How do you handle this situation

8/21/2021

You have an appellate client who refused trial defense counsel and now refuses to talk with you about his appeal so you can properly represent him. Point being, you cannot form an attorney-client relationship. You may have been appointed as appellate counsel, but until you talk to the client and he accepts your representation there is no A/C--is there?

We might find out because of this mysterious journal entry at CAAF.

Monday, August 16, 2021
Miscellaneous Docket - Filing

No. 21-0331/MC. In re Jasper Casey. Notice is given that a petition for extraordinary relief in the nature of writ of mandamus and prohibition was filed under Rule 27(a), together with a motion for an emergency stay of the Navy-Marine Corps Court of Criminal Appeals order, on this date. Further action on the petition shall be held in abeyance pending the Court's final action on the motion.

The Google will tell you Casey is a Marine judge advocate. A quick search on the NMCCA website will tell you that he must be assigned to Appellate Defense (Code 45) because his name is on a number of cases. But that is it. The NMCCA website does not have the Order online. This may be an oversight. NMCCA does publish Orders from time to time.

As the Spanish might say, ¿donde esta PACER?

Update (20/08), with some additional questions, and perhaps more to come:

If you cannot form an A/C with the Appellant, are you required to comply with United States v. Grostefon? (Probably not, the trigger under Grosty is that the Appellant tells you to file it.)
What would your Bar say about the situation? Do you ask?
Can you be ordered to represent the Appellant by your supervisor?
What about the supervisors professional responsibility exposure?
Can it be a defense in a Bar proceeding that you represented the Appellant under orders of a supervisor?
How do you answer the Bar complaint from the Appellant who didn't want your representation, you gave it, and he did not want the issues raised?
How do you answer the Bar complaint when the represent the Appellant, get him a new trial, he gets new charges, he gets more time, and he didn't want that?

Ask CAAFlog Desk

Lone Bear

8/21/2021 12:24:05 am

Any other details? Weird ruling.

Robert Lyons

8/21/2021 06:24:22 am

Not an attorney, but a retired Chaplain and long-term follower of CAAF, due to my interest and writing on Privileged Communications. So, not a legal comment but an analogy. I make the initial assumption/presumption that when I talk (to a client/Soldier even at the request of a third party, that a relationship attaches. Although informal, one never knows when the client will come around, so this presumption protects the client, even if they are unsure/unwilling at the initial point. I am sure ABA has a canon for a specific trigger that begins the formal relationship, but for the protection of the client, assuming it, even over a beer or in a casual conversation is likely a good practice. I AM a member of the clergy, so all of my conversations are defined by who I am.

Attorney

8/21/2021 09:37:03 am

Article 70 seems to cover this situation:

(c)Appellate defense counsel shall represent the accused before the Court of Criminal Appeals, the Court of Appeals for the Armed Forces, or the Supreme Court--
(1)when requested by the accused;
(2)when the United States is represented by counsel; or
(3)when the Judge Advocate General has sent the case to the Court of Appeals for the Armed Forces.

Call it paternalism, but Congress has designed a system in which it is not all about whether the appellant has requested representation.

As for state bar rule concerns, I would presume that the Supremacy Clause would trump any state law, rule, or opinion to the contrary, especially since Casey is practicing before a federal court here. And that's before we even get to the military structure.

Anonymous

8/21/2021 11:19:36 am

I worked at Code 45 once, and couldn’t get in touch with a client. I was told to file anyway, and got one of his charges dismissed. That was our guidance at time.

Brenner

8/21/2021 11:46:15 am

There is a DC circuit opinion on this from the commissions context: https://www.google.com/amp/s/www.nytimes.com/2020/10/28/us/politics/guantanamo-detainee-appeal.amp.htm

Court threw out appeal for lack of a/c relationship when client absconded.

8/23/2021 10:23:37 am

I couldn’t get link, so responding to headline. Sorry if it’s off base. Our theory was that there is an affirmative right to an appeal in our system, different from every other jurisdiction. As such, it requires waaffirmativw waiver. Not sure if commission s are the same.

Donald G Rehkopf, Jr.

8/21/2021 01:30:18 pm

In the FWIW category [and if this isn't taught at the JAG schools, it should be], the Supremacy Clause does not control. The federal government does not issue law licenses - federal courts admit licensed attorneys to practice before them, on the condition that they have a valid State or Territorial law license.

Congress resolved the problem/dispute when it enacted 28 USC 530B, where subpara. (a) states: "(a)An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State."

Here's a good historical analysis:
https://www.rjo.com/wp-content/uploads/htmls/publish22.html

8/21/2021 03:40:11 pm

No. 28 USC 530B pertains to government attorneys in a different context. That statute links to 28 CFR § 77.2(a), which states that the term "attorney for the Government" effectively means attorneys working under the DOJ.

By contrast, Article 70, UCMJ is governed by Congress' power to make rules to govern the land and naval forces which SCOTUS rarely, if ever, messes with. (As an aside, as we all know, the UCMJ historically allowed *non-lawyers* to engage as prosecutors.)

Without commenting on In re Casey specifically, in light of Article 70, I am hard pressed to imagine that the right answer is that an appellant gets no representation from a defense counsel before the NMCCA if he has not affirmatively withdrawn from the appellate process.

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