Tensions between civilian and military defense counsel?

4/8/2021

I was perusing the legal ethics in military justice symposium that I posted a while back. I revisited this article about the "house divided" -- tensions between civilian and uniformed defense counsel. Murdough writes: "The military justice system puts its uniformed MDC in this position, and therefore, the military services should provide their MDC with more comprehensive ethical standards and guidelines to include explicitly permitting, if not directing, MDC to share concerns about a CDC’s performance with their client. Congress and the President should reform Article 38 and its implementing regulations to ensure CDC cannot assume that MDC will shore up their inadequate performance." This is a bit strange to read, because every story that I hear is one of an experienced civilian defense lawyer dealing with a new military lawyer. The impediments to gaining experience have been well documented in past posts by Don Christensen. Which is the bigger problem: inexperienced civilian defense counsel or inexperienced uniformed defense counsel? Anecdotes welcome.

Brenner Fissell

EIC

Read Don Rehkopf's article, THE CARE AND FEEDING OF YOUR CIVILIAN DEFENSE COUNSEL, here.

18 Comments

AF JAG

4/8/2021 02:22:13 pm

I only litigated one case with a civilian defense counsel and while he was generally fine during trial, he had zero involvement during prep. I wrote all the motions and did all pretrial prep up until about 3 days prior to court when the attorney gave attention to the case. It was a struggle to even get the attorney to respond to emails or to review my motions—mind you, the client was facing some serious allegations. I don’t know what this client paid the attorney or what the expectations were but I’d have been pissed if I were the client and knew how uninvolved this person was. I have heard countless stories from other ADCs similar to mine. When I mentor junior counsel I tell them to fully prep as if you won’t have help because AFCCA doesn’t want to hear about your uninvolved civilian counterpart when the IAC claims roll in...

Concerned Citizen

4/8/2021 04:12:09 pm

I did several trials with CDCs as a DC. Some were great, some not so much. The most common issue I saw was the same one that AF JAG identified, failing to prepare, both investigation and motions practice. A lot weren't entirely familiar with military specific procedural rules. Judges tended to be notably more lenient with them - or perhaps more accurately, treated them professionally instead of pulling rank like some have been known to do with DCs.

Brian L. Cox link

4/9/2021 01:02:17 am

As an Army trial counsel, my experience going against CDC's left a very poor impression. Without exception, I believed after each case (whether it went to trial or not) that the Accused would have been much better off going with the assigned MDC alone.

The MDCs in the TDS section at Fort Drum while I was there were some of the best attorneys I have ever encountered - before or since. They represented their clients' interests in a zealous and incredibly competent manner. If I would have ever had the misfortune of being on the receiving end of a charge sheet, there are two MDCs in particular against whom I tried cases that, were I a TDS client instead, I would have submitted an IMC request in hopes of having them assigned as my attorneys.

Recognizing that my own experiences, which are drawn from a fairly limited sample size of around 7 or so CDCs with whom I have interacted on cases, most assuredly do not cast a discernable shadow on the CDC bar writ large, those are my anecdotal reflections - for what they're worth.

J.M.

4/9/2021 01:33:47 am

An opinion from the defendant side of things.

When I was accused, I reached out to about a dozen CDCs. My own fault (to be fair I was really rushed for time because I was shipped to Afghanistan less then a week after being accused) for not doing enough research into specific lawyers. With one exception, all sent back a very generic email which all sounded the same. 98% conviction rate, a list of all the things I would lose, benefits and what not, and a warning that TDS works for the government and can't be trusted. About a dozen different CDCs sent me if not identical then very similar emails designed to induce panic.

The one lawyer who did not do that told me he didn't cover my geographical area and sent me contact info for someone who did. I understand that the military can't endorse, take side or give advice on who to hire. But there should be a much better way to find a CDC who's expertise goes further then plea deals on hot piss tests.

Also, my assigned TDC was great. But I walked in his door before he had even finished inprocessing (he said that I was his first and last customer during his 3 years there) and he was really overworked. So maybe if TDS had staffing levels equal to the prosecution (at both Baumholder and Ft Irwin there's roughly a 6/1 ratio of paralegals assigned between SJA and TDS), Soldiers wouldn't be spending money on some ambulance chaser set up in the strip mall right outside the gate.

Former DC

4/9/2021 08:12:22 am

As a brand new MDC I litigated about 10 cases with CDC. They ran the gamut, there were two that taught me quite a bit, 3-4 that were good partners to work with, and 3-4 that were completely inadequate.

My perspective was that there were quite a few unsavory practices in the San Diego area that were happy to promise a scared sailor that they could save their career, take a flat fee up front, and then do absolutely nothing.

JTS

4/9/2021 10:24:27 am

I've had similar experiences as the other commenters. Some great CDCs, some not so great. We all actually have our informal lists on the ones we think do well.

Most interesting CDC case I had was my last one. Client hired a well known criminal defense attorney out of the city closest to our installation. He was a former Navy JA from years ago, but stated to everyone upfront he was not well versed in the unique aspects of military law. He and I made a deal upfront where I would do the majority of the pre-trial work (there were some dense military specific issues that needed to be litigated) and he would handle a lot of the trial tactics, etc. It worked out really well. I appreciated that despite his years of experience in the criminal bar, he knew what his strengths and weaknesses were, and he did not let his ego get in the way of letting me take the lead in certain areas and being upfront about where he could help.

William Cassara

4/9/2021 10:39:06 am

I will approach it from the other side of the bar. As a CDC, I have seen the gamut of MDC. I had one case where the TDS counsel sold my guy on a deal on a 120 charge, without having read most of the file. He was acquitted. But by and large the MDC I have dealt with were zealous, competent, but completely overworked. In the best case scenario the two work together, but I have had MDC "check out" as soon as they heard a CDC was on the case. The same is true in the appellate world. Some assume I will do all of the work, and don't even read the ROT. But most are diligent and zealous advocates.

Donald G Rehkopf, Jr.

4/9/2021 11:55:57 am

For those of you who haven't read Maj Murdough's article, take some time to do it. He raises a number of salient points. But, I disagree with a couple of his observations. First, a Military Defense Counsel [MDC], unless properly relieved, still owes an ethical duty to her/his client regardless of whether a CDC is retained. That includes the ethical duties of investigation, preparation, and zealous advocacy. Thus, if MDC is of the professional opinion that CDC is not either up-to-speed or (worse) incompetent, it IS your professional responsibility to communicate that to your client along with your reasons.

Second, do not consider it an "insult" if your client retains CDC - it may be a stupid move, but remember it is her/his right-period. Conversely, if your client's facing a murder charge, the CDC is a recognized name in the area of violent crime and you've never handled a contested murder trial, don't back away. Jump into it and learn.

Third, contrary to popular opinion and the purported "wisdom" of the Elders in the JAG community, there is absolutely nothing wrong ethically, from advising a client to seek more experienced counsel, either via an IMC request or to consider hiring an experienced and knowledgeable CDC. Indeed, you may have an ethical duty to do just that in some jurisdictions.

Consider this analogy - if you were a cardiac surgeon and determined that your patient's symptoms were a result of a brain tumor, arguably you could read up on neurosurgery and operate. But, any competent and ethical doctor would refer you to a qualified neurosurgeon, and so, the law shouldn't be that much different in this regard.

Finally, if you as a MDC have an ethical obligation to advise your client of their "rights" under the UCMJ, that includes advising them of their right to retain a CDC at "no expense to the government." Does that not include perhaps a "handout" on what to look for in a CDC, e.g., criminal defense experience, prior JAG experience, experience in the subject-matter of the charges, etc.? Some years ago, an Instructor at the Army JAG school asked me to address the issue of the relationship between MDC and CDC in the context of training new DC. That person is now a RDC and asked me to update my paper which I did in January and hopefully, Brenner can post it here.

Attorney

4/9/2021 05:24:26 pm

In my experience as a detailed defense counsel, civilian counsel were viewed negatively by virtually all parties: the MJ, TC, and DC.

This reputation was mostly deserved. CDC would typically always press to go to a contested trial -- even in cases where the evidence was very strong -- because they wanted to earn more money. And it was obvious. For example, in one case I was on, CDC insisted on going to trial even though the incident was captured on video. Not surprisingly, the client was found guilty. Additionally, in an appeal I was assigned, the client retained a CDC to help with the appeal even where he admitted to the criminal misconduct in an interrogation and there was basically no appealable issue.

As one person here has already said, CDC would also often do very little investigation at the trial level. The standard practice was for them to assume that I would be the one to write motions or interview witnesses. They would typically fly in for the week of trial and that would be how they earned their check. When I would insist on doing an opening or directing some of the witnesses, they would act like I was taking away from their experience.

Perhaps the most offensive thing I see CDCs do is post derogatory remarks about military defense counsel on their websites. In my experience, it's fairly common to see CDCs urging prospective clients not to trust their "free military attorney."

Now, it's also true that there were a select few CDCs who did not fit this mold and actually worked hard for their clients and were respectful toward military defense counsel. These I had no problem working with -- and actually enjoyed doing so.

One more positive thing I'll say about CDCs is that I do think they serve an important role in our system in that they are: civilians. Nobody can threaten their careers for making an argument they disagree with or filing a motion that might throw a TC under the bus.

But all in all, my general takeaway is that CDCs are too numerous and generally detract from a process that would be better served by leaving it to judge advocates in all but a handful of cases.

4/9/2021 08:23:12 pm

That was too strong. I don't think CDC's *in general* detract from our system. Rather, I'm talking about the types of CDC's who do the things I described above and who are all too common in our system. If more CDC's were like the diligent ones I've worked with, I think we would have a much better system.

Philip D. Cave link

4/18/2021 09:26:50 am

1. What was the sentence in that case?

2. What was the PTA you were trying to get and the TC was willing to endorse?

Brenner M. Fissell

4/9/2021 08:27:00 pm

In light of this discussion we will be hosting a virtual event on this topic. Save the date for April 27 at noon. A serious question: how can we get people to participate honestly without fear of repercussions? I am not sure anonymous zooming is possible.

4/10/2021 11:41:36 am

Mr Fissell,

Will the event be open to nonparticipating spectators? I doubt I'd have anything worthwhile to contribute but I'd be very interested in following the discussion.

4/10/2021 11:58:50 am

Yes definitely

ARHinVA

4/11/2021 12:23:34 pm

My friend Google found this on web (Alcoholics Anonymous San Fransisco (note word 'Anonymous' in group name):

How to Maintain Anonymity in an Online Zoom Meeting

When you join a Zoom meeting, you will see a screen “Join a Meeting.” and a box with your name in it. You can change your name in the box before joining a meeting so that you maintain anonymity.

Before joining a meeting, consider these other options:

If you’re concerned about your house showing in the background, sit with your back facing a wall.
You can dial in from your phone so that only your phone number appears and no video appears.
Use headphones if you don’t want others in your household to hear.
During a meeting, you can also:

You can temporarily turn off your camera and turn it back on if needed by clicking or tapping the Stop Video button in the toolbar.
If you’re concerned about being seen on camera at all, you can always disable your video in the Zoom Settings.
Open your Zoom app on your desktop.
Click on Settings.
On the Audio tab, click the checkbox ‘Always mute the microphone when joining a meeting’ at the bottom of the screen.
On the Video tab, click the checkbox ‘ Always turn off video when joining meeting’ at the bottom of the page under the Meetings heading.

Donald G Rehkopf, Jr

4/10/2021 02:39:55 pm

A couple of additional observations based upon some of the comments. First, MDC's are not exempt from some of the complaints leveled at (and perhaps, properly so) some CDC's. I have an appeal now where the SDC/Circuit DC showed up for a contested GCM the Thursday before trial started on Monday. Never having met the officer-client before. The "crime scene" was not inspected, background investigation on the complainant not done, etc.

Second - and this may be the fault of the MDC's assuming too much - for the military-inexperienced CDC, many come to the shocking realization that (a) verdicts are not unanimous under the UCMJ [a separate issue]; and (b) "reasonable doubt" is simply not the same as it is in the civilian world. Only one juror in a civilian jury can "hang" the jury. Or, for those in the USAF, how many AF MDC's have challenged the AF's "reasonable doubt" instruction [Benchbook, at 49-50]? Compare it to the Army, Navy, USMC, and GC RD instructions and you'll see why the AF instruction is simply wrong.

Third, there is a systemic "pink elephant" in the military courtroom. For those who have never practiced within the VA "judicial" system, merely having a law license and in good-standing, does not give you the right to practice in it. You must be credentialed by the VA and get periodic re-credentialed. Having a similar requirement for courts-martial would eliminate some of the bottom-scroungers, "bleed & plead" or just plain ignorant attorneys who find themselves in a military courtroom.

As you were.

Learned Hand

4/10/2021 05:42:23 pm

I put CDCs into two categories. There are those whose main practice is military law--they're usually former JAGs and understand the MJ system. They compete against other competent CDCs and care about their reputation. They understand how much work is involved and typically communicate well with the MDC and divide labor as appropriate. These CDCs want referrals so they don't burn MDCs.

The other category are attorneys who practice other types of law but got hired into a court-martial by an ignorant client. They usually have no idea what they're doing; they don't communicate with MDCs and don't care about future referrals. The MDC's responsibility in this situation is to keep a firm hold on the reins of the case and not allow the CDC's ineptitude to harm the client. Usually these CDCs don't come back for future cases so the problem is self-limiting.

I always told my clients that if they're considering a CDC they should only settle for one who regularly practices military law. Out of the 10 CDCs I worked with, only one fell into the second category.

Charlie Gittins

4/15/2021 02:06:13 pm

I routinely worked with MDCs when I was regularly doing courts-martials. Mostly, they were untested and inexperienced, so me having done the work for 10-15 years leveled the playing field. Some of the military guys I worked with are now CDCs and are doing good work. I usually split the workload, motions, prep and witnesses. It worked well, but in every case, it was my case because my reputation was on the line and I made the final decisions subject to the client and recommendations from MDC. Having done CM work for more than 20 years, and considering the changes made for the benefit of the prosecution, I don't miss it. I enjoyed the Article 32 as it was originally created because it gave me the info to understand the strength or weakness of the case. That is a great loss to the MJ system.

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Tensions between civilian and military defense counsel?

Brenner Fissell

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