Captain (CPT) John Smith, a special victims’ counsel (SVC) at Fort Bliss, meets his new client an hour before her scheduled interview with the Criminal Investigative Division (CID). The day before, his client made an unrestricted report1 of sexual assault against an active duty Soldier, and she decided to seek SVC representation. Captain Smith explains the rights afforded to her as an alleged victim under Article 6b, Uniform Code of Military Justice (UCMJ), and quickly prepares her for the pending interview. Captain Smith notices she appears nervous and asks her if she has any concerns with talking to investigators. She looks up and nervously says, “Are they going to ask about . . .”
Captain Smith’s decision to probe his client’s nervousness about her2 pending interview is the first step of many on an ethical tightrope that many SVCs find themselves on during the course of their representation of victim clients. As an SVC’s representation progresses, they will be required to update and advise the client about the various nuances of the military justice process and how the client fits within it. The client’s mental state and desired resolution may change throughout the course of the representation, particularly as greater demands are placed upon the client by the process. This article will explore specific ethical dilemmas that arise when a client injects a falsehood or misrepresentation at key points in the military justice process and will offer recommended courses of action.
The Way Ahead
While there is limited case law involving ethics pertaining to SVCs, recent changes to Army Regulation (AR) 27-26, Legal Services: Rules of Professional Responsibility (28 June 2018),3 and the opinions in United States v. Baker,4United States v. Battles,5 and United States v. Lewis6 provide important benchmarks to help guide SVCs.
This article first examines AR 27-26 (2018) as it applies to the SVC role. Then, an analysis of Baker, Lewis, and Battles identifies key issues for SVCs in handling potential misrepresentations by a client. Finally, our hypothetical CPT Smith will face three scenarios where this tension is greatest: pre-trial interviews, in-court testimony, and the post-trial process. This article will be limited in scope and will only cover changes to AR 27-26 (2018) that pertain to SVCs, specifically relating to handling client misrepresentations.
A Clear Duty of Candor
An SVC must balance a client’s desire for a specific goal (e.g., prosecution) while reacting to potential falsehoods from that client throughout the criminal process. While these challenges are not unique to SVCs, victims’ direct involvement in achieving certain goals often requires greater personal exposure. For example, an accused is not required to testify to achieve an acquittal and will frequently be persuaded against doing so.7 However, if a victim desires that an accused be prosecuted, the victim will almost certainly have to talk to law enforcement and prosecutors, and ultimately testify under oath at trial.8
Under Rule 3.3 of AR 27-26 (2018), an SVC now has a clear duty of candor toward the tribunal despite representing a non-party.9 Additionally, this duty encompasses knowledge of past falsehoods, not just contemplated future perjury, and requires remedial action including possible disclosure, if necessary.10 Moreover, SVCs must not counsel or assist a client in committing a crime or fraud (Rule 1.2(d)), must adhere to their duty of confidentiality (Rule 1.6) while being cognizant of its exceptions and limitations, and must act fairly to opposing party and counsel (Rule 3.4).11 It is essential that SVCs understand these ethical rules because of the inherent personal and professional consequences of failing to do so, which has consequences for themselves and their clients.12
AR 27-26 and Case Law
Before returning to the hypothetical posed at the beginning of this article, we must examine the professional rules and relevant cases that frame how SVCs should respond to these ethical dilemmas. For example, Army lawyers are required to comply with the professional rules in both AR 27-26 (2018) and their respective state bars.13 The recent update to the Army professional responsibility regulation brings over two decades’ worth of revisions since its last update in 1992, and thus, requires the following examination.14
The New AR 27-26
There are four rules which this article critically examines from the perspective of SVCs: Rules 1.6, 1.2d, 3.3, and 3.4. Each touches upon or directly controls when an SVC faces a potential falsehood from a client. Rule 1.6 is the foundation of any attorney-client representation and warrants examination first.
Rule 1.6, Confidentiality of Information
The duty of confidentiality is the bedrock principle upon which attorneys are ultimately valued and sought out for services.15 Rule 1.6, Confidentiality of Information, states that “[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 required by paragraph (b)(1) or permitted by paragraph (b)(2).”16
Rule 1.6 was restructured so the rule and its comments clarify when a lawyer must disclose confidential information and when a lawyer may disclose it. Importantly, the comments to this rule link this duty of confidentiality and its exceptions to Rules 1.2 and 3.3, which has significant implications for SVCs.17 For instance, one of the permissive exceptions to the duty of confidentiality is when disclosure is required by law or court order. Ultimately, while a lawyer has a duty to maintain client confidences, this rule is not absolute; a lawyer must also abide by the duty of candor toward a tribunal and must not assist a client in committing a fraudulent or criminal act.18
The duty of confidentiality encourages clients to be honest with their attorneys and divulge important information, such as evidence of criminal conduct or deeply personal secrets.19 However, the rule has limits and is not intended to permit the furtherance of crimes or to incentivize clients or attorneys to violate the law.20 Normally, during the first consultation if possible, an SVC should explain to his or her client the duty of confidentiality and its various limitations and exceptions.21 That discussion should be memorialized in a Scope of Representation.22
Rule 1.2, Scope of Representation and Allocation of Authority Between Client and Lawyer
Rule 1.2(d) states, “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal and moral consequences of any proposed course of conduct . . . .”23 While the rule is largely unchanged, there is additional language in the comments, such as Comment 10 which provides,
The lawyer is not permitted to reveal the client’s wrongdoing, except where required or permitted by Rule 1.6 or Rule 3.3. However, the lawyer is required to avoid furthering the wrongdoing, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper, but then discovers is criminal or fraudulent. Seeking to withdraw from the representation, therefore, may be appropriate.24
An SVC should be particularly careful with this rule. An SVC’s client may or may not desire a criminal investigation or court-martial to go forward. For example, a third party might report the sexual assault on behalf of the victim despite a victim’s desire to not involve law enforcement. Under current Department of Defense guidance, a victim will normally not be required to participate in the military justice process against their wishes.25
A victim’s reluctance to participate in an investigation is often linked to the re-traumatization which can occur when recalling the sexual assault; victims may also be uncomfortable discussing certain details surrounding the assault.26 Victims may wish for a trial to proceed, but naturally hope to avoid embarrassing or painful topics. For these and a multitude of other reasons, victims may fabricate, omit, or change certain details when speaking with investigators and attorneys.27 An SVC will often not be aware of these omissions or falsehoods when initially made. But should the SVC become aware or have knowledge of the falsehoods, then under Rule 1.2(d), the SVC cannot aid the client in furthering the wrongdoing, such as by helping to conceal it.28 The rule distinguishes between aiding and simply discussing the consequences; similarly, the wrongdoing cannot be disclosed unless other rules permit or require it.29
Rule 3.3, Candor Toward the Tribunal
The duty of candor toward the tribunal serves a critical role in protecting the “integrity of the adjudicative process” by qualifying the duties of confidentiality and zealous representation in the context of lawyers’ role as “officers of the court.”30 A tribunal is defined broadly in Rule 1.0(w), but does not encompass law enforcement investigations, which has important implications for SVCs.31 Rule 3.3(b), a major revision to the rule, states, “A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”32 The previous version of duty of candor only required that the attorney not “offer” false evidence or “fail to disclose” when “necessary to avoid assisting in a criminal or fraudulent act.”33 Importantly, the new rule now requires remedial actions even for past criminal or fraudulent conduct.34
The substantial restructuring to Rule 3.3 also brings some significant changes, including modifying Rule 3.3(b) to more clearly address the responsibilities of non-party attorneys. There are several comments to the rule that are particularly important for SVCs. Comment 3 states, “There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation.” Comment 10 states, “The duties stated in paragraphs (a) and (b) apply to all lawyers, including trial and appellate defense counsel and [SVC] in criminal cases.”35
Finally, Comment 15 provides critical guidance on how an SVC may remediate a falsehood to the tribunal. Specifically, Comment 15 states,
In such situations, the lawyer’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal, and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the lawyer must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the lawyer must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6.36
Before these changes, some lawyers in the Army legal community argued that SVCs did not have a duty of candor because SVCs represented non-parties and were not typically in the active role of offering or assisting with evidence at trial.37 Rule 3.3(b) and the above comments remove any question about whether SVCs have a duty of candor.38 If an attorney’s client is involved in an adjudicative proceeding and that attorney has knowledge that any person, not just their client, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding, the attorney must take remedial measures including potential disclosure to the tribunal.39 Accordingly, if an SVC is representing a victim in an adjudicative proceeding, such as a court-martial or administrative hearing, then that SVC has a duty of candor.
Rule 3.4, Fairness to Opposing Party and Counsel
Lawyers litigate and interact with other attorneys in an adversarial system. Rule 3.4 establishes controls to ensure the competition remains fair. Rule 3.4(b) states, a lawyer shall not “falsify evidence, counsel, or assist a witness to testify falsely.”40 While the rule specifically identifies lawyers in the context of parties, Comment 2 states, “The actions of lawyers who are not considered a party to litigation have the potential to affect the litigation process. These situations may arise in matters where a[n SVC] represents a victim who, although a client, is not a party to the litigation.”41
The inclusion of SVCs in Comment 2 indisputably shows that SVCs are bound under Rule 3.4, despite representing a non-party. Like the duty under Rule 1.2(d), SVCs cannot counsel or assist a client in committing fraud regardless of her status as a non-party. However, Comment 2 to Rule 1.2 specifically notes the distinction between ethically advising about the consequences of specific actions, and the impermissible “recommending [of] means by which a crime or fraud might be committed with impunity.”42 For SVCs, this rule can be triggered during CID interviews, in evidence production, or when making submissions on behalf of a client to a military judge or convening authority. For example, an SVC can advise a client of the consequences of committing perjury, or lying to law enforcement, but cannot aid them in the wrongdoing.
Relevant Case Law
With the professional rules firmly established, it is now appropriate to examine how military courts have interpreted and applied these rules. While these cases predominantly address ethical and constitutional issues posed to defense counsel, they provide important guideposts for an SVC to consider when facing questions of falsehoods by a client.
United States v. Baker
In Baker, the appellant was convicted of various offenses contrary to his plea and on appeal alleged ineffective assistance of counsel.43 He argued that he received ineffective assistance by his two military defense counsel during his trial testimony.44 Prior to trial, the appellant and his counsel agreed that he should not testify due to credibility issues; but later at trial, the appellant changed his mind and insisted on testifying.45 His counsel alerted the judge that they could no longer represent the appellant and requested permission to withdraw.46
In a subsequent Article 39(a), UCMJ, hearing, the military judge informed the appellant that his counsel wished to withdraw from representation.47 The military judge explained the narrative procedure through which the appellant could testify and that his counsel would not be permitted to argue anything he said during the narrative.48 The appellant confirmed he understood, and, after an additional consultation with counsel, proceeded to testify in the narrative.49
Defense counsel’s basis for withdrawal included their client’s prior federal convictions, the strength of evidence controverting their client’s claims, and previous inconsistent and contradictory statements by appellant to counsel.50 The appellant’s unpredictable and uncontrollable behavior also made it unlikely defense counsel could properly tailor his testimony. The court held that these facts were sufficient to constitute a firm factual basis for counsel to reasonably believe their client would commit perjury.51
In Baker, the court analyzed the criteria by which defense counsel should evaluate potential perjury issues. The court reaffirmed its previous holding, in its initial review of the same case, that counsel must act in good faith and have a firm factual basis that counsel’s client intends to commit perjury.52
First, the attorney should try to structure the client’s testimony to avoid areas where the client will commit perjury. Should this prove impossible, the next step is to provide the court nonspecific notice the client will testify in the free narrative form. Finally, only in situations where the attorney-client relationship is irreparably damaged should counsel seek to withdraw.53
At present, there is no ineffective assistance of counsel claim against an SVC. Therefore, an SVC should largely be concerned with adhering to the plain language of AR 27-26, and their respective state bar professional rules of responsibility.54 Nevertheless, Baker provides the framework for any potential SVC attorney-client dispute or appellate issue. Additionally, with the expanding role of SVCs and the use of writs,55 courts could possibly apply the Baker standard to an SVC’s determination that a client intends to, or did in fact, commit perjury.
If Baker applies to SVCs, then SVCs must also act in good faith and have a firm factual basis to believe their clients are lying before taking remedial actions. If a good faith basis exists, SVCs must first try to discourage their clients from testifying untruthfully. If unsuccessful, SVCs must take appropriate remedial measures, including withdrawal or disclosure if necessary. Since SVCs represent non-parties and typically do not offer testimony,56 they are unable to utilize the narrative option or selectively tailor their client’s testimony. Therefore, SVCs’ options are largely limited to convincing their clients, and the trial counsels directing testimony, to correct false testimony, or withdrawal and possible disclosure to the tribunal.
Special Victims’ Counsel who choose to withdraw representation of their client, must provide notice of that withdrawal to the court.57 Therefore, if an SVC has a firm factual basis to believe that their client intends to lie, the SVC may be required to withdraw from representation. This notice of withdrawal to the court, or a “noisy withdrawal,” will alert the court that there is an issue.58 In light of Baker, and the cases analyzed below, an SVC should not disclose the basis for withdrawal until ordered by the military judge. Ultimately, any action taken should be done as narrowly and in the least damaging way possible to the client’s interests.59
United States v. Battles
If Baker was an important benchmark for analyzing potential perjury issues, then United States v. Battles60 serves as an equally important cautionary tale for SVCs regarding their duty of candor toward a tribunal. Specifically, Battles reinforces the knowledge requirement for SVCs while distinguishing knowledge of past perjury versus future perjury. However, in light of the aforementioned changes to the Army professional rules, SVCs must proceed cautiously in relying on Battles.
In Battles, the appellant was found guilty of committing sexual assault in violation of Article 120, UCMJ.61 After the conviction, the victim’s SVC was contacted by the Office of the Staff Judge Advocate (OSJA) about whether he still represented the victim for purposes of post-trial victim submissions.62 The SVC made communications to the government that “implied that he was aware of perjury on the part of his client.”63
Government counsel notified appellant’s trial defense attorney about the communication who then interviewed the SVC and subsequently filed for a post-trial Article 39(a), UCMJ, hearing.64 Defense counsel requested that the military judge determine whether the victim committed perjury at trial, sought discovery of all communications between the SVC and his former client, and moved for a new trial.65
At the Article 39(a), UCMJ, hearing, the court juggled the various privileges and rules implicated by the presented issues.66 The military judge ultimately concluded, and the court of appeals agreed, that the SVC did not have actual knowledge that his client committed perjury.67 This finding was primarily based on the fact that the SVC neither attended the trial nor witnessed any of the alleged perjured testimony.68
Although an ancillary issue in the case,69Battles explores an SVC’s duty of candor in the context of past perjury. The court held there is no exception to the normal duty of confidentiality for past crimes while acknowledging the established exception for an attorney’s knowledge of future perjury.70 The court was critical of the SVC’s handling of his client’s case and reaffirmed the Baker knowledge requirement before attorneys may disclose confidential information. The court held that no relief was warrantedand harshly criticized the behavior of the SVC and the military judge’s misguided piercing of the attorney-client privilege.71
Battles largely hinged on the distinction that the SVC did not, nor could he have reasonably known, that his client lied under oath at trial because he was not present at trial. Additionally, the perjury, had there been any, was already completed. In short, Battles states that the exception to the attorney-client privilege and duty of confidentiality contemplates future perjury not past perjury.72 Therefore, under Battles, an SVC would not be permitted to disclose past crimes of their client unless the adjudicative process was continuing and the attorney had a firm factual basis to believe the client intended to commit future perjury.
It’s worth noting that the adjudicative process continues until a “final proceeding,” which in the context of a court-martial is defined as when “final judgment has been affirmed on appeal or the time for review has passed.”73 However, as pointed out previously, Rule 3.3 was modified to extend the duty of candor toward the tribunal to attorneys with knowledge of past falsehoods. It is possible though that the appellate courts will not expand the Baker analysis to include that additional exception to the duty of confidentiality.
United States v. Lewis
In United States v. Lewis, the Army Court of Military Review analyzed the Army Professional Rules and the American Bar Association (ABA) Model Rules in evaluating the propriety of defense counsel providing confidential information when a former client alleges ineffective assistance of counsel.74 Whereas Baker establishes the framework for the firm factual basis standard, Lewis distinguishes the attorney-client privilege from the broader duty of confidentiality, and the duties of counsel when faced with an order from a tribunal to disclose client confidences. As such, Lewis is essential reading for an SVC evaluating the scope of confidentiality to a client when faced with an order to disclose from a court.
The appellant in Lewis was convicted of several drug-related offenses and argued that his trial defense attorneys were ineffective.75 The court found the appellant met his prima facie burden and ordered the trial defense attorneys to provide affidavits addressing each allegation.76 The attorneys declined to submit affidavits, but responded in motions arguing attorney-client privilege precluded them from providing confidential information to the court.
Lewis holds that military appellate courts can order defense counsel to submit affidavits providing confidential information in response to claims of ineffective assistance of counsel.77 In Lewis, the court held that trial defense counsel mistakenly relied on the attorney-client privilege when their actual intended basis for refusing the court order was rooted in the broader duty of confidentiality.78
The attorney-client privilege is a rule of evidence that permits a client to prevent admission of confidential communications between the client and their attorney.79 It is an exception to the normal rule, that when the client is unable to invoke the privilege, the attorney may do so on the client’s behalf.80 The attorney-client privilege does not bar disclosure of communications “relevant to an issue of breach of duty by the lawyer to the client or the client to the lawyer.”81 Moreover, the duty of confidentiality specifically permits disclosure “when required or authorized by law.” The court also cites the duty of candor toward the tribunal as an additional basis to support disclosure “when required by law.”82
While Rule 1.6(c) indicates disclosure pursuant to court order is permissive versus mandatory, the court disagreed with defense counsels’ assertion that they were not required to disclose confidential information because of the permissive language. Lewis holds that a court order to disclose in the ineffective assistance of counsel context is lawful and must be followed. Counsel is permitted to initially decline to respond to court orders if there is good reason, but if denial is not justifiable, counsel risks disciplinary action.83
Like the defense counsel in Lewis and Baker, an SVC may be ordered by a military judge or court to disclose confidential information between the SVC and the client, current or past. Although the rules state that disclosure pursuant to a court order is permissive, Lewis makes clear the ethical rules will not save the SVC from contempt of court should the SVC refuse the order.84 An SVC seeking to limit personal culpability should abide by the order and limit disclosure to the extent necessary to comply with the court order.
Additionally, an SVC adhering to Lewis must understand the difference between the attorney-client privilege and the duty of confidentiality.85 Both the privilege and the duty may be pierced if required by law. Lewis and Baker both show that courts may order, and the law will thus require, disclosure. It is foreseeable that similar Baker-like disputes about attorney-client representation and confidential communications could become admissible at trial if an SVC attempts to withdraw from representation due to a known falsehood. A dispute could also arise in situations where a client is transferred to a different SVC and the former client alleges the former SVC failed to adequately represent or protect their Article 6b rights.
With the ethical rules established, we return to the hypothetical with our SVC, CPT Smith, and his client.
The CID Interview
After CPT Smith fully advises his client about her rights, they travel to the CID office. During the interview, the client recounts the details of the assault to the CID agent. While exploring the nature of the relationship between her and the accused, the CID agent asks whether she consensually kissed the accused a few days prior to the assault. She denies any such kiss. The client appears distressed after extended questioning so the SVC asks the CID agent for a brief break. During the break, the client informs CPT Smith in a private room that she had lied. She admits to her SVC that she had in fact kissed the accused a few days prior to the assault. She asks her SVC, “What should I do?”
First, CPT Smith must identify what duties are triggered in this context. He has a duty of confidentiality balanced against a duty to not counsel or assist a client in committing a fraudulent act. The law enforcement setting does not qualify as a “tribunal” under the AR 27-26 (2018) definition.86 Additionally, the lie already occurred without CPT Smith’s knowledge and, pursuant to Battles, does not contemplate future perjury.87 Therefore, CPT Smith is not permitted to disclose his client’s past crime of lying to law enforcement. However, CPT Smith now has a firm factual basis regarding that particular material fact and must proceed cautiously to avoid aiding a future fraudulent act by his client.
Before returning to the CID interview room, CPT Smith must now consider whether he is aiding his client in a fraud by continuing to represent her and sitting with her during the interview if she does not correct the record. This basic degree of assistance alone is unlikely to constitute aiding in fraud.88 However, CPT Smith does have a duty to advise his client of the legal jeopardy of lying to law enforcement and the risks it creates going forward.89 Captain Smith should consider counseling his client to inform CID she previously misspoke, to correct the record, and to tell the truth going forward.
Captain Smith should also advise his client as to her other options before proceeding any further. For instance, he could verify what disposition the client is seeking and remind the client of her right to end the interview either temporarily or permanently, in order to prevent further potential falsehoods. Should the client desire to proceed with the interview, CPT Smith should emphasize that if the CID agent asks her to repeat her answer in regards to the previous falsehood, she should tell the truth. Should the client repeat the lie, the SVC may be permitted to withdraw from the representation, but is not permitted to disclose the falsehood.
Upon returning to the CID interview, the CID agent finishes the interview and does not ask any additional questions about the client’s relationship with the accused. The client desires to proceed to trial, and, approximately eight months later the government prefers and later refers charges. On the first day of trial, the SVC’s client testifies. The defense counsel cross-examines the witness and asks her questions about the nature of the relationship between her and the accused. He asks the SVC’s client whether she had consensually kissed the accused. The SVC’s client again denies ever kissing the accused.
In this instance, CPT Smith’s duty of confidentiality towards his client is being tested by several exceptions and limitations to that duty. Specifically, disclosure of the lie is permitted if required by law or court order.90 As of yet, there is no law or court order requiring disclosure. However, CPT Smith must consider whether he is assisting his client in a fraudulent act. While he did not have any role in offering the false statement, his continued representation or lack of action might be aiding in a fraudulent act to a tribunal. Additionally, CPT Smith knows he has a duty of candor toward the tribunal.
Pursuant to Baker, CPT Smith, because of his firm factual basis in believing his client lied and his ongoing duty of candor toward the tribunal, is required to take remedial steps, but has fewer options than a defense counsel in the same context (e.g., no narrative testimony or argument avoidance).91 Captain Smith is not offering testimony and so cannot tailor his client’s testimony. Similarly, a witness does not have an accused’s constitutional right to testify, thereby precluding the narrative form testimony.
Captain Smith must take remedial measures. Here, he could quickly and discreetly attempt to get the attention of the trial counsel before or during a recess (before the government closes its case in chief). During the recess, CPT Smith should try to convince the client to remedy the falsehood, explain all the potential legal consequences of perjury, as well as his ethical duties, particularly his likely withdrawal, if the client refuses. If the client agrees to correct the record, then CPT Smith should inform the trial counsel that the client needs to take the stand again and correct the record on the specific question previously asked.92
If his client takes the stand and corrects the record then the SVC has no further obligations. However, if his client refuses to admit the falsehood, or the trial counsel declines to recall the witness, CPT Smith should request an Article 39(a), UCMJ, hearing. In that hearing, CPT Smith could inform the court he is withdrawing from his representation of his client.93 Captain Smith would be executing a “noisy” withdrawal, which alerts the court there is an issue without immediately disclosing the wrongdoing—thereby minimizing the harm to the client’s interests.94
Based on this notice, the court should inquire as to why the SVC is withdrawing, and CPT Smith should inform the court that “while he cannot state the exact reason he is withdrawing, he can no longer represent the client,” or words to that effect.95 If the court does not make this inquiry on its own, it may be necessary for the SVC to make the above statement on his own volition. However, CPT Smith should not disclose the lie, or his basis for withdrawal, unless ordered by the court.96
Post-Trial Submissions and Hearings
Assume, alternatively, CPT Smith did not previously have a firm factual basis to believe his client lied. The trial is now over. The accused was convicted of an Article 120 offense. The SVC meets with his client to discuss any post-trial submissions she would like to submit to the convening authority. During this meeting, she admits that she does not believe she was actually sexually assaulted by the accused. She tells her SVC that the sex was consensual, but she felt pressured by her new husband to lie in order to protect her relationship. However, she is still afraid that telling the truth would place her relationship with her husband in danger and she wants to submit matters requesting the Commanding General not approve any clemency and approve the findings and sentence adjudged. What should the SVC do?
As in the previous hypotheticals, CPT Smith continues to have a duty of confidentiality to his client, but here his course of action is considerably more complicated. He must now address the issue of past perjury, as well as his client’s request for assistance in a future fraud. Captain Smith is aware of the disastrous consequences that faced a similar SVC in the post-trial submission setting of Battles. Unfortunately, Battles provides both guidance and potential confusion.
Battles potentially supports the argument that CPT Smith has no duty to correct past perjury because the client’s perjury has already been committed. However, this contradicts the new professional responsibility rules.97 Additionally, in Battles, the court determined the SVC in question had no factual basis for an exception to the duty of confidentiality.98 Here, while CPT Smith did not have knowledge of the lie at the time the perjury was committed, he now has a firm factual basis to believe his client lied to the tribunal. Since the tribunal exists until the proceeding is affirmed on final appeal, CPT Smith’s duty of candor toward the tribunal continues.99 CPT Smith must take remedial measures.
If the client is willing to correct the record, CPT Smith should coordinate with either government or defense counsel to request a post-trial Article 39(a), UCMJ, hearing. Additionally, CPT Smith must be cognizant that convincing his client to correct the record would essentially implicate her in the crime of perjury. CPT Smith should discuss with this client her potential need for defense representation. If the client is unwilling to admit her falsehood to the government, then CPT Smith would need to take other remedial steps, including withdrawal or disclosure.
While withdrawal remains an option, it is unlikely withdrawal would effectively remediate the effect of the lie, i.e., a false conviction. Furthermore, while withdrawing from representation prior to action by the convening authority would be unusual pursuant to the SVC handbook, it is unlikely to sufficiently draw the tribunal or either party’s attention to the wrongdoing.100 If the client insisted on maintaining the lie, then CPT Smith should advise his client of his intent to withdraw and provide notice to the court of his withdrawal. He should counsel her that this action could be sufficient to spur a court order for him to testify as to the reason for the withdrawal, in which case, he would testify truthfully.
The above actions, in regard to the past perjury issue, would naturally preclude taking any future action to effect the client’s desire to commit fraud. So assume, alternatively, the client does not admit to lying at the trial, but instead only wants to submit a document, statement, or photograph that CPT Smith knows is false or somehow altered. Battles and Rule 1.2d contemplate the distinction between assisting a client in committing a future fraud, and simply advising a client about the consequences of committing the fraud.101 Accordingly, CPT Smith must consider how he can properly advise and represent his client without aiding in a future fraud. His assistance in the submission of false post-trial victim matters could violate Rule 1.2(d).
As in the previous hypotheticals, CPT Smith should attempt to dissuade the client against submitting falsehoods and advise the client as to all potential consequences of proceeding with such a course of action. If the client insists on submitting matters that in some way implicate or draw upon falsehoods, then CPT Smith cannot participate in the submission or support of those matters. However, it is feasible that CPT Smith could provide other support that avoids the false evidence. This would be similar to how a defense counsel can tailor a direct examination or closing argument away from perjured testimony.102 For example, CPT Smith might agree to submit the other matters the client wishes, assuming those matters do not repeat the falsehood or draw upon them. Captain Smith could also advise the client how she could submit her own matters directly, with the renewed admonition against submitting false information.
Finally, as a last resort, CPT Smith could withdraw if he believes he cannot adequately represent his client due to the ethical conflict.103 As discussed above, CPT Smith may be able to continue representing his client by carefully avoiding assistance in the submission of any fraudulent materials. But, if CPT Smith does not feel he can adequately represent his client due to his ethical conflict, CPT Smith should follow the same withdrawal steps outlined previously. However, in this post-trial submission context, it may be feasible to remedy the potential wrongdoing through withdrawal without notice to the court and all parties.
Specifically, CPT Smith might reasonably execute a “quiet” withdrawal in this particular instance.104 Withdrawal would remove CPT Smith from aiding in a potential future fraud, thus adhering to Rule 1.2(d), while minimizing any adverse consequences to the former client pursuant to Rule 1.16(d). Likewise, CPT Smith complies with Rule 3.3 because he does not know, or have a firm factual basis, the client will actually follow through by submitting false matters. If CPT Smith does have such knowledge, then a quiet withdrawal would be an inadequate remedial measure.
Captain Smith would not necessarily be required to notify all parties as to the termination, because the U.S. Army Rules of Court only require notification of withdrawal while a case is “pending.”105 Post-conviction, the case is arguably no longer pending, so an SVC would only be required to provide notice of withdrawal if the SVC Program’s procedures required it.
Absent a normal trigger for termination of the attorney-client relationship, the victim generally controls termination of the representation.106 Consequently, absent the consent of his client, and pursuant to the SVC Handbook, CPT Smith would need his supervisor and SVC Program’s approval to withdraw from the representation.107 It is important to note, that withdrawal under these circumstances only works if the SVC is operating without firm factual knowledge their client intends to commit a falsehood, and the SVC believes this withdrawal is a sufficient remedial step.
Many SVCs will quickly discover, like CPT Smith, that the SVC role can be an ethical minefield; however, AR 27-26 (2018) and developing case law provide important guideposts for SVCs. It is indisputable that SVCs have a duty of candor toward the tribunal. Special Victims’ Counsel must understand when the attorney-client privilege and duty of confidentiality to a client applies under the rules and the law. Special Victims’ Counsel cannot aid or assist clients in committing fraud and must obey orders from the court absent good reason. At every stage of the military justice process, SVCs like CPT Smith must carefully evaluate their duties to help clients achieve their unique goals while adhering to the professional rules of responsibility.
Additionally, SVCs must closely monitor updates in case law involving SVC ethical issues.108 With the development of writs and the evolution of case law surrounding various Article 6(b), UCMJ rights, an SVC will need to draw upon cases like Baker, Battles, and Lewis should a client or former client assert claims against them. Finally, SVCs should also be in close contact with the SVC Program and their SVC supervisors before responding to potential ethical issues.109 TAL
MAJ Thompson is an associate professor in the Criminal Law Department at The Judge Advocate General Legal Center and School, Charlottesville, Virginia.
1. Sexual assault victims can, in most U.S. Army cases, elect to report their assaults as either restricted or unrestricted. Generally, restricted reports allow victims to receive medical care without public exposure, while unrestricted reports trigger a criminal investigation. U.S. Dep’t of Def., Instr. 6495.02, Sexual Assault Prevention and Response (SAPR) Program Procedures 36 (Mar. 28, 2013) (C, 24 May 2017) [hereinafter DoDI 6495.02].
2. Victims of sexual assault and similar offenses are certainly not limited to the female gender. However, for simplicity and expediency this article will use the feminine pronoun for the hypothetical scenarios.
3. U.S. Dep’t of Army, Reg. 27-26, Legal Services: Rules of Professional Conduct For Lawyers r. 1.2, 1.6, 1.16, 3.3 (28 June 2018) [hereinafter AR 27-26 (2018)].
4. United States v. Baker, 65 M.J. 691, 698–702 (C.A.A.F. 2007) (applying firm factual basis standard when considering suspected client perjury).
5. United States v. Battles, No. ARMY 20140399, 2017 CCA LEXIS 380 at *20–28 (A. Ct. Crim. App. May 31, 2017) (holding duty of candor toward tribunal and exception to confidentiality contemplates future perjury).
6. United States v. Lewis, 38 M.J. 501, 515–22 (A.C.M.R. 1993) (distinguishing attorney-client privilege and duty of confidentiality when faced with perjury).
7. U.S. Const. amend. V (“[N]or shall any person be . . . compelled in any criminal case to be a witness against himself”).
8. U.S. Const. amend. VI (“[T]he accused shall enjoy the right to . . . be confronted with the witnesses against him.”).
9. See AR 27-26 (2018), supra note 3, r. 3.3.
11. Id. r. 1.2, 1.6, 3.4.
12. Baker, 65 M.J. at 697 (citing Nix v. Whiteside,475 U.S. 157, 169 (1986) (lawyer complicit in client perjury faces prosecution or disciplinary action)).
13. AR 27-26 (2018), supra note 3, r. 8.5(j) (Army professional rules control if, in the course of official Army duties, a conflict arises between the Army rules and a lawyer’s licensing authority rules). See also Tex. Disciplinary R. Prof’l Conduct r. 8.05, cmts. 3–4 (under Texas professional rules, the Texas bar will not discipline out-of-state conduct unless the conduct is also a violation under Texas rules, and will normally not discipline for conflicting out-of-state conduct if said conduct conforms with that other jurisdiction’s rules).
14. U.S. Dep’t of Army, Reg. 27-26, Legal Services: Rules of Professional Conduct For Lawyers r. 1.2, 1.6, 1.16, 3.3 (1 May 1992) [hereinafter AR 27-26 (1992)].
15.See Hunt v. Blackburn, 128 U.S. 464, 470 (1888) (“The rule which places the seal of secrecy upon communications between client and attorney is founded upon . . . assistance [that] can only be safely and readily availed of when free from the consequences or the apprehension of disclosure.”).
16. AR 27-26 (2018), supra note 3, r. 1.6.
17. Id. r. 1.6, cmt. 25.
20. Id.See also Vince Farhat & Calon Russell, “Houston, We Have a Problem:” Clients Who Engage in Unlawful Conduct During Your Representation, White Collar Crime Comm. Newsl. 1 (Winter, Spring 2015) (“The notion that a lawyer must not participate in a client’s illegal conduct is generally known and widely accepted.”).
21. U.S. Army Special Victims’ Counsel Program, Special Victims’ Counsel Handbook Fourth Edition (9 June 2017) [hereinafter SVC Handbook] (“The initial meeting with the victim should be in person. The victim’s information shall be entered into Client Information System and a scope of representation letter (Appendix C or Appendix D) signed by the victim.”).
23. AR 27-26 (2018), supra note 3, r. 1.2(d).
24. Id. cmt. 10.
25. DoDI 6495.02, supra note 1, at 36 (“The victim’s decision to decline in an investigation or prosecution should be honored by all personnel charged with the investigation and prosecution of sexual assault cases . . . .”).
26. See Carolyn S. Salisbury, Therapeutic Jurisprudence in Clinical Legal Education and Legal Skills Training, 17 St. Thomas L. Rev. 623, 636 (Spring 2005) (“[I]t is well-known that rape victims who help prosecute their rapists in criminal trials often feel as if they have been raped once again within the legal system.”). See also Jenelle M. Beavers & Sam F. Halabi, Stigma and the Structure of Title IX Compliance, 45 J.L. Med. & Ethics 558, 560 (Winter 2017) (exploring various reasons victims choose to not report or pursue criminal prosecution such as social stigma, embarrassment, and privacy concerns).
27. Alleged victims, like any witness, may also unintentionally omit or provide inaccurate information, on matters material or trivial, by accident, or due to the fault of memory or trauma. Robert T. Reagan, Scientific Consensus on Memory Repression and Recovery, 51 Rutgers L. Rev., Winter 1999, at 275, 290–94. Actual rates of false allegations of rape are difficult to assess, but widely considered to be quite low. Seegenerally, Andre W. E. A. De Zutter et al., The Prevalence of False Allegations of Rape in the United States from 2006-2010, 2 J. Forensic Psychol. 2017 (Netherlands statistical study which notes large discrepancy in rates of false reporting due to inconsistencies in methodology and data used).
28. AR 27-26 (2018), supra note 3, r. 1.2d.
30. Id. r. 3.3, cmt. 2.
31. Id. r. 1.0(w) (“‘Tribunal’ denotes a court, an Article 32 [preliminary hearing], administrative separation boards or hearings, boards of inquiry, disability evaluation proceedings, an arbitrator in a binding arbitration proceeding, or a legislative body, administrative agency, or other body acting in an adjudicative capacity.”).
32. Id. r. 3.3.
33. AR 27-26 (1992), supra note 14, r. 3.3(A)(2), (4) (emphasis added).
34. AR 27-26 (2018), supra note 3, r. 3.3(b) (emphasis added).
35. Id. r. 3.3, cmts. 10, 14 (“The obligations in this Rule also apply to counsel for witnesses and victims, including Special Victim Counsel.”).
36. Id. r. 3.3,cmt. 15.
37. This assertion is based on the author’s two years of experience as a defense counsel interacting with SVCs and subsequent two years of experience as an SVC (June 2016-July 2018) [hereinafter Professional Experiences]. Additionally, while attending the 2018 Sexual Assault Trial Advocacy Course a moderator posed this question to a group of experienced trial counsels, defense counsels, and SVCs, and there was wide vocalized disagreement as to whether the duty of candor applied to SVCs. Id.
38. AR 27-26 (1992), supra note 14, r. 1.2, 1.6, 1.16, 3.3 (focusing primarily on parties and attorneys offering evidence).
39. AR 27-26 (2018), supra note 3, r. 3.3.
40. Id. r. 3.4(b).
41. Id. r. 3.4, cmt. 2.
42. Id. r. 1.2, cmt. 2.
43. United States v. Baker, 65 M.J. 691, 693 (C.A.A.F. 2007).
45. Id. at 694.
47. Article 39(a) hearings are sessions of court called by military judges, conducted outside of the presence of panel members (the Army equivalent of jury members), in order to address various pre-trial and trial matters. UCMJ, art. 39 (2018).
50. Id. at 695–96.
51. Id. at 697.
52. United States v. Baker, 58 M.J. 380, 386 (C.A.A.F. 2003) (citing United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977) (establishing firm basis)).
53. Baker, 65 M.J. at 697 (citing Baker, 58 M.J. at 387–88) (internal citations omitted).
54. AR 27-26 (2018), supra note 3, r. 8.5(j).
55. See 10 U.S.C. § 806b(e)(1) (“If the victim of an offense under this chapter believes that a preliminary hearing ruling . . . or a court-martial ruling violates the rights of the victim . . . the victim may petition the Court of Criminal Appeals for a writ of mandamus.”) (internal citations omitted).
56. It is possible, as the author did in one case, that an SVC could offer testimony of a client or other witness in a MRE 412, 513, or 514 motion, particularly if government counsel is not opposing defense counsel in the motion. See LRM v. Kastenberg, 72 M.J. 364, 370 (C.A.A.F. 2013) (the right to be heard includes “the right to present facts”). See also Professional Experiences, supra note 37.
57. U.S. Army Trial Judiciary, Rules of Practice Before Army Court-Martial, r. 4.3.4 (“During the pendency of a case, the SVC must immediately inform the judge, trial counsel, and defense counsel when representation of a client is terminated.”) [hereinafter Rules of Court].
58. A noisy withdrawal is the practice of an attorney notifying the court and parties of withdrawal from representation in such a manner as to imply the existence an ethical conflict without specifically identifying the issue. See Baker, 65 M.J. at 698; see also Paul J. Schlauch, A Lawyer’s Duty to Remain Silent and Right to Speak Out Concerning Client Misconduct, Rocky Mt. Min. L. Inst. 7B-1 (2007).
59. AR 27-26 (2018), supra note 3, r. 1.16(d) (“Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests.”).
60. United States v. Battles, No. ARMY 20140399, 2017 CCA LEXIS 380 at *20–28 (A. Ct. Crim. App. May 31, 2017).
61. Id. at *1.
62. Id. at *22. See alsoManual for Courts-Martial, United States, R.C.M. 1105A (2016) [hereinafter MCM] (“Matters submitted by a crime victim”).
63. Battles, 2017 CCA LEXIS at *22 (citing remarks from the trial court military judge’s findings of fact).
65. Id. at *23.
66. At the hearing, the SVC invoked the attorney-client privilege on behalf of his now former client as well as his Fifth Amendment right to not self-incriminate. Id. The military judge determined there was “an unwritten exception” to the attorney-client privilege when there was “direct evidence of perjury.” Id. The appellate court did not concur with this “unwritten exception.” Id. at *23–24.
67. Id. at *25.
68. Id. at *25–28.
69. The potential perjury issue was not presented as legal error by appellant’s counsel, but submitted at the request of the appellant pursuant to Grostefon. United States v. Grostefon, 12 M.J. 431, 436–37 (C.M.A. 1982) (appellant defense counsel must present all matters requested by a client even if frivolous).
70. Battles, 2017 CCA LEXIS at *24.
71. Id. at *28 (holding further that the SVC’s testimony as to the victim’s credibility would be inadmissible human lie detector testimony).
73. AR 27-26 (2018), supra note 3, r. 3.3, cmt. 17 (“A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. . . . A proceeding has concluded . . . when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.”).
74. United States v. Lewis, 38 M.J. 501, 515–22 (A.C.M.R. 1993).
75. Id. at 506.
76. Id. at 510.
77. Id. at 514.
78. Id. at 515–516 (“[T]he attorney-client privilege bars a court or other governmental tribunal from compelling the revelation of confidential communications between the attorney and client . . . . In contrast, the ethical duty prohibits an attorney from voluntarily revealing or using any information obtained in the course of the representation regardless of the source of that information.”)(emphasis in original).
81. Id. at 515 (quoting United States v. Mays, 33 M.J. 455, 458 (C.A.A.F. 1991)).
82. Id. at 517.
83. Id. at 514, 516 (“The drafters did not intend that lawyers should employ the rule to disobey a valid court order.”).
85. See AR 27-26 (2018), supra note 3, r. 1.6, cmt. 4.
86. AR 27-26 (2018), supra note 31, r. 1.0(w).
87. Battles, 2017 CCA LEXIS at *24.
88. AR 27-26 (2018), supra note 3, r. 1.6, cmt. 35.
89. Id. r. 1.2(d).
90. Id. r. 1.6(b)(2)(iii).
91. United States v. Baker, 58 M.J. 380, 386 (C.A.A.F. 2003) (citing United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977) (establishing firm basis)).
92. An observant defense counsel will be closely monitoring the SVC’s interactions with trial counsel. These communications should be narrowly tailored to limit exposure on the stand. See United States v. Rodriguez-Rivera, 63 M.J. 372, 378 (C.A.A.F. 2006) (trial counsel cross-examined by military judge about potential coaching of key witness after recess).
93. See generally State v. Berrysmith, 87 Wash. App. 268, 275–76 , 944 P.2d 397, 399–400 (1997) (holding that a client’s actual intent to commit perjury is irrelevant; attorney withdrawal is proper if based on reasonable belief of attorney rooted in firm factual basis).
94. See Baker, 65 M.J. at 698.
95. See United States v. Radford, 14 M.J. 322, 326–328 (C.M.A. 1982) (quoting the American Bar Association’s professional rule standards, “the lawyer should make a record of the fact that the defendant is taking the stand against the advice of counsel in some appropriate manner without revealing the fact to the court”) (emphasis in original).
96. AR 27-26 (2018), supra note 3, r. 3.3, cmt. 19 (“In connection with a request for permission to withdraw that is premised on a client’s misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6.”).
97. See Lieutenant Colonel Thomas G. Bowe, Limiting Defense Counsel’s Ethical Obligation to Disclose Client Perjury Revealed After Adjournment: When Should the “Conclusion of the Proceedings” Occur?, 1993 Army Law., June 1993, at27, 29 (exploring defense counsel’s obligations to disclose past perjury under 1992 Army Professional Rule 3.3, duty to candor toward the tribunal.).
98. Battles, 2017 CCA LEXIS at *24.
99. AR 27-26 (2018), supra note 3, r. 3.3, cmt. 17.
100. SVC Handbook, supra note 21, at 23 (“[Termination of representation] [f]or courts-martial, [is effective] upon initial action by the convening authority or earlier termination of charges.”).
101. Battles, 2017 CCA LEXIS at *24. See alsoAR 27-26 (2018), supra note 3, r. 1.2d.
102. An SVC must evaluate whether they can still provide competent representation in post-trial submissions if there is a personal conflict. See United States v. Gonzalez, No. ACM 39125, 2018 CCA LEXIS 145 at *38 (A.F. Ct. Crim. App. Mar. 22, 2018) (“a conflicted counsel is a constitutionally inadequate counsel for purposes of post-trial representation of an accused”).
103. See AR 27-26 (2018), supra note 3, r. 1.16, cmt. 7. Seealso Farhat & Russell, supra note 20, at 9 (citing Lowery v. Cardwell, 575 F.2d 727, 731 (9th Cir. 1978) (holding perjury does not require withdrawal so long as the lawyer does not act to advance the perjury).
104. An alleged sexual assault victim has certain statutory and regulatory rights, but no constitutional right to counsel. See UCMJ, art. 6b (2018). See alsoU.S. Dep’t of Army, Reg. 27-10, Legal Services: Military Justice, 82–93 (interim)(1 Jan. 2019). Arguably, the “noisy” element of a defense counsel withdrawal is based on the visible and inherently active role of defense. An SVC is not under the exact same constraints. See Schlauch, supra note 58 (discussing “quiet withdrawal” of corporate attorneys due to misconduct of client without notice to others).
105. Rules of Court, supra note 57, r. 4.3.4.
106. SVC Handbook, supra note 21, at 22 (“Absent the client’s consent, an SVC may terminate representation only IAW AR 27-26. SVC should consult with their [Chief of Legal Assistance] and [SVC Program Manager] when considering terminating representation prior to the actions identified in paragraph d of this chapter.”).
108. See AR 27-26 (2018), supra note 3, 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 . . . .”).
109. SVC Handbook, supra note 21, at 2, para. 1-3b (“In situations where the interests of the victim do not align with the government, the [Chief of Legal Assistance] and the [SVC Program Manager] will provide technical advice and professional responsibility (PR) supervision IAW AR 27-26.”).