Civilian Legal Representation of Military Members in the Armed Forces

of Military Members in the Armed Forces

See: RCM 502(d)(3)(A) and Soriano v. Hosken, 9 MJ 221 (CMA 1980),
and United States v. Kraskouskas, 9 USCMA 607, 26 CMR 387 (1958).

Milton D. STEELE, Lance Corporal U.S. Marine Corps, Appellant


Article 27, UCMJ, 10 USC § 827, entitles an accused before a general or special court-martial to representation by detailed military defense counsel without regard to his ability to pay. Under Article 27(b):

(b) Trial counsel or defense counsel detailed for a general court-martial -

(1) must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; or must be a member of the bar of a Federal court or of the highest court of a State; and

(2) must be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member.

Article 27 is silent with respect to the right to be represented by civilian counsel and with respect to any qualifications imposed upon civilian defense counsel.

Article 38(b), UCMJ, 10 USC § 838(b), sets forth the full penumbra of an accused's options with respect to representation before general and special courts-martial: detailed military counsel, individually requested military counsel, or civilian counsel. Under Article 38(b)(2), "The accused may be represented by civilian counsel if provided by him." Neither Article 38 nor any other provision of the Code establishes any qualifications or requisites -- other than the oath -- for a civilian counsel to practice before a court-martial. See Art. 42, UCMJ, 10 USC § 842; see also Soriano v. Hosken, 9 MJ 221 (CMA 1980), and United States v. Kraskouskas, 9 USCMA 607, 26 CMR 387 (1958).

The President has established basic qualifications for civilian counsel in RCM 502, Manual for Courts-Martial, United States (1995 ed.). Civilian counsel representing an accused before a court-martial must be "[a] member of the bar of a Federal court or of the bar of the highest court of a State." RCM 502(d)(3)(A). If that civilian lawyer is "not a member of such a bar," then he or she must be "a lawyer who is authorized by a recognized licensing authority to practice law and is found by the military judge to be qualified to represent the accused upon a showing to the satisfaction of the military judge that the counsel has appropriate training and familiarity with the general principles of criminal law which apply in a court-martial." RCM 502(d)(3)(B). Neither the Code nor the Manual expressly disqualifies a civilian attorney on the grounds that his or her bar status is designated as "inactive."

Federal courts in the civilian sector have dealt with the question of an attorney's bar status vis-a-vis an accused's Sixth Amendment right to counsel. In general, they hold that once an attorney is found competent and admitted to practice law in a licensing jurisdiction, subsequent changes to his or her bar membership status do not render that counsel incompetent or disqualified. "Though admission to practice before a federal court is derivative from membership in a state bar, disbarment by the State does not result in automatic disbarment by the federal court. Though that state action is entitled to respect, it is not conclusively binding on the federal courts." In re Ruffalo, 390 U.S. 544, 547 (1968), citing Theard v. United States, 354 U.S. 278, 281-82 (1957).

In Reese v. Peters, 926 F.2d 668 (1991), Reese contended that representation at trial by a lawyer who had been suspended for failure to pay his state bar dues was an automatic violation of the Sixth Amendment. The Seventh Circuit rejected such a per se rule. The court agreed with Beto v. Barfield, 391 F.2d 275 (5th Cir. 1968), which held "that a lawyer whose license had been suspended for failure to pay dues still may" serve as "counsel" within the meaning of the Sixth Amendment. "What matters for constitutional purposes is that the legal representative was enrolled after the court concluded that he was fit to render legal assistance." Reese, 926 F.2d at 670.

In Solina v. United States, 709 F.2d 160 (1983), the accused was unaware that his defense attorney had not passed the bar exam and had not been admitted to practice as a member of any state bar. While the Second Circuit did find this defect to be fatal in terms of the Sixth Amendment right to counsel, the court was careful to distinguish its holding from situations in which competence was not in issue:

[W]e do not intimate that any technical defect in the licensed status of a defendant's representative would amount to a violation of the Sixth Amendment. We limit our decision in this case to situations where, unbeknown to the defendant, his representative was not authorized to practice law in any state, and the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character. . . .

Id. at 167 (footnote omitted).

An argument that disbarment by the Court of Appeals made "counsel's continued services . . . ineffective under the Sixth Amendment" was rejected in United States v. Mouzin, 785 F.2d 682 (9th Cir.), cert. denied sub nom., Carvajal v. United States, 479 U.S. 985 (1986). The court held that subsequent services by that disbarred attorney would not be deemed inadequate without considering the "intrinsic quality" of those services. The court noted that in United States v. Hoffman, 733 F. 2d 596 (9th Cir.), cert. denied, 469 U.S. 1039 (1984), it had rejected any "per se rule" to the effect "that in the federal court, representation by a lawyer suspended from practice by a state bar automatically results in the denial of the Sixth Amendment right to counsel." It noted: "[T]he fact that an attorney is suspended or disbarred does not, without more, rise to the constitutional significance of ineffective counsel under the Sixth Amendment. Rather, a defendant must ordinarily point to specific conduct which prejudiced him in order to raise the constitutional claim" of ineffective assistance of counsel. Mouzin, 785 F.2d at 696-97; see also United States v. Maria-Martinez, 143 F.3d 914, 916-19 (5th Cir. 1998), cert. denied, 525 U.S. 1107 (1999); and United States v. McKinney, 53 F.3d 664, 675 (5th Cir.), cert. denied sub nom., Wade v. United States, 516 U.S. 901 (1995).

Our Court has addressed the significance of a licensing authority's decision to admit a person to the bar. In Soriano v. Hosken, supra, we noted that a civilian counsel must be "qualified" in order to make the right to civilian counsel "meaningful as intended by the Code." 9 MJ at 221. Civilian counsel must also be "authorized by some recognized licensing authority to engage in the practice of law." Kraskouskas, 9 USCMA at 609, 26 CMR at 389. There are no other restrictions on an accused's right to counsel under Article 38(b). Once licensed, "such lawyers are presumed competent for the professional undertaking of the defense of a military accused at a court-martial." Soriano, 9 MJ at 222.

The decisions of our Court and other federal courts reflect that admission to practice is the necessary indicia that a level of competence has been achieved and reviewed by a competent licensing authority. This determination of competence is not necessarily eviscerated when sanctions are imposed by a state bar or by changes in counsel's status where those matters do not demonstrate a negative determination of counsel's competence. As the Ninth Circuit concluded in Mouzin:

Neither suspension nor disbarment invites a per se rule that continued representation in an ongoing trial is constitutionally ineffective. Admission to the bar allows us to assume that counsel has the training, knowledge, and ability to represent a client who has chosen him. Continued licensure normally gives a reliable signal to the public that the licensee is what he purports to be - an attorney qualified to advise and represent a client. But it is an undeniable fact of experience that lawyers unhappily incur sanctions ranging from censure to disbarment; that sometimes that discipline flows from revealed incompetence or untrustworthiness or turpitude such as to deserve no client's confidence. All we need hold here is that a lawyer's services were ineffective on a case, not a per se, basis.

785 F.2d at 698; see United States v. Mitchell, No. 99-3035, __ F.3d __, __ (D.C. Cir. June 30, 2000).