Professional Conduct for Lawyers

Federal Health Law Course 2015

MAJ Elizabeth Witwer

Agenda

• Client Capacity• Attorney Capacity• Supervisor Responsibilities• Professional Responsibility Inquiries• Recent Cases

Resources• Army Regulation 27-26, Rules for Professional Conduct for

Lawyers

• 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 GuidanceABA 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 GuidanceABA 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 consultationand 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 ScenarioE4 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 authorityAfter 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 InquiryDisclosure & 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)

– 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. All lawyers, paralegals, enlisted, WOs, civilian staff (Judge

Advocate Legal Services, (JALS))

2. 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

Classify the Allegation

Process

PRPSI (PRB, DJAG, TJAG)

No Violation or Minor

Violation TJAG/DJAG

Case Close

d

M

SupervisorNot

Supervisor

If SJA/DSJA/CJA is respondent must go

to DJAG (even if closed).

If allegation is founded, action with

DJAG/TJAG.

Not Mismanagement

Both

CD

CD PSI

CD

• GOMOR• Withdraw Art 27(b)(2) certification• Suspend• Report to licensing authority

PSI

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 TrendsFor 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 JusticeOffice of Professional Responsibility

Department of JusticeOffice of Professional Responsibility

Department of JusticeOffice of Professional Responsibility

Department of JusticeOffice of Professional Responsibility

Department of JusticeOffice 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 WitwerKathryn.witwer@usuhs.edu