Subj: NEW RULES OF PROFESSIONAL RESPONSIBILITY INSTRUCTION

25 May 2012

INFORMATION PAPER

Subj: NEW RULES OF PROFESSIONAL RESPONSIBILITY INSTRUCTION

1. Purpose. To provide information on the new Rules of Professional Conduct in JAGINST 5803.1D.

2. Background. On 1 May 2012, the Judge Advocate General for the Department of the Navy signed and published JAGINST 5803.1D, "Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General." The new Instruction is effective 1 May 2012, and applies to all professional misconduct after that date. All new complaints will be processed in accordance with the new instruction. The Instruction may be found on the JAR SharePoint pageand at the JAG website.

3. Key Points.

  • Complaint Processing Procedures.
  • Paragraph 6.a provides the SJA to CMC, as the Rules Counsel over covered attorneys in the Marine Corps, with the authority to assign officers to conduct preliminary inquiries and ethics investigations into complaints of professional misconduct. Under the previous Instruction, the General Court-Martial Convening Authority appointed the officer to conduct the preliminary inquiry or ethics investigation after a request from the SJA to CMC. This change brings the authority of the Rules Counsel for the Marine Corps on par with the authority of the other Rules Counsels.
  • Paragraph 5.a to Enclosure (2) provides that complaints involving Navy or Marine Corps trial or appellate judges shall be forwarded to the Chief Judgeas Rules Counsel for initial screening. In all cases involving Marine judge advocates, including trial and appellate judges, when the SJA to CMC is not the Rules Counsel, the cognizant Rules Counsel will notify the SJA to CMC when a complaint is received.
  • Paragraph 5.c to Enclosure (2) provides that a covered attorney may elect to provide an initial statement, normally within ten calendar days from receipt, regarding the complaint for the Rules Counsel’s consideration.
  • Rules of Professional Conduct.
  • Rule 1.6 (Confidentiality of Information). Tracks more closely with the current version of the ABA Model Rules of Professional Conduct. Clearly outlines when attorneys shall reveal confidential information and when such disclosure is discretionary. In addition, Rule 1.6.c (1) allows for covered attorneys to make reasonable disclosures necessary to ensure their compliance with the Rules of Professional Conduct as well as to consult with other attorneys in the same office and/or supervisory attorneys.
  • Rule 1.7 (Conflict of Interest: General Rule). Consistent with the current version of the ABA Model Rules of Professional Conduct, the most significant change in this rule is the requirement for the client to provide “informed consent, confirmed in writing.” A written requirement had not been previously required by the ABA Rules. Since the 2002 adoption of the new ABA Model Rules, 45 states have adopted the written requirement for informed conflict consent. With recent changes in services, new programs (such as Legal Assistance for Victims), and the rotation of judge advocates to various billets, it is not unlikely that a conflict may arise that may be waived. This Rule places the responsibility squarely on the covered attorney to properly advise the client on the extent of the conflict and also protects the covered attorney and the record.
  • Rule 1.16 (Declining or Terminating Representation). Consistent with the current ABA Model Rules, formally adds Rule 1.16.c requiring that a “covered attorney must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation.”
  • Rule 3.3 (Candor and Obligations Toward the Tribunal). This rule was updated to reflect recent ABA Model Rules changes regarding the covered attorney's responsibility for false evidence offered by the client, a witness, or by the attorney. The comments provide clear guidance on handling situations involving client perjury and the proper remedial measures to take in such cases - both pretrial and post-trial.
  • Covered Attorneys. Paragraph 4(b)(1)(c) expressly includes in the definition of “covered attorneys” civilian attorneys at combatant commands employed by the DON as Executive Agent and for which JAG serves as the “qualifying authority.” Paragraph 4(b)(1)(f) expressly includes all qualified volunteer attorneys (see 10 U.S.C. § 1588) that have been certified as legal assistance attorneys.
  • Rules Counsel. Consistent with an earlier JAG Appointment Memo (7 December 2009), Paragraph 11.b formally adds the Assistant Judge Advocate General, Chief Judge, Department of the Navy as Rules Counsel for cases involving Navy and Marine Corps trial and appellate judges.

Prepared by:M. D. Graham, GS-15

Senior Attorney, CMC (JAR), (703) 614-2510

Approved by:J. P. Harlow, LtCol, USMC

Head, Research & Civil Law Branch, CMC (JAR), (703) 614-2510

1