[Federal Register Volume 59, Number 169 (Thursday, September 1, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-21610]


[[Page Unknown]]

[Federal Register: September 1, 1994]


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DEPARTMENT OF DEFENSE
Department of the Navy

32 CFR Part 776

 

Judge Advocate General's Instruction 5803.1A; Professional 
Conduct of Attorneys Practicing Under the Supervision of the Judge 
Advocate General

AGENCY: Department of the Navy, DOD.

ACTION: Final rule.

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SUMMARY: This rule sets forth regulations concerning the professional 
conduct of attorneys practicing law under the supervision of the Judge 
Advocate General of the Navy. This rule is being published to codify 
the Judge Advocate General's Instruction 5803.1A, Professional Conduct 
of Attorneys Practicing Under the Supervision of the Judge Advocate 
General.

EFFECTIVE DATE: September 1, 1994.

FOR FURTHER INFORMATION CONTACT: CAPT P.W. Kelley, Office of the Judge 
Advocate General, Administrative Law Division, 200 Stovall Street, 
Alexandria, VA 22332-2400. Telephone: (703) 614-1781.

SUPPLEMENTARY INFORMATION: This part establishes policy, assigns 
responsibilities, and prescribes procedures for attorneys practicing 
law under the supervision of the Judge Advocate General (JAG) for 
relations with non-DOD civilian counsel, petitions for outside law 
practice of naval service attorneys, and a description of the complaint 
processing procedure. This part ensures that attorneys practicing law 
under the supervision of the JAG will be provided with rules of 
professional conduct with which they must comply in order to remain in 
``good standing.'' Although the rules of professional conduct do not 
apply to nonlawyers, they do define the type of ethical conduct that 
the public and the military community have a right to expect not only 
of lawyers but also of their nonlawyer employees. It has been 
determined that invitation of public comment on these changes to the 
Department of the Navy's implementing instruction prior to adoption 
would be impractical and unnecessary, and is therefore not required 
under the public rule-making provisions of 32 CFR parts 336 and 701. 
Interested persons, however, are invited to comment in writing. Written 
comments received will be considered in making amendments or revisions 
to 32 CFR part 776 or the naval instruction upon which it is based. It 
has been determined that this final rule is not a major rule within the 
criteria specified in Executive Order 12291 and does not have 
substantial impact on the public. This submission is a statement of 
policy and as such can be effective upon publication in the Federal 
Register.

List of Subjects in 32 CFR Part 776

    Conflicts of interests, Lawyers, Legal services, Reporting and 
recordkeeping requirements.

    For the reasons set out in the Preamble, part 776 is added to 32 
CFR chapter VI to read as follows:

PART 776--PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE 
SUPERVISION OF THE JUDGE ADVOCATE GENERAL

Subpart A--General, Preamble and Premises

Sec.
776.1  Purpose.
776.2  Applicability.
776.3  Policy.
776.4  Attorney-client relationships.
776.5  Judicial conduct.
776.6  Conflict.
776.7  Reporting requirements.
776.8  Professional Responsibility Committee.
776.9  Rules Counsel.
776.10  Informal ethics advice.
776.11  Outside part-time practice of law.
776.12  Maintenance of files.
776.13  Preamble.
776.14  Premises.
776.15-776.19  [Reserved]

Subpart B--Rules

776.20  Competence.
776.21  Establishment and scope of representation.
776.22  Diligence.
776.23  Communication.
776.24  Fees.
776.25  Confidentiality of information.
776.26  Conflict of interests: General rule.
776.27  Conflict of interests: Prohibited transactions.
776.28  Conflict of interests: Former client.
776.29  Imputed disqualification: General rule.
776.30  Successive government and private employment.
776.31  Former judge or arbitrator.
776.32  Department of the Navy as client.
776.33  Client under a disability.
776.34  Safekeeping property.
776.35  Declining or terminating representation.
776.36  Advisor.
776.37  Mediation.
776.38  Evaluation for use by third persons.
776.39  Meritorious claims and contentions.
776.40  Expediting litigation.
776.41  Candor and obligations toward the tribunal.
776.42  Fairness to opposing party and counsel.
776.43  Impartiality and decorum of tribunal.
776.44  Extra-tribunal statements.
776.45  Judge advocate as witness.
776.46  Special responsibilities of a trial counsel.
776.47  Advocate in nonadjudicative proceedings.
776.48  Truthfulness in statements to others.
776.49  Communication with person represented by counsel.
776.50  Dealing with an unrepresented person.
776.51  Respect for rights of third persons.
776.52  Responsibilities of the judge advocate general and 
supervisory judge advocates.
776.53  Responsibilities of a subordinate judge advocate.
776.54  Responsibilities regarding nonlawyer assistants.
776.55  Professional independence of a judge advocate.
776.56  Unauthorized practice of law.
776.57-776.65  [Reserved]
776.66  Bar admission and disciplinary matters.
776.67  Judicial and legal officials.
776.68  Reporting professional misconduct.
776.69  Misconduct.
776.70  Jurisdiction.
776.71-776.75  [Reserved]

Subpart C--Complaint Processing Procedures

776.76  Policy.
776.77  Related investigations and actions.
776.78  Informal complaints.
776.79 The complaint.
776.80  Initial screening and Rules Counsel.
776.81  Charges.
776.82  Preliminary inquiry.
776.83  Ethics investigation.
776.84  Action by JAG.
776.85  Finality.
776.86  Report to bar.
776.87-776.89  [Reserved]

Subpart D--Outside Part-Time Law Practice of Naval Service Attorneys

776.90  Background.
776.91  Definition.
776.92  Policy.
776.93  Action.
776.94  Revalidation.
776.95  Relations with non-DOD civilian counsel.

    Authority: 10 U.S.C. 826, 827; Manual for Courts-Martial, United 
States, 1984; Secretary of the Navy Instruction 5430.27A, 
Responsibility of the Judge Advocate General for Supervision of 
Certain Legal Services; U.S. Navy Regulations, 1990.

Subpart A--General, Preamble and Premises


Sec. 776.1  Purpose.

    In furtherance of the authority citations [which, if not found in 
local libraries, are available from the Office of the Judge Advocate 
General (Administrative Law Division), 200 Stovall Street, Alexandria, 
VA 22332-2400], which require the Judge Advocate General (JAG) to 
supervise the performance of legal services under his cognizance 
throughout the Department of the Navy (DON), this part is promulgated--
    (a) To establish Rules of Professional Conduct for DON civilian and 
military attorneys practicing under the supervision of JAG;
    (b) To promulgate procedures for receiving, processing, and taking 
action on complaints of professional misconduct made against attorneys 
practicing under the supervision of JAG, or certified by JAG under 
articles 26(b) or 27(b) of the Uniform Code of Military Justice (UCMJ) 
(10 U.S.C. 826(b), 827(b)); and
    (c) To prescribe limitations on, and procedures for, processing 
requests to engage in the part-time outside practice of law by DON 
judge advocates or civilian attorneys under the supervision of JAG.


Sec. 776.2  Applicability.

    (a) This part defines the professional ethical obligations of, and 
applies to:
    (1) Attorneys:
    (i) Certified by JAG under the provisions of article 27(b), UCMJ, 
10 U.S.C. 827(b);
    (ii) Designated by JAG as legal assistance attorneys;
    (iii) Who practice within DON and who are certified under article 
27(b), UCMJ, 10 U.S.C. 827(b), or who are designated as a legal 
assistance attorney by the Judge Advocate General/Chief Counsel of 
another armed force, or both; and
    (2) Who are not certified in accordance with article 27(b), UCMJ, 
10 U.S.C. 827(b), or designated as a legal assistance attorney, but who 
practice under the supervision of JAG.
    (3) Military trial and appellate judges who practice or perform 
legal services under the cognizance of JAG.
    (4) Reserve judge advocates of the Navy or Marine Corps on active 
duty, extended active duty, active duty for training, inactive duty for 
training, or when performing duties subject to the supervision of JAG. 
Subpart D of this part, however, does not apply to Reserve judge 
advocates unless they serve on active duty for more than 30 consecutive 
days.
    (5) DON civilian counsel practicing under the supervision of JAG.
    (6) Civilian counsel representing individual members of the naval 
service in any matter for which JAG is charged with supervising the 
provision of legal services including, but not limited to, courts-
martial, administrative boards, and disability evaluation proceedings. 
Subpart D of this part, however, does not apply to such counsel.
    (b) Although subpart B of this part does not apply to nonlawyers, 
the rules in that subpart do define the type of ethical conduct that 
the public and the military community have a right to expect not only 
of lawyers but also of their nonlawyer employees and associates in all 
matters pertaining to professional conduct. Accordingly, subpart B 
shall serve as models of ethical conduct for the following personnel 
when involved with the delivery of legal services under the purview of 
JAG--
    (1) Navy legalmen and Marine Corps legal administrative officers 
and legal service specialists;
    (2) Limited duty officers (law);
    (3) Legal interns; and
    (4) Civilian support personnel including paralegals, legal 
secretaries, legal technicians, secretaries, court-reporters, and 
others holding similar positions. Attorneys who supervise nonlawyer 
employees are responsible for their ethical conduct to the extent 
provided for in Sec. 776.54.


Sec. 776.3  Policy.

    (a) DON judge advocates and civilian attorneys to whom this part 
applies shall maintain the highest standards of professional ethical 
conduct. Loyalty and fidelity to the United States, to the law, to 
clients both institutional and individual, and to the rules and 
principles of professional ethical conduct set forth in subpart B of 
this part must come before private gain or personal interest.
    (b) Subpart B and related procedures set forth herein concern 
matters solely under the purview of JAG. Whether conduct or failure to 
act constitutes a violation of the duties imposed by this part is a 
matter within the sole discretion of JAG or officials authorized to act 
for JAG. The subpart B rules are not substitutes for, and do not take 
the place of, other rules and standards governing DON personnel such as 
the Government rules of ethical conduct, the Code of Conduct, the 
Uniform Code of Military Justice, and the general precepts of ethical 
conduct to which all officers of the Navy and Marine Corps are expected 
to adhere. Similarly, action taken pursuant to this part is not 
supplanted or barred by, and does not supplant or bar, the following 
action from being taken by authorized officials, even if the underlying 
misconduct is the same--
    (1) Punitive or disciplinary action under the UCMJ; or
    (2) Administrative action under the Manual For Courts-Martial or 
U.S. Navy Regulations, 1990, or under other applicable authority.


Sec. 776.4  Attorney-client relationships.

    (a) The executive agency to which assigned (DON in most cases) is 
the client served by each DON civilian attorney or judge advocate 
unless detailed to represent another client by competent authority. 
Specific guidelines are contained in Sec. 776.32.
    (b) DON judge advocates and civilian attorneys will not establish 
attorney-client relationships with any individual unless detailed, 
assigned, or otherwise authorized to do so by competent authority.
    (c) Employment of non-DON civilian counsel by an individual client 
does not alter the responsibilities of a DON judge advocate or civilian 
attorney to that client. Specific guidance is set forth in Sec. 776.95.


Sec. 776.5  Judicial conduct.

    To the extent that it does not conflict with statutes, subpart B of 
this part, or regulations of the sort mentioned in Sec. 776.3(b), the 
American Bar Association's Code of Judicial Conduct applies to all 
military and appellate judges and to all judge advocates and other 
attorneys performing judicial functions under JAG supervision within 
the Department of the Navy.


Sec. 776.6  Conflict.

    To the extent that a conflict exists between subpart B of this part 
and the rules of other jurisdictions that regulate the professional 
conduct of attorneys, subpart B of this part will govern the conduct of 
attorneys engaged in legal functions under JAG supervision.


Sec. 776.7  Reporting requirements.

    Individuals subject to this part shall promptly report to the Rules 
Counsel (see Sec. 776.9) discipline by another jurisdiction upon 
himself, herself, or another individual subject to this part.


Sec. 776.8  Professional Responsibility Committee.

    (a) Composition. This standing committee will consist of the 
Assistant Judge Advocate General (AJAG) for Military Justice; the 
Principal Deputy Assistant Judge Advocate General (PDAJAG) (Operations 
& Management); the Chief Judge, Navy-Marine Corps Trial Judiciary; and 
in cases involving Marine Corps judge advocates, the Deputy Director, 
Judge Advocate Division, HQMC; and such other personnel as JAG from 
time-to-time may appoint. A majority of the members constitutes a 
quorum. The Chairman of the Committee shall be PDAJAG (Operations & 
Management). The Chairman may excuse members disqualified for cause, 
illness, or exigencies of military service, and may request JAG to 
appoint additional or alternative members on a temporary or permanent 
basis.
    (b) Purpose. (1) When requested by JAG or by the Rules Counsel, the 
Committee will provide formal advisory opinions to JAG regarding 
application of subpart B of this part to individual or hypothetical 
cases.
    (2) On its own motion, the Committee may also issue formal advisory 
opinions on ethical issues of importance to the DON legal community.
    (3) Upon written request, the Committee will also provide formal 
advisory opinions to individuals subject to this part about the 
propriety of proposed courses of action under subpart B of this part. 
If such requests are predicated upon full disclosure of all relevant 
facts, and if the Committee advises that the proposed course of conduct 
is not violative of subpart B of this part, then no adverse action 
under this part may be taken against an individual who acts consistent 
with the Committee's advice.
    (4) The Committee Chairman will forward copies of all opinions 
issued by the Committee to the Rules Counsel.


Sec. 776.9  Rules Counsel.

    Appointed by JAG to act as a special assistant for the 
administration of subpart B of this part, the Rules Counsel derives 
authority from JAG and, with respect to administrative matters under 
this part, has ``by direction'' authority. The Rules Counsel shall 
cause opinions issued by the Professional Responsibility Committee of 
general interest to the DON legal community to be published in 
summarized, non-personal form in suitable publications. Unless another 
officer is appointed by JAG to act in individual cases, the following 
officers shall act as Rules Counsel--
    (a) In cases involving Marine Corps judge advocates, Director, 
Judge Advocate Division; and
    (b) In all other cases, Assistant Judge Advocate General (Civil 
Law).


Sec. 776.10  Informal ethics advice.

    (a) Advisors. Judge advocates may seek informal ethics advice 
either from the OJAG officers named below or from their supervisory 
judge advocates in the field. Within the Office of the JAG, the 
following officials are designated to respond to informal, oral 
inquiries concerning this part in the areas of practice indicated--
    (1) Head, Military Affairs/Personnel Law Branch, Administrative Law 
Division: administrative boards and related matters;
    (2) Deputy Director, Criminal Law Division: military justice 
matters;
    (3) Deputy Director, Legal Assistance Division: legal assistance 
matters; and
    (4) Head, Standards of Conduct/Government Ethics Branch, 
Administrative Law Division: all others.
    (b) Informal advice. Informal ethics advice will not be provided by 
OJAG advisors concerning matters currently in litigation.
    (c) Written advice. A request for informal advice does not relieve 
the requestor of the obligation to comply with subpart B of this part. 
Although DON judge advocates and civilian attorneys are encouraged to 
seek advice when in doubt as to their responsibilities, they remain 
personally responsible for their professional conduct. If, however, a 
subordinate judge advocate acts in accordance with a supervisory judge 
advocate's written and reasonable resolution of an arguable question, 
then no adverse action under this part may be taken against the 
subordinate judge advocate. JAG is not bound by unwritten advice or by 
advice provided by nonsupervisors.


Sec. 776.11  Outside part-time practice of law.

    A DON attorney's primary professional responsibility is to the 
executive agency to which assigned, and he or she is expected to devote 
the required amount of effort and time to satisfactorily accomplish 
assigned duties. The outside practice of law, therefore, must be 
carefully monitored. Attorneys to whom this section applies who wish to 
engage in the part-time, outside practice of law must first obtain 
permission from JAG. Details are contained in Subpart D of this part.


Sec. 776.12  Maintenance of files.

    Ethics complaint records and outside, part-time law practice 
request files shall be maintained by the Administrative Law Division, 
Office of the Judge Advocate General.
    (a) Files shall be labeled with the name of the individual against 
whom complaints are made, or who request permission to engage in the 
part-time outside practice of law, and will contain the request, 
complaint, reports of investigation, related correspondence, and allied 
papers.
    (b) Requests for access to such records should be referred to DAJAG 
(Administrative Law Division), Office of the Judge Advocate General, 
200 Stovall Street, Alexandria, Virginia 22332-2400.
    (c) Local command files regarding complaints will not be 
maintained. Commanding officers and other supervisory personnel may, 
however, maintain their own personal files but must not share their 
contents with others.


Sec. 776.13  Preamble.

    (a) Rules of Professional Conduct. (1) A judge advocate in the 
naval service is a representative of clients, an officer of the legal 
system, a commissioned officer, and a public citizen who has a special 
responsibility for the quality of justice and legal services provided 
to the Department of the Navy and to individual clients. The Rules of 
Professional Conduct set out in subpart B of this part govern the 
ethical conduct of naval judge advocates practicing under the Uniform 
Code of Military Justice, the Manual for Courts-Martial, 10 U.S.C. 1044 
(Legal Assistance), other laws of the United States, and regulations of 
the Department of the Navy.
    (2) The rules in subpart B of this part are specifically addressed 
to the conduct of judge advocates but apply to all other lawyers who 
practice under the supervision of the Judge Advocate General of the 
Navy. (Use of the term ``judge advocate'' in subpart B applies to all 
lawyers unless otherwise indicated.)
    (b) [Reserved]


Sec. 776.14  Premises.

    (a) The rules in subpart B of this part are based on the premises 
that follow. The interpretation of subpart B of this part should flow 
from their common meaning and the comments. To the extent that any 
ambiguity or conflict exists, subpart B of this part should be 
interpreted consistent with this hierarchy of premises.
    (1) Judge advocates must obey the law and military regulations, and 
counsel clients to do so.
    (2) Ethical rules must be followed.
    (3) Ethical rules should be consistent with law. If law and ethics 
conflict, the law prevails unless an ethical rule is constitutionally 
based.
    (4) A judge advocate must protect the legal rights and interests of 
clients, organizational and individual.
    (5) The military criminal justice system is a truth-finding process 
consistent with constitutional law.
    (6) A judge advocate must be honest and truthful in all dealings.
    (7) A judge advocate shall not derive personal gain, other than 
from the U.S. Government, from the performance of official duties.
    (8) A judge advocate shall maintain the integrity of the legal and 
military professions.
    (b) [Reserved]

Subpart B--Rules


Sec. 776.20  Competence.

    (a) Competence. A judge advocate shall provide competent, diligent, 
and prompt representation to a client. Competent representation 
requires the legal knowledge, skill, thoroughness, and expeditious 
preparation reasonably necessary for representation. Initial 
determinations as to competence of a judge advocate for a particular 
assignment shall be made by a supervising judge advocate before case or 
issue assignments; however, assigned judge advocates may consult with 
supervisors concerning competence in a particular case.
    (b) [Reserved]


Sec. 776.21  Establishment and scope of representation.

    (a) Establishment and scope of representation. (1) Formation of 
attorney-client relationships by judge advocates with, and 
representation of, clients is permissible only when the judge advocate 
is authorized to do so by competent authority.
    (2) The subject matter scope of a judge advocate's representation 
will be consistent with the terms of the assignment to perform specific 
representational or advisory duties. A judge advocate shall inform 
clients at the earliest opportunity of any limitations of 
representation and professional responsibilities of the judge advocate 
towards the client.
    (3) A judge advocate shall follow the client's well-informed and 
lawful decisions concerning case objectives, choice of counsel, forum, 
pleas, whether to testify, and settlements.
    (4) A judge advocate's representation of a client does not 
constitute an endorsement of the client's political, economic, social, 
or moral views or activities.
    (5) A judge advocate shall not counsel or assist a client to engage 
in conduct that the judge advocate knows is criminal or fraudulent, but 
a judge advocate may discuss the legal and moral consequences of any 
proposed course of conduct with a client, and may counsel or assist a 
client in making a good faith effort to determine the validity, scope, 
meaning, or application of the law.
    (b) [Reserved]


Sec. 776.22  Diligence.

    (a) Diligence. A judge advocate shall act with reasonable diligence 
and promptness in representing a client, and in every case shall 
consult with a client as soon as practicable and as often as necessary 
upon being assigned to the case or issue.
    (b) [Reserved]


Sec. 776.23  Communication.

    (a) Communication. (1) A judge advocate shall keep a client 
reasonably informed about the status of a matter and promptly comply 
with reasonable requests for information.
    (2) A judge advocate shall explain a matter to the extent 
reasonably necessary to permit the client to make informed decisions 
regarding the representation.
    (b) [Reserved]


Sec. 776.24  Fees.

    In this section, the term ``judge advocate'' refers only to judge 
advocates and other attorneys employed by the Department of the Navy. 
The term ``lawyer'' refers to all other lawyers subject to this subpart 
B.
    (a) Fees. (1) A judge advocate shall not accept any salary, fee, 
compensation, or other payments or benefits, directly or indirectly, 
other than government compensation, for services provided in the course 
of the judge advocate's government duties or employment.
    (2) A judge advocate shall not accept any salary or other payments 
as compensation for legal services rendered, by that judge advocate in 
a private capacity, to a client who is eligible for assistance under 
the Department of the Navy Legal Assistance Program, unless so 
authorized by the Judge Advocate General. This paragraph (a)(2) does 
not apply to Reserve judge advocates not serving on extended active 
duty.
    (3) A Reserve judge advocate, whether or not serving on extended 
active duty, who has initially represented or interviewed a client or 
prospective client concerning a matter as part of the judge advocate's 
official Navy or Marine Corps duties, shall not accept any salary or 
other payments as compensation for services rendered to that client in 
a private capacity concerning the same general matter for which the 
client was seen in an official capacity, unless authorized by the Judge 
Advocate General to do so.
    (4) A judge advocate shall not accept any payments or benefits, 
actual or constructive, directly or indirectly, for making a referral 
of a client.
    (5) Lawyers not employed by the Federal Government may charge fees. 
Fees shall be reasonable. Factors considered in determining the 
reasonableness of a fee include the following:
    (i) The time and labor required, the novelty and difficulty of the 
questions involved, and the skill requisite to perform the legal 
service properly;
    (ii) The likelihood, if apparent to the client, that the acceptance 
of the particular employment will preclude other employment by the 
lawyer;
    (iii) The fee customarily charged in the locality for similar legal 
services;
    (iv) The amount involved and the results obtained;
    (v) The time limitations imposed by the client or by the 
circumstances;
    (vi) The nature and length of the professional relationship with 
the client;
    (vii) The experience, reputation, and ability of the lawyer or 
lawyers performing the services; and
    (viii) Whether the fee is fixed or contingent.
    (6) When the lawyer has not regularly represented the client, the 
basis or rate of the fee shall be communicated to the client, 
preferably in writing, before or within a reasonable time after 
commencing in representation.
    (7) A fee may be contingent on the outcome of the matter for which 
the service is rendered, except in a matter in which a contingent fee 
is prohibited by paragraph (a)(8) of this section or other law. A 
contingent fee agreement shall be in writing and shall state the method 
by which the fee is to be determined, including the percentage or 
percentages that shall accrue to the lawyer in the event of settlement, 
trial or appeal, litigation and other expenses to be deducted from the 
recovery, and whether such expenses are to be deducted before or after 
the contingent fee is calculated. Upon conclusion of a contingent fee 
matter, the lawyer shall provide the client with a written statement 
stating the outcome of the matter and, if there is a recovery, showing 
the remittance to the client and the method of its determination.
    (8) A lawyer shall not enter into an arrangement for, charge, or 
collect:
    (i) Any fee in a domestic relations matter, the payment or amount 
of which is contingent upon the securing of a divorce or upon the 
amount of alimony or support, or property settlement in lieu thereof, 
or
    (ii) A contingent fee for representing an accused in a criminal 
case.
    (9) A division of fee between lawyers who are not in the same firm 
may be made only if:
    (i) The division is in proportion to the services performed by each 
lawyer or, by written agreement with the client, each lawyer assumes 
joint responsibility for the representation;
    (ii) The client is advised of and does not object to the 
participation of all the lawyers involved; and
    (iii) The total fee is reasonable.
    (b) [Reserved]


Sec. 776.25  Confidentiality of information.

    (a) Confidentiality of information. (1) A judge advocate shall not 
reveal information relating to representation of a client unless the 
client consents after consultation, except for disclosures that are 
impliedly authorized in order to carry out the representation, and 
except as stated in paragraphs (a)(2) and (a)(3) of this section.
    (2) A judge advocate shall reveal such information to the extent 
the judge advocate reasonably believes necessary to prevent the client 
from committing a criminal act that the judge advocate believes is 
likely to result in imminent death or substantial bodily harm, or 
significant impairment of national security or the readiness or 
capability of a military unit, vessel, aircraft, or weapon system.
    (3) A judge advocate may reveal such information to the extent the 
judge advocate reasonably believes necessary to establish a claim or 
defense on behalf of the judge advocate in a controversy between the 
judge advocate and the client, to establish a defense to a criminal 
charge or civil claim against the judge advocate based upon conduct in 
which the client was involved, or to respond to allegations in any 
proceeding concerning the judge advocate's representation of the 
client.
    (b) [Reserved]


Sec. 776.26  Conflict of interests: General rule.

    (a) Conflict of Interests: General rule. (1) A judge advocate shall 
not represent a client if the representation of that client will be 
directly adverse to another client, unless:
    (i) The judge advocate reasonably believes the representation will 
not adversely affect the relationship with the other client; and
    (ii) Each client consents after consultation.
    (2) A judge advocate shall not represent a client if the 
representation of that client may be materially limited by the judge 
advocate's responsibilities to another client or to a third person, or 
by the judge advocate's own interests, unless:
    (i) The judge advocate reasonably believes the representation will 
not be adversely affected; and,
    (ii) The client consents after consultation. When representation of 
multiple clients in a single matter is undertaken, the consultation 
shall include explanation of the implications of the common 
representation and the advantages and risks involved.
    (b) [Reserved]


Sec. 776.27  Conflict of interests: Prohibited transactions.

    (a) Conflict of interests: Prohibited transactions. (1) Judge 
advocates shall strictly adhere to current Department of the Navy 
Standards of Conduct Regulations and shall not:
    (i) Knowingly enter into any business transactions on behalf of, or 
adverse to, a client's interest which directly or indirectly relate to 
or result from the attorney-client relationship, or otherwise profit, 
directly or indirectly, through knowledge acquired during the course of 
the judge advocate's official duties;
    (ii) Accept compensation or gifts in any form from a client or 
other person or entity, other than the U.S. Government, for the 
performance of official duties;
    (iii) Provide any financial assistance to a client or otherwise 
serve in a financial or proprietorial fiduciary or bailment 
relationship, unless otherwise specifically authorized by competent 
authority;
    (iv) Negotiate any settlement on behalf of multiple clients in a 
single matter unless each client provides his or her fully informed 
consent;
    (v) Represent a client whose interests are materially adverse to 
the interests of a former client, unless the former client consents, or 
use information from the former representation to the disadvantage of 
that former client, except as permitted or required under Sec. 776.26 
or when the information has become otherwise generally known;
    (vi) make any referrals of legal or other business to any non-
governmental lawyer or enterprise with whom the judge advocate has any 
present or expected direct or indirect personal interest; any referrals 
must be made strictly without regard to personal interests of the judge 
advocate, and special care shall be taken not to give preferential 
treatment to Reserve judge advocates or other government attorneys in 
their private capacities;
    (vii) Make or negotiate an agreement giving the judge advocate 
literary or media rights for a portrayal or account based in 
substantial part on information relating to representation of a client; 
or,
    (viii) Represent a client in a matter directly adverse to a person 
who the judge advocate knows is represented by another lawyer who is 
related as parent, child, sibling or spouse to the judge advocate, 
except upon consent by the client after consultation regarding the 
relationship.
    (2) [Reserved]
    (b) [Reserved]


Sec. 776.28  Conflict of interests: Former client.

    (a) Conflict of interests: Former client. (1) A judge advocate who 
has represented a client in a matter shall not thereafter:
    (i) Represent another person in the same or a substantially related 
matter in which the person's interests are materially adverse to the 
interests of the former client, unless the former client consents after 
consultation; or,
    (ii) Use information relating to the representation to the 
disadvantage of the former client or to the judge advocate's own 
advantage, except as Sec. 776.25 would permit with respect to a client 
or when the information has become generally known.
    (2) [Reserved]
    (b) [Reserved]


Sec. 776.29  Imputed disqualification: General rule.

    Judge advocates working in the same military law office are not 
automatically disqualified from representing a client because any of 
them practicing alone would be prohibited from doing so by Sec. 776.26, 
Sec. 776.27, 776.28, or Sec. 776.37.


Sec. 776.30  Successive government and private employment.

    (a) Successive government and private employment. (1) Except as the 
law or regulations may otherwise expressly permit, a former judge 
advocate shall not represent a private client in connection with a 
matter in which the judge advocate participated personally and 
substantially as a public officer or employee, unless the appropriate 
government agency consents after consultation. If a former judge 
advocate in a firm with which that judge advocate is associated knows 
that the firm or anyone associated with the firm is undertaking or 
continuing representation in such a matter:
    (i) The disqualified former judge advocate must ensure that he or 
she is screened from any participation in the matter and is apportioned 
no part of the fee or any other benefit therefrom; and,
    (ii) Must provide written notice promptly to the appropriate 
government agency to enable it to ascertain compliance with the 
provisions of this section.
    (2) Except as the law or regulations may otherwise expressly 
permit, a former judge advocate who has information known to be 
confidential government information about a person which was acquired 
when the former judge advocate was a public officer may not represent a 
private client whose interests are adverse to that person in a matter 
in which the information could be used to the material disadvantage of 
that person. The former judge advocate may continue association with 
the firm only if the disqualified judge advocate is screened from any 
participation in the matter and is apportioned no part of the fee or 
any other benefit therefrom.
    (3) Except as the law or regulations may otherwise expressly 
permit, a judge advocate shall not:
    (i) Participate in a matter in which the judge advocate 
participated personally and substantially while in private practice or 
nongovernmental employment, unless under applicable law no one is, or 
by lawful delegation may be, authorized to act in the judge advocate's 
stead in the matter; or,
    (ii) Negotiate for private employment with any person who is 
involved as a party or as attorney for a party in a matter in which the 
judge advocate is participating personally and substantially.
    (4) As used in this section, the term ``matter'' includes:
    (i) Any judicial or other proceeding, application, request for a 
ruling or other determination, contract, claim, controversy, 
investigation, charge, accusation, arrest or other particular matter 
involving a specific party or parties; and,
    (ii) Any other matter covered by the conflict of interest rules of 
the appropriate government agency.
    (5) As used in this section, the term ``confidential governmental 
information'' means information which has been obtained under 
governmental authority and which, at the time this section is applied, 
the government is prohibited by law or regulations from disclosing to 
the public or has a legal privilege not to disclose, and which is not 
otherwise available to the public.
    (b) [Reserved]


Sec. 776.31  Former judge or arbitrator.

    (a) Former judge or arbitrator. (1) Except as stated in paragraph 
(a)(3) of this section, a judge advocate shall not represent anyone in 
connection with a matter in which the judge advocate participated 
personally and substantially as a judge or other adjudicative officer, 
arbitrator, or law clerk to such a person, unless all parties to the 
proceeding consent after disclosure.
    (2) A judge advocate shall not negotiate for employment with any 
person who is involved as a party or as attorney for a party in a 
matter in which the judge advocate is participating personally and 
substantially as a judge or other adjudicative officer. A judge 
advocate serving as law clerk to a judge, other adjudicative officer, 
or arbitrator may negotiate for employment with a party or attorney 
involved in a matter in which the clerk is participating personally and 
substantially, but only after the judge advocate has notified the 
judge, other adjudicative officer, or arbitrator.
    (3) An arbitrator selected as a partisan of a party in a multi-
member arbitration panel is not prohibited from subsequently 
representing that party.
    (b) [Reserved]


Sec. 776.32  Department of the Navy as client.

    (a) Department of the Navy as client. (1) Except when representing 
an individual client pursuant to paragraph (a)(6) of this section, a 
judge advocate for the naval service represents the Department of the 
Navy (or the Executive agency to which assigned) acting through its 
authorized officials. These officials include the heads of 
organizational elements within the naval service, such as the 
commanders of fleets, divisions, ships and other heads of activities. 
When a judge advocate for the naval service is assigned to such an 
organizational element and designated to provide legal services to the 
head of the organization, a lawyer-client relationship exists between 
the judge advocate and the Department of the Navy as represented by the 
head of the organization as to matters within the scope of the official 
business of the organization. The head of the organization may not 
invoke the lawyer-client privilege or the rule of confidentiality for 
the head of the organization's own benefit but may invoke either for 
the benefit of the Department of the Navy. In invoking either the 
lawyer-client privilege or lawyer-client confidentiality on behalf of 
the Department of the Navy, the head of the organization is subject to 
being overruled by higher authority.
    (2) If a judge advocate knows that an officer, employee, or other 
member associated with the organizational client is engaged in action, 
intends to act or refuses to act in a matter related to the 
representation that is either adverse to the legal interests or 
obligations of the Department of the Navy or a violation of law which 
reasonably might be imputed to the Department, the judge advocate shall 
proceed as is reasonably necessary in the best interest of the naval 
service. In determining how to proceed, the judge advocate shall give 
due consideration to the seriousness of the violation and its 
consequences, the scope and nature of the judge advocate's 
representation, the responsibility in the naval service and the 
apparent motivation of the person involved, the policies of the naval 
service concerning such matters, and any other relevant considerations. 
Any measures taken shall be designed to minimize prejudice to the 
interests of the naval service and the risk of revealing information 
relating to the representation to persons outside the service. Such 
measures shall include among others:
    (i) Advising the head of the organization that his or her personal 
legal interests are at risk and that he or she should consult counsel 
as there may exist a conflict of interests for the judge advocate, and 
the judge advocate's responsibility is to the organization;
    (ii) Asking for reconsideration of the matter by the acting 
official;
    (iii) Advising that a separate legal opinion on the matter be 
sought for presentation to appropriate authority in the naval service; 
or,
    (iv) Referring the matter to, or seeking guidance from, higher 
authority in the technical chain-of-command including, if warranted by 
the seriousness of the matter, referral to the staff judge advocate 
assigned to the staff of the acting official's next superior in the 
technical chain-of-command.
    (3) If, despite the judge advocate's efforts pursuant to paragraph 
(a)(2) of this section, the highest authority that can act concerning 
the matter insists upon action or refuses to act, in clear violation of 
law, the judge advocate may terminate representation with respect to 
the matter in question. In no event shall the lawyer participate or 
assist in the illegal activity.
    (4) In dealing with the officers, employees, or members of the 
naval service a judge advocate shall explain the identity of the client 
when it is apparent that the naval service's interests are adverse to 
those of the officer's, employee's, or member's.
    (5) A judge advocate representing the naval service may also 
represent any of its officers, employees, or members, subject to the 
provisions of Sec. 776.26 and other applicable authority. If the 
Department of the Navy's consent to dual representation is required by 
Sec. 776.26, the consent shall be given by an appropriate official of 
the Department of the Navy other than the individual who is to be 
represented.
    (6) A judge advocate who has been duly assigned to represent an 
individual who is subject to disciplinary action or administrative 
proceedings, or to provide legal assistance to an individual, has, for 
those purposes, an attorney-client relationship with that individual.
    (b) [Reserved]


Sec. 776.33  Client under a disability.

    (a) Client under a disability. (1) When a client's ability to make 
adequately considered decisions in connection with the representation 
is impaired, whether because of minority, mental disability, or for 
some other reason, the judge advocate shall, as far as reasonably 
possible, maintain a normal attorney-client relationship with the 
client.
    (2) A judge advocate may seek the appointment of a guardian or take 
other protective action with respect to a client only when the judge 
advocate reasonably believes that the client cannot adequately act in 
the client's own interest.
    (b) [Reserved]


Sec. 776.34  Safekeeping property.

    Judge advocates shall not normally hold or safeguard property of a 
client or third persons in connection with representational duties 
under Sec. 776.27(a)(1)(iii).


Sec. 776.35  Declining or terminating representation.

    (a) Declining or terminating representation. (1) Except as stated 
in paragraph (a)(3) of this section, a judge advocate shall not 
represent a client or, when representation has commenced, shall seek to 
withdraw from the representation of a client, if:
    (i) The representation will result in violation of this subpart B 
or other law or regulation;
    (ii) The judge advocate's physical or mental condition materially 
impairs his or her ability to represent the client; or
    (iii) The judge advocate is dismissed by the client.
    (2) Except as stated in paragraph (a)(3) of this section, a judge 
advocate may seek to withdraw from representing a client if withdrawal 
can be accomplished without material adverse effect on the interests of 
the client, or if:
    (i) The client persists in a course of action involving the judge 
advocate's services that the judge advocate reasonably believes is 
criminal or fraudulent;
    (ii) The client has used the judge advocate's services to 
perpetrate a crime or fraud;
    (iii) The client insists upon pursuing an objective that the judge 
advocate considers repugnant or imprudent; or,
    (iv) Other good cause for withdrawal exists.
    (3) When ordered to do so by a tribunal or other competent 
authority, a judge advocate shall continue representation 
notwithstanding good cause for terminating the representation.
    (4) Upon termination of representation, a judge advocate shall take 
steps to the extent reasonably practicable to protect a client's 
interests, such as giving reasonable notice to the client, allowing 
time for assignment or employment of other counsel and surrendering 
papers and property to which the client is entitled and, if a civilian 
lawyer is involved, refunding any advance payment of fee that has not 
been earned. The judge advocate may retain papers relating to the 
client to the extent permitted by law.
    (b) [Reserved]


Sec. 776.36  Advisor.

    In representing a client, a judge advocate shall exercise 
independent professional judgment and render candid advice. In 
rendering advice, a judge advocate should refer not only to law but to 
other considerations such as moral, economic, social, and political 
factors that may be relevant to the client's situation.


Sec. 776.37  Mediation.

    (a) Mediation. (1) A judge advocate may act as a mediator between 
individuals or clients if:
    (i) The judge advocate consults with each individual concerning the 
implications of the mediation, including the advantages and risks 
involved, and the effect on the attorney-client confidentiality, and 
obtains each individual's consent to the mediation;
    (ii) The judge advocate reasonably believes that the matter can be 
resolved on terms compatible with each individual's best interests, 
that each individual will be able to make adequately informed decisions 
in the matter, and that there is little risk of material prejudice to 
the interests of any of the individuals if the contemplated resolution 
is unsuccessful; and,
    (iii) The judge advocate reasonably believes that the mediation can 
be undertaken impartially and without improper effect on other 
responsibilities the judge advocate has to any of the individuals.
    (2) While acting as a mediator, the judge advocate shall consult 
with each individual concerning the decisions to be made and the 
considerations relevant in making them, so that each individual can 
make adequately informed decisions.
    (3) A judge advocate shall withdraw as a mediator if any of the 
individuals so requests, or if any of the conditions stated in 
paragraph (a) of this section is no longer satisfied. Upon withdrawal, 
the judge advocate shall not continue to mediate among any of the 
individuals in the matter that was the subject of the mediation unless 
each individual consents.
    (b) [Reserved]


Sec. 776.38  Evaluation for use by third persons.

    (a) Evaluation for use by third persons. (1) A judge advocate may 
undertake an evaluation of a matter affecting a client for the use of 
someone other than the client if:
    (i) The judge advocate reasonably believes that making the 
evaluation is compatible with other aspects of the judge advocate's 
relationship with the client; and
    (ii) The client consents after consultation.
    (2) Except as disclosure is required in connection with a report of 
an evaluation, information relating to the evaluation is otherwise 
protected by Sec. 776.25.
    (b) [Reserved]


Sec. 776.39  Meritorious claims and contentions.

    A judge advocate shall not bring or defend a proceeding, or assert 
or controvert an issue therein, unless there is a basis for doing so 
that is not frivolous, or which includes a good-faith argument for an 
extension, modification, or reversal of existing law. A judge advocate 
representing an accused in a criminal proceeding or the respondent in 
an administrative proceeding that could result in incarceration, 
discharge from the naval service, or other adverse personnel action, 
may nevertheless defend the client at the proceeding to ensure that 
every element of the case is established.


Sec. 776.40  Expediting litigation.

    A judge advocate shall make reasonable efforts to expedite 
litigation or other proceedings consistent with the interests of the 
client and the judge advocate's responsibilities to tribunals.


Sec. 776.41  Candor and obligations toward the tribunal.

    (a) Candor and obligations toward the tribunal. (1) A judge 
advocate shall not knowingly:
    (i) Make a false statement of material fact or law to a tribunal;
    (ii) Fail to disclose a material fact to a tribunal when disclosure 
is necessary to avoid assisting a criminal or fraudulent act by the 
client;
    (iii) Fail to disclose to the tribunal legal authority in the 
controlling jurisdiction known to the judge advocate to be directly 
adverse to the position of the client and not disclosed by opposing 
counsel;
    (iv) Offer evidence that the judge advocate knows to be false (if a 
judge advocate has offered material evidence and comes to know of its 
falsity, the judge advocate shall take reasonable remedial measures); 
or
    (v) Disobey an order imposed by a tribunal unless done openly 
before the tribunal in a good-faith assertion that no valid order 
should exist.
    (2) The duties stated in paragraph (a) of this section continue to 
the conclusion of the proceedings, and apply even if compliance 
requires disclosure of information otherwise protected by Sec. 776.25.
    (3) A judge advocate may refuse to offer evidence that the judge 
advocate reasonably believes is false.
    (4) In an ex parte proceeding, a judge advocate shall inform the 
tribunal of all material facts known to the judge advocate which are 
necessary to enable the tribunal to make an informed decision, whether 
or not the facts are adverse.
    (b) [Reserved]


Sec. 776.42  Fairness to opposing party and counsel.

    (a) Fairness to opposing party and counsel. (1) A judge advocate 
shall not:
    (i) Unlawfully obstruct another party's access to evidence or 
unlawfully alter, destroy, or conceal a document or other material 
having potential evidentiary value; a judge advocate shall not counsel 
or assist another person to do any such act;
    (ii) Falsify evidence, counsel or assist a witness to testify 
falsely, or offer an inducement to a witness that is prohibited by law;
    (iii) In pretrial procedure, make a frivolous discovery request or 
fail to make reasonably diligent effort to comply with a legally proper 
discovery request by an opposing party;
    (iv) In trial, allude to any matter that the judge advocate does 
not reasonably believe is relevant or that will not be supported by 
admissible evidence, assert personal knowledge of facts in issue except 
when testifying as a witness, or state a personal opinion as to the 
justness of a cause, the credibility of a witness, the culpability of a 
civil litigant, or the guilt or innocence of an accused; or
    (v) Request a person other than a client to refrain from 
voluntarily giving relevant information to another party unless:
    (A) The person is a relative, an employee, or other agent of a 
client; and
    (B) The judge advocate reasonably believes that the person's 
interests will not be adversely affected by refraining from giving such 
information.
    (2) [Reserved]
    (b) [Reserved]


Sec. 776.43  Impartiality and decorum of the tribunal.

    (a) Impartiality and decorum the tribunal. (1) A judge advocate 
shall not:
    (i) Seek to influence a judge, court member, member of a tribunal, 
prospective court member or member of a tribunal, or other official by 
means prohibited by law or regulation;
    (ii) Communicate ex parte with such a person except as permitted by 
law or regulation; or
    (iii) Engage in conduct intended to disrupt a tribunal.
    (2) [Reserved]
    (b) [Reserved]


Sec. 776.44  Extra-tribunal statements.

    (a) Extra-tribunal statements. (1) A judge advocate shall not make 
an extrajudicial statement about any person or case pending 
investigation or adverse administrative or disciplinary proceedings 
that a reasonable person would expect to be disseminated by means of 
public communication if the judge advocate knows or reasonably should 
know that it will have a substantial likelihood of materially 
prejudicing an adjudicative proceeding or an official review process 
thereof.
    (2) A statement referred to in paragraph (a) of this section 
ordinarily is likely to have such an effect when it refers to a civil 
matter triable to a jury, a criminal matter or any other proceeding 
that could result in incarceration, discharge from the naval service, 
or other adverse personnel action, and the statement relates to:
    (i) The character, credibility, reputation, or criminal record of a 
party, suspect in a criminal investigation, or witness, or the identity 
of a witness, or the expected testimony of a party or witness;
    (ii) The possibility of a plea of guilty to the offense or the 
existence or contents of any confession, admission, or statement given 
by an accused or suspect or that person's refusal or failure to make a 
statement;
    (iii) The performance or results of any examination or test or the 
refusal or failure of a person to submit to an examination or test, or 
the identity or nature of physical evidence expected to be presented;
    (iv) Any opinion as to the guilt or innocence of an accused or 
suspect in a criminal case or other proceeding that could result in 
incarceration, discharge from the naval service, or other adverse 
personnel action;
    (v) Information the judge advocate knows or reasonably should know 
is likely to be inadmissible as evidence before a tribunal and would, 
if disclosed, create a substantial risk of materially prejudicing an 
impartial proceeding;
    (vi) The fact that an accused has been charged with a crime, unless 
there is included therein a statement explaining that the charge is 
merely an accusation and that the accused is presumed innocent until 
and unless proven guilty; or
    (vii) The credibility, reputation, motives, or character of 
civilian or military officials of the Department of Defense.
    (3) Notwithstanding paragraphs (a)(1) and (a)(2) (i) through (v) of 
this section, a judge advocate involved in the investigation or 
litigation of a matter may state without elaboration:
    (i) The general nature of the claim or defense;
    (ii) The information contained in a public record;
    (iii) That an investigation of the matter is in progress, including 
the general scope of the investigation, the offense or claim or defense 
involved and, except when prohibited by law, the identity of the 
persons involved;
    (iv) The scheduling or result of any step in litigation;
    (v) A request for assistance in obtaining evidence and information 
necessary thereto;
    (vi) A warning of danger concerning the behavior of the person 
involved, when there is reason to believe that there exists the 
likelihood of substantial harm to an individual or to the public 
interest; and
    (vii) In a criminal case:
    (A) The identity, duty station, occupation, and family status of 
the accused;
    (B) If the accused has not been apprehended, information necessary 
to aid in apprehension of that person;
    (C) The fact, time, and place of apprehension; and
    (D) The identity of investigating and apprehending officers or 
agencies and the length of the investigation.
    (4) The protection and release of information in matters pertaining 
to the Department of the Navy is governed by such statutes as the 
Freedom of Information Act and the Privacy Act, in addition to those 
governing protection of national defense information. In addition, 
other laws and regulations may further restrict the information that 
can be released or the source from which it is to be released.
    (b) [Reserved]


Sec. 776.45  Judge advocate as witness.

    (a) Judge advocate as witness. (1) A judge advocate shall not act 
as advocate at a trial in which the judge advocate is likely to be a 
necessary witness except when:
    (i) The testimony relates to an uncontested issue;
    (ii) The testimony relates to the nature and quality of legal 
services rendered in the case; or
    (iii) Disqualification of the judge advocate would work substantial 
hardship on the client.
    (2) A judge advocate may act as advocate in a trial in which 
another judge advocate or lawyer in the judge advocate's office is 
likely to be called as a witness, unless precluded from doing so by 
Sec. 776.26 or Sec. 776.28.
    (b) [Reserved]


Sec. 776.46  Special responsibilities of a trial counsel.

    (a) Special responsibilities of a trial counsel. (1) A trial 
counsel shall:
    (i) Recommend to the convening authority that any charge or 
specification not warranted by the evidence be withdrawn;
    (ii) Make reasonable efforts to assure that the accused has been 
advised of the right to, and the procedure for obtaining, counsel and 
has been given reasonable opportunity to obtain counsel;
    (iii) Not seek to obtain from an unrepresented accused a waiver of 
important pretrial rights;
    (iv) Make timely disclosure to the defense of all evidence or 
information known to the judge advocate that tends to negate the guilt 
of the accused or mitigates the offense, and, in connection with 
sentencing, disclose to the defense all unprivileged mitigating 
information known to the judge advocate, except when the judge advocate 
is relieved of this responsibility by a protective order or regulation; 
and
    (v) Exercise reasonable care to prevent investigators, law 
enforcement personnel, employees, or other persons assisting or 
associated with the judge advocate in a criminal case from making an 
extrajudicial statement that the trial counsel would be prohibited from 
making under Sec. 776.44.
    (2) [Reserved]
    (b) [Reserved]


Sec. 776.47  Advocate in nonadjudicative proceedings.

    A judge advocate representing a client before a legislative or 
administrative tribunal in a nonadjudicative proceeding shall disclose 
that the appearance is in a representative capacity and shall conform 
to the provisions of Sec. 776.41, Sec. 776.42, and Sec. 776.43.


Sec. 776.48  Truthfulness in statements to others.

    (a) Truthfulness in statements to others. In the course of 
representing a client a judge advocate shall not knowingly:
    (1) Make a false statement of material fact or law to a third 
person; or
    (2) Fail to disclose a material fact to a third person when 
disclosure is necessary to avoid assisting a criminal or fraudulent act 
by a client, unless disclosure is prohibited by Sec. 776.25.
    (b) [Reserved]


Sec. 776.49  Communication with person represented by counsel.

    In representing a client, a judge advocate shall not communicate 
about the subject of the representation with a party the judge advocate 
knows to be represented by another judge advocate in the matter, unless 
the judge advocate has the consent of the other judge advocate or is 
authorized by law to do so.


Sec. 776.50  Dealing with an unrepresented person.

    When dealing on behalf of a client with a person who is not 
represented by counsel, a judge advocate shall not state or imply that 
the judge advocate is disinterested. When the judge advocate knows or 
reasonably should know that the unrepresented person misunderstands the 
judge advocate's role in the matter, the judge advocate shall make 
reasonable efforts to correct the misunderstanding.


Sec. 776.51  Respect for rights of third persons.

    In representing a client, a judge advocate shall not use means that 
have no substantial purpose other than to embarrass, delay, or burden a 
third person, or use methods of obtaining evidence that violate the 
legal rights of such a person.


Sec. 776.52  Responsibilities of the Judge Advocate General and 
supervisory judge advocates.

    (a) Responsibilities of the Judge Advocate General and supervisory 
judge advocates. (1) The Judge Advocate General and supervisory judge 
advocates shall make reasonable efforts to ensure that all judge 
advocates conform to this subpart.
    (2) A judge advocate having direct supervisory authority over 
another judge advocate shall make reasonable efforts to ensure that the 
other judge advocate conforms to this subpart.
    (3) A supervisory judge advocate shall be responsible for another 
subordinate judge advocate's violation of this subpart if:
    (i) The supervisory judge advocate orders or, with knowledge of the 
specific conduct, ratifies the conduct involved; or
    (ii) The supervisory judge advocate has direct supervisory 
authority over the other judge advocate and knows of the conduct at a 
time when its consequences can be avoided or mitigated but fails to 
take reasonable remedial action.
    (4) A supervisory judge advocate is responsible for ensuring that 
the subordinate judge advocate is properly trained and is competent to 
perform the duties to which the subordinate judge advocate is assigned.
    (b) [Reserved]


Sec. 776.53  Responsibilities of a subordinate judge advocate.

    (a) Responsibilities of a subordinate judge advocate. (1) A judge 
advocate is bound by this subpart notwithstanding that the judge 
advocate acted at the direction of another person.
    (2) In recognition of a judge advocate's unique dual role as a 
commissioned officer and lawyer, subordinate judge advocates shall obey 
lawful directives and regulations of supervisory judge advocates when 
not inconsistent with this subpart or the duty of a judge advocate to 
exercise independent professional judgment as to the best interest of 
an individual client.
    (3) A subordinate judge advocate does not violate this subpart if 
that judge advocate acts in accordance with a supervisory judge 
advocate's written and reasonable resolution of an arguable question of 
professional duty.
    (b) [Reserved]


Sec. 776.54  Responsibilities regarding nonlawyer assistants.

    (a) Responsibilities regarding nonlawyer assistants
    (1) With respect to a nonlawyer under the authority, supervision, 
or direction of a judge advocate:
    (i) The senior supervisory judge advocate in an office shall make 
reasonable efforts to ensure that the person's conduct is compatible 
with the professional obligations of the judge advocate;
    (ii) A judge advocate having direct supervisory authority over the 
nonlawyer shall make reasonable efforts to ensure that the person's 
conduct is compatible with the professional obligations of the judge 
advocate; and
    (iii) A judge advocate shall be responsible for conduct of such a 
person that would be a violation of this subpart B if engaged in by a 
judge advocate if:
    (A) The judge advocate orders or, with the knowledge of the 
specific conduct, ratifies the conduct involved; or
    (B) The judge advocate has direct supervisory authority over the 
person, and knows of the conduct at a time when its consequences can be 
avoided or mitigated but fails to take reasonable remedial action.
    (2) [Reserved]
    (b) [Reserved]


Sec. 776.55  Professional independence of a judge advocate.

    (a) Professional independence of a judge advocate. (1) 
Notwithstanding a judge advocate's status as a commissioned officer 
subject, generally, to the authority of superiors, a judge advocate 
detailed or assigned to represent an individual member or employee of 
the Department of the Navy is expected to exercise unfettered loyalty 
and professional independence during the representation consistent with 
this subpart and remains ultimately responsible for acting in the best 
interest of the individual client.
    (2) The exercise of professional judgment in accordance with 
paragraph (a)(1) of this section shall not, standing alone, be a basis 
for an adverse evaluation or other prejudicial action.
    (b) [Reserved]


Sec. 776.56  Unauthorized practice of law.

    (a) Unauthorized practice of law. (1) A judge advocate shall not:
    (i) Except as authorized by an appropriate military department, 
practice law in a jurisdiction where doing so is prohibited by the 
regulations of the legal profession in that jurisdiction; or
    (ii) Assist a person who is not a member of the bar in the 
performance of activity that constitutes the unauthorized practice of 
law.
    (2) [Reserved]
    (b) [Reserved]


Secs. 776.57-776.65  [Reserved]


Sec. 776.66  Bar admission and disciplinary matters.

    (a) Bar admission and disciplinary matters. (1) A judge advocate in 
connection with a bar admission application, application for 
appointment or for active duty as a judge advocate, certification by 
the Judge Advocate General, or a disciplinary matter, shall not:
    (i) Knowingly make a false statement of fact; or
    (ii) Fail to disclose a fact necessary to correct a misapprehension 
known by the person to have arisen in the matter, or knowingly fail to 
respond to a lawful demand for information from an admissions or 
disciplinary authority, except that this section does not require 
disclosure of information otherwise protected by Sec. 776.25.
    (2) [Reserved]
    (b) [Reserved]


Sec. 776.67  Judicial and legal officials.

    A judge advocate shall not make a statement that the judge advocate 
knows to be false or with reckless disregard as to its truth or falsity 
concerning the qualifications or integrity of a judge, investigating 
officer, hearing officer, adjudicatory officer, or public legal 
officer, or of a candidate for election or appointment to judicial or 
legal office.


Sec. 776.68  Reporting professional misconduct.

    (a) Reporting professional misconduct. (1) A judge advocate having 
knowledge that another judge advocate has committed a violation of this 
subpart that raises a substantial question as to that judge advocate's 
honesty, trustworthiness, or fitness as a judge advocate in other 
respects, shall report such a violation pursuant to regulations 
promulgated by the Judge Advocate General.
    (2) A judge advocate having knowledge that a judge has committed a 
violation of applicable rules of judicial conduct that raises a 
substantial question as to the judge's fitness for office shall report 
such a violation pursuant to regulations promulgated by the Judge 
Advocate General.
    (3) This section does not require disclosure of information 
otherwise protected by Sec. 776.25.
    (b) [Reserved]


Sec. 776.69  Misconduct.

    (a) Misconduct. (1) It is professional misconduct for a judge 
advocate to:
    (i) Violate or attempt to violate this subpart, knowingly assist or 
induce another to do so, or do so through the acts of another;
    (ii) Commit a criminal act that reflects adversely on the judge 
advocate's honesty, trustworthiness, or fitness as a judge advocate in 
other respects;
    (iii) Engage in conduct involving dishonesty, fraud, deceit, or 
misrepresentation;
    (iv) Engage in conduct that is prejudicial to the administration of 
justice;
    (v) State or imply an ability to influence improperly a government 
agency or official; or
    (vi) Knowingly assist a judge or judicial officer in conduct that 
is a violation of applicable rules of judicial conduct or other law.
    (2) [Reserved]
    (b) [Reserved]


Sec. 776.70  Jurisdiction.

    Judge advocates shall be governed by this part.


Secs. 776.71-776.75  [Reserved]

Subpart C--Complaint Processing Procedures


Sec. 776.76  Policy.

    (a) It is JAG's policy to expeditiously and fairly investigate and 
resolve all allegations of professional impropriety lodged against 
attorneys under JAG supervision. (As used hereinafter, the term ``judge 
advocates'' refers to all attorneys under JAG supervision.)
    (b) JAG approval will be obtained through the Rules Counsel before 
conducting any formal investigation or preliminary inquiry into an 
alleged violation of subpart B or the Code of Judicial Conduct. The 
preliminary inquiry and subsequent investigation will be conducted 
according to the procedures set forth in this part.


Sec. 776.77  Related investigations and actions.

    Acts or omissions may constitute professional misconduct, criminal 
misconduct, or poor performance of duty. Care must be taken to 
distinguish among the different aspects of a judge advocate's conduct 
to determine who may take official action.
    (a) Legal ethics and questions involving the professional 
misconduct of judge advocates are within the exclusive province of JAG. 
Ethical or professional misconduct will not be attributed to any judge 
advocate in any official record without a final JAG determination, made 
under this part, that such misconduct has occurred.
    (b) Poor performance is properly addressed by the judge advocate's 
reporting senior through a variety of administrative actions, including 
fitness reports. Criminal misconduct is properly addressed by the judge 
advocate's commander through disciplinary action under the UCMJ or 
through referral to appropriate civil authority.
    (c) Prior JAG approval is not required to investigate allegations 
of criminal conduct or poor performance of duty involving judge 
advocates.
    (d) When, however, investigations into criminal conduct or poor 
performance reveal conduct that constitutes a violation of this part, 
or of the Code of Judicial Conduct in the case of judges, such conduct 
shall be reported to the Rules Counsel immediately.
    (e) Inquiries into professional misconduct allegations will 
normally be held in abeyance until related criminal investigations are 
completed.


Sec. 776.78  Informal complaints.

    Informal, anonymous, or ``hot line'' type complaints alleging 
professional misconduct must be referred to appropriate authority (such 
as the JAG Inspector General or the concerned commander) for 
appropriate inquiry. Such complaints are not, by themselves, cognizable 
under this part but may, if reasonably confirmed upon appropriate 
inquiry, be the basis of a formal complaint described in Sec. 776.79.


Sec. 776.79  The complaint.

    The complaint shall--
    (a) Be in writing and signed by the complainant;
    (b) State that the complainant has personal knowledge, or has 
otherwise received reliable information indicating, that:
    (1) The judge advocate concerned is, or has been, engaged in 
misconduct that demonstrates a lack of integrity or a failure to meet 
the ethical standards of the profession, or both; or
    (2) The judge advocate concerned is ethically, professionally, or 
morally unqualified to perform his or her duties; and
    (c) Contain a complete, factual statement of the acts or omissions 
constituting the substance of the complaint, as well as a description 
of any attempted resolution with the attorney concerned. Supporting 
statements, if any, should be attached to the complaint.


Sec. 776.80  Initial screening and Rules Counsel.

    (a) The complaint shall be forwarded to the Judge Advocate General 
(Administrative Law Division) with a copy to the judge advocate 
concerned. The complaint shall be logged and then forwarded to the 
Rules Counsel.
    (1) In cases involving Marine Corps judge advocates, the Director, 
Judge Advocate Division shall act as Rules Counsel.
    (2) In all other cases, the Assistant Judge Advocate General (Civil 
Law) shall act as Rules Counsel.
    (b) The Rules Counsel shall review the complaint to determine 
whether, if true,--
    (1) It alleges ineffective assistance of counsel, or other 
violations of subpart B of this part, as a matter of defense in a 
court-martial, administrative board, or nonjudicial punishment 
proceeding and, if so, the Rules Counsel shall forward it to the proper 
appellate authority for appropriate action and return;
    (2) In other cases, it establishes probable cause to believe that a 
violation of subpart B of this part or of the Code of Judicial Conduct 
has occurred.
    (c) The Rules Counsel shall close the file without further action 
if the complaint does not establish probable cause to believe that a 
violation has occurred. The Rules Counsel shall notify the judge 
advocate concerned that the file has been closed.


Sec. 776.81  Charges.

    (a) If the Rules Counsel determines that probable cause is 
established, he or she shall draft charges alleging violations of 
subpart B of this part or of the Code of Judicial Conduct and forward 
the charges, together with the original complaint and any allied 
papers--
    (1) In cases involving Marine Corps judge advocates not serving as 
defense counsel or attached to Navy units, to the officer exercising 
general court-martial jurisdiction (OEGCMJ) over the concerned judge 
advocate, and request, on behalf of JAG, that the OEGCMJ appoint a 
judge advocate (normally the concerned officer's supervisor) to conduct 
a preliminary inquiry into the matter;
    (2) In all other cases, to the supervisory judge advocate in the 
charged judge advocate's chain of command (or such other officer as JAG 
may designate), and direct, on behalf of JAG, the supervisory judge 
advocate to conduct a preliminary inquiry into the matter.
    (b) The Rules Counsel shall provide a copy of the charges, 
complaint, and any allied papers to the judge advocate against whom the 
complaint is made and notify him or her that a preliminary inquiry will 
be conducted.
    (c) The Rules Counsel shall also provide a copy of the charges to 
the commanding officer, or equivalent, of the judge advocate concerned 
if the complaint involves a judge advocate on active duty and the 
commanding officer is not the officer appointed to conduct the 
preliminary inquiry.
    (d) The Rules Counsel shall also forward a copy of the charges:
    (1) In cases involving Navy or Marine Corps judge advocates serving 
in Naval Legal Service Command units, to Commander, Naval Legal Service 
Command (COMNAVLEGSVCCOM);
    (2) In cases involving Navy judge advocates serving in Marine Corps 
units, or involving Marine Corps judge advocates serving in Navy units 
to the Commandant of the Marine Corps (Attn: JA);
    (3) In cases involving members of the Navy-Marine Corps trial 
judiciary, to the Trial Judiciary Chief Judge; and
    (4) To the appropriate attorney discipline section if the complaint 
involves judge advocates certified by the Judge Advocates General/Chief 
Counsel of the other uniformed services.


Sec. 776.82  Preliminary inquiry.

    (a) The purpose of the preliminary inquiry is to determine whether 
questioned conduct may constitute a violation of subpart B of this part 
or the Code of Judicial Conduct. The preliminary inquiry is not an 
``ethical investigation'' that State licensing authorities might 
require lawyers to report.
    (b) Upon receipt of the complaint and charges, the officer 
appointed to conduct the preliminary inquiry (PIO) shall promptly 
investigate the charges following generally the procedures set forth in 
the Manual of the Judge Advocate General [available from Office of the 
Judge Advocate General, Administrative Law Division, 200 Stovall 
Street, Alexandria, VA 22332-2400] for the conduct of fact-finding 
bodies not required to conduct a hearing. Reports of investigation by 
other authorities such as state bar associations may be used. The PIO 
should also--
    (1) Identify and obtain sworn affidavits or statements from all 
relevant and material witnesses to the extent practicable;
    (2) Identify, gather, and preserve all other relevant and material 
evidence;
    (3) Provide the judge advocate concerned an opportunity to review 
all evidence, affidavits, and statements collected and a reasonable 
period of time (normally not exceeding 7 days) to submit a written 
statement or any other written material that the judge advocate wishes 
considered.
    (c) The PIO may appoint and use such assistants as may be necessary 
to conduct the preliminary inquiry.
    (d) The PIO shall personally review the results of the preliminary 
inquiry to determine whether, by a preponderance of the evidence, a 
violation of subpart B of this part or of the Code of Judicial Conduct, 
has occurred, and shall take one of the following actions:
    (1) If the PIO determines that no violation has occurred or that 
the violation is minor or technical in nature and warrants only 
corrective counseling, then he or she shall forward (via the OEGCMJ in 
appropriate Marine Corps cases) the results of the preliminary inquiry 
to the Rules Counsel together with his or her recommendation that the 
file be closed, providing copies to all parties to whom the charges 
were previously sent.
    (2) If the PIO determines by a preponderance of the evidence that a 
violation did occur, and that corrective action other than counseling 
may be warranted, he or she shall forward (via the OEGCMJ in 
appropriate Marine Corps cases) the results of the preliminary inquiry 
to the Rules Counsel together with all related materials and his or her 
recommendations. The PIO will provide copies of the materials forwarded 
to all parties to whom the charges were sent.
    (e) The Rules Counsel shall review all reports of preliminary 
inquiries forwarded pursuant to paragraph (d) of this section.
    (1) If the Rules Counsel determines that no further action is 
warranted, he or she shall close the file and notify the judge advocate 
concerned, his or her commanding officer, and all officials previously 
provided copies of the complaint. This action does not prevent command 
authority from taking appropriate disciplinary or administrative 
action.
    (2) If the Rules Counsel determines that further action is 
warranted, he or she shall--
    (i) In cases involving Marine Corps judge advocates not serving as 
defense counsel or attached to Navy units, request, on behalf of JAG, 
that the OEGCMJ appoint a disinterested judge advocate (normally senior 
to the concerned judge advocate and not previously involved in the 
case) to initiate an ethics investigation into the matter;
    (ii) In all other cases, appoint, on behalf of JAG, a disinterested 
judge advocate (normally senior to the individual whose conduct is 
being investigated and not previously involved in the case) to initiate 
an ethics investigation; and
    (iii) Notify all interested command officials.


Sec. 776.83  Ethics investigation.

    (a) Whenever an ethics investigation is initiated, the concerned 
judge advocate will be so notified in writing by the Rules Counsel.
    (b) The concerned judge advocate will also be provided written 
notice of his or her right to request a hearing before the 
investigating officer; to inspect all evidence gathered; to present 
written or oral statements or materials for consideration; to call 
witnesses at his or her own expense (local military witnesses should be 
made available at no cost); to be assisted by counsel (paragraph (c) of 
this section); to challenge the investigating officer for cause (such 
challenges must be made in writing and sent to the Rules Counsel via 
the challenged officer); and to waive any or all of these rights.
    (c) The respondent may be represented by counsel at the hearing. 
Such counsel may be--
    (1) A civilian attorney retained at no expense to the government; 
or,
    (2) In the case of a military respondent, military counsel--
    (i) Detailed by the cognizant naval legal service office, law 
center, or legal service support section; or
    (ii) Requested by the respondent, if such counsel is attached to 
the cognizant naval legal service office, legal service support 
section, law center, or to a Navy or Marine Corps activity located 
within 100 miles of the hearing site at the time of the scheduled 
hearing, and if such counsel is reasonably available as determined by 
the requested counsel's reporting senior in his or her sole discretion. 
There is no right to detailed counsel if requested counsel is 
unavailable.
    (d) If a hearing is requested, the investigating officer will 
conduct it after reasonable notice to the judge advocate concerned. The 
hearing will not be unreasonably delayed. The hearing is not 
adversarial in nature and there is no right to subpoena witnesses. 
Rules of evidence do not apply. The concerned judge advocate or his or 
her counsel may question witnesses that may appear. The proceedings 
shall be recorded but no transcript of the hearing need be made. 
Evidence gathered during, or subsequent to, the preliminary inquiry and 
such additional evidence as may be offered by the concerned judge 
advocate shall be considered.
    (e) After completing the hearing, the investigating officer shall 
prepare a summary of the evidence and forward it together with his or 
her recommendations to the Rules Counsel via--
    (1) In cases involving Navy or Marine Corps judge advocates serving 
with Naval Legal Service Command units, Commander, Naval Legal Service 
Command;
    (2) In cases involving Navy judge advocates serving with Marine 
Corps units, the Commandant of the Marine Corps (Attn: JA);
    (3) In cases involving Navy or Marine Corps judge advocates serving 
in subordinate Navy fleet or staff billets, the fleet or staff judge 
advocate attached to the appropriate second-echelon commander;
    (4) In cases involving members of the Navy-Marine Corps Trial 
Judiciary, the Trial Judiciary Chief Judge;
    (5) In cases involving Marine Corps judge advocates serving in 
defense billets, via the Marine Corps defense service chain of command;
    (6) In cases involving Marine Corps judge advocates not serving in 
defense counsel billets or in Navy units, via the OEGCMJ over the 
concerned judge advocate; and
    (7) The appropriate attorney discipline section if the complaint 
involves judge advocates certified by the Judge Advocates General/Chief 
Counsel of the other uniformed services.
    (f) A copy of the report shall be provided to the concerned judge 
advocate and to all authorities previously provided copies of the 
charges who are not via addressees.
    (g) The Rules Counsel shall review the report and either forward it 
to JAG together with his or her recommendations or return it, via the 
appropriate chain, to the investigating officer for further inquiry 
into specified areas.


Sec. 776.84  Action by JAG.

    (a) JAG is not bound by the Rules Counsel's or investigating 
officer's recommendations, but will base his action on the record as a 
whole.
    (b) JAG may, but is not required to, refer any case to the 
Professional Responsibility Committee for an advisory opinion on 
interpretation of the rules in subpart B of this part or their 
application to the facts of a particular case.
    (c) Upon receipt of the investigation, and any requested advisory 
opinion, JAG will take such action, as JAG considers appropriate in 
JAG's sole discretion. JAG may, for example--
    (1) Return the report for further inquiry into specified areas;
    (2) If JAG considers the allegations to be unfounded, or that no 
further action is warranted, JAG will direct the Rules Counsel to make 
the appropriate file entries and to notify all interested parties 
accordingly;
    (3) If JAG considers the allegations to be supported by clear and 
convincing evidence, JAG may take appropriate corrective action 
including, but not limited to:
    (i) Limiting the concerned judge advocate to practice under direct 
supervision of a superior judge advocate;
    (ii) Limiting the concerned judge advocate to practicing in certain 
areas or forbidding him or her from practicing in certain areas;
    (iii) Suspending or revoking the concerned judge advocate's 
authority to provide legal assistance;
    (iv) If JAG finds that the misconduct so adversely affects the 
judge advocate's continuing ability to practice law in the naval 
service that certification under article 27(b), UCMJ, 10 U.S.C. 827(b), 
should be suspended, JAG may direct such certification to be suspended 
for a prescribed period;
    (v) If JAG finds that the misconduct so prejudices the reputation 
of the judge advocate community, the administration of military 
justice, the practice of law under the cognizance of JAG, or the armed 
services as a whole, that certification under article 27(b), UCMJ, 10 
U.S.C. 827(b), is no longer appropriate, JAG may direct such 
certification to be removed; or
    (vi) In the case of a judge, if JAG finds that the misconduct so 
prejudices the reputation of military trial and appellate judges that 
certification under article 26(b), UCMJ, 10 U.S.C. 826(b), is no longer 
appropriate, direct such certification to be removed; and
    (vii) Direct the Rules Counsel to contact appropriate authorities 
such as the Chief of Naval Personnel or the Commandant of the Marine 
Corps so that pertinent entries in appropriate DON records may be made; 
to make entries in and to close the file; to notify the individual 
concerned as well as any officials previously provided copies of the 
complaint; and notify appropriate tribunals and authorities of any 
action taken to suspend, decertify, or limit the practice of an 
attorney as counsel before courts-martial or the Navy-Marine Corps 
Court of Military Review, administrative boards, or as a legal 
assistance attorney.


Sec. 776.85  Finality.

    Any action taken by JAG is final subject to any remedies afforded 
by Navy Regulations to the concerned counsel.


Sec. 776.86  Report to bar.

    Upon determination by JAG that a violation of subpart B of this 
part or the Code of Judicial Conduct has occurred, JAG may cause the 
Rules Counsel to report that fact to the licensing authorities of the 
attorney concerned. If so reported, notice to the concerned attorney 
shall be provided by the Rules Counsel.


Secs. 776.87-776.89  [Reserved]

Subpart D--Outside Part-Time Law Practice of Naval Service 
Attorneys


Sec. 776.90  Background.

    (a) A DON attorney's primary professional responsibility is to DON, 
and he or she is expected to devote the required level of time and 
effort to satisfactorily accomplish assigned duties. In addition to the 
obligations of an attorney engaged in the outside practice of law to 
comply with local bar rules governing professional responsibility and 
conduct, DON attorneys remain bound by subpart B of this part.
    (b) Outside employment of DON personnel, both military and 
civilian, is limited by Executive Order 12731, 55 FR 42547, 3 CFR, 1990 
Comp., p. 306, and Secretary of the Navy Instruction 5370.2J, Standards 
of Conduct [available on request from the Office of the Judge Advocate 
General, Administrative Law Division, 200 Stovall Street, Alexandria, 
VA 22332-2400]. Additionally, section 0710 of the Manual of the Judge 
Advocate General prohibits active duty judge advocates and civilian 
attorneys under the supervision of JAG from accepting or receiving, 
directly or indirectly, any fee or compensation of any nature for legal 
services rendered to those persons eligible for legal assistance under 
article 0706 of the Manual of the Judge Advocate General, whether or 
not the service is rendered during duty hours, or is part of official 
duties.
    (c) Additionally, DON officers and employees are prohibited by 18 
U.S.C. 209 from receiving pay or allowances from any source other than 
the United States for the performance of any official service or duty 
unless specifically authorized by law. Furthermore, 18 U.S.C. 203 and 
205 prohibit Federal officers and employees from personally 
representing or receiving, directly or indirectly, compensation for 
representing any other person before any Federal agency or court on 
matters in which the United States is a party or has an interest.
    (d) These limitations are particularly significant when applied to 
DON attorneys who intend to engage concurrently in a civilian law 
practice. In such a situation, the potential is high for actual or 
apparent conflict arising from the mere opportunity to obtain clients 
through contacts in the course of official business. Unique conflicts 
or adverse appearances may also develop because of a DON attorney's 
special ethical responsibilities and loyalties.


Sec. 776.91  Definition.

    Outside part-time law practice is defined as any regular provision 
of legal advice, counsel, assistance or representation, with or without 
compensation, that is not performed pursuant or incident to duties as a 
naval service attorney. Occasional uncompensated assistance rendered to 
relatives or friends is excluded from this definition. Teaching a law 
course as part of a program of education or training offered by an 
institution of higher education is not practicing law for purposes of 
this part.


Sec. 776.92  Policy.

    (a) As a general rule, JAG will not approve requests to practice 
law part-time in association with lawyers or firms which represent 
clients with interests adverse to DON.
    (b) JAG's approval of a particular request does not constitute DON 
certification of the requesting attorney's qualifications to engage in 
the proposed practice or DON endorsement of activities undertaken after 
such practice begins. Furthermore, because any outside law practice is 
necessarily beyond the scope of a DON attorney's official duties, the 
requesting attorney should consider obtaining personal malpractice 
insurance coverage.


Sec. 776.93  Action.

    (a) DON attorneys to whom this enclosure applies who contemplate 
engaging in an outside part-time law practice must first obtain 
approval from JAG. Requests should be forwarded in the form provided in 
Judge Advocate General Instruction 5803.1A [the form is available on 
request from the Administrative Law Division] to the Administrative Law 
Division, via the attorney's chain of command. Marine Corps attorneys 
will also include Commandant of the Marine Corps (JAR) as a via 
addressee.
    (b) The requesting attorney's commanding officer may--
    (1) Disapprove and return the request if he or she perceives actual 
or apparent conflicts of interests; or
    (2) Forward the request recommending approval and providing such 
other information as may be relevant.
    (c) JAG will review the request and advise applicants in writing of 
the decision, and of any conditions and limitations under which a 
particular practice may be undertaken. Until permission is granted, 
applicants will not commence any outside law practice.


Sec. 776.94  Revalidation.

    (a) Attorneys to whom permission is given to engage in the outside 
part-time practice of law will notify JAG in writing, via their chain 
of command, within 30 days of any material change in:
    (1) The nature or scope of the outside practice described in their 
requests, including termination; or
    (2) Their DON assignment or responsibilities.
    (b) Attorneys to whom permission is given to engage in the outside 
practice of law will annually resubmit an application to continue the 
practice with current information by 1 October each year.


Sec. 776.95  Relations with non-DON civilian counsel.

    Employment of non-DON civilian counsel by an individual client 
alters no responsibilities of a DON attorney to that client.
    (a) When civilian counsel is retained by an individual client, the 
DON attorney assigned to that client shall inform civilian counsel--
    (1) Of the contents of this part;
    (2) That subpart B of this part applies to civilian counsel 
practicing before military tribunals, courts, or boards as a condition 
of such practice; and
    (3) That subpart B of this part takes precedence over other rules 
of professional conduct that might otherwise apply.
    (b) If an individual client designates civilian counsel as chief 
counsel, the detailed DON attorney must defer to civilian counsel in 
any conflict over trial tactics. If, however, counsel have ``co-
counsel'' status, then conflict in proposed trial tactics requires the 
client to be consulted to resolve the conflict.
    (c) If civilian counsel has, in the opinion of the DON attorney, 
acted contrary to the requirements of subpart B of this part, the 
matter should first be discussed with civilian counsel. If not resolved 
between counsel, the client must be informed of the matter by the DON 
attorney. If, after being apprised of possible misconduct, the client 
approves of the questioned conduct, the judge advocate shall attempt to 
withdraw from the case in accordance with Sec. 776.35. The client shall 
be informed of such intent to withdraw prior to action by the judge 
advocate.

    Dated: August 19, 1994.
Lewis T. Booker, Jr.,
LCDR, JAGC, USN, Federal Register Liaison Officer.
[FR Doc. 94-21610 Filed 8-31-94; 8:45 am]
BILLING CODE 3810-AE-P