Professional Conduct
for Lawyers
Federal Health Law Course 2015
MAJ Elizabeth Witwer
Agenda
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Client Capacity
Attorney Capacity
Supervisor Responsibilities
Professional Responsibility Inquiries
Recent Cases
Resources
• Army Regulation 27-26, Rules for Professional Conduct
for Lawyers
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Standards of Conduct, 5 C.F.R. Part 2635
Model / State Bar Rules
State Bar Resources / Law Review Articles
Encyclopedia of Ethical Failure, Department of Defense,
OGC, Standards of Conduct Office
• Agency Professional Responsibility Office
Reports
CLIENT CAPACITY
Potential Ethical Issues in
Client Capacity
Determining capacity
Decision-making
Dealing with disclosures
Undue influence
Legal Assistance Scenario
77 year old retired NCO
Escorted to your office by one of her 4 adult children.
Meets in private with you and says that she wants to
update her will.
In conversation, the client tells you she is becoming
more concerned about growing forgetfulness and
confusion.
Legal Assistance Guidance
ABA Model Rule 1.14 – Client with diminished capacity
“…the lawyer shall, so far as reasonably possible, maintain a
normal client-lawyer relationship...”
“…the lawyer may take reasonably necessary protective
action…”
Confidentiality?
Applicability of ABA Model Rule 1.6?
Legal Assistance Guidance
ABA Model Rule 1.6 – Confidentiality
“A lawyer shall not reveal information relating to the
representation of a client unless the client gives
informed consent, the disclosure is impliedly authorized
in order to carry out the representation or the
disclosure is permitted by...”
“A lawyer may reveal information…to the extent the
lawyer reasonable believes necessary:
(4) to secure legal advice about the lawyer’s
compliance with these Rules…”
Legal Assistance Scenario
Client requests that her son sit in on consultation
and speak for her.
Wants to update her will – disinheriting the 3 children
not present because they did not attend her 75th
birthday.
In conversation, the client tells you she is becoming
more concerned about growing forgetfulness and
confusion
Military Justice Scenario
E4 with no deployment and series of minor misconduct
(short AWOLs, disrespect, FTRs, spice use)
Pre-Trial confinement ordered after return from latest AWOL
TC tells DC that government would support a
quick plea deal
Initial investigation reveals potential delusions
Issues for Trial and Defense Counsel
- Problem?
- Lacked mental
responsibility for any
charged offence and/or
- Lacks capacity to stand
trial.
- Solution? RCM 706 Inquiry
(“sanity board”)
RCM 706 Inquiry:
Who initiates?
If it appears to any commander who considers disposition of charges, or
to any investigating officer, trial counsel, defense counsel, military
judge, or member that there is reason to believe that the accused
lacked mental responsibility…the belief or observation shall be
transmitted through appropriate challenges to the officer authorized to
order an inquiry into the metal condition of the accused.
RCM 706 Inquiry:
Who Orders?
Before referral: convening authority
After referral: military judge*
* Some exceptions
RCM 706 Inquiry:
Composition
 When ordered, referred to board consisting of
one or more persons.
 Each member of board shall be physician or
clinical psychologist.
 Preference for psychiatrist or clinical psychologist.
RCM 706 Inquiry:
Findings
 Specify reasons for doubting mental capacity or
responsibility.
 Answer specific questions contained in RCM 706.
RCM 706 Inquiry
Disclosure & Actions
 Defense: Receives full report
 Government: Summary of ultimate conclusions*
 Actions: Case suspended, charges dismissed, administrative
action, charges tried by court-martial
* See MRE 302
ATTORNEY CAPACITY
Substance Abuse
• Diminish an attorney’s practice
• Lead to professional problems: missed
deadlines, poor judgment, financial problems
• 50% of lawyer discipline cases involve
substance abuse problems
• Lawyers Assistance Programs provide hope
and confidentiality!
Substance Abuse and Discipline
• Implicates Rules of Professional Responsibility
relating to competence, diligence, and
misconduct.
• Confidential referral to an assistance program.
• Report to appropriate authority, agency, or
body.
• (Rules 8.1 - 8.5)
NONLAWYER ASSISTANTS
Rule 5.3 Responsibilities Regarding
Nonlawyer Assistants
(a) A partner, and a lawyer who individually or
together with other lawyers possesses
comparable managerial authority in a law firm,
shall make reasonable efforts to ensure that the
office has in effect measures giving reasonable
assurance that the person’s conduct is
compatible with the professional obligations of
the lawyer;
Rule 5.3
(b) a lawyer having direct
supervisory authority over
the nonlawyer shall make
reasonable efforts to ensure
that the person’s conduct is
compatible with the
professional obligations of
the lawyer;
Rule 5.3
(c) a lawyer shall be held responsible for conduct . . . if:
(1) the lawyer orders or ratifies the conduct; or
(2) the lawyer (direct supervisor) knows of the conduct at
a time when its consequences can be avoided or
mitigated but fails to take reasonable remedial
actions.
Rule 5.5 Unauthorized Practice of Law
A lawyer shall not:
(b) assist a person who is not a
member of the bar in the
performance of activity that
constitutes the unauthorized
practice of law.
Comment
. . . so long as the lawyer supervises the
delegated work and retains responsibility for
their work.
PROFESSIONAL CONDUCT INQUIRIES
The Process
• Authorities:
– AR 27-1
• CH 7 (Professional Responsibility)
• CH 8 (Mismanagement)
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–
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AR 27-26 Rules of Professional Conduct
ABA Model Rules of Professional Conduct
ABA Model Code of Judicial Conduct
Code of Judicial Conduct for Army Trial and
Appellate Judges
The Process:
Applies to
1.
2.
All lawyers, paralegals, enlisted,
WOs, civilian staff (Judge Advocate
Legal Services, (JALS))
Any civilian involved in any matter
that falls under TJAG’s
responsibility and authority
Policy
TJAG Policy Memo 14-02
“Every lawyer will receive annual training on the
Army Rules of Professional Conduct for Lawyers
(AR 27-26), State Bar rules, and other applicable
ethical standards…”
At a minimum, each lawyer should receive three hours of
professional responsibility training each year.
All nonlawyer personnel, who perform duty in an Army
or joint legal office, should receive one hour of
professional responsibility training each year.
Self-Reporting Policy
TJAG Policy Memo 14-02 cont’d…
If notified that an allegation of misconduct, impropriety, or
unfitness has been made in connection with practice of
law, SHALL immediately report, through appropriate
technical channels to the Chief, Professional
Responsibility, the nature and status of the allegation(s).
If charged with a criminal offense SHALL immediately
inform, through appropriate technical channels, the
Chief, Professional Responsibility, in writing of the
charge.
The Process
• Allegations originate from:
–IG Referrals
–ACCA / CAAF
–Judge Advocates and Civilians
–Clients / Third Parties
The Process:
What is the nature of the allegation?
• Professional Responsibility?
– Applies to all JALS members
• Mismanagement?
– Applies to all JALS members who are
supervisors in Army legal offices under
TJAG jurisdiction
• Both?
34
Process
Classify the Allegation
PR
M
Both
CD
PSI
No Violation
or Minor
(PRB,
DJAG,
TJAG)
Violation
Supervisor
CD
Not
Supervisor
Not Mismanagement
CD
PSI
PSI
Case
Closed
TJAG/DJAG
If SJA/DSJA/CJA is
respondent must go to DJAG
(even if closed).
If allegation is founded,
action with DJAG/TJAG.
• GOMOR
• Withdraw Art 27(b)(2)
certification
• Suspend
• Report to licensing
authority
The Process:
Professional Responsibility
Conduct Credibility Determination (AR 27-1, Ch 7)
-
SJA or Senior Supervisory JA (SSJA) can direct
Informal. No due process attaches.
Purpose: Is allegation credible?
- No. Done.
- Yes. Does it raise substantial question as to honesty,
trustworthiness or fitness?
- No. Done.
- Yes, then . . .
The Process:
Professional Responsibility
• Coordinate with PRB to get permission to conduct
a Preliminary Screening Inquiry (PSI).
– Only PRB, DJAG, or TJAG can direct (authorize).
– SSJA (or PRB) appoints PSI Inquiry Officer.
– Due process attaches.
• If PSI finds:
– No violation, or minor or technical violation, then SSJA
and PRB close case, with counseling as appropriate.
– Substantial violation, then action by DJAG or TJAG.
The Process:
Mismanagement
Respondent a supervisor?
• No. Done.
• Yes. Proceed.
• CD procedure is the same (AR 27-1, Ch 8).
– Informal. No due process attaches.
– Purpose: Is allegation credible?
• No. Done.
• Yes. Adversely affect legal services? Or, misuse gov’t
resources? Or, violate ARs or TJAG policy memoranda?
– No. Done.
– Yes, then . . .
The Process:
Mismanagement
• Coordinate with PRB to get permission to conduct
a Preliminary Screening Inquiry (PSI).
– Only PRB, DJAG, or TJAG can direct (authorize).
– SSJA (or PRB) appoints PSI Inquiry Officer.
– Due process attaches.
• If PSI finds:
– No violation, or minor or technical violation, then SSJA
and PRB close case, with counseling as appropriate.
•
Exception: If respondent is SJA / DSJA / CJA, DJAG must
resolve.
– Substantial violation, then action by DJAG or TJAG.
The Process:
Double Whammy
•
•
PSI finds no violation (or minor, technical):
– Closed.* Counseling as appropriate.
PSI finds violation:
– TJAG / DJAG
• GOMOR
• Withdraw Art 27(b)(2) certification – JA
• Suspend from RCM 109(a) practice – JA or civ atty
• Suspend from JA duties
• Report to licensing authority
* In Mismanagement cases, file must go to DJAG for action / closure if
Respondent is SJA, DSJA, CJA or equivalent.
The Process
• Inquiries are informal (i.e., no board).
• Need thorough analysis supported by
evidence. Conclusions alone are insufficient.
– Evidence must support findings.
– Findings must support recommendations.
• Standard: Preponderance of Evidence.
– (Clear and convincing in 99% of substantiated
cases.)
Professional Responsibility Trends
For all ranks, most commonly violated rule is Rule 8.4 (Misconduct).
• Rule 8.4 Misconduct: commit criminal act; engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation
Many young JAs don’t understand (& complain about):
• Use and purpose of legal technical (tech) chain
• SJA’s role as senior legal advisor responsible for all legal advice,
including subordinates’ legal advice
• Not all direction given to subordinate lawyer is an attempt to
improperly influence the lawyer’s professional judgment
Mismanagement Trends
• Mismanagement Complaints
– Leadership style
– Discontent over evaluations
– Management decisions
– Perception of unfairness
– Perception of reprisal
Department of Justice
Office of Professional Responsibility
Department of Justice
Office of Professional Responsibility
Department of Justice
Office of Professional Responsibility
Department of Justice
Office of Professional Responsibility
Department of Justice
Office of Professional Responsibility
SOCO Encyclopedia of Ethical Failure
Federal agent demoted for identifying
herself as a federal agent.
The ultimate debate:
Coke or Pepsi?
Pin-heads ignore GPC procedures
Support my organization:
I can shoot big guns.
Financial Disclosures Are a Nuisance
$11,000 Fine for Failure to File
Uncle Sam Wins!
General discovers that aides are not
supposed to feed cats
Questions? Suggestions?
MAJ Witwer
Kathryn.witwer@usuhs.edu