No. 3: Exceptions to Ex Parte Communications

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Hannah Zeigler

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2024-05-17

(Credit: istockphoto.com/atakan)

No. 3

Exceptions to Ex Parte Communications

A Primer to No-Contact Rules

By Lieutenant Colonel (Retired) Benjamin K. Grimes

[The no-contact rule] contributes to the proper functioning of the legal system by protecting a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.1

In the military justice system, the defense counsel serves many functions for an accused during the pendency of investigation and trial: teacher, navigator, counselor, agent, confidant, supporter, and—sometimes—friend. One function that an accused most appreciates, and of which defense counsel are often most proud, is that of shield against government inquisition. A phone call to the trial counsel is often enough to cut off inquiry of the accused and give him a measure of relief, knowing that Criminal Investigation Command (CID) investigators will not continue their quest to draw information directly from him. For example, defense counsel might tell the prosecutor, “If you want to talk to SPC Snuffy, you need to go through me, and we’ll discuss it. Tell CID to leave him alone. I represent Specialist Snuffy.” What would happen if the trial counsel responded, “So what?” This may not be the answer that comes to mind, but such a response would be valid.2

This article examines an overlooked aspect of Army Regulation (AR) 27-26, Rules of Professional Conduct for Lawyers, Rule 4.2. Like the American Bar Association (ABA) analogue, Model Rule of Professional Conduct 4.2, this rule protects an attorney-client relationship from interference; but, it simultaneously carves out an exception for certain ex parte communications which are commonly misunderstood to be improper.

The first section of this article offers a brief overview of ethical rules governing contact with represented persons, comparing service rules to ABA Model Rule 4.2, and contrasting the wealth of civilian case law interpreting the scope of the rule’s “authorized by law” exception to the dearth of interpretation in military courts. The article progresses to describe the practical utility of a more nuanced understanding of the rule for both trial and defense counsel. Finally, it answers two potential questions in the application of the “no-contact” rule. These questions are unique to military practice, and this portion of the article suggests an appropriate resolution to those questions. In the end, practitioners will be better equipped to provide fuller, more effective representation to both the United States and the Soldiers whose liberties hang in the balance. To add practical context to this examination, consider the following hypothetical:3

On Saturday night, Private First Class (PFC) John Holmes and his friend PFC Marc Watson decided to amp up their normal weekend video game marathon by adding a few bowls of marijuana to their weekly routine of splitting a case of beer. Holmes’s wife arrived home to their apartment after work at about two o’clock in the morning and discovered Holmes passed out and Watson performing oral sex on him. Watson was startled but convinced Mrs. Holmes to smoke a few bowls with him. Mrs. Holmes blacked out. Watson forcibly engaged her in intercourse.
The next day, Mrs. Holmes remembered what she had observed PFC Watson doing to her husband and recalled “flashes” of her later encounter with him. Despite PFC Holmes’s initial reluctance to do so, Mrs. Holmes reported the assaults to CID. She and PFC Holmes obtain representation by a special victim counsel.
During the course of an initial interview, PFC Watson denied oral sex with PFC Holmes, admitted to sexual intercourse with Mrs. Holmes (claiming it was consensual), and hinted that he had obtained the marijuana from Sergeant (SGT) Dionne Marshall—with whom he has distributed marijuana in the past. Sergeant Marshall is separately under investigation, but not yet charged, for on-post drug distribution and is represented by a Trial Defense Service (TDS) attorney and civilian counsel.
After his initial interview, PFC Watson visits his local TDS office and obtains counsel. They, in turn, send this message to the trial counsel: “I represent PFC Watson. Tell CID to leave him alone. If you want to talk to him, you need to go through me, and we’ll discuss it.”
Despite his knowledge that PFC Watson and SGT Marshall are represented, trial counsel wants to direct CID to: facilitate a pretext phone call between Mrs. Holmes and PFC Watson; set up a secure-text drug transaction with SGT Marshall; and facilitate a recorded call to PFC Holmes via another friend because PFC Holmes is increasingly reluctant to participate in the investigation.

History and Interpretation of the “No Contact” Rule

The rule prohibiting attorneys from engaging in or directing ex parte communications with a person known to be represented is one of the most well-known of professional obligations governing legal practice. Although the rule may have originated as a courtesy between professionals, it is known as a principal tenet of legal practice under English common law.4 Since its adoption in modern codes of professional ethics, the rule is understood to “provide[] protection of the represented person against overreaching by adverse counsel, [and] safeguard the client-lawyer relationship from interference by adverse counsel. It also reduces the likelihood that clients will disclose privileged or other information that might harm their interests.”5 These interests are just as relevant to military practice as to civilian criminal practice. However, due to the inherently coercive nature of military authority, there may be a stronger interest in protecting Soldiers from overreach. Army Regulation 27-26, Rule 4.2, and its commentary provide:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.6

Communications authorized by law include, for example, the right of a party to a controversy with a government agency to speak with government officials about the matter. Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings. When communicating with the accused in a criminal matter, an Army lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule.7

The text of the rule and emphasized text of the comment is based on and identical to ABA Model Rule 4.2. Nearly every licensing jurisdiction in the country has a comparable rule.8 This version of the rule—or one substantially equivalent—has also been adopted by the other military services.9 The rule is a fundamental tenet of legal practice, and a basic understanding of it is required knowledge for all young lawyers. Unfortunately, without specialized instruction or practical exposure, many young prosecutors neither understand nor take advantage of the permissibility of certain ex parte communications contained in the rule’s final phrase: “unless authorized to do so by law or a court order.”10 The section “Civilian Interpretations of the ‘Authorized By Law’ Exception” presents representative case law from civilian circuit courts of appeal. The case law illustrates the comment’s explanation of the scope of the “authorized by law” exception. The second section, “Comparing Service Rules to ABA Model Rule 4.2,” offers a brief comparison of service “no-contact” rules with AR 27-26 and the ABA Model Rule. Finally, the last section—“Military Case Law Addressing the ‘No-Contact’ Rule”—presents the handful of military appellate cases which touch on Rule 4.2, none of which address the “authorized by law” exception.

It is critical to remember that the Rules of Professional Conduct are designed to govern the practice of attorneys of all stripes—legal assistance, administrative law, and national security law attorneys, as well as practitioners of military justice. Though a fundamental piece of legal practice, the Rules are only part of the obligation lawyers owe to clients, the court, and the public. The final sentence of Comment (6) to Rule 4.2 makes this clear, stating, “The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule.”11 This idea will be addressed again later; but from the outset of this discussion, judge advocates (JAs) on all sides of the courtroom must remember their responsibilities are layered, and multiple issues and obligations must be analyzed in determining a permissible and prudent course of action.12

Civilian Interpretation of the “Authorized By Law” Exception

Current understanding of the Rule’s exception for certain ex parte communications developed over time. As discussed below, and translated for purposes of this discussion into the context of military justice matters, the “authorized by law” exception to Rule 4.2 permits certain investigative ex parte communications with a represented person, prior to arrest13 or preferral of charges. Most civilian circuit courts have case law which supports this interpretation.14 Three such cases, which explain the contours of the exception, are discussed here. Each makes clear that rules governing lawyer communications with represented persons apply to prosecutors working toward law enforcement. They acknowledge a balance between the public interest in law enforcement and the obligations of attorneys to abide by the requirements expected of all members of the profession. Also, because the communications in these cases were made by a person other than the attorney who faced potential professional liability, each case is a reminder of an attorney’s vicarious responsibility for the conduct of others.15 Trial counsel should not read themselves into these cases as a substitute for the cooperating witness who, in each case, engaged the subject of the investigation in ex parte communications. Instead, trial counsel should see themselves as overseeing the CID investigation that might use a variation on these tactics.

United States v. Kenny

In United States v. Kenny, defendants were convicted of conspiracy, fraudulent government contracting activities, bribery, and tax evasion.16 Kenny owned a business providing technical writing and documentation services to government and industrial clients near San Diego.17 Kenny’s firm was contracted by the Navy to perform some work, and it is under those contracts that Kenny’s criminal conduct occurred.18

One of the more dramatic items of evidence offered by the prosecutor at trial was a tape recording made by [a cooperating co-conspirator] of a telephone conversation he had had with Kenny prior to Kenny’s indictment. The tape was played before the grand jury that returned Kenny’s indictment; later, it was played before the trial jury, at the close of the prosecutor’s cross-examination of Kenny, for purposes of impeachment.19

On appeal, Kenny argued, among other things, that the recording was made in violation of Disciplinary Rule 7-104(A)(1) of the ABA Model Code of Professional Responsibility,20 which is functionally similar to AR 27-26, Rule 4.2. In assessing whether the prosecutor violated any ethical obligations, the court focused on the “non-custodial environment, prior to Kenny’s charge, arrest, or indictment,” noting: “In our view, the Government’s use of such investigative techniques at this stage of a criminal matter does not implicate the sorts of ethical problems addressed by [ethics rules].”21

The court acknowledged that an attorney’s obligations must yield to the unique responsibility of the Government to enforce the law. This responsibility is meaningless without concurrent ability to investigate allegations of wrongdoing. As the Ninth Circuit later recognized in United States v. Carona, “[i]t would be antithetical to the administration of justice to allow a wrongdoer to immunize himself against such undercover operations simply by letting it be known that he has retained counsel.”22

United States v. Ryans

Ryans was charged with violating the Sherman Act by restraining and suppressing competition for moving services around Fort Sill, Oklahoma.23 He sought suppression of recordings made by a government informant, asserting, in part, that the recordings violated the then-current “no contact” rule24—which is substantively the same as AR 27-26, Rule 4.2. The trial court found that two of three recordings occurred after prosecutors became aware of Ryans’s representation in the matter, and these were suppressed as an improper violation of the ethical prohibition on contact with represented parties.25 Even though Ryans had not yet been indicted, the court found that he was represented for purposes of the “no contact” rule.26

The Tenth Circuit took up the issue of whether this sort of ex parte recording violates such an ethical prohibition. After examining relevant case law in other circuits, the court concluded:

During the investigative stage of a criminal proceeding, counterveiling [sic] policies militate against a broad reading of [the ‘no contact’ rule]. We agree with the majority of courts which have considered the question that [the rule] was not intended to preclude undercover investigations of unindicted suspects merely because they have retained counsel.27

The court then went on to make its position crystal clear:

On these facts, we hold that the adversarial process had not yet begun. Although Ryans had been targeted for investigation and had been served with a grand jury subpoena duces tecum, he had not been charged, arrested or indicted, or otherwise “faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.”28

While the court suggested in passing that the adversarial process might be a factor in determining when investigative ex parte contacts are no longer permissible, it quickly defined that idea more precisely. The formal beginning of the adversarial process—and the point at which investigative ex parte communications are no longer permissible—is when the target is “charged, arrested or indicted.”29 Only at this point has the government so fixed its purpose as to preclude further investigative ex parte contacts with an accused.

United States v. Cope

Two brothers—Randall and Terry Cope—were charged, tried jointly, and convicted of multiple counts of attempted murder.30 They were each sentenced to more than 500 months’ confinement.31 While Randall was awaiting trial on other matters, he and Terry took several steps to retain the services of “the Hungarian,” a supposed hitman who they thought could murder witnesses against Randall.32 While working to arrange a meeting with “the Hungarian,” Terry arranged a meeting with another potential hitman named Bill.33 Bill was an undercover Federal Bureau of Investigation agent.34 Bill recorded their meeting.35 Meanwhile, another confidential informant had recorded jailhouse conversations with Randall about his proposed murder-for-hire plans.36 On appeal, Randall claimed the informant’s jailhouse recordings were made in violation of the applicable “no contact” rule.37 The court disagreed.38

Randall has cited no authority, nor have we found any, to support his contention that the government’s working with confidential informants to elicit incriminating information from a represented defendant violates [the ‘no-contact’ rule].39

In reaching its conclusion on this issue, the court cited a dissenting opinion in United States v. Heinz.40 There, Judge Parker noted, “The use of informants to gather evidence against a suspect will generally, if not almost always, fall within the ambit of the ‘authorized by law’ exception to [the ‘no-contact’ rule].”41

Here, Randall Cope had been indicted on other matters, but investigation into his attempted murder-for-hire scheme was ongoing. This case is an example of the courts permitting investigative ex parte contacts with a represented person, so long as that person has not been arrested or indicted for the conduct under investigation.

Like the Army, each of the other military services has adopted a set of rules of professional conduct to guide the practice of JAs and other attorneys subject to service jurisdiction

Comparing Service Rules to ABA Model Rule 4.2

Like the Army, each of the other military services has adopted a set of rules of professional conduct to guide the practice of JAs and other attorneys subject to service jurisdiction.42 As noted above, the Army’s version of the “no-contact” rule is identical to that proposed by the ABA. The Air Force and Coast Guard rules are identical to the Army and ABA rules.43 The Navy and Marine Corps use the same formulation of the rule, substituting “covered attorney” for “lawyer”:

In representing a client, a covered attorney shall not communicate about the subject of the representation with a party the covered attorney knows to be represented by another attorney in the matter, unless the covered attorney has the consent of the other attorney or is authorized by law or court order.44

There is, however, some modest variation between the explanatory comments adopted—or not adopted—by each service. Comment (6) to the Army rule—again essentially identical to the ABA Model Rule45—offers some shape to the “authorized by law” exception. This shared language makes interpretation of the Army rule more reliable. In contrast, the Coast Guard has chosen not to promulgate any explanatory comments to their Legal Rules of Professional Conduct, leaving interpretation of the phrase to the judiciary and prudent practice.46 Even so, the broad consensus of rule interpretation presented here suggests that the Coast Guard rule should be interpreted in the same way as the Army rule. The Navy-Marine Corps and the Air Force rules each demonstrate a slightly different approach with their explanatory comments. Comment (2) to Navy-Marine Corps Rule 4.2 provides a formal description of the scope of the exception, noting,

The “authorized by law” exception to the Rule is also satisfied by a constitutional provision, statute or court rule, having the force and effect of law, that expressly allows a particular communication to occur in the absence of counsel, such as court rules providing for service of process on a party, or a statute authorizing a government agency to inspect certain regulated premises. 47

Regrettably, this does not offer the practitioner much guidance beyond an admonition to adhere to other constitutional or statutory protections. The most useful comment, that seems to cabin the permissible conduct contemplated by the rule even more than the Army rule, comes from the Air Force. Discussion paragraph two to Air Force Rule 4.2 provides, “Communications authorized by law may also include investigative activities advised upon by government lawyers, which are done by investigative agents prior to the preferral of charges.”48

Importantly, this comment omits reference to conduct by the attorney—permitting only “activities advised upon by government lawyers.”49 The Air Force comment seems to explicitly exclude the possibility of an Air Force attorney personally engaging in “authorized by law” ex parte contacts. As a practical matter, this is likely of little concern. Air Force JAs are unlikely to find themselves in a position to take part in such communications. But this comment is also important in another way. It translates the civilian concept of “commencement of criminal or civil enforcement proceedings” to a military context, defining the expiration of this exception to the rule as “preferral of charges.” In clearly defining when the “authorized by law” exception should expire in the context of military practice, the Air Force offers a model the other services would benefit in following.

Military Case Law Addressing The “No-Contact” Rule

Military courts have only seldom addressed the obligation of attorneys to abstain from ex parte communications with represented persons; none of them address the permissibility of such contacts under the “authorized by law” exception. A brief description of each follows.

United States v. Lewis

Following a conviction for offenses related to wrongful distribution of cocaine, Lewis alleged ineffective assistance of counsel.50 In seeking to gather information to rebut that allegation, the trial defense counsel contacted Lewis after the appellate defense counsel had assumed representation.51 While denying Lewis’s claim of ineffective assistance of counsel, the Army Court of Military Review noted in a footnote that such conduct constituted a violation of AR 27-26, Rule 4.2.52

United States v. Evans

Evans was convicted, among other things, of fraternization and adultery.53 Evans also claimed ineffective assistance of counsel on appeal.54 Among his complaints about his trial defense counsel was that counsel “spent too much time delivering messages from the prosecutor trying to get the appellant to accept an administrative discharge in lieu of court-martial and testify against [his paramour].”55 In finding against Evans, the court noted, “[defense counsel] was obligated to pass all government offers to the appellant, [because] the government could approach the appellant only through his counsel.”56

United States v. Meek

Meek was convicted of stealing various pieces of military property and of violating a lawful order.57 His court-martial included this dynamic scene outside the courtroom, where witnesses had gathered for trial:

The civilian defense counsel (CDC) was interviewing the appellant and his wife when the DC [military defense counsel] entered the office and profanely declared that the CDC was ineffective, had not talked to the witnesses, and that the [DC] would ‘have no part of it.’ The DC was quickly followed into the office by the TC [trial counsel], who, in agreeing with the DC and stating to the appellant that the CDC was ‘misrepresenting’ him, rudely ordered the appellant’s wife out of the office, and engaged the appellant in an unseemly verbal dispute.58

The Court of Appeals for the Armed Forces agreed with the Court of Military Review that the trial counsel’s conduct was “inappropriate.”59 Trial counsel presumably lacked civilian defense counsel’s consent to address Meek.

Why the “Authorized By Law” Exception Matters

A more nuanced understanding of the permissibility of certain ex parte contacts is useful as more than a simple academic exercise. Understanding the scope, limitations, and exceptions to the “no-contact” rule is important to both trial and defense counsel for practical reasons. The most obvious is that trial counsel may work with CID to engage in more aggressive investigations of alleged criminal conduct. For defense counsel, too, understanding the rule matters. A comprehensive understanding of the rule—and its implications for governmental investigative conduct—should inform defense counsel’s advice to the accused. All defense attorneys tell their clients some version of “don’t talk to anyone about this case except me!” While that is, of course, useful advice, the emphasis on the issue, forcefulness of delivery, and level of periodic follow-up should be different. Further, understanding this rule can change the nature of defense counsel’s plea negotiations, in certain cases. The next section details these three benefits.

Understanding the scope, limitations, and exceptions to the “no-contact” rule is important to both trial and defense counsel for practical reasons. The most obvious is that trial counsel may work with CID to engage in more aggressive investigations of alleged criminal conduct

Trial Counsel Can Potentially Guide More Fruitful Investigations

Soldiers suspected of criminal misconduct are, themselves, often ripe sources of the evidence necessary to secure a conviction. Their conduct and statements, observed or obtained directly, and presented by credible witnesses, are the “gold standard” of evidence in the minds of most panel members.60

Using our hypothetical case as an example, CID might have already obtained cell phone records of communications between PFC Watson and PFC Holmes. Statements would have been taken from other Soldiers and neighbors. A pretext61 phone call or text message exchange might have been arranged between Mrs. Holmes and PFC Watson, seeking to draw out an admission from PFC Watson. However, on most installations—when defense counsel notified the trial counsel that PFC Watson was now represented—attempts to communicate directly with PFC Watson likely ceased.

It would not be inappropriate to terminate direct communications with PFC Watson once he is known to be represented. This would constitute an ethically conservative course of action; and, while such a choice will always be permissible, it is not required. As made clear by the discussion in the first section of this article, prior to preferral and almost regardless of representation, the “no-contact” rule permits investigative ex parte contacts.62 This opens further opportunities for investigations to obtain more “gold standard” evidence.

In the case of PFC Watson, pretext phone calls could continue, even after defense counsel made known their representation. Alternatively, CID could arrange for another friend of PFC Watson’s to approach him in the barracks to ask about what happened at PFC Holmes’s residence, or to solicit drugs from him. Each of these tactics could also be pursued via social media or digital communications. The method of communication is—largely—immaterial to the analysis; 63 the question is whether it is permissible for the trial counsel to direct affirmative communications with PFC Watson now that he is known to be represented, rather than wait for unknown “good citizen” witnesses to come forward. In the end, trial counsel should remember that these tools remain available to them, even though PFC Watson is now represented.

Of course, trial counsel—and particularly those JAs in more open-ended support roles (e.g., assigned directly to brigades)—should remember that this exception is limited to law enforcement investigations prior to “criminal or civil enforcement proceedings.”64 Trial counsel and brigade judge advocates are often called to advise upon, oversee, or otherwise guide other types of investigation, including AR 15-6 inquiries, Inspector General investigations, Flight Evaluation Boards, and similar administrative investigations premised upon the application and enforcement of Army regulations rather than laws. In such contexts, the “authorized by law” exception would not apply, and pretext phone calls or other surreptitious contacts would not be permissible.65

Soldiers suspected of criminal misconduct are, themselves, often ripe sources of the evidence necessary to secure a conviction

Defense Counsel Can More Fully Advise Their Client

Every defense counsel knows to remind their clients that their statements—to anyone—can be used against them. Client counseling geared toward that issue might sound like this:

Once defense counsel has a more thorough appreciation for the investigative permissibility built into the “no contact” rule, that counseling might sound a little different:

Listen, Watson, don’t talk to anyone about this investigation. Not your roommate, girlfriend, gym buddy, platoon sergeant, or your favorite bartender. You only get to talk to one person about what’s happening here. Me. You might think all those other people are on your side, but they might report anything you say back to CID. And more than that, they might already be working with CID, asking you questions or bringing things up just to get you to open up. So, it’s more than just watching what you say, it’s also being careful about what people are saying to you. Don’t get sucked into a conversation about any of this stuff. Whether guilty or innocent, your words can hurt you. And that goes for all your social media contacts, too!66

These are minor additions to defense counsel’s advice, but meaningful ones. Telling an accused to watch what they say puts them on guard against themselves. But understanding that the government can and might seek to engage in ex parte contacts should trigger a heightened sensitivity. The accused should be on guard against being lured into admissions, in addition to being cautious about their spontaneous statements. The internal caution will be—and should be—supplemented with an external wariness.

This is not obstruction. This is reminding the accused that they should protect themselves, and that the government should be forced to make its case without their help. Understanding this, and giving such advice, is protecting the client’s interests.

The Accused Might Offer an Investigative Benefit in Exchange for a “Better” Deal

The hypothetical scenario presented offers another opportunity for defense counsel’s representation to be of significant value to PFC Watson. If he comes to TDS before CID’s investigation gets too far along, defense counsel can discuss with him the possibility of becoming an investigative source in the work to uncover the scope of SGT Marshall’s misconduct.

This is more than just “flipping” on SGT Marshall and talking to CID about what PFC Watson already knows about her drug dealing. Private First Class Watson has the opportunity to affirmatively elicit admissions or confessions from SGT Marshall, by wearing a wire, engaging in consensually recorded phone calls, or engaging with SGT Marshall digitally—by text or social media messages. This makes PFC Watson a far more valuable asset in the drug dealing investigation and is likely to create negotiating value or goodwill that can be leveraged to secure a more favorable plea agreement.

Again, this might look like a small difference in what defense counsel is able to bring to the table in plea negotiations, but the impact on trial counsel’s other investigations might be significant. It might mean the difference between drug possession with circumstantial evidence of distribution and recorded admissions that put SGT Marshall at the center of an installation-wide drug distribution network. To get at the latter possibility, trial counsel may be willing to argue to the convening authority that a 25 percent (or more) reduction in confinement is appropriate for PFC Watson.

The military court-martial system is a tool with two purposes: to offer the commander a mechanism for enforcing good order and discipline and as a process for enforcing the law

Open Questions in the Application of the “Authorized By Law” Exception to Military Practice

Having explored the scope and application of the “authorized by law” exception to the “no-contact” rule, two questions unique to military practice present themselves. First, when should “the commencement of criminal...enforcement proceedings” be understood to begin? To the point, should initiation of non-judicial punishment signal the expiration of the “authorized by law” exception? Second, how should the “authorized by law” exception be understood and applied in the context of special victim counsel representation? Is a victim always to be a fair object of ex parte communications—assuming charges related to the underlying conduct are never preferred against them—or should the “authorized by law” exception expire upon preferral of charges against the accused?

Is Article 15 a “Criminal Enforcement Proceeding” for Purposes of Rule 4.2?

The military court-martial system is a tool with two purposes: to offer the commander a mechanism for enforcing good order and discipline and as a process for enforcing the law.67 Non-judicial punishment through Article 15, Uniform Code of Military Justice (UCMJ) is part of the commander’s “discipline toolkit.” As described by AR 27-10, non-judicial punishment is appropriately used to “[c]orrect, educate, and reform offenders”; limit the professional stigma which might otherwise attach to a Soldier subject to court-martial; and constitute a swift, efficient means of disposing of “minor offenses.”68 This function is, indeed, different from that for which a court-martial is employed—to address serious breaches of discipline and conduct that, in the eye of the commander, warrant significant punishment.69 In essence, enforcing good order and discipline and enforcing the law are simultaneously pursued by processes that are related by degree. Read together, they fall on a spectrum of rights, obligations, and parallel mechanisms which form the military justice system.

In Middendorf v. Henry,70 the Supreme Court evaluated whether the Sixth Amendment right to counsel attached for trial by summary court-martial. The Court concluded that, because summary court-martial was “quite different from a criminal trial” and was not a criminal prosecution for purposes of the Sixth Amendment, it did not.71 If summary court-martial does not trigger a constitutional right to counsel, clearly the lesser process of non-judicial punishment—which eschews convening orders, records of trial, and review by an appellate court—likewise fails to create a proceeding which triggers a right to representation by counsel. One of the unique features of the Article 15 process, however, is the right to demand trial by court-martial. This right creates a bridge between the administrative process of non-judicial punishment and the formal system of trial by court-martial. But is that bridge enough that initiation of Article 15 proceedings constitutes “criminal enforcement proceedings” under Rule 4.2?

Soldiers facing Article 15 proceedings have a right to consult with counsel,72 but no right to representation by counsel at an Article 15 hearing.73 Nonetheless, many—or most—Soldiers will have at least met with trial defense counsel prior to their hearing. Army Regulation 27-10, para 3-18(g)(3) makes clear that Rule 4.2 applies to government counsel if they attend the hearing.

One reason initiation of Article 15 proceedings terminates the availability of “authorized by law” contacts is that these proceedings do not constitute the government’s requisite fixing of its criminal enforcement intent. The respondent Soldier is not yet “faced with the prosecutorial forces of an organized society, and immersed in the intricacies of substantive and procedural law.”74 The commander has assessed the alleged misconduct involved and determined it does not warrant all the trappings of court-martial. It is only the respondent Soldier’s demand that brings the possibility of trial; but, even then, this demand cannot force the government to initiate criminal enforcement proceedings. The government, having made a choice not to prefer charges, leaves open the possibility of further investigation, and this must include the sort of legitimate investigative techniques that the “authorized by law” exception permits.

The fact that Rule 4.2 applies is no surprise. It applies any time a lawyer might communicate with someone who is known to be represented. However, as is clear from the text of Rule 4.2 and the relevant case law, the “authorized by law” exception permits trial counsel to communicate with the respondent Soldier for investigative purposes—perhaps with an eye toward court-martial. Permitting such communications, which are clearly supported by the law, would render meaningless the admonition in AR 27-10 that Rule 4.2 applies. The clear intent of the Article 15 process laid out in AR 27-10 is that a Soldier should not be subject to examination by a JA at the hearing.

The Article 15 hearing is not a criminal proceeding, and such ex parte communications would be permissible prior to the Article 15 hearing, and they would be permissible afterward. Thus, one might argue that the admonition in AR 27-10, para 3-18(g)(3), that Rule 4.2 applies must serve the unwritten purpose of temporarily suspending the “authorized by law” exception. However, this reasoning is inconsistent with principles of regulatory drafting.

Instead, we should look to the case law above; it describes when the “authorized by law” exception to the “no contact” rule expires: at arrest or preferral of court-martial charges. The Article 15 hearing is neither of those things, but it is clear that a JA should not engage with a Soldier who is represented by counsel. Why not?

The Soldier-commander relationship is unlike anything in civilian law. Principles with a genesis in civilian practice cannot be imported to military practice without considering the balance of authority and responsibility in the military justice system and its inherently coercive nature. The entire military justice system is the commander’s tool, but nothing more so than non-judicial punishment. The best answer to why trial counsel should be precluded from engaging in direct ex parte examination of the Article 15 respondent is that the presence and inherent authority of the commander creates a form of duress for the Soldier, a compulsion and obligation to obey. The situation becomes a form of constructive arrest.75 As discussed above, arrest terminates the “authorized by law” exception. But does this constructive arrest actually terminate the investigative permissibility built in to Rule 4.2, such that the respondent Soldier could no longer be the target of ex parte communications after the Article 15 hearing, such as further pretextual communications?

No. Applying the principle of constructive arrest in this way merely acknowledges the unique society within which the military justice system operates. A right to remain silent at Article 15—clearly not a constitutional right because such a proceeding is administrative in nature—would be meaningless if JAs were permitted to engage the respondent Soldier in ex parte investigative communications. The idea of constructive arrest—and its effect of temporarily suspending the “authorized by law” exception—is necessary to keeping the balance between Soldiers’ rights and efficient enforcement of good order and discipline.76

Application of the “Authorized by Law” Exception to Communications with Victims Represented by Special Victim Counsel

The modern military justice system goes beyond most civilian jurisdictions to give certain rights to sexual assault victims, including rights to be heard at motions hearings and standing to challenge certain trial court decisions through interlocutory appeal.77 Do—or should—those rights, change the way trial counsel applies the “authorized by law” exception when contemplating seeking ex parte communications with a victim represented by special victim counsel? While it may be unusual that a victim will not cooperate with the government’s investigation of their assault, three possible scenarios where a lack of cooperation is not driven by a victim’s self-interest spring readily to mind:

Victim did not commit misconduct;
Victim committed misconduct but is a civilian and not amenable to military authority;
Victim committed misconduct and fears discipline, even though senior commander (who has withheld jurisdiction over victim misconduct) has determined not to seek adverse action in this case.

Importantly, each of these scenarios suggest that trial counsel has no expectation of preferring charges against the victim for any conduct related to the assault which precipitated the investigation. Comment (2) to Rule 4.2 makes clear that the Rule should apply, even in interactions with a victim: “this Rule applies to communications with any person who is represented by counsel concerning the matter to which the communication relates.”78

In any of the three scenarios suggested, does arrest of the accused foreclose ex parte communications with the victim? The short answer is no. Trial counsel may still seek to engage in investigative ex parte communications with the victim. While military courts have not reviewed such conduct or applied Rule 4.2 to this sort of situation, civilian appellate courts have made clear that the “authorized by law” exception is available to government counsel prior to arrest or indictment—also known as preferral of charges—against the person who is the target of the communication. It is also available to the investigators they direct.

United States v. Kenny79

In Kenny, the “dramatic” recordings, which led in significant part to Kenny’s conviction, were made by an indicted co-conspirator.80 While the court was not explicit in its reasoning that the permissibility of investigative ex parte contacts should be evaluated from the perspective of whether the target of those communications has been indicted, that is how the “no contact” rule was applied. Had the court interpreted the “authorized by law” exception to expire when any person involved in the matter had been charged, it would have found the ex parte contacts by the co-conspirator to be improper.

Although the Kenny court considered the application of the “no-contact” rule in the context of a co-conspirator’s government-direct communications with an accused, extrapolation of the reasoning behind its permissibility makes plain the same should be true of government-directed, ex parte contact with victims. Recall that the purpose of the “no-contact” rule is to “protect[] a person who has chosen to be represented by a lawyer in a matter against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship, and the uncounseled disclosure of information relating to the representation.”81 The implication is that the person on the receiving end of ex parte communications will suffer some injury if the communications were permitted. Yet, the Rule permits some potential injury where pre-preferral investigation contributes to law enforcement. This is so even where the potential injury to an accused—in addition to the injury to the lawyer-client relationship—is deprivation of life, liberty, or property, as long as that contact occurs pre-preferral.

The lesser intrusion upon a victim-witness who might be the subject of investigative, pre-preferral, ex parte communications must, similarly, be contemplated by the Rule. While potential injury to the lawyer-client relationship is the same, the additional injury in the context of ex parte victim contacts is principally to a victim’s privacy interest. This is not insignificant, but it is a lesser interest than the accused’s potential costs of liberty. Moreover, to suggest the victim—or any other witness—should not be equally subject to pre-preferral investigative contacts would afford them greater protections than the accused himself. Such a conclusion would challenge the central balance of accuseds’ rights versus discipline and justice around which the court-martial system is built.

Comment Regarding Use of the “Authorized by Law” Exception by Defense Counsel or Special Victim Counsel

The question may arise whether defense counsel or special victim counsel can avail themselves of the “authorized by law” exception in order to engage in investigative ex parte communications. This is especially so for defense counsel in light of the introduction of defense investigators and the backdrop of Article 46, UCMJ, which—in relevant part—provides the following: “In a case referred for trial by court-martial, the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.”82

It may be that they want to “get to the bottom” of whatever situation brought their client to them. They may think that trial counsel’s method or pace of investigation is ill-suited to finding justice for their client. They may remember using these investigative methods when they were trial counsel. Defense counsel and special victim counsel should not, however, believe or act as if this exception to the “no-contact” rule is for them. Comment (6) to AR 27-26, Rule 4.2, is explicit: “Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings.”83

Defense counsel and special victim counsel remain officers and members of the Judge Advocate General’s Corps and have enduring duties to the United States and to the Army. But they are in a position—particularly with respect to circumstances like these—where they represent an individual client. They do not represent “governmental entities,” so the “authorized by law” exception is foreclosed to them. Nor can they direct others to engage in conduct which they cannot pursue themselves.84

Resolving what seems a contradiction in Article 46, UCMJ, merely requires taking note of when this equal access to witnesses and evidence is available to defense counsel: only after referral, and, therefore, well after preferral of charges. It is only after the “authorized by law” exception for investigative ex parte contacts is foreclosed to trial counsel that defense counsel gains equal footing. To the extent AR 27-26 constitutes an implementing regulation for purposes of Article 46, it is clearly not contemplated that any lawyer other than one for the United States should have this investigative permissibility. If AR 27-26 is not such an implementing regulation and, rather, establishes baseline standards of conduct—regardless of where, when, or how the UCMJ applies—Comment (6) to Rule 4.2 provides a reminder of a JA’s concurrent—and potentially competing—obligations: “The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule.”85

In other words, just because a course of conduct is legally permissible does not make it ethical. Article 46, permits equal access between prosecution and defense for the purposes of preparing for trial. The “authorized by law” exception, however, is different and recognizes a distinct obligation that trial counsel has for the investigation of alleged violations of law. During the investigative phase of a case, the government has more tools—investigative ex parte contacts; more information—no discovery or disclosure obligations; and more control over the process—timing of preferral. These are all measures of imbalance that are inherent in the dynamic between the government and accused.

Defense counsel and special victim counsel remain officers and members of the Judge Advocate General’s Corps and have enduring duties to the United States and to the Army. But they are in a position— particularly with respect to circumstances like these—where they represent an individual client. They do not represent “governmental entities,” so the “authorized by law” exception is foreclosed to them

Conclusion and Caution Against Reading Rules in Isolation

As described above, a JA’s obligations under AR 27-26 to refrain from communications with a person who is known to be represented in a matter is not an absolute bar to ex parte communications. When the contact amounts to lawful investigative activities in furtherance of law enforcement investigations, prosecutors may engage in or direct ex parte communications with such persons. While the “authorized by law” exception is not absolute, it is an available avenue of investigation that trial counsel should be willing to explore. Defense counsel should, likewise, develop a greater understanding and appreciation of the “authorized by law” exception. Doing so will ensure their clients will be aware of the possibility of such continued covert—or overt—communications. Defense counsel may also offer the government the cooperation of their client—thereby, securing their client some additional concrete benefits in an offer to plead guilty.

Like other aspects of the Rules of Professional Conduct, however, Rule 4.2 and the “authorized by law” exception should not be read or applied in isolation. The Rules must be read together and concurrently applied. This means that permissibility of contact is not the end of the analysis. Counsel should always evaluate all relevant facts in a situation. Trial counsel’s use of permissible communications to invade the attorney-client relationship would violate Rule 4.4(a).86 Nor should trial counsel use “authorized by law” ex parte contacts where local policy prohibits such conduct.87 Used appropriately, however, the no-contact Rule both protects the rights of represented Soldiers and enables the robust investigation of criminal misconduct. TAL

Mr. Grimes currently serves as the Deputy Director of the United States Department of Justice’s Professional Responsibility Advisory Office.

The views expressed are those of the author alone and do not represent those of the Department of Justice or the United States.

The author extends special thanks to LTC Jeremy Stephens and LTC Becca Farrell for their thoughts, conversations, input, and support.

Notes

1. U.S. Dep’t of Army, Reg. 27-26, Rules Of Professional Conduct for Lawyers r. 4.2, comment (1) (28 June 2018) [hereinafter AR 27-26].

2. Obviously, this is a dramatization of the relationship between trial and defense counsel. A more courteous relationship should be expected, and a more appropriate response from trial counsel would be, “Thanks for confirming your representation of SPC Snuffy, and I appreciate your position. We’ll continue to investigate, consistent with all applicable law, policy, and regulation.”

3. This hypothetical is purely fictional and is not intended to represent any real person or scenario.

4. See, e.g., In Re Oliver, 2Adm. & Eccl. 620, 622, 111 Eng. Rep. 239, 240 (26 Jan. 1835) (“When it appeared that Mrs. Oliver had an attorney, to whom she referred, it was improper to obtain her signature, with no attorney present on her part. If this were permitted, a very impure, and often a fraudulent, practice would prevail.”) (Lord Denman, C.J.).

5. A.B.A. Comm’n on Ethics & Pro. Responsibility, Formal Op. 95-396, at 4 (1995) (citing Roger C. Cramton & Lisa K. Udell, State Ethics Rules and Federal Prosecutors: The Controversies Over the Anti-Contact and Subpoena Rules, 53 U. Pitt. L. Rev. 291, 325 (1992)).

6. AR 27-26, supra note 1, r. 4.2 (emphasis added).

7. Id. cmt. (6) (emphasis added).

8. The rules of professional conduct of Florida (Rules Regulating the Florida Bar, Rule 4-4.2) and Puerto Rico (Canons of Professional Ethics, Canon 28) do not contain the exception for contacts which are “authorized by law.”

9. See discussion infra Comparing Service Rules to ABA Model Rule 4.2.

10. AR 27-26, supra note 1, r. 4.2.

11. AR 27-26, supra note 1, at cmt. (6).

12. An important question this article will not address is how Article 31(b), UCMJ, should be applied in the context of “authorized by law” contacts. The Court of Appeals for the Armed Forces noted in United States v. Gilbreath, 74 M.J. 11 (2014), that Article 31(b) should not be interpreted to reach “literal but absurd results.” Id. at 16. Presumably, this means it should not frustrate otherwise lawful covert investigations which do not implicate the “subtle and not so subtle pressures that apply to military life.” Id. Trial counsel should consult with supervisors whenever considering ex parte contact with an accused.

13. See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.”).

14. United States v. Lemonakis, 485 F.2d 941 (D.C. Cir. 1973); United States v. Binday, 804 F.3d 558 (2d Cir. 2015); United States v. Brown, 595 F.3d 498 (3d Cir. 2010); United States v. Worthington, 911 F.2d 726 (4th Cir. 1990); United States v. Johnson, 68 F.3d 899 (5th Cir. 1995); United States v. Cope, 312 F.3d 757 (6th Cir. 2002); United States v. Plumley, 207 F.3d 1086 (8th Cir. 2000); United States v. Carona, 660 F.3d 360 (9th Cir. 2011); United States v. Ryans, 903 F.2d 731 (10th Cir. 1990).

15. See AR 27-26, supra note 1, r. 5.3(c) (“a lawyer shall be responsible for conduct of [a non-lawyer acting under the authority, supervision, or direction of the lawyer] that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) [Modified] the lawyer has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”); AR 27-26, supra note 1, r. 8.4(a) (“It is professional misconduct for a lawyer to…violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”).

16. United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981).

17. Id.

18. Id.

19. Id.

20. The American Bar Association (ABA) Model Code of Professional Responsibility was the precursor to the Model Code of Professional Conduct. Disciplinary Rule 7-104(A)(1) provided:

During the course of his representation of a client a lawyer shall not: Communicate or cause another to communicate on the subject of the representation with a party he know to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

Model Code of Pro. Resp. r. 7-104(A)(1) (Am. Bar Ass’n 1980) [hereinafter ABA Model Code].

21. Kenny, 645 F.2d at 1339.

22. United States v. Carona, 660 F.3d 360, 366 (9th Cir. 2011).

23. United States v. Ryans, 903 F.2d 731 (10th Cir. 1990).

24. The then-applicable “no contact” rule, Code of Professional Responsibility, Disciplinary Rule 7-104(A)(1), prohibited ex parte contact with “a party [the lawyer] knows to be represented by a lawyer in that matter.” ABA Model Code, supra note 20, r. 7-104(A)(1). Note that AR 27-26, Rule 4.2—and virtually all licensing jurisdictions’ versions of this rule—prohibit ex parte communications with represented “persons,” rather than being limited to “parties.” AR 27-26, supra note 1, r. 4.2.

25. Id. United States v. Ryans, 903 F.2d 732 (10th Cir. 1990).

26. Ryans, 903 F.2d at 734.

27. Id. at 739.

28. Id. at 740 (citing Kirby v. Illinois, 406 U.S. 682, 689 (1972)).

29. Id.

30. United States v. Cope, 312 F.3d 757 (6th Cir. 2002).

31. Id.

32. Id.

33. Id.

34. Id.

35. Id.

36. Id.

37. Id.

38. Id.

39. Cope, 312 F.3d at 773.

40. United States v. Heinz, 983 F.2d 609 (5th Cir. 1993).

41. Id. at 618.

42. Notably, no common set of rules has been adopted to govern courts convened at the DoD level (such as ongoing military commissions or potential future tribunals), although CAAF has adopted the ABA Model Rules to govern attorneys who practice before it. United States v. Brunson, 59 MJ 41, 43 (C.A.A.F. 2003) (“this Court has adopted the ABA’s Model Rules of Professional Conduct as the rules of conduct for members of the Bar of this Court”).

43. U.S. Dep’t of Air Force, Instr. 151-110, Professional Responsibility Program Attachment 2 (Air Force Rules of Professional Conduct), r. 4.2 (11 Dec. 2018) [hereinafter AFI 151-110]; U.S. Coast Guard, Commandant Instr. Manual 5800.1, Coast Guard Legal Professional Responsibility Program encl. 2 (Coast Guard Rules of Professional Conduct), r. 4.2 (1 June 2005) [hereinafter COMDTINST M5800.01].

44. U.S. Dep’t of Navy, JAGINST 5803.1E, Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of The Judge Advocate General, Rules of Professional Conduct, r. 4.2 (20 Jan. 2015) [hereinafter JAGINST 5803.1E].

45. Comment 6 to AR 27-26, Rule 4.2 substitutes “an Army lawyer” for “a government lawyer.” AR 27-26, supra note 1, r. 4.2, cmt. 6.

46. COMDTINST M5800.01, supra note 43.

47. JAGINST 5803.1E, supra note 44, r. 4.2, cmt. (2).

48. AFI 151-110, supra note 43, cmt. ¶2.

49. Compare id. (“Communications authorized by law may also include investigative activities advised upon by government lawyers, which are done by investigative agents….”) with AR 27-26, supra note 1, r. 4.2, cmt. (6) (“Communications authorized by law may also include investigative activities of lawyers representing governmental entities, directly or through investigative agents....”).

50. United States v. Lewis, 38 M.J. 501 (A.C.M.R. 1993), aff’d, 42 M.J. 1 (C.A.A.F. 1995).

51. Id.

52. Id. In Lewis, the Army Court of Military Review noted in a footnote that such conduct constituted a violation of AR 27-26, Rule 4.2. Id. at *521 n.12.

53. United States v. Evans, 39 M.J. 614, 614–15 (A.C.M.R. 1994).

54. Id.

55. Id.

56. Id. at 615.

57. United States v. Meek, 44 M.J. 2 (C.A.A.F. 1996)

58. Meek, 44 M.J. at 2 (citing the Court of Military Review, 40 M.J. 675, at 676 (1994)).

59. Id. at 8 n. 7.

60. “Indeed, the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.” See United States v. Ellis, 57 M.J. 375, 381 (C.A.A.F. 2002) (quoting Arizona v. Fulminante, 499 U.S. 279, 296 (1991)) (internal quotation marks omitted).

61. As used here, “pretext” communications are those arranged and monitored by law enforcement officers (LEOs), but carried out by non-LEO personnel. Pretext phone calls are a common—and useful—tool in the investigation of sexual assaults or other crimes in which the victim and perpetrator may have a pre-existing relationship.

62. “Authorized by law” permissibility of ex parte communications is not boundless. It must be limited to legally permissible conduct which otherwise complies with law and regulation. See, e.g., United States v. Hammad, 858 F.2d 834 (2d Cir. 1988); United States v. Ward, 895 F. Supp. 1000 (N.D. Ill. 1995); United States v. Tapp, No. CR107-108, 2008 WL 2371422 (S.D. Ga. June 4, 2008).

63. Use of social media by judge advocates may raise other issues of professional responsibility, such as issues of confidentiality (Rule 1.6) and truthfulness (Rule 8.4(c)). See AR 27-26, supra note 1, r. 1.6, 8.4(c).

64. AR 27-26, supra note 1, r. 4.2, cmt. (6).

65. This article makes no attempt to determine whether the “authorized by law” exception should apply in every investigative scenario. Counsel should be mindful of the limitations of this exception and consult with supervisors in determining whether it may be relied upon to engage in ex parte communications in any given situation.

66. Judge advocates in all roles should be mindful of their responsibility to “stay current” on the use and implications of technology, including social media. See AR 27-26, supra note 1, r. 1.1, cmt. (7) (“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology”); see, e.g., Social Media Ethics Guidelines, N.Y. State Bar Ass’n (June 20, 2019), https://nysba.org/app/uploads/2020/02/NYSBA-Social-Media-Ethics-Guidelines-Final-6-20-19.pdf.

67. See David Schleuter, The Military Justice Conundrum: Justice or Discipline?, 215 Mil. L. Rev. 1 (2013). Schleuter offers a thorough examination of these dual roles. Id.

68. U.S. Dep’t of Army, Reg. 27-10, Military Justice para. 3-2 (11 May 2016) [hereinafter AR 27-10] (“Use of nonjudicial punishment is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.”).

69. See Manual for Courts-Martial, United States, R.C.M. 306(b) discussion (2019).

70. Middendorf v. Henry, 425 U.S. 25 (1976).

71. Id. at 37–39.

72. AR 27-10, supra note 69, para 3-18(c).

73. Id. para. 3-18(g)(1).

74. United States v. Ryans, 903 F.2d 732 (10th Cir. 1990).

75. See California v. Hodari, 499 U.S. 621, 626 (1991) (“An arrest requires either physical force…or, where that is absent, submission to the assertion of authority.” (emphasis in original)).

76. See Middendorf, 425 U.S. at 48 (citing McMann v. Richardson, 397 U.S. 759, 769 (1970)) (“The criminal process, like the rest of the legal system, is replete with situations requiring ‘the making of difficult judgments’ as to which course to follow.’”).

77. LRM v. Kastenburg, 72 M.J. 364 (C.A.A.F. 2013).

78. AR 27-26, supra note 1, r. 4.2, cmt. (2).

79. United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981).

80. Id. at 1337.

81. AR 27-26, supra note 1.

82. UCMJ art. 46(a) (2019).

83. AR 27-26, supra note 1, r. 4.2, cmt. (6) (emphasis added).

84. AR 27-26, supra note 1, r. 8.4(a) (“It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”); Id. r. 5.3(c) (“a lawyer shall be responsible for conduct of [a non-lawyer over whom they have supervisory authority] that would be a violation of the Rules of Professional Conduct in engaged in by a lawyer if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial measures.”).

85. AR 27-26, supra note 1, r. 4.2, cmt. (6).

86. AR 27-26, supra note 1, r. 4.4(a). “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” Id.

87. See AR 27-26, supra note 1, r. 1.2(a) (“Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued.”). Judge advocates have an obligation to abide by their clients’ wishes regarding the goals of the representation. For trial counsel, such client guidance regarding the means by which a representation is carried out might be argued to include Department of Defense or Army policies and regulations, or local office standard operating procedures.

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