LEGAL ISSUES OUTLINE FOR COUNSELORS

by Kathy Gilberd Co-chair, Military Law Task Force of the National Lawyers Guild

 

(B) But "counseling" illegal activity is wrong. In the past, a few draft counselors and anti-draft activists have been prosecuted for counseling folks to refuse to register or report for induction. "Counseling" here means urging or advising a person to do something illegal: "You should go UA" is not within the law.

(1) So we can give sailors information about the Navy's UA policy, but we cannot suggest that they go UA or encourage them to do so.

(2) We can tell Marines about discharges for the good of the service (GOS) and sailors about discharges in lieu of court-martial. We can't encourage them to engage in illegal behavior which would lead to court-martial charges which might, in turn, allow a GOS request.

(3) Giving information is safe. Urging illegal action isn't.

(C) Aiding and abetting illegal activity is illegal. We can talk to people who are AWOL, and we can answer questions about what may happen to them if they stay gone. We cannot take help them to stay gone or get further gone.

(1) Giving a Marine a bus ticket to Vancouver, or anywhere farther away from their base, can be a problem.

(2) As a general rule, it's not wise to give money or housing to AWOLs, though this could sometimes be defended as simply helping them maintain while they prepare to return. (3) Assisting someone in committing a crime is illegal; helping them escape is illegal; helping them make legal preparations to return when they are able to do so is not a crime. (4) But we do not have to urge UAs to return. As a matter of good counseling, we should point out potential problems of staying away (the likelihood of getting caught, the fact that longer absence may mean greater punishment, etc.), but it is quite legal to assure them that choices are theirs, and that we are glad to continue giving them information whatever they decide to do.

(5) When we give UAs information about their rights, help them gather mitigating evidence or prepare a discharge application while they're gone, etc., we are not helping them to stay away, but rather helping them to return.

(D) "Unauthorized practice of law" can get counselors in trouble. It comes up when counselors are accused of holding themselves out as attorneys or doing things that only attorneys can do. This can be a bit confusing, because the law is sometimes vague.

(1) We cannot say that we are attorneys. When clients assume we are attorneys, which happens all the time, we should correct the mistake. If commands or civilian docs or clients' family address us as attorneys, we should correct them.

(2) We cannot give "legal advice" or a "legal opinion," recommend a legal strategy for a court proceeding, or "advise" people of their right to remain silent. It helps to take the words "advice" and "legal opinion" out of our counseling vocabularies. Clients often ask us for "advice" or for our "opinion." Because the words are loaded, I usually say at that point that since I'm not an attorney, I can't give "advice" but can give them information about make suggestions about discharges and other admin procedures.

(3) When court-martial issues and criminal justice issues come up, or when GI's ask about going to court, we should be sure that we avoid giving advice. We can explain different options available to folks, and describe the procedures, but this is another very good place to say we're not attorneys. For information about trial strategies, defense issues, the likelihood that a particular issue will result in acquittal, or for information about statutes of limitations, which fall clearly in the area of advice, we can suggest clients talk to an attorney and give them the names of attorneys who handle such cases.

(E) Unless we work with an attorney or another professional whose communications with a client are covered by a legal "privilege" and who has a legal obligation of confidentiality, these legal concepts can't apply to us. We can be subpoenaed. Our client records can be subpoenaed. Efforts to do this are extremely rare, but we should be aware of the possibility. In addition, since most of us will have no legal duty of keeping client information confidential, the client will have no real recourse if we choose to chat about their cases. Of course, our own ethics and morals, and those of the counseling group, are just as important to us as a legal obligation. But it would be wrong to tell any client that the info they give us is privileged, or that there's a legal obligation of confidentiality, unless we're allied with an appropriate professional.

(F) Since we and our records can be subpoenaed, there's always a question about whether and how to keep records. Some counselors deal with the problem by not keeping notes. Others of us need written records to help us remember cases. The alternative to no records is to keep careful records and not to include information that might be harmful to a client or us.

(1) UA's are usually easy for the military to prove. These days, the military seldom messes up the paperwork (ah, for the good old days when they didn't write up initial charges in time to the statute of limitations for some UAs), and many counselors feel safe noting a "2 mo. UA," but would probably not make any written reference to desertion or other crimes. Some would deal with this by saying that the "command may attempt to charge" a particular crime. Problem areas could also come up with notes like:

• "G asked for information about going to Canada" (a hint or more of desertion, given everyone's ideas of why UA or not UA sailors might consider this trip);

• "client is considering long-term AWOL" (which hints at desertion as well as emphasizing the AWOL);


• "client says he may pop positive for cocaine" (if these records were obtained legally, they'd probably result in a probable cause urinalysis; legally or not, the command would certainly hassle the GI);


• "R said he had hit another Marine in a bar fight, doesn't know if he was hurt badly" doesn't bode well for R's alibi defense;

(2) We can think about ways to get the important parts of that info on paper, or to remind ourselves that an issue lurks, without putting down an admission of or an important fact of a crime. For instance, "Petty Officer X has claimed client hit someone during a bar fight" works if the command already knows about this Petty Officer's statement.

(3) If we're working with clients over time, as on a CO or other discharge claim, we may need a file with drafts of their CO claim, medical records, etc. Here, too, we might choose not to keep problem documents -- the draft of the CO claim that appears to threaten immediate violent revolution; the civilian doctor's letter diagnosing malingering, and so on.

(4) We may also want to use our records to show the correct things we've done. Whenever I need to tell or remind a client that I'm not an attorney, I make a note of "ENA" (explained not attorney) and try to make a note of the situation that called for this response. We may want to note "suggested she contact atty. to discuss pending court-martial" or "NB: called atty. Brown, discussed pending unsafe sex charge, and conveyed Doug's suggestion that servicemember see him before talking to command." Yes, that's a bit awkward, but my view is that, while telling her to make no statement is legal advice, telling her to see an attorney before doing anything is safe. Judges are attorneys. Attorneys like referrals to attorneys for legal advice.