial counsel conduct. To the extent

consistent with this part, the ABA standards may be used to guide trial

counsel in the prosecution of criminal cases. See United States v.

Howe, 37 M.J. 1062 (NMCRS 1993); United States v. Dancy, 38 M.J. 1 (CMA

1993); United States v. Hamilton, 41 M.J. 22 (CMA 1994); United States

v. Meek, 44 M.J. 1 (CMA 1996).

Sec. 776.48 Advocate in nonadjudicative proceedings.

(a) Advocate in nonadjudicative proceedings. A covered attorney

representing a client before a legislative or administrative tribunal

in a nonadjudicative proceeding shall disclose that the appearance is

in a representative capacity and shall conform to the provisions of

Sec. 776.42, Sec. 776.43, and Sec. 776.44.

(b) [Reserved]

Sec. 776.49 Truthfulness in statements to others.

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

representing a client a covered attorney shall not knowingly;

(1) Make a false statement of material fact or law to a third

person; or

(2) Fail to disclose a material fact to a third person when

disclosure is necessary to avoid assisting a criminal or fraudulent act

by a client, unless disclosure is prohibited by Sec. 776.25.

(b) [Reserved]

Sec. 776.50 Communication with person representated by counsel.

(a) Communication with person represented by counsel. In

representing a client, a covered attorney shall not communicate about

the subject of the representation with a party the covered attorney

knows to be represented by another attorney in the matter, unless the

covered attorney has the consent of the other attorney or is authorized

by law to do so.

(b) [Reserved]

Sec. 776.51 Dealing with an unrepresented person.

(a) Dealing with an unrepresented person. When dealing on behalf of

a client with a person who is not represented by counsel, a covered

attorney shall not state or imply that the covered attorney is

disinterested. When the covered attorney knows or reasonably should

know that the unrepresented person misunderstands the covered

attorney's role in the matter, the covered attorney shall make

reasonable efforts to correct the misunderstanding.

(b) [Reserved]

Sec. 776.52 Respect for rights of third persons.

(a) Respect for rights of third persons. In representing a client,

a covered attorney shall not use means that have no substantial purpose

other than to embarrass, delay, or burden a third person, or use

methods of obtaining evidence that violate the legal rights of such a

person.

(b) [Reserved]

Sec. 776.53 Responsibilities of the Judge Advocate General and

supervisory attorneys.

(a) Responsibilities of the Judge Advocate General and supervisory

attorneys. (1) The JAG and supervisory attorneys shall make reasonable

efforts to ensure that all covered attorneys conform to this part.

(2) A covered attorney having direct supervisory authority over

another covered attorney shall make reasonable efforts to ensure that

the other attorney conforms to this part.

(3) A supervisory attorney shall be responsible for another

subordinate covered attorney's violation of this part if:

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

specific conduct, ratifies the conduct involved; or

(ii) The supervisory attorney has direct supervisory authority over

the other attorney and knows of the conduct at a time when its

consequences can be avoided or mitigated but fails to take reasonable

remedial action.

(4) A supervisory attorney is responsible for ensuring that the

subordinate covered attorney is properly trained and is competent to

perform the duties to which the subordinate covered attorney is

assigned.

(b) [Reserved]

Sec. 776.54 Responsibilities of a subordinate attorney.

(a) Responsibilities of a subordinate attorney. (1) A covered

attorney is bound by this part notwithstanding that the covered

attorney acted at the direction of another person.

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

commissioned officer and attorney, subordinate judge advocates shall

obey lawful directives and regulations of supervisory attorneys when

not

[[Page 37485]]

inconsistent with this part or the duty of a judge advocate to exercise

independent professional judgment as to the best interest of an

individual client.

(3) A subordinate covered attorney does not violate this part if

that covered attorney acts in accordance with a supervisory attorney's

written and reasonable resolution of an arguable question of

professional duty. See Sec. 776.10.

(b) [Reserved]

Sec. 776.55 Responsibilities regarding non-attorney assistants.

(a) Responsibilities regarding non-attorney assistants. With

respect to a non-attorney acting under the authority, supervision, or

direction of a covered attorney:

(1) The senior supervisory attorney in an office shall make

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

with the professional obligations of a covered attorney;

(2) A covered attorney having direct supervisory authority over the

non-attorney shall make reasonable efforts to ensure that the person's

conduct is compatible with the professional obligations of a covered

attorney; and

(3) A covered attorney shall be responsible for conduct of such a

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

covered attorney if:

(i) The covered attorney orders or, with the knowledge of the

specific conduct, explicitly or impliedly ratifies the conduct

involved; or

(ii) The covered attorney has direct supervisory authority over the

person, and knows of the conduct at a time when its consequences can be

avoided or mitigated but fails to take reasonable remedial action.

(b) [Reserved]

Sec. 776.56 Professional independence of a covered USG attorney.

(a) Professional independence of a covered USG attorney. (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 DON is expected to exercise unfettered loyalty and professional

independence during the representation consistent with these Rules and

remains ultimately responsible for acting in the best interest of the

individual client.

(2) Notwithstanding a civilian USG attorney's status as a Federal

employee subject, generally, to the authority of superiors, a civilian

USG attorney detailed or assigned to represent an individual member or

employee of the DON is expected to exercise unfettered loyalty and

professional independence during the representation consistent with

these Rules and remains ultimately responsible for acting in the best

interest of the individual client.

(3) The exercise of professional judgment in accordance with

paragraphs (a)(1) and (a)(2) of this section shall not, standing alone,

be a basis for an adverse evaluation or other prejudicial action.

(b) Loyalty to individual client. (1) This section recognizes that

a judge advocate is a military officer required by law to obey the

lawful orders of superior officers. It also recognizes the similar

status of a civilian USG attorney. Nevertheless, the practice of law

requires the exercise of judgment solely for the benefit of the client

and free of compromising influences and loyalties. Thus, when a covered

USG attorney is assigned to represent an individual client, neither the

attorney's personal interests, the interests of other clients, nor the

interests of third persons should affect loyalty to the individual

client.

(2) Not all direction given to a subordinate covered attorney is an

attempt to influence improperly the covered attorney's professional

judgment. Each situation must be evaluated by the facts and

circumstances, giving due consideration to the subordinate's training,

experience, and skill. A covered attorney subjected to outside

pressures should make full disclosure of them to the client. If the

covered attorney or the client believes the effectiveness of the

representation has been or will be impaired thereby, the covered

attorney should take proper steps to withdraw from representation of

the client.

(3) Additionally, a judge advocate has a responsibility to report

any instances of unlawful command influence. See R.C.M. 104, MCM, 1998.

Sec. 776.57 Unauthorized practice of law.

(a) Unauthorized practice of law. A covered USG attorney shall not:

(1) Except as authorized by an appropriate military department,

practice law in a jurisdiction where doing so is prohibited by the

regulations of the legal profession in that jurisdiction; or

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

performance of activity that constitutes the unauthorized practice of

law.

(b) Practice of law under JAG authorizaton. Limiting the practice

of law to members of the bar protects the public against rendition of

legal services by unqualified persons. A covered USG attorney's

performance of legal duties pursuant to a military department's

authorization, however, is considered a Federal function and not

subject to regulation by the states. Thus, a covered USG attorney may

perform legal assistance duties even though the covered attorney is not

licensed to practice in the jurisdiction within which the covered

attorney's duty station is located. Paragraph (a)(2) of this section

does not prohibit a covered USG attorney from using the services of

non-attorneys and delegating functions to them, so long as the covered

attorney supervises the delegated work and retains responsibility for

it. See Sec. 776.55. Likewise, it does not prohibit covered USG

attorneys from providing professional advice and instruction to non-

attorneys whose employment requires knowledge of law; for example,

claims adjusters, social workers, accountants and persons employed in

Government agencies. In addition, a covered USG attorney may counsel

individuals who wish to proceed pro se or non-attorneys authorized by

law or regulation to appear and represent themselves or others before

military proceedings.

Secs. 776.58-776.65 [Reserved]

Sec. 776.66 Bar admission and disciplinary matters.

(a) Bar admission and disciplinary matters. A covered attorney, in

connection with any application for bar admission, appointment as a

judge advocate, employment as a civilian USG attorney, certification by

the JAG or his designee, or in connection with any disciplinary matter,

shall not:

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

(2) Fail to disclose a fact necessary to correct a misapprehension

known by the person to have arisen in the matter, or knowingly fail to

respond to a lawful demand for information from an admissions or

disciplinary authority, except that this section does not require

disclosure of information otherwise protected by Sec. 776.25.

(b) Providing information. The duty imposed by this section extends

to covered attorneys and other attorneys seeking admission to a bar,

application for appointment as a covered USG attorney (military or

civilian) or certification by the JAG or his designee. Hence, if a

person makes a false statement in connection with an application for

admission or certification (e.g., misstatement by a civilian attorney

before a military judge regarding qualifications under Rule for Courts-

Martial 502), it may be the basis

[[Page 37486]]

for subsequent disciplinary action if the person is admitted or

certified, and in any event may be relevant in a subsequent admission

application. The duty imposed by this section applies to a covered

attorney's own admission or discipline as well as that of others. Thus,

it is a separate professional offense for a covered attorney to make a

knowing misrepresentation or omission in connection with a disciplinary

investigation of the covered attorney's own conduct. This section also

requires affirmative clarification of any misunderstanding on the part

of the admissions, certification, or disciplinary authority of which

the person involved becomes aware.

Sec. 776.67 Judicial and legal officers.

(a) Judicial and legal officers. A covered attorney shall not make

a statement that the covered attorney knows to be false or with

reckless disregard as to its truth or falsity concerning the

qualifications or integrity of a judge, investigating officer, hearing

officer, adjudicatory officer, or public legal officer, or of a

candidate for election or appointment to judicial or legal office.

(b) [Reserved]

Sec. 776.68 Reporting professional misconduct.

(a) Reporting professional misconduct. (1) A covered attorney

having knowledge that another covered attorney has committed a

violation of this part that raises a substantial question as to that

covered attorney's honesty, trustworthiness, or fitness as a covered

attorney in other respects, shall report such violation in accordance

with the procedures set forth in subpart C of this part.

(2) A covered attorney having knowledge that a judge has committed

a violation of applicable rules of judicial conduct that raises a

substantial question as to the judge's fitness for office shall report

such violation in accordance with the procedures set forth in subpart C

of this part.

(3) This Rule does not require disclosure of information otherwise

protected by Sec. 776.25.

(b) [Reserved]

Sec. 776.69 Misconduct.

(a) Misconduct. It is professional misconduct for a covered

attorney to:

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

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

(2) Commit a criminal act that reflects adversely on the covered

attorney's honesty, trustworthiness, or fitness as an attorney in other

respects;

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

misrepresentation;

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

justice;

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

agency or official; or

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

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

(b)Responsibilities. (1) Judge advocates hold a commission as an

officer in the Navy or Marine Corps and assume legal responsibilities

going beyond those of other citizens. A judge advocate's abuse of such

commission can suggest an inability to fulfill the professional role of

judge advocate and attorney. This concept has similar application to

civilian USG attorneys.

(2) Covered non-USG attorneys, Reservists, and Retirees (acting in

their civilian capacity), like their active-duty counterparts, are

expected to demonstrate model behavior and exemplary integrity at all

times. JAG may consider any and all derogatory or beneficial

information about a covered attorney, for purposes of determining the

attorney's qualification, professional competence, or fitness to

practice law in DON matters, or to administer discipline under this

part. Such consideration shall be made, except in emergency situations

necessitating immediate action, according to the procedures established

in subpart C of this part.

Sec. 776.70 Jurisdiction.

(a) Jurisdiction. All covered attorneys, as defined in Sec. 776.2,

shall be governed by this part.

(b) Applicability. (1) Many covered USG attorneys practice outside

the territorial limits of the jurisdiction in which they are licensed.

While covered attorneys remain subject to the governing authority of

the jurisdiction in which they are licensed to practice, they are also

subject to these Rules.

(2) When covered USG attorneys are engaged in the conduct of Navy

or Marine Corps legal functions, whether serving the Navy or Marine

Corps as a client or serving an individual client as authorized by the

Navy or Marine Corps, the rules contained in this subpart supersede any

conflicting rules applicable in jurisdictions in which the covered

attorney may be licensed. However, covered attorneys practicing in

State or Federal civilian court proceedings will abide by the rules

adopted by that State or Federal civilian court during the proceedings.

As for covered non-USG attorneys practicing under the supervision of

the JAG, violation of the rules contained in this subpart may result in

suspension from practice in DON proceedings.

(3) Covered non-USG attorneys, Reservists, or Retirees (acting in

their civilian capacity) who seek to provide legal services in any DON

matter under JAG cognizance and supervision, may be precluded from such

practice of law if, in the opinion of the JAG (as exercised through

this instruction) the attorney's conduct in any venue renders that

attorney unable or unqualified to practice in DON programs or

proceedings.

Sec. 776.71 Requirement to remain in good standing with licensing

authorities.

(a) Requirement to remain in good standing with state licensing

authority. (1) Each officer of the Navy appointed as a member of the

Judge Advocate General's Corps, each officer of the Marine Corps

designated a judge advocate, and each civil service and contracted

civilian attorney who practices law under the cognizance and

supervision of the JAG shall maintain a status considered ``in good

standing'' at all times with the licensing authority admitting the

individual to the practice of law before the highest court of at least

one State, Territory, Commonwealth, or the District of Columbia.

(2) The JAG, the Director, JA Division, HQMC, or any other

supervisory attorney may require any covered USG attorney over whom

they exercise authority to establish that the attorney continues to be

in good standing with his or her licensing authority. Representatives

of the JAG or of the Director, JA Division, HQMC, may also inquire

directly of any such covered USG attorney's licensing authority to

establish whether he or she continues to be in good standing and has no

disciplinary action pending.

(3) Each covered USG attorney shall immediately report to the JAG

if any jurisdiction in which the covered USG attorney is or has been a

member in good standing commences disciplinary investigation or action

against him or her or if the covered USG attorney is disciplined,

suspended, or disbarred from the practice of law in any jurisdiction.

(4) Each covered non-USG attorney representing an accused in any

court-martial or administrative separation proceeding shall be a member

in good standing with, and authorized to practice law by, the bar of a

Federal court or of the bar of the highest court of a State, or a

lawyer otherwise authorized by a recognized licensing

[[Page 37487]]

authority to practice law and found by the military judge to be

qualified to represent the accused.

(b) Definition. (1) The licensing authority granting the

certification or privilege to practice law within the jurisdiction

generally defines the phrase ``in good standing.'' At a minimum it

means that the individual is subject to the jurisdiction's disciplinary

review process; has not been suspended or disbarred from the practice

of law within the jurisdiction; is up-to-date in the payment of all

required fees; has met applicable continuing legal education

requirements which the jurisdiction has imposed (or the cognizant

authority has waived those requirements in the case of the individual);

and has met such other requirements as the cognizant authority has set

to remain eligible to practice law. So long as these conditions are

met, a covered USG attorney may be considered ``inactive'' as to the

practice of law within a particular jurisdiction and still be

considered ``in good standing'' for purposes of this section.

(2) Rule for Courts-Martial 502(d)(3)(A) requires that any civilian

defense counsel representing an accused in a court-martial be a member

of the bar of a Federal court or of the bar of the highest court of a

State. This civilian defense counsel qualification only has meaning if

the attorney is a member ``in good standing,'' see U.S. v. Waggoner, 22

M.J. 692 (AFCMR 1986), and is then authorized to practice law within

that jurisdiction. It is appropriate for the military judge, in each

and every case, to ensure that a civilian defense counsel is qualified

to represent the accused.

(3) Failure of a judge advocate to comply with the requirements of

this Rule may result in professional disciplinary action as provided

for in this instruction, loss of certification under Articles 26 and/or

27(b), UCMJ, adverse entries in military service records, and

administrative separation under Secretary of the Navy Instruction

1920.6(series) based on the officer's failure to maintain professional

qualifications. In the case of civil service and contracted civilian

attorneys practicing under the JAG's cognizance and supervision,

failure to maintain good standing or otherwise to comply with the

requirements of this Rule may result in adverse administrative action

under applicable personnel regulations, including termination of

employment.

(4) A covered USG attorney need only remain in good standing in one

jurisdiction. If admitted to the practice of law in more than one

jurisdiction, however, and any jurisdiction commences disciplinary

action against or disciplines, suspends or disbars the covered USG

attorney from the practice of law, the covered USG attorney must so

advise the JAG.

(5) Certification by the United States Court of Appeals for the

Armed Forces that a covered attorney is in good standing with that

court will not satisfy the requirement of this section, since such

status is normally dependent on Article 27 UCMJ certification alone.

Secs. 776.72-776.75 [Reserved]

Subpart C--Complaint Processing Procedures

Sec. 776.76 Policy.

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

and fairly, all allegations of professional impropriety lodged against

covered attorneys practicing under JAG cognizance and supervision.

(b) Rules Counsel approval will be obtained before conducting any

preliminary inquiry or formal investigation into an alleged violation

of subpart B of this part or the Code of Judicial Conduct. The Rules

Counsel will notify the JAG prior to the commencement of any

preliminary inquiry or investigation. The preliminary inquiry and any

subsequent investigation will be conducted according to the procedures

set forth in this subpart.

Sec. 776.77 Related Investigations and Actions.

Acts or omissions by covered attorneys may constitute professional

misconduct, criminal misconduct, poor performance of duty, or a

combination of all three. Care must be taken to characterize

appropriately the nature of a covered attorney's conduct to determine

who may and properly should take official action.

(a) Questions of legal ethics and professional misconduct by

covered attorneys are within the exclusive province of JAG. Ethical or

professional misconduct will not be attributed to any covered attorney

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

accordance with this part, that such misconduct has occurred.

(b) Criminal misconduct is properly addressed by the covered USG

attorney's commander through the disciplinary process provided under

the UCMJ and implementing regulations, or through referral to

appropriate civil authority.

(c) Poor performance of duty is properly addressed by the covered

USG attorney's reporting senior through a variety of administrative

actions, including documentation in fitness reports or employee

appraisals.

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

of criminal conduct or poor performance of duty involving covered

attorneys. When, however, investigations into criminal conduct or poor

performance reveal conduct that constitutes a violation of this part,

or of the Code of Judicial Conduct in the case of judges, such conduct

shall be reported to the Rules Counsel immediately.

(e) Inquiries into allegations of professional misconduct will

normally be held in abeyance until any related criminal investigation

or proceeding is complete. However, a pending criminal investigation or

proceeding does not bar the initiation or completion of a professional

misconduct investigation stemming from the same or related incidents or

prevent the JAG from imposing professional disciplinary sanctions as

provided for in this subpart.

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 IG or the concerned supervisory attorney) for inquiry. Such

complaints are not, by themselves, cognizable under this subpart but

may, if reasonably confirmed, be the basis of a formal complaint

described in Sec. 776.79.

Sec. 776.79 The complaint.

(a) The complaint shall:

(1) Be in writing and be signed by the complainant;

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

otherwise received reliable information indicating, that:

(i) The covered attorney concerned is, or has been, engaged in

misconduct that demonstrates a lack of integrity, that constitutes a

violation of subpart B of this part or a failure to meet the ethical

standards of the profession; or

(ii) The covered attorney concerned is ethically, professionally,

or morally unqualified to perform his or her duties; and

(3) Contain a complete, factual statement of the acts or omissions

constituting the substance of the complaint, as well as a description

of any attempted resolution with the covered attorney concerned.

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

(b) A complaint may be initiated by any person, including the

Administrative Law Division of the Office of JAG (JAG (13)), or the

Judge Advocate Research and Civil Law Branch, JA Division, HQMC (JAR).

[[Page 37488]]

Sec. 776.80 Initial screening and Rules Counsel.

(a) Complaints shall be forwarded to JAG(13) or, in cases involving

Marine Corps judge advocates or civil service and contracted civilian

attorneys who perform legal services under the cognizance and

supervision of Director, JA Division, HQMC, to JAR.

(b) JAG(13) and JAR shall log all complaints received and will

ensure that a copy is provided to the covered attorney who is the

subject of the complaint.

(c) The covered attorney concerned may elect to provide an initial

statement regarding the complaint for the Rules Counsel's

consideration. The covered attorney will promptly inform JAG(13) or JAR

if he or she intends to submit any such statement. At this screening

stage, forwarding of the complaint to the Rules Counsel will not be

unduly delayed to await the covered attorney's submission.

(d) The Rules Counsel shall initially review the complaint, and any

statement submitted by the covered attorney complained of, to determine

whether it complies with the requirements set forth in Sec. 776.79.

(1) Complaints that do not comply with the requirements may be

returned to the complainant for correction or completion, and

resubmission to JAG(13) or JAR. If the complaint is not corrected or

completed, and resubmitted within 30 days of the date of its return,

the Rules Counsel may close the file without further action. JAG (13)

and JAR will maintain copies of all correspondence relating to the

return and resubmission of a complaint, and shall notify the covered

attorney concerned if and when the Rules Counsel takes action to close

the file.

(2) Complaints that comply with the requirements shall be further

reviewed by the Rules Counsel to determine whether the complaint:

(i) Establishes probable cause to believe that a violation of this

part or of the Judicial Code has occurred; or

(ii) Alleges ineffective assistance of counsel, or other violations

of subpart B of this part, as a matter of defense in a court-martial,

administrative separation, or nonjudicial punishment proceeding. If so,

the Rules Counsel shall forward a copy of the complaint to the proper

appellate authority for appropriate action and comment.

(e) 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 complainant

and the covered attorney concerned that the file has been closed.

JAG(13) and JAR will maintain copies of all correspondence related to

the closing of the file.

(f) The Rules Counsel may close the file if there is a

determination that the complaint establishes probable cause but the

violation is of a minor or technical nature appropriately addressed

through corrective counseling. The Rules Counsel shall report any such

decision to the JAG. The Rules Counsel shall ensure the covered

attorney concerned receives appropriate counseling and shall notify the

complainant and the covered attorney concerned that the file has been

closed. JAG(13) and JAR will maintain copies of all correspondence

related to the closing of the file. The covered attorney concerned is

responsible, under these circumstances, to determine if his or her

Federal, state, or local licensing authority requires reporting of such

action.

Sec. 776.81 Charges.

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

believe that a violation of this part or of the Code of Judicial

Conduct has occurred, the Rules Counsel shall draft charges alleging

violations of this part or of the Code of Judicial Conduct and forward

the charges, together with the original complaint and any allied

papers, as follows:

(1) In cases involving Marine Corps attorneys not serving as

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

general court-martial jurisdiction (OEGCMJ) over the charged covered

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

covered attorney (normally the concerned attorney's supervisor) to

conduct a preliminary inquiry into the matter;

(2) In all other cases, to the supervisory attorney in the charged

attorney's chain of command (or such other officer as JAG may

designate), and direct, on behalf of JAG, the supervisory attorney 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 covered attorney against whom

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

will be conducted. Service of complaints, charges, and other materials

shall be made by personal service, or by registered or certified mail

sent to the covered attorney's last known address reflected in official

Navy or Marine Corps records or in the records of the state bar(s)

which licensed the attorney to practice law.

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

the commanding officer, or equivalent, of the covered USG attorney

concerned if the complaint involves a covered USG attorney on active

duty or in civilian Federal service.

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

follows:

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

in Naval Legal Service Command (NLSC) units, to Vice Commander, NLSC;

(2) In cases involving Navy attorneys serving in Marine Corps

units, or involving Marine Corps attorneys 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 military service attorney discipline section

if the complaint involves covered attorneys certified by the Judge

Advocates General/Chief Counsel of the other uniformed services.

Sec. 776.82 Interim suspension.

(a) Where the Rules Counsel determines there is probable cause to

believe that a covered attorney has committed misconduct or other

violations of this part, and poses a substantial threat of irreparable

harm to his or her clients or the orderly administration of military

justice, the Rules Counsel shall so advise the JAG. Examples of when a

covered attorney may pose a ``substantial threat of irreparable harm''

include:

(1) When charged with the commission of a crime which involves

moral turpitude or reflects adversely upon the covered attorney's

fitness to practice law, and where substantial evidence exists to

support the charge;

(2) When engaged in the unauthorized practice of law (e.g., failure

to maintain good standing in accordance with Sec. 776.71); or

(3) Where unable to represent client interests competently.

(b) Upon receipt of information from the Rules Counsel, JAG may

order the covered attorney to show cause why he or she should not face

interim suspension, pending completion of a professional responsibility

investigation. The covered attorney shall have 10 calendar days in

which to respond.

(c) If an order to show cause has been issued under paragraph (b)

of this section, and the period for response has passed without a

response, or after consideration of any response and finding sufficient

evidence demonstrating probable cause to believe that the covered

attorney is guilty of

[[Page 37489]]

misconduct and poses a substantial threat of irreparable harm to his or

her client or the orderly administration of military justice, JAG may

direct an interim suspension of the covered attorney's certification

under Articles 26(b) or 27(b), UCMJ, or R.C.M. 502(d)(3), or the

authority to provide legal assistance, pending the results of the

investigation and final action under this instruction.

(d) Within 10 days of JAG's decision to impose an interim

suspension, the covered attorney may request an opportunity to be heard

before an impartial officer designated by JAG. Where so requested, that

opportunity will be scheduled within 10 calendar days of the request.

The designated officer shall receive any information that the covered

attorney chooses to submit on the limited issue of whether to continue

the interim suspension. The designated officer shall submit a

recommendation to JAG within 5 calendar days of conclusion.

(e) A covered attorney may, based upon a claim of changed

circumstances or newly discovered evidence, petition for dissolution or

amendment of JAG's imposition of interim suspension.

(f) Any professional responsibility investigation involving a

covered attorney who has been suspended pursuant to this section shall

proceed and be concluded without appreciable delay. However, JAG may

determine it necessary to await completion of a related criminal

investigation or proceeding, or completion of a professional

responsibility action initiated by other licensing authorities. In such

cases, JAG shall cause the Rules Counsel to so notify the covered

attorney under interim suspension. Where necessary, continuation of the

interim suspension shall be reviewed by JAG every 6 months.

Sec. 776.83 Preliminary inquiry.

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

in the opinion of the officer appointed to conduct the preliminary

inquiry (PIO), the questioned conduct occurred and, if so, whether it

constitutes a violation of this part or the Code of Judicial Conduct.

The PIO is to recommend appropriate action in cases of substantiated

violations.

(b) Upon receipt of the complaint and charges, the PIO shall

promptly investigate the charges, generally following the format and

procedures set forth in the Manual of the Judge Advocate General for

the conduct of command investigations. Reports of relevant

investigations by other authorities including, but not limited to,

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; and

(3) Provide the covered attorney concerned an opportunity to review

all evidence, affidavits, and statements collected and a reasonable

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

statement or any other written material that the covered attorney

wishes considered.

(c) The PIO may appoint and use such assistants as may be necessary

to conduct the preliminary inquiry.

(d) The PIO shall personally review the results of the preliminary

inquiry to determine whether, by a preponderance of the evidence, a

violation of this part or of the Judicial Code has occurred.

(1) If the PIO determines that no violation has occurred or that

the violation is minor or technical in nature and warrants only

corrective counseling, then he or she may recommend that the file be

closed.

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

violation did occur, and that corrective action greater than counseling

may be warranted, he or she shall then recommend what further action is

deemed appropriate.

(e) The PIO shall forward (via the OEGCMJ in appropriate Marine

cases) the results of the preliminary inquiry to the Rules Counsel,

providing copies to the covered attorney concerned and all parties to

whom the charges were previously sent.

(f) The Rules Counsel shall review all preliminary inquiries. If

the report is determined by the Rules Counsel to be incomplete, the

Rules Counsel shall return it to the PIO, or to another inquiry

officer, for further or supplemental inquiry. If the report is

complete, then:

(1) If the Rules Counsel determines, either consistent with the PIO

recommendation or through the Rules Counsel's own review of the report,

that a violation of this part or Code of Judicial Conduct has not

occurred and that further action is not warranted, the Rules Counsel

shall close the file and notify the complainant, the covered attorney

concerned, and all officials previously provided copies of the

complaint. JAG(13) and/or JAR, as appropriate, will maintain copies of

all correspondence related to the closing of the file.

(2) If the Rules Counsel determines, either consistent with a PIO

recommendation or through the Rules Counsel's own review of the report,

that a violation of this part has occurred but that the violation is of

a minor or technical nature, then the Rules Counsel may determine that

corrective counseling is appropriate and close the file. The Rules

Counsel shall report any such decision to the JAG. The Rules Counsel

shall ensure that the covered attorney concerned receives appropriate

counseling and shall notify the complainant, the covered attorney

concerned, and all officials previously provided copies of the

complaint that the file has been closed. JAG(13) and/or JAR, as

appropriate, will maintain copies of all correspondence related to the

closing of the file. The covered attorney concerned is responsible,

under these circumstances, to determine if his or her Federal, state,

or local licensing authority requires reporting such action.

(3) If the Rules Counsel determines, either consistent with a PIO

recommendation or through the Rules Counsel's own review of the report,

that further professional discipline or corrective action may be

warranted, the Rules Counsel shall:

(i) In cases involving Marine Corps attorneys not serving as

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

that the subject attorney's OEGCMJ appoint a disinterested covered

attorney (normally senior to the covered attorney complained of and not

previously involved in the case) to conduct an ethics investigation

into the matter;

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

covered attorney (normally senior to the covered attorney complained of

and not previously involved in the case) to conduct an ethics

investigation; and

(iii) Notify those supervisory attorneys listed in paragraphs (c)

and (d) of Sec. 776.81.

Sec. 776.84 Ethics investigation.

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

attorney concerned will be so notified, in writing, by the Rules

Counsel.

(b) The covered attorney concerned will be provided written notice

of the following rights in connection with the ethics investigation:

(1) To request a hearing before the investigating officer (IO);

(2) To inspect all evidence gathered;

(3) To present written or oral statements or materials for

consideration;

[[Page 37490]]

(4) To call witnesses at his or her own expense (local military

witnesses should be made available at no cost);

(5) To be assisted by counsel (see paragraph (c) of this section);

(6) To challenge the IO for cause (such challenges must be made in

writing and sent to the Rules Counsel via the challenged officer); and

(7) to waive any or all of these rights.

(c) The covered attorney may be represented by counsel at the

hearing. Such counsel may be:

(1) A civilian attorney retained at no expense to the Government;

or,

(2) In the case of a covered USG attorney, another USG attorney:

(i) Detailed by the cognizant Naval Legal Service Office (NLSO),

Law Center, or Legal Service Support Section (LSSS); or

(ii) Requested by the covered attorney concerned, if such counsel

is attached to the cognizant NLSO, Law Center, LSSS, 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 made available.

(d) If a hearing is requested, the IO will conduct the hearing

after reasonable notice to the covered attorney concerned. The hearing

will not be unreasonably delayed. The hearing is not adversarial in

nature and there is no right to subpoena witnesses. Rules of evidence

do not apply. The covered attorney concerned or his or her counsel may

question witnesses that appear. The proceedings shall be recorded but

no transcript of the hearing need be made. Evidence gathered during, or

subsequent to, the preliminary inquiry and such additional evidence as

may be offered by the covered attorney shall be considered.

(e) The IO may appoint and use such assistants as may be necessary

to conduct the ethics investigation.

(f) The IO shall prepare a report which summarizes the evidence, to

include information presented at any hearing.

(1) If the IO believes that no violation has occurred or that the

violation is minor or technical in nature and warrants only corrective

counseling, then he or she may recommend that the file be closed.

(2) If the IO believes that a violation did occur, and that

corrective action greater than counseling is warranted, he or she shall

then recommend what further action is deemed appropriate.

(g) The IO shall forward the ethics investigation, including the

IO's recommendations, to the Rules Counsel, as follows:

(1) In cases involving Navy or Marine Corps attorneys serving with

NLSC units, via Vice Commander, NLSC;

(2) In cases involving Navy attorneys serving with Marine Corps

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

(3) In cases involving Navy or Marine Corps attorneys serving in

subordinate Navy fleet or staff billets, via 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, via the Trial Judiciary Chief Judge;

(5) In cases involving Marine Corps attorneys serving in defense

billets, via the Chief Defense Counsel of the Marine Corps;

(6) In cases involving Marine Corps attorneys not serving in

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

concerned attorney; and

(7) In cases involving covered attorneys certified by the Judge

Advocates General/Chief Counsel of the other U.S. Armed Forces, via the

appropriate military service attorney discipline section of that U.S.

Armed Force.

(h) The Rules Counsel shall review all ethics investigations. If

the report is determined by the Rules Counsel to be incomplete, the

Rules Counsel shall return it to the IO, or to another inquiry officer,

for further or supplemental inquiry. If the report is complete, then:

(1) If the Rules Counsel determines, either consistent with the IO

recommendation or through the Rules Counsel's own review of the

investigation, that a violation of this part or Code of Judicial

Conduct has not occurred and that further action is not warranted, the

Rules Counsel shall close the file and notify the complainant, the

covered attorney concerned, and all officials previously provided

copies of the complaint. JAG(13) and/or JAR, as appropriate, will

maintain copies of all correspondence related to the closing of the

file.

(2) If the Rules Counsel determines, either consistent with the IO

recommendation or through the Rules Counsel's own review of the

investigation, that a violation of this part or Code of Judicial

Conduct has occurred but that the violation is of a minor or technical

nature, then the Rules Counsel may determine that corrective counseling

is appropriate and close the file. The Rules Counsel shall report any

such decision to the JAG. The Rules Counsel shall ensure that the

covered attorney concerned receives appropriate counseling and shall

notify the complainant, the covered attorney concerned, and all

officials previously provided copies of the complaint that the file has

been closed. JAG(13) and/or JAR, as appropriate, will maintain copies

of all correspondence related to the closing of the file. The covered

attorney concerned is responsible, under these circumstances, to

determine if his or her Federal, state, or local licensing authority

requires reporting such action.

(3) If the Rules Counsel believes, either consistent with the IO

recommendation or through the Rules Counsel's own review of the

investigation, that professional disciplinary action greater than

corrective counseling is warranted, the Rules Counsel shall forward the

investigation, with recommendations as to appropriate disposition, to

JAG.

Sec. 776.85 Effect of separate proceeding.

(a) For purposes of this section, the term separate proceeding

includes, but is not limited to, court-martial, non-judicial

punishment, administrative board, or similar civilian or military

proceeding.

(b) In cases in which a covered attorney is determined, at a

separate proceeding determined by the Rules Counsel to afford

procedural protection equal to that provided by a preliminary inquiry

under this instruction, to have committed misconduct which forms the

basis for ethics charges under this instruction, the Rules Counsel may

dispense with the preliminary inquiry and proceed directly with an

ethics investigation.

(c) In those cases in which a covered attorney is determined to

have committed misconduct at a separate proceeding which the Rules

Counsel determines has afforded procedural protection equal to that

provided by an ethics investigation under this instruction, the

previous determination regarding the underlying misconduct is res

judicata with respect to that issue during an ethics investigation. A

subsequent ethics investigation based on such misconduct shall afford

the covered attorney a hearing into whether the underlying misconduct

constitutes a violation of this part, whether the violation affects his

or her fitness to practice law, and what sanctions, if any, are

appropriate.

(d) The Rules Counsel may dispense with the preliminary inquiry and

ethics investigation, and if warranted, recommend to JAG that the

covered attorney concerned be disciplined,

[[Page 37491]]

consistent with this subpart, after providing the covered attorney

concerned written notice and an opportunity to be heard in writing, in

those cases in which a covered attorney has been:

(1) Decertified or suspended from the practice of law or otherwise

subjected to professional responsibility discipline by the Judge

Advocate General of another Military Department;

(2) Disbarred or suspended from the practice of law or otherwise

subjected to professional responsibility discipline by the Court of

Appeals for the Armed Forces or by any Federal, State, or local bar; or

(3) Convicted of a felony (or any offense punishable by one year or

more of imprisonment) in a civilian or military court which, in the

opinion of the Rules Counsel, renders the attorney unqualified or

incapable of properly or ethically representing the DON or a client

when the Rules Counsel has determined that the attorney was afforded

procedural protection equal to that provided by an ethics investigation

under this instruction.

Sec. 776.86 Action by JAG.

(a) JAG is not bound by the recommendation rendered by the Rules

Counsel, IO, PIO, or any other interested party, but will base any

action on the record as a whole. Nothing in this instruction limits JAG

authority to suspend from the practice of law in DON matters any

covered attorney alleged or found to have committed professional

misconduct or violated this part, either in DON or civilian

proceedings.

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

Professional Responsibility Committee for an advisory opinion on

interpretation of subpart B of this part or its application to the

facts of a particular case.

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

advisory opinion, JAG will take such action as JAG considers

appropriate in JAG's sole discretion. JAG may, for example:

(1) Direct further inquiry into specified areas.

(2) Where determining the allegations to be unfounded, or that no

further action is warranted, direct the Rules Counsel to make

appropriate file entries and to notify the complainant, covered

attorney concerned, and all interested parties of such determination.

(3) Where determining the allegations to be supported by clear and

convincing evidence, take appropriate corrective action including, but

not limited to:

(i) Limiting the covered attorney to practice under direct

supervision of a supervisory attorney;

(ii) Limiting the covered attorney to practice in certain areas or

forbidding him or her from practice in certain areas;

(iii) Suspending or revoking, for a specified or indefinite period,

the covered attorney's authority to provide legal assistance;

(iv) Where finding that the misconduct so adversely affects the

covered attorney's continuing ability to practice law in the naval

service or that the misconduct so prejudices the reputation of the DON

legal 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)), or

R.C.M. 502(b)(3), should be suspended or is no longer appropriate,

directing such certification to be suspended for a prescribed or

indefinite period or to be removed permanently;

(v) In the case of a judge, where finding 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)), should be

suspended or is no longer appropriate, directing such certification to

be suspended for a prescribed or indefinite period or to be removed

permanently; and

(vi) Directing the Rules Counsel to contact appropriate authorities

such as the Chief of Naval Personnel or the Commandant of the Marine

Corps so that pertinent entries in appropriate DON records may be made;

notifying the complainant, covered attorney concerned, and any

officials previously provided copies of the complaint; and notifying

appropriate tribunals and authorities of any action taken to suspend,

decertify, or limit the practice of a covered attorney as counsel

before courts-martial or the U.S. Navy-Marine Corps Court of Appeals,

administrative boards, as a legal assistance attorney, or in any other

legal proceeding or matter conducted under JAG cognizance and

supervision.

Sec. 776.87 Finality.

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

by Navy Regulations or any other regulation to the covered attorney

concerned.

Sec. 776.88 Report to licensing authorities.

Upon determination by JAG that a violation of the Rules or the Code

of Judicial Conduct has occurred, JAG may cause the Rules Counsel to

report that fact to the Federal, state, or local bar or other licensing

authority of the covered attorney concerned. If so reported, notice to

the covered attorney shall be provided by the Rules Counsel. The JAG's

decision in no way diminishes a covered attorney's responsibility to

report adverse professional disciplinary action as required by the

attorney's Federal, state, and local bar or other licensing authority.

Subpart D--[Reserved]

Dated: July 1, 1999.

Ralph W. Corey,

Commander, Judge Advocate General's Corps, U.S. Navy, Alternate Federal

Register Liaison Officer.

[FR Doc. 99-17137 Filed 7-9-99; 8:45 am]

BILLING CODE 3810-FF-P