Legal Ethics Infrastructure

Next week, a symposium on legal ethics in military justice will be published by the Hofstra Law Review. The contributors cover a wide range of issues, but we found one issue to be stubbornly elusive: the efficacy of the legal ethics advisory/disciplinary infrastructure within the services. There appear to be institutions that exist for this purpose, but are they ever used? Have they ever issued an advisory opinion? Have they ever disciplined a lawyer? Regulations speak of officials called "Senior Counsels" who are tasked with professional responsibility oversight, and also a "Professional Conduct Council" and a "Professional Responsibility Branch." As you might imagine, it is very hard for outsiders to understand the activities of these institutions.

Comments and anecdotes are welcome. I will share an anecdote. When I practiced, I had a colleague who was a Marine major (defense counsel) who wanted to get an ethics opinion from the Marine Corps. He wrote to the appropriate institution, and the institution told him to go to his state bar (Maryland). In the end he just gave up.

The big takeaway is this: if we don't have a functioning professional responsibility system, we have a problem. State bars are known to kick back to the services any inquiries relating to MJ, and it appears that the services are also kicking some inquiries out to the states. We may have a feedback loop.

Brenner Fissell

EIC