The Means and Methods of Achieving the Ethical, Moral, and Legal High Ground in the JAG Corps
By Colonel Thomas E. Schiffer & Mr. William “Rick” R. Martin
No one is coming, it’s up to us.1
The Judge Advocate General’s (JAG) Corps and Judge Advocate Legal Services,2 like many professional legal organizations, is self-regulating. Through the Rules of Professional Conduct for Lawyers contained in Army Regulation (AR) 27-26 and the procedures outlined in AR 27-1, the JAG Corps polices itself.3 Our self-policing program has a long history of ensuring the highest level of professional practice.4 With these rules and processes, how does the JAG Corps achieve and retain the moral high ground? How do we, as individual legal professionals, uphold our duties and professional obligations to Army commands, individual clients, and the American people? How does The Judge Advocate General (TJAG), as the JAG Corps’s supervisory lawyer, ensure the highest level of professional practice? The answer is remarkably simple: rigor in our process.
Professional Responsibility (PR) Approach
“An Army lawyer is a representative of clients, an officer of the legal system, an officer of the Federal Government, and a public citizen having special responsibility for the quality of justice and legal services provided to the Department of the Army and to individual clients.”5 Despite this lofty and powerful mandate, there is neither an outside agency nor a team of special investigators tasked to monitor attorney conduct in the JAG Corps; we are our own watchdog. This makes it even more imperative that we all personally and collectively undertake our obligations to practice diligence, rigor, and discipline in all PR matters to gain and maintain the moral high ground. We practice diligence by being engaged leaders with our subordinates, monitoring work product, developing best practices, and providing guidance.6 We practice rigor by taking action; making on-the-spot corrections to behavior, editing documents and correcting errors, and conducting further inquiry when the situation warrants. And we practice discipline by adhering to the principle of “choos[ing] the harder right over the easier wrong,”7 and following the advice: “[i]f you see something, say something.”8
Professional Responsibility Review
Professional responsibility allegations come in a variety of ways: everything from Inspector General (IG) complaints, to reports by supervisory JAs, to court rulings, to correspondence received by Army senior leaders and members of Congress. The Professional Responsibility Branch (PRB) serves as the focal point for all these allegations; however, the execution of the inquiry process is decentralized to leaders throughout the JAG Corps.9 The heart and soul of the PR review process are the JAs assigned worldwide at posts, camps, and stations conducting reviews of PR allegations. Throughout the inquiry process, PRB maintains coordination with senior supervisory JAs and lower-echelon supervisors. This process highlights the point that PR matters are local matters, addressed by leaders throughout the JAG Corps, which require the engagement of all members of the JAG Corps. Thus, JAG Corps attorneys initiate inquiries, serve as inquiry officers, and review and approve inquiries. Through and through, this is our process, and it is our method of gaining and maintaining the moral and ethical high ground.
Although these reviews are informal, they result in supervisory and subordinate lawyers taking a critical look at the severity of the lawyer’s conduct, and are oftentimes resolved by counseling, additional training, mentorship, and an improvement in the provision of legal services.
Professional Responsibility by the Numbers
And now, the good news: this process works! Over the past ten years, the PRB has averaged about 151 inquiries annually.10 More than one third of these inquiries concluded as due diligence reviews or credibility determinations: initial, lower-level inquiries to determine whether the allegations are credible and, if so, whether they raise a substantial question about the lawyer’s honesty, truthfulness, or fitness as a lawyer in other respects.11 About eight per year concluded with preliminary screening inquiries (PSIs): the highest-level review conducted under AR 27-1.12 The statistics show that although TJAG monitors all PR allegations throughout the JAG Corps, TJAG personally exercises authority in relatively few cases per year.13
So, what can these numbers tell us about our efforts to gain and maintain the moral and ethical high ground? A few conclusions emerge. First, the PRB, as an extension of TJAG, receives and reviews all allegations regardless of the source. Second, many allegations are resolved at either the due diligence review or credibility determination level. Although these reviews are informal, they result in supervisory and subordinate lawyers taking a critical look at the severity of the lawyer’s conduct, and are oftentimes resolved by counseling, additional training, mentorship, and an improvement in the provision of legal services. Finally, most PSIs conclude at the senior supervisory JA level with counseling, admonishment, or other corrective action.14 In summary, the PRB takes all allegations seriously. Most are disposed of at a lower level with corrective action, training, or counseling, and for a very few, TJAG finds substantiated rules violations with impactful consequences.
A phrase commonly used in the PRB illustrates another takeaway from these numbers and facts: “It’s called the practice of law for a reason.” Everyone makes mistakes because at every level, all of us are learning. Paralegals come from advanced individual training and are new to the Army and JAG Corps; captains enter the military courtroom for the first time; majors are leaders, often for the first time, despite more experience. In fact, colonels with twenty years of service are first-time staff judge advocates, learning and gaining experience. The point is that the entire enterprise is practicing law, learning, growing, and evolving. No one is perfect, and mistakes are both commonplace and expected. And that is precisely why gaining and maintaining the moral and ethical high ground includes rigor in mentoring, counseling, and developing Judge Advocate Legal Services members at every echelon. Not every mistake is a PR violation, and not every case of misconduct is a PR violation. But, addressing these matters with intentionality and deliberation, rather than ignorance or carelessness, makes all the difference.
It’s good to love your people—your team, your colleagues, your subordinates, your office. “People First,” the Chief of Staff of the Army says!15 But, gaining and maintaining the moral high ground requires an elevated view of the organization, the enterprise, and the system. “Taking care” of people (peers, subordinates, and supervisors alike) by failing to enforce standards and discipline, letting them slide, breaks the entire system down. That is why we all, jointly and severally, as a JAG Corps and as an institution, only gain and maintain the moral and ethical high ground by holding other members of the JAG Corps bar accountable to the highest ethical standards. The PR program is but one way that we, the JAG Corps, gain and maintain the moral and ethical high ground. TAL
COL Schiffer is the Chief, Professional Responsibility Branch, Office of The Judge Advocate General, at the Pentagon.
Mr. Martin is the Deputy Chief, Professional Responsibility Branch, Office of The Judge Advocate General at the Pentagon.
1. This popular quote and sentiment is on military-style morale patches. See, e.g., 30 Sec Out, https://thirtysecondsout.com/collections/no-one-is-coming-its-up-to-us (last visited Jan. 27, 2023). This quote is also pervasive on social media and is a slight alteration to a quote attributed to Adam Weishaupt. See, e.g., Good Reads, https://www.goodreads.com/quotes/10581925-it-s-up-to-us-no-one-is-coming-to-help (last visited Jan. 27, 2023).
2. The Judge Advocate Generals Corps and Judge Advocate Legal Services is referred to collectively as “the JAG Corps” throughout the rest of this article. See U.S. Dep’t of Army, Reg. 27-1, Judge Advocate Legal Services para. 3-1 (24 Jan. 2017) [hereinafter AR 27-1] (stating:
The JALS consists of—a. Officers, warrant officers, enlisted personnel, and other members of the Army detailed to the JAGC. b. Civilian attorneys for whom TJAG is the qualifying authority (see AR 690-200, subchapter 213) and executive level civilian attorneys who are under the technical supervision of TJAG. c. Professional consultants, legal technicians, civilian employees, and other personnel on duty with the JALS…”).
3. See AR 27-1, supra note 2, para. 11-2(a) (explaining:
TJAG and supervisory lawyers (as defined in this regulation and AR 27-26) are responsible for making reasonable efforts to ensure that all lawyers in the JALS conform to the Army Rules of Professional Conduct for Lawyers, the Code of Judicial Conduct for Army Trial and Appellate Judges, and other applicable ethical standards”).
Lawyers also have individual responsibilities. See, e.g., U.S. Dep’t of Army, Reg. 27-26, Rules of professional conduct for lawyers para 6(g) (28 June 2018) [hereinafter AR 27-26] (stating:
[m]any of a lawyer’s professional responsibilities are prescribed in these Rules of Professional Conduct, as well as in substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession, to exemplify the legal profession’s ideals of public service, and to respect the truth-finding role of the courts).
Additionally, Inspector General (IG) complaints against attorneys are referred to Professional Responsibility Branch (PRB), Office of The Judge Advocate General and fall outside the purview of IG. See U.S. Dep’t of Army, Reg. 20-1, Inspector General Activities and Procedures paras. 7-1(i)(4)–(5)(23 Mar. 2020).
4. Professional Responsibility Branch (PRB) has documents and opinions dating back nearly 50 years, to the mid-1970s. While individual cases are expunged from professional responsibility (PR) records in accordance with our system of records notice (SORN), see Privacy Act of 1974; Adding Systems of Records, 58 Fed. Reg. 3936 (Jan. 12, 1993); Privacy Act of 1974; System of Records, 76 Fed. Reg. 40343 (July 8, 2011), other documents and opinions reveal a long and thorough history of self-regulation in the JAG Corps. The files maintained by PRB are not public and are heavily protected by the Privacy Act. These files are accessed only by PRB and shared with The Judge Advocate General (TJAG), Deputy Judge Advocate General (DJAG), and those with a need to know acting on behalf of TJAG and DJAG.
5. AR 27-26, supra note 3, para. 6(a).
6. See AR 27-26, supra note 3, app. B, R. 5.1 (Responsibilities of Senior Counsel and Supervisory Lawyers). Rule 5.1 states, in part:
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct 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 other lawyer and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
7. Cadet Prayer, United States Military Academy, https://www.west-point.org/academy/malo-wa/inspirations/cadetprayer.html (last visited Dec. 15, 2022).
8. This slogan was originally implemented by the New York Metropolitan Transportation Authority in the aftermath of 9/11 and later adopted by the Department of Homeland Security in 2010. About the Campaign, U.S. Dep’t of Homeland Sec. (Jan. 4, 2023), https://www.dhs.gov/see-something-say-something/about-campaign.
9. See, e.g., AR 27-1, supra note 2, para. 11-2(c).
Supervisory lawyers at all levels are responsible for receiving and reviewing all alleged or suspected violations of the Army Rules of Professional Conduct for Lawyers, the Code of Judicial Conduct for Army Trial and Appellate Judges, or other applicable ethical standards by subordinates that come to their attention to determine if they are credible.
AR 27-1, supra note 2, para. 11-2(c) (emphasis added).
10. From calendar year 2012 through the end of 2021 (ten-year period), PRB entered 1,511 total cases. These numbers are recorded in the Professional Responsibility Case Management System, an online database that retains Professional Responsibility records and is only accessed by Professional Responsibility Branch, Office of The Judge Advocate General. See the discussion, supra note 4, regarding Professional Responsibility records.
11. See AR 27-1, supra note 2, para. 11-2(c). From calendar year 2012 through the end of 2021, PRB entered 211 due diligence reviews and 447 credibility determinations.
12. See AR 27-1, supra note 2, para. 11-4. From calendar year 2012 through the end of 2021, PRB entered 88 PSIs. In addition to due diligence reviews, credibility determinations, and preliminary screening, PRB responds to FOIA and Privacy Act requests, monitors command investigations of attorney misconduct, monitors court rulings and Army Court of Criminal Appeals opinions, and a variety of other information pertaining to attorney conduct throughout the JAG Corps.
13. See AR 27-1, supra note 2, paras. 11-6(d)-(f) (providing a non-exhaustive list of actions TJAG may take).
14. See AR 27-1, supra note 2, para. 11-5 (providing actions taken at the senior supervisory JA level).
15. See, e.g., Gen. James C. McConville, People First: Insights from the Army’s Chief of Staff, U.S. Army (Feb. 16, 2021), https://www.army.mil/article/243026/people_first_insights_from_the_armys_chief_of_staff.