32 CFR 719.142 - Suspension of counsel.

§ 719.142 Suspension of counsel.
(a) Report of Allegations of Misconduct or Disability. When information comes to the attention of a member of a court-martial, a military judge, trial or defense counsel, staff judge advocate, member of the Navy-Marine Corps Court of Military Review or other directly interested or concerned party that a judge advocate or civilian who is acting or is about to act as counsel before a proceeding conducted under the UCMJ or MCM is or has been unable to discharge properly all the duties of his or her position by reason of mental or physical disability or has been engaged in professional or personal misconduct of such a serious nature as to demonstrate that he or she is lacking in integrity or is failing to meet the ethical standards of the profession or is otherwise unworthy or unqualified to perform the duties of a judge advocate or attorney, such information should be reported to the commanding officer of that judge advocate or, in the case of civilian counsel, to the officer exercising general court-martial jurisdiction over the command convening the proceedings or to the Judge Advocate General.
(b) Form of report. The report shall:
(1) Be in writing, under oath or affirmation, and made and signed by the individual reporting the information.
(2) State that the individual reporting the information has personal knowledge or belief or has otherwise received reliable information indicating that:
(i) The counsel is, or has been, unable to discharge properly all the duties of his or her office by reason of mental or physical disability; or
(ii) The counsel is or has been engaged in professional or personal misconduct of such a serious nature as to demonstrate that he or she is lacking in integrity or is failing to meet the ethical standards of the profession; or
(iii) The counsel is unworthy or unqualified to perform his or her duties;
(3) Set forth the grounds of the allegation together with all relevant facts; and
(4) Be forwarded to the appropriate authority as set forth in paragraph (a).
(c) Consideration of the Report—
(1) Action by the Commanding Officer of a judge advocate. Upon receipt of the report, the commanding officer:
(i) Shall dismiss any report relating to the performance of a judge advocate more properly appealed under law or any report that is frivolous, unfounded, or vague and return it to the reporting individual;
(ii) May make further inquiry into the report at his or her discretion to determine the merits of the report. The commanding officer may appoint an officer to investigate informally the allegations of the report to determine whether further action is warranted. Any officer so appointed should be a judge advocate senior in rank to the judge advocate being investigated;
(iii) May take appropriate action to address and dispose of the matter being mindful of such measures as warning, counseling, caution, instruction, proceedings in contempt, therapy, and other punitive or administrative action; or
(iv) Shall, if the commanding officer is of the opinion that evidence of disability or professional or personal misconduct exists, and that remedial measures short of suspension or decertification are not appropriate or will not be effective, forward the original complaint, a written report of the inquiry or investigation, all other relevant information, and his or her comments and recommendations to the officer in the chain of command exercising general court-martial authority.
(2) Action by officer exercising general court-martial authority.
(i) Upon receipt of a report of an allegation of misconduct or disability of a counsel, the officer exercising general court-martial convening authority:
(A) May take the action authorized by subsections (c)(1)(i), (ii) or (iii); or
(B) Shall, if he or she considers that evidence of disability or professional or personal misconduct exists and that other remedial measures short of suspension or decertification are not appropriate or will not be effective, appoint a board of officers to investigate the matter and to report its findings and its recommendations. This board shall be comprised of at least three officers, each an Article 27(b), Uniform Code of Military Justice, certified judge advocate. If practicable, each of the officers of the board should be senior to the judge advocate under investigation. If the counsel is a member of the Marine Corps, a majority of the members of the board should be Marine Corps judge advocates. The senior officer of the board shall cause notice to be given to the counsel, judge advocate or civilian (respondent), informing him or her of the misconduct or other disqualification alleged and affording him or her the opportunity to appear before the board for a hearing. The respondent shall be permitted at least ten (10) days' notice prior to the hearing. Failure to appear on a set date after notice shall constitute waiver of appearance, absent good cause shown. The respondent shall be generally afforded the rights of a party as set out in section 0304 of this Manual, except that, in the event the judge advocate respondent wishes to have military counsel appointed, he or she shall not have the right to select or identify a particular military counsel. A civilian respondent may not be represented by military counsel, but may be represented by civilian counsel at no expense to the Government. Upon ascertaining the relevant facts after notice and hearing, a written report of the findings and recommendations of the board shall be made to the officer who convened the board. In all cases, a written copy of the board's findings and recommendations shall be provided to the respondent. The respondent shall be given an opportunity to comment on the report in writing.
(ii) Upon receipt of the report of the board of investigation, the officer exercising general court-martial authority shall:
(A) Return the report to the board for further investigation, if the investigation is determined to be incomplete; or
(B) Forward the report of the board of investigation to the Judge Advocate General together with comments and recommendations concerning suspension of the counsel involved.
(3) Action by the Judge Advocate General.
(i) Upon receipt of a report of an allegation of misconduct or disability of a counsel, the Judge Advocate General:
(A) May take the action authorized by subsections (c)(1)(i), (ii), or (iii);
(B) May appoint a board of officers for investigation and hearing in accordance with subsections (c)(2)(i)(B) or
(C) May request the officer exercising general court-martial jurisdiction over the command of the respondent (if judge advocate counsel) or over the proceedings (if civilian counsel) to take the matter for investigation and hearing in accordance with subsection (c)(2)(i)(B).
(ii) Upon receipt of the report of the investigating board, the Judge Advocate General:
(A) May determine whether the respondent is to be suspended or decertified and, if so, whether for a stated term or indefinitely;
(B) May determine that the findings of the board do not warrant further action; or
(C) May return the report to the sending officer with appropriate instructions for further inquiry or action. The Judge Advocate General may, sua sponte, or upon petition of the respondent, modify or revoke any prior order of suspension or dismissal of a report. Further, if the Judge Advocate General suspends counsel, the Judge Advocates General of the other armed forces will be notified.
(d) Grounds justifying suspension of counsel or suspension or decertification of a Judge Advocate.
(1) Suspension or decertification is to be employed only after it has been established that a counsel has been unable to discharge properly all the duties of his or her office by reason of mental or physical disability or has been engaged in professional or personal misconduct of such a serious nature as to demonstrate that he or she is lacking in integrity or is failing to meet the ethical standards of the profession or is otherwise unworthy or unqualified to perform the duties of a counsel Action to suspend or decertify should not be initiated because of personal prejudice or hostility toward counsel, nor should such action be initiated because counsel has initiated an aggressive, zealous or novel defense, or the apparent misconduct stems from inexperience or lack of instruction.
(2) Specific grounds for suspension or decertification include, but are not limited to, the following:
(i) Demonstrated incompetence while acting as counsel before, during or after a court-martial.
(ii) Preventing or obstructing justice, including the deliberate use of frivolous or unwarranted dilatory tactics.
(iii) Fabricating papers or other evidence.
(iv) Tampering with a witness.
(v) Abusive conduct toward the court-martial, the Navy-Marine Corps Court of Military Review, the military judge, or opposing counsel.
(vi) Flagrant or repeated violations of any specific rules of conduct prescribed for counsel in the Manual for Courts-Martial.
(vii) Conviction of an offense involving moral turpitude or conviction for violation of article 48, UCMJ.
(viii) Disbarment by a State Bar, Federal Court, or the United States Court of Military Appeals.
(ix) Suspension as counsel by the Judge Advocate General of the Navy, Army, or Air Force or the General Counsel of the Department of Transportation.
(x) Flagrant or repeated violations of the Uniform Rules of Practice Before Navy-Marine Corps Courts-Martial as outlined in appendix A-1-p(1) of the Manual of the Judge Advocate General.
(xi) Flagrant or repeated violations of the provisions of section 0134 of this Manual of the Judge Advocate General dealing with the Release of Information Pertaining to Accused Persons; Spectators at Judicial Sessions.
(xii) Failure to meet the rules set forth in the ABA Code of Professional Responsibility and the ABA Standards on Fair Trial and Free Press and The Prosecution Function and the Defense Function. In view of the unique mission and personal requirements of the military, many of the rules and principles of the ABA Code or Standards are not applicable to the military lawyer. Accordingly, the rules are to be used as a guide only, and a failure to comply with the specific wording of a rule is not to be construed as a violation of the rule where common sense would indicate to a reasonable person that there is a distinction between the civilian context, which the codes were drafted to embrace, and the unique concerns of the military setting, where the codes serve as a general guide.
[50 FR 23801, June 6, 1985]

Title 32 published on 2013-07-01

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