[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Proposed Rules]
[Pages 37473-37491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17137]


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DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 776

RIN 0703-AA54


Professional Conduct of Attorneys Practicing Under the Cognizance 
and Supervision of the Judge Advocate General

AGENCY: Department of the Navy, DOD.

ACTION: Proposed rule.

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SUMMARY: The Department of the Navy proposes to revise regulations 
concerning the professional conduct of attorneys practicing law under 
the cognizance and supervision of the Judge Advocate General of the 
Navy. This revision will ensure the professional supervision of judge 
advocates, military trial and appellate military judges, and other 
lawyers who practice in Department of the Navy proceedings and other 
legal programs.

DATES: Submit comments on or before September 10, 1999.

ADDRESSES: Send comments to Deputy Assistant Judge Advocate General 
(Administrative Law), Office of the Judge Advocate General, Washington 
Navy Yard, 1322 Patterson Avenue SE, Suite 3000, Washington, DC 20374-
5066.

FOR FURTHER INFORMATION CONTACT: Major Ed McDonnell, U.S. Marine Corps, 
703-604-8228.

SUPPLEMENTARY INFORMATION: The Judge Advocate General of the Navy (JAG) 
is responsible for the professional supervision and discipline of 
military trial and appellate military judges, judge advocates, and 
other lawyers who practice in Department of the Navy proceedings 
governed by the Uniform Code of Military Justice and the Manual for 
Courts-Martial. See, 10 U.S.C. 806, 806a, 826, 827, and Rule for 
Courts-Martial 109. The JAG has further responsibilities to supervise 
the provision of legal advice and related services in the Department of 
the Navy's Legal Assistance Program and such other legal programs as 
assigned by the Secretary of the Navy. See, 10 U.S.C. 1044; Article 
0331, U.S. Navy Regulations (1990); Secretary of the Navy Instruction 
5430.27A. To discharge these responsibilities, the JAG has prescribed 
Rules of Professional Conduct (JAG Rules) for attorneys providing legal 
services or otherwise practicing in proceedings under JAG cognizance 
and supervision. These Rules, and the procedures by which JAG 
investigates and resolves allegations of professional misconduct, are 
found at 32 CFR part 776.
    The Department of the Navy is proposing a complete revision of 32 
CFR part 776. While there are numerous administrative changes in the 
revised text, the most significant substantive proposals are as 
follows:
    1. The terms ``covered attorney,'' ``covered United States 
Government (USG) attorney,'' and ``covered non-USG attorney'' are 
introduced and incorporated throughout part 776. Currently, subpart B 
to 32 CFR part 776 uses the generic term ``judge advocate'' in 
fashioning rules of professional conduct, with the proviso that this 
term applies to all other attorneys who practice under the supervision 
of the JAG (to include civilian attorneys defending individual clients 
in courts-

[[Page 37474]]

martial or administrative separation proceedings). See current 
Sec. 776.13(a)(2). The proposal would utilize the new terms to define 
better to whom, when, and how the JAG Rules apply. See proposed 
Sec. 776.2.
    2. Addition of a specific rule prohibiting sexual relations between 
covered attorneys and their clients or other principals to the 
particular matter which is the subject of the representation. This 
proposed rule is modeled, in significant part, on Rule 1.18 of the 
Revised Rules of Professional Conduct of the North Carolina State Bar. 
See proposed Sec. 776.36.
    3. Addition of a specific rule that requires all covered USG 
attorneys to remain in good standing with state licensing authorities. 
The rule would further ensure that covered non-USG attorneys 
representing individual clients in court-martial or administrative 
separation proceedings are members in good standing with, and 
authorized to practice law by, the bar of a Federal court or of the bar 
of the highest court of a State, or a lawyer otherwise authorized by a 
recognized licensing authority to practice law. See proposed 
Sec. 776.71.
    4. Addition of a procedure wherein the JAG may impose an interim 
suspension of a covered attorney where there is probable cause to 
believe that the attorney has committed misconduct and poses a 
substantial threat of irreparable harm to clients or the orderly 
administration of military justice. See proposed Sec. 776.82.
    5. Removal of subpart D, Outside Part-Time Practice of Naval 
Service Attorneys. This subpart is limited in application to covered 
USG attorneys, and as an internal administrative rule which does not 
affect the public, need not be published in the CFR. Covered USG 
attorneys who wish to engage in the part-time practice of law, outside 
of their official Department of the Navy responsibilities, must still 
obtain JAG approval, notice of which is contained in proposed 
Sec. 776.11. Additional information for covered USG attorneys is 
available in JAG Instruction 5803.1 (series).
    The JAG Rules contained in subpart B are based upon the American 
Bar Association's (ABA's) Model Rules of Professional Conduct. Like the 
ABA's Model Rules, each JAG Rule has accompanying commentary which 
explains and illustrates the meaning and purpose of the Rule. This 
commentary for the JAG Rules is not reprinted in subpart B. A complete 
version of the JAG Rules, with accompanying commentary, may be found in 
JAG Instruction 5803.1 (series), copies of which may be obtained from 
the address indicated.

Matters of Regulatory Procedure

Executive Order 12866, Regulatory Planning and Review

    Revision of this part does not meet the definition of ``significant 
regulatory action'' for purposes of E.O. 12866.

Regulatory Flexibility Act

    Revision of this part will not have a significant economic impact 
on a substantial number of small entities for purposes of the 
Regulatory Flexibility Act (5 U.S.C. Chapter 6).

Paperwork Reduction Act

    Revision of this part does not impose collection of information 
requirements for purposes of the Paperwork Reduction Act (44 U.S.C. 
Chapter 35, 5 CFR part 1320).

List of Subjects in 32 CFR Part 776

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

    For the reasons set forth in the preamble, the Department of the 
Navy proposes to revise 32 CFR part 776 to read as follows:

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

Subpart A--General

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.
776.13-776.17  [Reserved]

Subpart B--Rules of Professional Conduct

776.18  Preamble.
776.19  Principles.
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 Navy as client.
776.33  Client under a disability.
776.34  Safekeeping property.
776.35  Declining or terminating representation.
776.36  Prohibited sexual relations.
776.37  Advisor.
776.38  Mediation.
776.39  Evaluation for use by third persons.
776.40  Meritorious claims and contentions.
776.41  Expediting litigation.
776.42  Candor and obligations toward the tribunal.
776.43  Fairness to opposing party and counsel.
776.44  Impartiality and decorum of tribunal.
776.45  Extra-tribunal statements.
776.46  Attorney as witness.
776.47  Special responsibilities of a trial counsel.
776.48  Advocate in non-adjudicative proceedings.
776.49  Truthfulness in statements to others.
776.50  Communication with person represented by counsel.
776.51  Dealing with an unrepresented person.
776.52  Respect for rights of third persons.
776.53  Responsibilities of the Judge Advocate General and 
supervisory attorneys.
776.54  Responsibilities of a subordinate attorney.
776.55  Responsibilities regarding nonattorney assistants.
776.56  Professional independence of a covered USG attorney.
776.57  Unauthorized practice of law.
776.58-776.65  [Reserved]
776.66  Bar admission and disciplinary matters.
776.67  Judicial and legal officers.
776.68  Reporting professional misconduct.
776.69  Misconduct.
776.70  Jurisdiction.
776.71  Requirement to remain in good standing with licensing 
authorities.
776.72-776.75  [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  Interim suspension.
776.83  Preliminary inquiry.
776.84  Ethics investigation.
776.85  Effect of separate proceeding.
776.86  Action by JAG.
776.87  Finality.
776.88  Report to licensing authorities.

Subpart D--[Reserved]

    Authority: 10 U.S.C. 806, 806a, 826, 827; Manual for Courts-
Martial, United States, 1998; U.S. Navy Regulations, 1990; Secretary 
of the Navy Instruction 5430.27(series), Responsibility of the Judge 
Advocate General for Supervision of Certain Legal Services.

[[Page 37475]]

Subpart A--General


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, Washington Navy Yard, 1322 Patterson Avenue, SE, Suite 3000, 
Washington, DC 20374-5066), which require the Judge Advocate General of 
the Navy (JAG) to supervise the performance of legal services under JAG 
cognizance throughout the Department of the Navy (DON), this part is 
promulgated:
    (a) To establish Rules of Professional Conduct (subpart B of this 
part) for attorneys subject to this part;
    (b) To establish procedures (subpart C of this part) for receiving, 
processing, and taking action on complaints of professional misconduct 
made against attorneys practicing under the supervision of JAG, whether 
arising from professional legal activities in DON proceedings and 
matters, or arising from other, non-U.S. Government related 
professional legal activities or personal misconduct which suggests the 
attorney is ethically, professionally, or morally unqualified to 
perform legal services within the DON; and
    (c) To ensure quality legal services at all proceedings under the 
cognizance and supervision of the JAG.


Sec. 776.2  Applicability.

    (a) This part defines the professional ethical obligations of, and 
applies to, all ``covered attorneys.''
    (b) Covered attorneys include:
    (1) The following U.S. Government (USG) attorneys, referred to, 
collectively, as ``covered USG attorneys'' throughout this part:
    (i) All active-duty Navy judge advocates (designator 2500 or 2505) 
or Marine Corps judge advocates (MOS 4402 or 9914).
    (ii) All active-duty judge advocates of other U.S. armed forces who 
practice law or provide legal services under the cognizance and 
supervision of the JAG.
    (iii) All civil service and contracted civilian attorneys who 
practice law or perform legal services under the cognizance and 
supervision of the JAG.
    (iv) All Reserve or Retired judge advocates of the Navy or Marine 
Corps (and any other U.S. armed force), who, while performing official 
DON duties, practice law or provide legal services under the cognizance 
and supervision of the JAG.
    (v) All other attorneys appointed by JAG (or the Director, Judge 
Advocate (JA) Division, Headquarters Marine Corps (HQMC), in Marine 
Corps matters) to serve in billets or to provide legal services 
normally provided by Navy or Marine Corps judge advocates. This policy 
applies to officer and enlisted reservists, to active-duty personnel, 
and to any other personnel who are licensed to practice law by any 
Federal or state authorities, but who are not members of the Judge 
Advocate General's Corps or who do not hold the 4402 or 9914 
designation in the Marine Corps.
    (2) The following non-U.S. Government attorneys, referred to, 
collectively, as ``covered non-USG attorneys'' throughout this part: 
All civilian attorneys representing individuals in any matter for which 
JAG is charged with supervising the provision of legal services. These 
matters include, but are not limited to, courts-martial, administrative 
separation boards or hearings, and disability evaluation proceedings.
    (3) The term covered attorney does not include those civil service 
or civilian attorneys who practice law or perform legal services under 
the cognizance and supervision of the General Counsel of the Navy.
    (c) Professional or personal misconduct unrelated to a covered 
attorney's DON activities, while normally outside the ambit of these 
rules, may be reviewed under procedures established in subpart C of 
this part and may provide the basis for decisions by the JAG regarding 
the covered attorney's continued qualification to provide legal 
services in DON matters.
    (d)(1) Although the rules in subpart B of this part do not apply to 
non-attorneys, they do define the type of ethical conduct that the 
public and the military community have a right to expect from DON legal 
personnel. Accordingly, subpart B of this part shall serve as a model 
of ethical conduct for the following personnel when involved with the 
delivery of legal services under the supervision of the JAG:
    (i) Navy legalmen and Marine Corps legal administrative officers, 
legal service specialists, and legal services reporters (stenotype);
    (ii) Limited duty officers (LAW);
    (iii) Legal interns; and
    (iv) Civilian support personnel including paralegals, legal 
secretaries, legal technicians, secretaries, court reporters, and 
others holding similar positions.
    (2) Covered USG attorneys who supervise non-attorney DON employees 
are responsible for their ethical conduct to the extent provided for in 
Sec. 776.55.


Sec. 776.3  Policy.

    (a) Covered attorneys 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) Whether conduct or failure to act constitutes a violation of 
the professional duties imposed by this part is a matter within the 
sole discretion of JAG or officials authorized to act for JAG. Rules 
contained in subpart B of this part are not substitutes for, and do not 
take the place of, other rules and standards governing DON personnel 
such as the Department of Defense Joint Ethics Regulation, the Code of 
Conduct, the Uniform Code of Military Justice (UCMJ), and the general 
precepts of ethical conduct to which all DON servicemembers and 
employees are expected to adhere. Similarly, action taken per this part 
is not supplanted or barred by, and does not, even if the underlying 
misconduct is the same, supplant or bar the following action from being 
taken by authorized officials:
    (1) Punitive or disciplinary action under the UCMJ; or
    (2) Administrative action under the Manual for Courts-Martial, U.S. 
Navy Regulations, or under other applicable authority.
    (c) Inquiries into allegations of professional misconduct will 
normally be held in abeyance until any related criminal investigation 
or proceeding is complete. However, a pending criminal investigation or 
proceeding does not bar the initiation or completion of a professional 
misconduct investigation (subpart C of this part) stemming from the 
same or related incidents or prevent the JAG from imposing professional 
disciplinary sanctions as provided for in this part.


Sec. 776.4  Attorney-client relationships.

    (a) The executive agency to which assigned (DON in most cases) is 
the client served by each covered USG attorney unless detailed to 
represent another client by competent authority. Specific guidelines 
are contained in Sec. 776.32.
    (b) Covered USG attorneys will not establish attorney-client 
relationships with any individual unless detailed, assigned, or 
otherwise authorized to do so by competent authority. Wrongfully 
establishing an attorney-client relationship may subject the attorney 
to discipline administered per this part. See Sec. 776.21.

[[Page 37476]]

    (c) Employment of a non-USG attorney by an individual client does 
not alter the professional responsibilities of a covered USG attorney 
detailed or otherwise assigned by competent authority to represent that 
client.


Sec. 776.5  Judicial conduct.

    To the extent that it does not conflict with statutes, regulations, 
or this part, the American Bar Association's Code of Judicial Conduct 
applies to all military and appellate judges and to all other covered 
USG attorneys performing judicial functions under JAG supervision 
within the DON.


Sec. 776.6  Conflict.

    To the extent that a conflict exists between this part and the 
rules of other jurisdictions that regulate the professional conduct of 
attorneys, this part will govern the conduct of covered attorneys 
engaged in legal functions under JAG cognizance and supervision. 
Specific and significant instances of conflict between the rules 
contained in subpart B of this part and the rules of other 
jurisdictions shall be reported promptly to the Rules Counsel (see 
Sec. 776.9), via the supervisory attorney. See Sec. 776.53.


Sec. 776.7  Reporting requirements.

    Covered USG attorneys shall report promptly to the Rules Counsel 
any disciplinary or administrative action, including initiation of 
investigation, by any licensing authority or Federal, State, or local 
bar, possessing the power to revoke, suspend, or in any way limit the 
authority to practice law in that jurisdiction, upon himself, herself, 
or another covered attorney. Failure to report such discipline or 
administrative action may subject the covered USG attorney to 
discipline administered per this part. See Sec. 776.71.


Sec. 776.8  Professional Responsibility Committee.

    (a) Composition. This standing committee will consist of the 
Assistant Judge Advocate General (AJAG) for Military Justice; the Vice 
Commander, Naval Legal Service Command (NLSC); the Chief Judge, Navy-
Marine Corps Trial Judiciary; and in cases involving Marine Corps judge 
advocates, the Deputy Director, JA 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 
the AJAG for Military Justice. The Chairman may excuse members 
disqualified for cause, illness, or exigencies of military service, and 
may request JAG to appoint additional or alternate 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 rules contained in 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 covered attorneys about the propriety of proposed 
courses of action. 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, then no adverse action 
under this part may be taken against a covered attorney who acts 
consistent with the Committee's advice.
    (4) The Chairman will forward copies of all opinions issued by the 
Committee to the Rules Counsel.
    (c) Limitation. The Committee will not normally provide ethics 
advice or opinions concerning professional responsibility matters 
(e.g., ineffective assistance of counsel, prosecutorial misconduct, 
etc.) that are then the subject of litigation.


Sec. 776.9  Rules Counsel.

    Appointed by JAG to act as special assistants for the 
administration of this part, the Rules Counsel derive authority from 
JAG and, as detailed in this part, have ``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) Director, JA Division, HQMC, for cases involving Marine Corps 
judge advocates, or civil service and contracted civilian attorneys who 
perform legal services under his cognizance; and
    (b) AJAG for Civil Law, in all other cases.


Sec. 776.10  Informal ethics advice.

    (a) Advisors. Covered attorneys may seek informal ethics advice 
either from the officers named below or from supervisory attorneys in 
the field. Within the Office of the JAG and HQMC, the following 
officials are designated to respond, either orally or in writing, to 
informal 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) Director, Legal Assistance Division: legal assistance matters;
    (4) Deputy Director, JA Division, HQMC: cases involving Marine 
Corps judge advocates, or civil service and contracted civilian 
attorneys who perform legal services under the cognizance and 
supervision of Director, JA Division, HQMC; and
    (5) Head, Standards of Conduct/Government Ethics Branch, 
Administrative Law Division: All other matters.
    (b) Limitation. Informal ethics advice will not normally be 
provided by JAG/HQMC advisors concerning professional responsibility 
matters (e.g., ineffective assistance of counsel, prosecutorial 
misconduct) that are then the subject of litigation.
    (c) Written advice. A request for informal advice does not relieve 
the requester of the obligation to comply with subpart B of this part. 
Although covered attorneys are encouraged to seek advice when in doubt 
as to their responsibilities, they remain personally accountable for 
their professional conduct. If, however, an attorney receives written 
advice on an ethical matter after full disclosure of all relevant facts 
and reasonably relies on such advice, no adverse action under this part 
will be taken against the attorney. Written advice may be sought from 
either a supervisory attorney or the appropriate advisor in paragraph 
(a) of this section. JAG is not bound by unwritten advice or by advice 
provided by personnel who are not supervisory attorneys or advisors. 
See Sec. 776.54.


Sec. 776.11  Outside part-time practice of law.

    A covered USG 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. Covered USG attorneys who wish to engage 
in the part-time, outside practice of law must first obtain permission 
from JAG. Failure to obtain permission before engaging in the outside 
practice of law may subject the covered USG attorney to administrative 
or disciplinary action, including professional sanctions administered 
per subpart C of this part. Covered USG attorneys may obtain

[[Page 37477]]

further details in JAGINST 5803.1 (series). This requirement does not 
apply to non-USG attorneys, or to Reserve or Retired judge advocates 
unless serving on active-duty for more than 30 consecutive days.


Sec. 776.12  Maintenance of files.

    Ethics complaint records shall be maintained by the Administrative 
Law Division, Office of the Judge Advocate General, and, in the case of 
Marine records, by the Judge Advocate Research and Civil Law Branch, JA 
Division, HQMC.
    (a) Requests for access to such records should be referred to 
Deputy Assistant Judge Advocate General (Administrative Law), Office of 
the Judge Advocate General (Code 13), Washington Navy Yard, 1322 
Patterson Avenue, SE, Suite 3000, Washington, DC 20374-5066, or to 
Head, Judge Advocate Research and Civil Law Branch, JA Division, 
Headquarters Marine Corps, Washington, DC 20380-0001, as appropriate.
    (b) Local command files regarding professional responsibility 
complaints will not be maintained. Commanding officers and other 
supervisory attorneys may, however, maintain personal files but must 
not share their contents with others.


Secs. 776.13-Sec. 776.17  [Reserved]

Subpart B--Rules of Professional Conduct


Sec. 776.18  Preamble.

    (a) A covered USG attorney is a representative of clients, an 
officer of the legal system, an officer of the Federal Government, and 
a public citizen who has a special responsibility for the quality of 
justice and legal services provided to the DON and to individual 
clients. The Rules of Professional Conduct contained in this subpart 
govern the ethical conduct of covered attorneys 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 DON.
    (b) This subpart not only addresses the professional conduct of 
judge advocates, but also applies to all other covered attorneys who 
practice under the cognizance and supervision of the JAG. See 
Sec. 776.2.
    (c) All covered attorneys are subject to professional disciplinary 
action imposed by the JAG for violation of the Rules contained in this 
subpart. Action by the JAG does not prevent other Federal, state, or 
local bar associations or other licensing authorities from taking 
professional disciplinary or other administrative action for the same 
or similar acts.


Sec. 776.19  Principles.

    The Rules of this subpart are based on the following principles. 
Interpretation of this subpart should flow from common meaning. To the 
extent that any ambiguity or conflict exists, this subpart should be 
interpreted consistent with these general principles.
    (a) Covered attorneys shall:
    (1) Obey the law and military regulations, and counsel clients to 
do so.
    (2) Follow all applicable ethics rules.
    (3) Protect the legal rights and interests of clients, 
organizational and individual.
    (4) Be honest and truthful in all dealings.
    (5) Not derive personal gain, except as authorized, for the 
performance of legal services.
    (6) Maintain the integrity of the legal profession.
    (b) Ethical rules should be consistent with law. If law and ethics 
conflict, the law prevails unless an ethical rule is constitutionally 
based.
    (c) The military criminal justice system is a truth-finding process 
consistent with constitutional law.


Sec. 776.20  Competence.

    (a) Competence. A covered attorney 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 covered USG attorney for a 
particular assignment shall be made by a supervising attorney before 
case or issue assignments; however, assigned attorneys 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 covered USG attorneys with, and 
representation of, clients is permissible only when the attorney is 
authorized to do so by competent authority. Military Rule of Evidence 
502, the Manual of the Judge Advocate General (JAG Instruction 5800.7 
(series)), and the Naval Legal Service Office and Trial Service Office 
Manual, define when an attorney-client relationship is formed between a 
covered USG attorney and a client servicemember, dependent, or 
employee.
    (2) Generally, the subject matter scope of a covered attorney's 
representation will be consistent with the terms of the assignment to 
perform specific representational or advisory duties. A covered 
attorney shall inform clients at the earliest opportunity of any 
limitations on representation and professional responsibilities of the 
attorney towards the client.
    (3) A covered attorney 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 covered attorney's representation of a client does not 
constitute an endorsement of the client's political, economic, social, 
or moral views or activities.
    (5) A covered attorney shall not counsel or assist a client to 
engage in conduct that the attorney knows is criminal or fraudulent, 
but a covered attorney 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 covered attorney shall act with reasonable 
diligence and promptness in representing a client, and 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 covered attorney shall keep a client 
reasonably informed about the status of a matter and promptly comply 
with reasonable requests for information.
    (2) A covered attorney 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.

    (a) Fees. (1) A covered USG attorney 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 covered USG attorney's official duties or 
employment.
    (2) A covered USG attorney shall not accept any salary or other 
payments as compensation for legal services

[[Page 37478]]

rendered, by that covered USG attorney in a private capacity, to a 
client who is eligible for assistance under the DON Legal Assistance 
Program, unless so authorized by the JAG. This rule does not apply to 
Reserve or Retired judge advocates not then serving on extended active-
duty.
    (3) A Reserve or Retired 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 
attorney'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 so authorized 
by the JAG.
    (4) A covered USG attorney shall not accept any payments or 
benefits, actual or constructive, directly or indirectly, for making a 
referral of a client in the course of the covered USG attorney's 
official duties or employment.
    (5) Covered non-USG attorneys 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 
attorney;
    (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 attorney or 
attorneys performing the services; and
    (viii) Whether the fee is fixed or contingent.
    (6) When the covered non-USG attorney 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 the 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 covered non-USG attorney 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 covered non-USG attorney 
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 covered non-USG attorney shall not enter into an arrangement 
for, charge, or collect a contingent fee for representing an accused in 
a criminal case.
    (9) A division of fees between covered non-USG attorneys who are 
not in the same firm may be made only if:
    (i) The division is in proportion to the services performed by each 
attorney or, by written agreement with the client, each attorney 
assumes joint responsibility for the representation;
    (ii) The client is advised of and does not object to the 
participation of all the attorneys involved; and
    (iii) The total fee is reasonable.
    (b) Applicability. Paragraphs (a)(5) Through (9) of this section 
apply only to private civilian attorneys practicing in proceedings 
conducted under the cognizance and supervision of the JAG. The primary 
purposes of paragraphs (a)(5) Through (9) of this section are not to 
permit the JAG to regulate fee arrangements between civilian attorneys 
and their clients but to provide guidance to covered USG attorneys 
practicing with non-USG attorneys and to supervisory attorneys who may 
be asked to inquire into alleged fee irregularities. Absent paragraphs 
(a)(5) Through (9) of this section, such supervisory attorneys have no 
readily available standard against which to compare allegedly 
questionable conduct of a civilian attorney.


Sec. 776.25  Confidentiality of information.

    (a) Confidentiality of Information. (1) A covered attorney 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 covered attorney shall reveal such information to the extent 
the covered attorney reasonably believes necessary to prevent the 
client from committing a criminal act that the covered attorney 
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 covered attorney may reveal such information to the extent 
the covered attorney reasonably believes necessary to establish a claim 
or defense on behalf of the covered attorney in a controversy between 
the covered attorney and the client, to establish a defense to a 
criminal charge or civil claim against the attorney based upon conduct 
in which the client was involved, or to respond to allegations in any 
proceeding concerning the attorney's representation of the client.
    (b) Definition. Conduct likely to result in the significant 
impairment of national security or the readiness or capability of a 
military unit, vessel, aircraft, or weapon system include, but are not 
limited to: Divulging the classified location of a special operations 
unit such that the lives of members of the unit are placed in immediate 
danger; sabotaging a vessel or aircraft to the extent that the vessel 
or aircraft could not conduct an assigned mission, or that the vessel 
or aircraft and crew could be lost; and compromising the security of a 
weapons site such that the weapons are likely to be stolen or 
detonated. Paragraph (a)(2) of this section is not intended to and does 
not mandate the disclosure of conduct which may have a slight impact on 
the readiness or capability of a unit, vessel, aircraft, or weapon 
system. Examples of such conduct are: Absence without authority from a 
peacetime training exercise; intentional damage to an individually 
assigned weapon; and intentional minor damage to military property.


Sec. 776.26  Conflict of interest: General rule.

    (a) Conflict of interest: General rule. (1) A covered attorney 
shall not represent a client if the representation of that client will 
be directly adverse to another client, unless:
    (i) The covered attorney reasonably believes the representation 
will not adversely affect the relationship with the other client; and
    (ii) Each client consents after consultation.
    (2) A covered attorney shall not represent a client if the 
representation of that client may be materially limited by the covered 
attorney's responsibilities to another client or to a third person, or 
by the covered attorney's own interests, unless:

[[Page 37479]]

    (i) The covered attorney reasonably believes the representation 
will not be adversely affected; and,
    (ii) The client consents after consultation.
    (3) 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) Reserve judge advocates. These conflict of interest rules only 
apply when Reservists are actually drilling or on active-duty for 
training, or, as is the case with Retirees, on extended active-duty or 
when performing other duties subject to JAG supervision. Therefore, 
unless otherwise prohibited by criminal conflict of interest statutes, 
Reserve or Retired attorneys providing legal services in their civilian 
capacity may represent clients, or work in firms whose attorneys 
represent clients, with interests adverse to the United States. Reserve 
judge advocates who, in their civilian capacities, represent persons 
whose interests are adverse to the DON will provide written 
notification to their supervisory attorney and commanding officer, 
detailing their involvement in the matter. Reserve judge advocates 
shall refrain from undertaking any official action or representation of 
the DON with respect to any particular matter in which they are 
providing representation or services to other clients.


Sec. 776.27  Conflict of interests: Prohibited transactions.

    (a) Conflict of interests: Prohibited transactions. (1) Covered USG 
attorneys shall strictly adhere to current Department of Defense Ethics 
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 covered USG attorney'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; or
    (iv) Make any referrals of legal or other business to any non-USG 
attorney or enterprise with whom the covered USG attorney has any 
present or expected direct or indirect personal interest; any referrals 
must be made strictly without regard to personal interests of the 
covered attorney, and special care shall be taken not to give 
preferential treatment to Reserve attorneys or other covered USG 
attorneys in their private capacities.
    (2) No covered attorney shall:
    (i) Use information relating to representation of a client to the 
disadvantage of the client unless the client consents after 
consultation, except as permitted or required by Sec. 776.25 or 
Sec. 776.42;
    (ii) Prepare an instrument giving the covered attorney or a person 
related to the covered attorney as parent, child, sibling, or spouse 
any gift from a client, including a testamentary gift, except where the 
client is related to the donee;
    (iii) In the case of covered non-USG attorneys, accept compensation 
for representing a client from one other than the client unless the 
client consents after consultation, there is no interference with the 
covered attorney's independence of professional judgment or with the 
attorney-client relationship, and information relating to 
representation of a client is protected as required by Sec. 776.25;
    (iv) Negotiate any settlement on behalf of multiple clients in a 
single matter unless each client provides fully informed consent;
    (v) Prior to the conclusion of representation of the client, make 
or negotiate an agreement giving a covered attorney literary or media 
rights for a portrayal or account based in substantial part on 
information relating to representation of a client;
    (vi) Represent a client in a matter directly adverse to a person 
whom the covered attorney knows is represented by another attorney who 
is related as parent, child, sibling, or spouse to the covered 
attorney, except upon consent by the client after consultation 
regarding the relationship; or
    (vii) Acquire a proprietary interest in the cause of action or 
subject matter of litigation the covered attorney is conducting for a 
client.
    (b) [Reserved]


Sec. 776.28  Conflict of interest: Former client.

    (a) Conflict of interest: Former client. A covered attorney who has 
represented a client in a matter shall not thereafter:
    (1) 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;
    (2) Use information relating to the representation to the 
disadvantage of the former client or to the covered attorney's own 
advantage, except as Sec. 776.25 or Sec. 776.42 would permit or require 
with respect to a client or when the information has become generally 
known; or
    (3) Reveal information relating to the representation except as 
Sec. 776.25 or Sec. 776.42 would permit or require with respect to a 
client.
    (b) [Reserved]


Sec. 776.29  Imputed disqualification: General rule.

    (a) Imputed disqualification: General rule. Covered USG attorneys 
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, 
Sec. 776.28, or Sec. 776.38. Covered non-USG attorneys must consult 
their federal, state, and local bar rules governing the representation 
of multiple or adverse clients within the same office before such 
representation is initiated, as such representation may expose them to 
disciplinary action under the rules established by their licensing 
authority.
    (b) Representing opposing side. (1) The circumstances of military 
(or Government) service may require representation of opposing sides by 
covered USG attorneys working in the same law office. Such 
representation is permissible so long as conflicts of interests are 
avoided and independent judgment, zealous representation, and 
protection of confidences are not compromised. Thus, the principle of 
imputed disqualification is not automatically controlling for covered 
USG attorneys. The knowledge, actions, and conflicts of interests of 
one covered USG attorney are not imputed to another simply because they 
operate from the same office. For example, the fact that a number of 
defense attorneys operate from one office and normally share clerical 
assistance would not prohibit them from representing co-accused at 
trial by court-martial. Imputed disqualification rules for non-USG 
attorneys are established by their individual licensing authorities and 
may well proscribe all attorneys from one law office from representing 
a co-accused, or a party with an adverse interest to an existing 
client, if any attorney in the same office were so prohibited.
    (2) Whether a covered USG attorney is disqualified requires a 
functional analysis of the facts in a specific situation. The analysis 
should include consideration of whether the following

[[Page 37480]]

will be compromised: Preserving attorney-client confidentiality; 
maintaining independence of judgment; and avoiding positions adverse to 
a client. See, e.g., U.S. v. Stubbs, 23 M.J. 188 (C.M.A. 1987).
    (3) Preserving confidentiality is a question of access to 
information. Access to information, in turn, is essentially a question 
of fact in a particular circumstance, aided by inferences, deductions, 
or working presumptions that reasonably may be made about the way in 
which covered USG attorneys work together. A covered USG attorney may 
have general access to files of all clients of a military law office 
(e.g., legal assistance attorney) and may regularly participate in 
discussions of their affairs; it may be inferred that such a covered 
USG attorney in fact is privy to all information about all the office's 
clients. In contrast, another covered USG attorney (e.g., military 
defense counsel) may have access to the files of only a limited number 
of clients and participate in discussion of the affairs of no other 
clients; in the absence of information to the contrary, it should be 
inferred that such a covered USG attorney in fact is privy to 
information about the clients actually served but not to information of 
other clients. Additionally, a covered USG attorney changing duty 
stations or changing assignments within a military office has a 
continuing duty to preserve confidentiality of information about a 
client formerly represented. See Sec. 776.25 and Sec. 776.28.7.
    (4) Maintaining independent judgment allows a covered USG attorney 
to consider, recommend, and carry out any appropriate course of action 
for a client without regard to the covered USG attorney's personal 
interests or the interests of another. When such independence is 
lacking or unlikely, representation cannot be zealous.
    (5) Another aspect of loyalty to a client is the general obligation 
of any attorney to decline subsequent representations involving 
positions adverse to a former client in substantially related matters. 
This obligation normally requires abstention from adverse 
representation by the individual covered attorney involved, but, in the 
military legal office, abstention is not required by other covered USG 
attorneys through imputed disqualification.


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 covered USG 
attorney shall not represent a private client in connection with a 
matter in which the covered USG attorney participated personally and 
substantially as a public officer or employee, unless the appropriate 
Government agency consents after consultation. If a former covered USG 
attorney in a firm, partnership, or association knows that another 
attorney within the firm, partnership, or association is undertaking or 
continuing representation in such a matter:
    (i) The disqualified former covered USG attorney 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 applicable law and regulations.
    (2) Except as the law or regulations may otherwise expressly 
permit, a former covered USG attorney, who has information known to be 
confidential Government information about a person which was acquired 
while a covered USG attorney, 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 covered USG attorney may continue association with a firm, 
partnership, or association representing any such client only if the 
disqualified covered USG attorney 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 covered USG attorney shall not:
    (i) Participate in a matter in which the covered USG attorney 
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 covered USG 
attorney'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 
covered USG attorney 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 Department of Defense, DON, or other 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 Rule 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 covered USG attorney shall not represent 
anyone in connection with a matter in which the covered USG attorney 
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 covered USG attorney 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 covered USG attorney is participating personally 
and substantially as a judge or other adjudicative officer. A covered 
USG attorney 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 covered USG attorney 
has notified the judge, other adjudicative officer, or arbitrator, and 
been disqualified from further involvement in the matter.
    (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 Navy as client. (1) Except when representing an 
individual client pursuant to paragraph (a)(6) of this section, a 
covered USG attorney represents the DON (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 covered USG attorney is assigned to such an

[[Page 37481]]

organizational element and designated to provide legal services to the 
head of the organization, an attorney-client relationship exists 
between the covered attorney and the DON 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 attorney-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 DON. In invoking either the attorney-client 
privilege or attorney-client confidentiality on behalf of the DON, the 
head of the organization is subject to being overruled by higher 
authority.
    (2) If a covered USG attorney 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 DON or a violation of law which reasonably might be 
imputed to the Department, the covered USG attorney shall proceed as is 
reasonably necessary in the best interest of the naval service. In 
determining how to proceed, the covered USG attorney shall give due 
consideration to the seriousness of the violation and its consequences, 
the scope and nature of the covered USG attorney'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) Asking for reconsideration of the matter by the acting 
official;
    (ii) Advising that a separate legal opinion on the matter be sought 
for presentation to appropriate authority in the naval service;
    (iii) Referring the matter to, or seeking guidance from, higher 
authority in the chain of command including, if warranted by the 
seriousness of the matter, referral to the supervisory attorney 
assigned to the staff of the acting official's next superior in the 
chain of command; or
    (iv) Advising the acting official 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 covered USG attorney, 
and the covered USG attorney's responsibility is to the organization.
    (3) If, despite the covered USG attorney's efforts per 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 covered USG attorney shall terminate representation with 
respect to the matter in question. In no event shall the attorney 
participate or assist in the illegal activity. In this case, a covered 
USG attorney shall report such termination of representation to the 
attorney's supervisory attorney or attorney representing the next 
superior in the chain of command.
    (4) In dealing with the officers, employees, or members of the 
naval service a covered USG attorney shall explain the identity of the 
client when it is apparent that the naval service's interests are 
adverse to those of the officer, employee, or member.
    (5) A covered USG attorney 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 DON's 
consent to dual representation is required by Sec. 776.26, the consent 
shall be given by an appropriate official of the DON other than the 
individual who is to be represented.
    (6) A covered USG attorney 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 covered attorney shall, as far as reasonably 
possible, maintain a normal attorney-client relationship with the 
client.
    (2) A covered attorney may seek the appointment of a guardian or 
take other protective action with respect to a client only when the 
covered attorney reasonably believes that the client cannot adequately 
act in the client's own interest.
    (b) [Reserved]


Sec. 776.34  Safekeeping property.

    (a) Safekeeping property. Covered USG attorneys shall not normally 
hold or safeguard property of a client or third persons in connection 
with representational duties. See Sec. 776.27.
    (b) [Reserved]


Sec. 776.35  Declining or terminating representation.

    (a) Declining or terminating representation. (1) Except as stated 
in paragraph (a)(3) of this section, a covered attorney 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 the Rules 
contained in this subpart or other law or regulation;
    (ii) The covered attorney's physical or mental condition materially 
impairs his or her ability to represent the client; or
    (iii) The covered attorney is dismissed by the client.
    (2) Except as stated in paragraph (a)(3) of this section, a covered 
attorney 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 covered 
attorney's services that the covered attorney reasonably believes is 
criminal or fraudulent;
    (ii) The client has used the covered attorney's services to 
perpetrate a crime or fraud;
    (iii) The client insists upon pursuing an objective that the 
covered attorney considers repugnant or imprudent;
    (iv) In the case of covered non-USG attorneys, the representation 
will result in an unreasonable financial burden on the attorney or has 
been rendered unreasonably difficult by the client; or
    (v) Other good cause for withdrawal exists.
    (3) When ordered to do so by a tribunal or other competent 
authority, a covered attorney shall continue representation 
notwithstanding good cause for terminating the representation.
    (4) Upon termination of representation, a covered attorney 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, where a non-
USG attorney provided representation, refunding any advance payment of 
fee that has not been earned. The covered attorney may retain papers 
relating to the client to the extent permitted by law.
    (b) [Reserved]


Sec. 776.36  Prohibited sexual relations.

    (a) Prohibited sexual relations. (1) A covered attorney shall not 
have sexual

[[Page 37482]]

relations with a current client. A covered attorney shall not require, 
demand, or solicit sexual relations with a client incident to any 
professional representation.
    (2) A covered attorney shall not engage in sexual relations with 
another attorney currently representing a party whose interests are 
adverse to those of a client currently represented by the covered 
attorney.
    (3) A covered attorney shall not engage in sexual relations with a 
judge who is presiding or who is likely to preside over any proceeding 
in which the covered attorney will appear in a representative capacity.
    (4) A covered attorney shall not engage in sexual relations with 
other persons involved in the particular case, judicial or 
administrative proceeding, or other matter for which representation has 
been established, including but not limited to witnesses, victims, co-
accuseds, and court-martial or board members.
    (5) For purposes of this Rule, sexual relations means:
    (i) Sexual intercourse; or
    (ii) Any touching of the sexual or other intimate parts of a person 
or causing such person to touch the sexual or other intimate parts of 
the covered attorney for the purpose of arousing or gratifying the 
sexual desire of either party.
    (b) [Reserved]


Sec. 776.37  Advisor.

    (a) Advisor. In representing a client, a covered attorney shall 
exercise independent professional judgment and render candid advice. In 
rendering advice, a covered attorney 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.
    (b) [Reserved]


Sec. 776.38  Mediation.

    (a) Mediation. (1) A covered attorney may act as a mediator between 
individuals if:
    (i) The covered attorney 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 covered attorney 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 covered attorney reasonably believes that the mediation 
can be undertaken impartially and without improper effect on other 
responsibilities the covered attorney has to any of the individuals.
    (2) While acting as a mediator, the covered attorney 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 covered attorney shall withdraw as a mediator if any of the 
individuals so requests, or if any of the conditions stated in 
paragraph (a)(1) of this section is no longer satisfied. Upon 
withdrawal, the covered attorney shall not represent any of the 
individuals in the matter that was the subject of the mediation unless 
each individual consents.
    (b) [Reserved]


Sec. 776.39  Evaluation for use by third persons.

    (a) Evaluation for use by third persons. (1) A covered attorney may 
undertake an evaluation of a matter affecting a client for the use of 
someone other than the client if:
    (i) The covered attorney reasonably believes that making the 
evaluation is compatible with other aspects of the covered attorney'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. 776.40  Meritorious claims and contentions.

    (a) Meritorious claims and contentions. A covered attorney 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, 
which includes a good faith argument for an extension, modification, or 
reversal of existing law. A covered attorney 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 as to require that every element of the case is 
established.
    (b) [Reserved]


Sec. 776.41  Expediting litigation.

    (a) Expediting litigation. A covered attorney shall make reasonable 
efforts to expedite litigation or other proceedings consistent with the 
interests of the client and the attorney's responsibilities to 
tribunals.
    (b) [Reserved]


Sec. 776.42  Candor and obligations toward the tribunal.

    (a) Candor and obligations toward the tribunal. (1) A covered 
attorney 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 covered attorney to be directly 
adverse to the position of the client and not disclosed by opposing 
counsel;
    (iv) Offer evidence that the covered attorney knows to be false. If 
a covered attorney has offered material evidence and comes to know of 
its falsity, the covered attorney 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 covered attorney may refuse to offer evidence that the 
covered attorney reasonably believes is false.
    (4) In an ex parte proceeding, a covered attorney shall inform the 
tribunal of all material facts known to the covered attorney which are 
necessary to enable the tribunal to make an informed decision, whether 
or not the facts are adverse.
    (b) [Reserved]


Sec. 776.43  Fairness to opposing party and counsel.

    (a) Fairness to opposing party and counsel. A covered attorney 
shall not:
    (1) Unlawfully obstruct another party's access to evidence or 
unlawfully alter, destroy, or conceal a document or other material 
having potential evidentiary value. A covered attorney shall not 
counsel or assist another person to do any such act;
    (2) Falsify evidence, counsel or assist a witness to testify 
falsely, or offer an inducement to a witness that is prohibited by law;

[[Page 37483]]

    (3) 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;
    (4) In trial, allude to any matter that the covered attorney 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
    (5) Request a person other than a client to refrain from 
voluntarily giving relevant information to another party unless:
    (i) The person is a relative, an employee, or other agent of a 
client; and
    (ii) The covered attorney reasonably believes that the person's 
interests will not be adversely affected by refraining from giving such 
information.
    (b) [Reserved]


Sec. 776.44  Impartiality and decorum of the tribunal.

    (a) Impartiality and decorum of the tribunal. A covered attorney 
shall not:
    (1) 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;
    (2) Communicate ex parte with such a person except as permitted by 
law or regulation; or
    (3) Engage in conduct intended to disrupt a tribunal.
    (b) [Reserved]


Sec. 776.45  Extra-tribunal statements.

    (a) Extra-tribunal statements. (1) A covered attorney 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 covered attorney 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)(1) 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, victim, or witness, or the 
identity of a victim or witness, or the expected testimony of a party, 
suspect, victim, 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 forensic 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 covered attorney 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 (vii) 
of this section, a covered attorney involved in the investigation or 
litigation of a matter may state without elaboration:
    (i) The general nature of the claim, offense, 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 or regulation, 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, in addition to paragraphs (a)(3)(i) 
through (vi) of this section:
    (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) Notwithstanding paragraphs (a)(1) and (a)(2)(i) through (vii) 
of this section, a covered attorney may make a statement that a 
reasonable covered attorney would believe is required to protect a 
client from the substantial undue prejudicial effect of recent 
publicity not initiated by the covered attorney or the attorney's 
client. A statement made pursuant to this paragraph shall be limited to 
such information as is necessary to mitigate the recent adverse 
publicity.
    (5) The protection and release of information in matters pertaining 
to the DON 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 (e.g., the Manual of the Judge Advocate 
General).
    (b) [Reserved]


Sec. 776.46  Attorney as witness.

    (a) Attorney as witness. (1) A covered attorney shall not act as 
advocate at a trial in which the covered attorney 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 covered attorney would work 
substantial hardship on the client.
    (2) A covered attorney may act as advocate in a trial in which 
another attorney in the covered attorney'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. 776.47  Special responsibilities of a trial counsel.

    (a) Special responsibilities of a trial counsel. A trial counsel 
shall:
    (1) Recommend to the convening authority that any charge or

[[Page 37484]]

specification not warranted by the evidence be withdrawn;
    (2) 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;
    (3) Not seek to obtain from an unrepresented accused a waiver of 
important pretrial rights;
    (4) Make timely disclosure to the defense of all evidence or 
information known to the trial counsel 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 trial counsel, except when the trial counsel 
is relieved of this responsibility by a protective order or regulation;
    (5) Exercise reasonable care to prevent investigators, law 
enforcement personnel, employees, or other persons assisting or 
associated with the trial counsel from making an extrajudicial 
statement that the trial counsel would be prohibited from making under 
Sec. 776.45; and
    (6) Except for statements that are necessary to inform the public 
of the nature and extent of the trial counsel's actions and that serve 
a legitimate law enforcement purpose, refrain from making extrajudicial 
comments that have a substantial likelihood of heightening public 
condemnation of the accused.
    (b) Role of the trial counsel. (1) The trial counsel represents the 
United States in the prosecution of special and general courts-martial. 
See Article 38(a), UCMJ, and R.C.M. 103(16), 405(d)(3)(A), and 
502(d)(5). Accordingly, a trial counsel has the responsibility of 
administering justice and is not simply an advocate. This 
responsibility carries with it specific obligations to see that the 
accused is accorded procedural justice and that guilt is decided upon 
the basis of sufficient evidence. Paragraph (a)(1) of this section 
recognizes that the trial counsel does not have all the authority 
vested in modern civilian prosecutors. The authority to convene courts-
martial, and to refer and withdraw specific charges, is vested in 
convening authorities. Trial counsel may have the duty, in certain 
circumstances, to bring to the court's attention any charge that lacks 
sufficient evidence to support a conviction. See United States v. Howe, 
37 M.J. 1062 (NMCMR 1993). Such action should be undertaken only after 
consultation with a supervisory attorney and the convening authority. 
See also Sec. 776.42, governing ex parte proceedings. Applicable law 
may require other measures by the trial counsel. Knowing disregard of 
those obligations or a systematic abuse of prosecutorial discretion 
could constitute a violation of Sec. 776.69.
    (2) The ``ABA Standards for Criminal Justice: The Prosecution 
Function,'' (3rd ed. 1993), has been used by appellate courts in 
analyzing issues concerning trial counsel conduct. To the extent 
consistent with this part, the ABA standards may be used to guide trial 
counsel in the prosecution of criminal cases. See United States v. 
Howe, 37 M.J. 1062 (NMCRS 1993); United States v. Dancy, 38 M.J. 1 (CMA 
1993); United States v. Hamilton, 41 M.J. 22 (CMA 1994); United States 
v. Meek, 44 M.J. 1 (CMA 1996).


Sec. 776.48  Advocate in nonadjudicative proceedings.

    (a) Advocate in nonadjudicative proceedings. A covered attorney 
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. 776.42, Sec. 776.43, and Sec. 776.44.
    (b) [Reserved]


Sec. 776.49  Truthfulness in statements to others.

    (a) Truthfulness in statements to others. In the course of 
representing a client a covered attorney 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. 776.50  Communication with person representated by counsel.

    (a) Communication with person represented by counsel. In 
representing a client, a covered attorney shall not communicate about 
the subject of the representation with a party the covered attorney 
knows to be represented by another attorney in the matter, unless the 
covered attorney has the consent of the other attorney or is authorized 
by law to do so.
    (b) [Reserved]


Sec. 776.51  Dealing with an unrepresented person.

    (a) Dealing with an unrepresented person. When dealing on behalf of 
a client with a person who is not represented by counsel, a covered 
attorney shall not state or imply that the covered attorney is 
disinterested. When the covered attorney knows or reasonably should 
know that the unrepresented person misunderstands the covered 
attorney's role in the matter, the covered attorney shall make 
reasonable efforts to correct the misunderstanding.
    (b) [Reserved]


Sec. 776.52  Respect for rights of third persons.

    (a) Respect for rights of third persons. In representing a client, 
a covered attorney 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.
    (b) [Reserved]


Sec. 776.53  Responsibilities of the Judge Advocate General and 
supervisory attorneys.

    (a) Responsibilities of the Judge Advocate General and supervisory 
attorneys. (1) The JAG and supervisory attorneys shall make reasonable 
efforts to ensure that all covered attorneys conform to this part.
    (2) A covered attorney having direct supervisory authority over 
another covered attorney shall make reasonable efforts to ensure that 
the other attorney conforms to this part.
    (3) A supervisory attorney shall be responsible for another 
subordinate covered attorney's violation of this part if:
    (i) The supervisory attorney orders or, with knowledge of the 
specific conduct, ratifies the conduct involved; or
    (ii) The supervisory attorney has direct supervisory authority over 
the other attorney 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 attorney is responsible for ensuring that the 
subordinate covered attorney is properly trained and is competent to 
perform the duties to which the subordinate covered attorney is 
assigned.
    (b) [Reserved]


Sec. 776.54  Responsibilities of a subordinate attorney.

    (a) Responsibilities of a subordinate attorney. (1) A covered 
attorney is bound by this part notwithstanding that the covered 
attorney acted at the direction of another person.
    (2) In recognition of the judge advocate's unique dual role as a 
commissioned officer and attorney, subordinate judge advocates shall 
obey lawful directives and regulations of supervisory attorneys when 
not

[[Page 37485]]

inconsistent with this part or the duty of a judge advocate to exercise 
independent professional judgment as to the best interest of an 
individual client.
    (3) A subordinate covered attorney does not violate this part if 
that covered attorney acts in accordance with a supervisory attorney's 
written and reasonable resolution of an arguable question of 
professional duty. See Sec. 776.10.
    (b) [Reserved]


Sec. 776.55  Responsibilities regarding non-attorney assistants.

    (a) Responsibilities regarding non-attorney assistants. With 
respect to a non-attorney acting under the authority, supervision, or 
direction of a covered attorney:
    (1) The senior supervisory attorney in an office shall make 
reasonable efforts to ensure that the person's conduct is compatible 
with the professional obligations of a covered attorney;
    (2) A covered attorney having direct supervisory authority over the 
non-attorney shall make reasonable efforts to ensure that the person's 
conduct is compatible with the professional obligations of a covered 
attorney; and
    (3) A covered attorney shall be responsible for conduct of such a 
person that would be a violation of this part if engaged in by a 
covered attorney if:
    (i) The covered attorney orders or, with the knowledge of the 
specific conduct, explicitly or impliedly ratifies the conduct 
involved; or
    (ii) The covered attorney 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.
    (b) [Reserved]


Sec. 776.56  Professional independence of a covered USG attorney.

    (a) Professional independence of a covered USG attorney. (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 DON is expected to exercise unfettered loyalty and professional 
independence during the representation consistent with these Rules and 
remains ultimately responsible for acting in the best interest of the 
individual client.
    (2) Notwithstanding a civilian USG attorney's status as a Federal 
employee subject, generally, to the authority of superiors, a civilian 
USG attorney detailed or assigned to represent an individual member or 
employee of the DON is expected to exercise unfettered loyalty and 
professional independence during the representation consistent with 
these Rules and remains ultimately responsible for acting in the best 
interest of the individual client.
    (3) The exercise of professional judgment in accordance with 
paragraphs (a)(1) and (a)(2) of this section shall not, standing alone, 
be a basis for an adverse evaluation or other prejudicial action.
    (b) Loyalty to individual client. (1) This section recognizes that 
a judge advocate is a military officer required by law to obey the 
lawful orders of superior officers. It also recognizes the similar 
status of a civilian USG attorney. Nevertheless, the practice of law 
requires the exercise of judgment solely for the benefit of the client 
and free of compromising influences and loyalties. Thus, when a covered 
USG attorney is assigned to represent an individual client, neither the 
attorney's personal interests, the interests of other clients, nor the 
interests of third persons should affect loyalty to the individual 
client.
    (2) Not all direction given to a subordinate covered attorney is an 
attempt to influence improperly the covered attorney's professional 
judgment. Each situation must be evaluated by the facts and 
circumstances, giving due consideration to the subordinate's training, 
experience, and skill. A covered attorney subjected to outside 
pressures should make full disclosure of them to the client. If the 
covered attorney or the client believes the effectiveness of the 
representation has been or will be impaired thereby, the covered 
attorney should take proper steps to withdraw from representation of 
the client.
    (3) Additionally, a judge advocate has a responsibility to report 
any instances of unlawful command influence. See R.C.M. 104, MCM, 1998.


Sec. 776.57  Unauthorized practice of law.

    (a) Unauthorized practice of law. A covered USG attorney shall not:
    (1) 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
    (2) Assist a person who is not a member of the bar in the 
performance of activity that constitutes the unauthorized practice of 
law.
    (b) Practice of law under JAG authorizaton. Limiting the practice 
of law to members of the bar protects the public against rendition of 
legal services by unqualified persons. A covered USG attorney's 
performance of legal duties pursuant to a military department's 
authorization, however, is considered a Federal function and not 
subject to regulation by the states. Thus, a covered USG attorney may 
perform legal assistance duties even though the covered attorney is not 
licensed to practice in the jurisdiction within which the covered 
attorney's duty station is located. Paragraph (a)(2) of this section 
does not prohibit a covered USG attorney from using the services of 
non-attorneys and delegating functions to them, so long as the covered 
attorney supervises the delegated work and retains responsibility for 
it. See Sec. 776.55. Likewise, it does not prohibit covered USG 
attorneys from providing professional advice and instruction to non-
attorneys whose employment requires knowledge of law; for example, 
claims adjusters, social workers, accountants and persons employed in 
Government agencies. In addition, a covered USG attorney may counsel 
individuals who wish to proceed pro se or non-attorneys authorized by 
law or regulation to appear and represent themselves or others before 
military proceedings.


Secs. 776.58-776.65  [Reserved]


Sec. 776.66  Bar admission and disciplinary matters.

    (a) Bar admission and disciplinary matters. A covered attorney, in 
connection with any application for bar admission, appointment as a 
judge advocate, employment as a civilian USG attorney, certification by 
the JAG or his designee, or in connection with any disciplinary matter, 
shall not:
    (1) Knowingly make a false statement of fact; or
    (2) 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.
    (b) Providing information. The duty imposed by this section extends 
to covered attorneys and other attorneys seeking admission to a bar, 
application for appointment as a covered USG attorney (military or 
civilian) or certification by the JAG or his designee. Hence, if a 
person makes a false statement in connection with an application for 
admission or certification (e.g., misstatement by a civilian attorney 
before a military judge regarding qualifications under Rule for Courts-
Martial 502), it may be the basis

[[Page 37486]]

for subsequent disciplinary action if the person is admitted or 
certified, and in any event may be relevant in a subsequent admission 
application. The duty imposed by this section applies to a covered 
attorney's own admission or discipline as well as that of others. Thus, 
it is a separate professional offense for a covered attorney to make a 
knowing misrepresentation or omission in connection with a disciplinary 
investigation of the covered attorney's own conduct. This section also 
requires affirmative clarification of any misunderstanding on the part 
of the admissions, certification, or disciplinary authority of which 
the person involved becomes aware.


Sec. 776.67  Judicial and legal officers.

    (a) Judicial and legal officers. A covered attorney shall not make 
a statement that the covered attorney 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.
    (b) [Reserved]


Sec. 776.68  Reporting professional misconduct.

    (a) Reporting professional misconduct. (1) A covered attorney 
having knowledge that another covered attorney has committed a 
violation of this part that raises a substantial question as to that 
covered attorney's honesty, trustworthiness, or fitness as a covered 
attorney in other respects, shall report such violation in accordance 
with the procedures set forth in subpart C of this part.
    (2) A covered attorney 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 violation in accordance with the procedures set forth in subpart C 
of this part.
    (3) This Rule does not require disclosure of information otherwise 
protected by Sec. 776.25.
    (b) [Reserved]


Sec. 776.69  Misconduct.

    (a) Misconduct. It is professional misconduct for a covered 
attorney to:
    (1) Violate or attempt to violate this subpart, knowingly assist or 
induce another to do so, or do so through the acts of another;
    (2) Commit a criminal act that reflects adversely on the covered 
attorney's honesty, trustworthiness, or fitness as an attorney in other 
respects;
    (3) Engage in conduct involving dishonesty, fraud, deceit, or 
misrepresentation;
    (4) Engage in conduct that is prejudicial to the administration of 
justice;
    (5) State or imply an ability to influence improperly a government 
agency or official; or
    (6) Knowingly assist a judge or judicial officer in conduct that is 
a violation of applicable rules of judicial conduct or other law.
    (b)Responsibilities. (1) Judge advocates hold a commission as an 
officer in the Navy or Marine Corps and assume legal responsibilities 
going beyond those of other citizens. A judge advocate's abuse of such 
commission can suggest an inability to fulfill the professional role of 
judge advocate and attorney. This concept has similar application to 
civilian USG attorneys.
    (2) Covered non-USG attorneys, Reservists, and Retirees (acting in 
their civilian capacity), like their active-duty counterparts, are 
expected to demonstrate model behavior and exemplary integrity at all 
times. JAG may consider any and all derogatory or beneficial 
information about a covered attorney, for purposes of determining the 
attorney's qualification, professional competence, or fitness to 
practice law in DON matters, or to administer discipline under this 
part. Such consideration shall be made, except in emergency situations 
necessitating immediate action, according to the procedures established 
in subpart C of this part.


Sec. 776.70  Jurisdiction.

    (a) Jurisdiction. All covered attorneys, as defined in Sec. 776.2, 
shall be governed by this part.
    (b) Applicability. (1) Many covered USG attorneys practice outside 
the territorial limits of the jurisdiction in which they are licensed. 
While covered attorneys remain subject to the governing authority of 
the jurisdiction in which they are licensed to practice, they are also 
subject to these Rules.
    (2) When covered USG attorneys are engaged in the conduct of Navy 
or Marine Corps legal functions, whether serving the Navy or Marine 
Corps as a client or serving an individual client as authorized by the 
Navy or Marine Corps, the rules contained in this subpart supersede any 
conflicting rules applicable in jurisdictions in which the covered 
attorney may be licensed. However, covered attorneys practicing in 
State or Federal civilian court proceedings will abide by the rules 
adopted by that State or Federal civilian court during the proceedings. 
As for covered non-USG attorneys practicing under the supervision of 
the JAG, violation of the rules contained in this subpart may result in 
suspension from practice in DON proceedings.
    (3) Covered non-USG attorneys, Reservists, or Retirees (acting in 
their civilian capacity) who seek to provide legal services in any DON 
matter under JAG cognizance and supervision, may be precluded from such 
practice of law if, in the opinion of the JAG (as exercised through 
this instruction) the attorney's conduct in any venue renders that 
attorney unable or unqualified to practice in DON programs or 
proceedings.


Sec. 776.71  Requirement to remain in good standing with licensing 
authorities.

    (a) Requirement to remain in good standing with state licensing 
authority. (1) Each officer of the Navy appointed as a member of the 
Judge Advocate General's Corps, each officer of the Marine Corps 
designated a judge advocate, and each civil service and contracted 
civilian attorney who practices law under the cognizance and 
supervision of the JAG shall maintain a status considered ``in good 
standing'' at all times with the licensing authority admitting the 
individual to the practice of law before the highest court of at least 
one State, Territory, Commonwealth, or the District of Columbia.
    (2) The JAG, the Director, JA Division, HQMC, or any other 
supervisory attorney may require any covered USG attorney over whom 
they exercise authority to establish that the attorney continues to be 
in good standing with his or her licensing authority. Representatives 
of the JAG or of the Director, JA Division, HQMC, may also inquire 
directly of any such covered USG attorney's licensing authority to 
establish whether he or she continues to be in good standing and has no 
disciplinary action pending.
    (3) Each covered USG attorney shall immediately report to the JAG 
if any jurisdiction in which the covered USG attorney is or has been a 
member in good standing commences disciplinary investigation or action 
against him or her or if the covered USG attorney is disciplined, 
suspended, or disbarred from the practice of law in any jurisdiction.
    (4) Each covered non-USG attorney representing an accused in any 
court-martial or administrative separation proceeding shall be a member 
in good standing with, and authorized to practice law by, the bar of a 
Federal court or of the bar of the highest court of a State, or a 
lawyer otherwise authorized by a recognized licensing

[[Page 37487]]

authority to practice law and found by the military judge to be 
qualified to represent the accused.
    (b) Definition. (1) The licensing authority granting the 
certification or privilege to practice law within the jurisdiction 
generally defines the phrase ``in good standing.'' At a minimum it 
means that the individual is subject to the jurisdiction's disciplinary 
review process; has not been suspended or disbarred from the practice 
of law within the jurisdiction; is up-to-date in the payment of all 
required fees; has met applicable continuing legal education 
requirements which the jurisdiction has imposed (or the cognizant 
authority has waived those requirements in the case of the individual); 
and has met such other requirements as the cognizant authority has set 
to remain eligible to practice law. So long as these conditions are 
met, a covered USG attorney may be considered ``inactive'' as to the 
practice of law within a particular jurisdiction and still be 
considered ``in good standing'' for purposes of this section.
    (2) Rule for Courts-Martial 502(d)(3)(A) requires that any civilian 
defense counsel representing an accused in a court-martial be a member 
of the bar of a Federal court or of the bar of the highest court of a 
State. This civilian defense counsel qualification only has meaning if 
the attorney is a member ``in good standing,'' see U.S. v. Waggoner, 22 
M.J. 692 (AFCMR 1986), and is then authorized to practice law within 
that jurisdiction. It is appropriate for the military judge, in each 
and every case, to ensure that a civilian defense counsel is qualified 
to represent the accused.
    (3) Failure of a judge advocate to comply with the requirements of 
this Rule may result in professional disciplinary action as provided 
for in this instruction, loss of certification under Articles 26 and/or 
27(b), UCMJ, adverse entries in military service records, and 
administrative separation under Secretary of the Navy Instruction 
1920.6(series) based on the officer's failure to maintain professional 
qualifications. In the case of civil service and contracted civilian 
attorneys practicing under the JAG's cognizance and supervision, 
failure to maintain good standing or otherwise to comply with the 
requirements of this Rule may result in adverse administrative action 
under applicable personnel regulations, including termination of 
employment.
    (4) A covered USG attorney need only remain in good standing in one 
jurisdiction. If admitted to the practice of law in more than one 
jurisdiction, however, and any jurisdiction commences disciplinary 
action against or disciplines, suspends or disbars the covered USG 
attorney from the practice of law, the covered USG attorney must so 
advise the JAG.
    (5) Certification by the United States Court of Appeals for the 
Armed Forces that a covered attorney is in good standing with that 
court will not satisfy the requirement of this section, since such 
status is normally dependent on Article 27 UCMJ certification alone.


Secs. 776.72-776.75  [Reserved]

Subpart C--Complaint Processing Procedures


Sec. 776.76  Policy.

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


Sec. 776.77  Related Investigations and Actions.

    Acts or omissions by covered attorneys may constitute professional 
misconduct, criminal misconduct, poor performance of duty, or a 
combination of all three. Care must be taken to characterize 
appropriately the nature of a covered attorney's conduct to determine 
who may and properly should take official action.
    (a) Questions of legal ethics and professional misconduct by 
covered attorneys are within the exclusive province of JAG. Ethical or 
professional misconduct will not be attributed to any covered attorney 
in any official record without a final JAG determination, made in 
accordance with this part, that such misconduct has occurred.
    (b) Criminal misconduct is properly addressed by the covered USG 
attorney's commander through the disciplinary process provided under 
the UCMJ and implementing regulations, or through referral to 
appropriate civil authority.
    (c) Poor performance of duty is properly addressed by the covered 
USG attorney's reporting senior through a variety of administrative 
actions, including documentation in fitness reports or employee 
appraisals.
    (d) Prior JAG approval is not required to investigate allegations 
of criminal conduct or poor performance of duty involving covered 
attorneys. 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 allegations of professional misconduct will 
normally be held in abeyance until any related criminal investigation 
or proceeding is complete. However, a pending criminal investigation or 
proceeding does not bar the initiation or completion of a professional 
misconduct investigation stemming from the same or related incidents or 
prevent the JAG from imposing professional disciplinary sanctions as 
provided for in this subpart.


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 IG or the concerned supervisory attorney) for inquiry. Such 
complaints are not, by themselves, cognizable under this subpart but 
may, if reasonably confirmed, be the basis of a formal complaint 
described in Sec. 776.79.


Sec. 776.79  The complaint.

    (a) The complaint shall:
    (1) Be in writing and be signed by the complainant;
    (2) State that the complainant has personal knowledge, or has 
otherwise received reliable information indicating, that:
    (i) The covered attorney concerned is, or has been, engaged in 
misconduct that demonstrates a lack of integrity, that constitutes a 
violation of subpart B of this part or a failure to meet the ethical 
standards of the profession; or
    (ii) The covered attorney concerned is ethically, professionally, 
or morally unqualified to perform his or her duties; and
    (3) 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 covered attorney concerned. 
Supporting statements, if any, should be attached to the complaint.
    (b) A complaint may be initiated by any person, including the 
Administrative Law Division of the Office of JAG (JAG (13)), or the 
Judge Advocate Research and Civil Law Branch, JA Division, HQMC (JAR).

[[Page 37488]]

Sec. 776.80  Initial screening and Rules Counsel.

    (a) Complaints shall be forwarded to JAG(13) or, in cases involving 
Marine Corps judge advocates or civil service and contracted civilian 
attorneys who perform legal services under the cognizance and 
supervision of Director, JA Division, HQMC, to JAR.
    (b) JAG(13) and JAR shall log all complaints received and will 
ensure that a copy is provided to the covered attorney who is the 
subject of the complaint.
    (c) The covered attorney concerned may elect to provide an initial 
statement regarding the complaint for the Rules Counsel's 
consideration. The covered attorney will promptly inform JAG(13) or JAR 
if he or she intends to submit any such statement. At this screening 
stage, forwarding of the complaint to the Rules Counsel will not be 
unduly delayed to await the covered attorney's submission.
    (d) The Rules Counsel shall initially review the complaint, and any 
statement submitted by the covered attorney complained of, to determine 
whether it complies with the requirements set forth in Sec. 776.79.
    (1) Complaints that do not comply with the requirements may be 
returned to the complainant for correction or completion, and 
resubmission to JAG(13) or JAR. If the complaint is not corrected or 
completed, and resubmitted within 30 days of the date of its return, 
the Rules Counsel may close the file without further action. JAG (13) 
and JAR will maintain copies of all correspondence relating to the 
return and resubmission of a complaint, and shall notify the covered 
attorney concerned if and when the Rules Counsel takes action to close 
the file.
    (2) Complaints that comply with the requirements shall be further 
reviewed by the Rules Counsel to determine whether the complaint:
    (i) Establishes probable cause to believe that a violation of this 
part or of the Judicial Code has occurred; or
    (ii) Alleges ineffective assistance of counsel, or other violations 
of subpart B of this part, as a matter of defense in a court-martial, 
administrative separation, or nonjudicial punishment proceeding. If so, 
the Rules Counsel shall forward a copy of the complaint to the proper 
appellate authority for appropriate action and comment.
    (e) 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 complainant 
and the covered attorney concerned that the file has been closed. 
JAG(13) and JAR will maintain copies of all correspondence related to 
the closing of the file.
    (f) The Rules Counsel may close the file if there is a 
determination that the complaint establishes probable cause but the 
violation is of a minor or technical nature appropriately addressed 
through corrective counseling. The Rules Counsel shall report any such 
decision to the JAG. The Rules Counsel shall ensure the covered 
attorney concerned receives appropriate counseling and shall notify the 
complainant and the covered attorney concerned that the file has been 
closed. JAG(13) and JAR will maintain copies of all correspondence 
related to the closing of the file. The covered attorney concerned is 
responsible, under these circumstances, to determine if his or her 
Federal, state, or local licensing authority requires reporting of such 
action.


Sec. 776.81  Charges.

    (a) If the Rules Counsel determines that there is probable cause to 
believe that a violation of this part or of the Code of Judicial 
Conduct has occurred, the Rules Counsel shall draft charges alleging 
violations of this part or of the Code of Judicial Conduct and forward 
the charges, together with the original complaint and any allied 
papers, as follows:
    (1) In cases involving Marine Corps attorneys not serving as 
defense counsel or attached to Navy units, to the officer exercising 
general court-martial jurisdiction (OEGCMJ) over the charged covered 
attorney, and request, on behalf of JAG, that the OEGCMJ appoint a 
covered attorney (normally the concerned attorney's supervisor) to 
conduct a preliminary inquiry into the matter;
    (2) In all other cases, to the supervisory attorney in the charged 
attorney's chain of command (or such other officer as JAG may 
designate), and direct, on behalf of JAG, the supervisory attorney 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 covered attorney against whom 
the complaint is made and notify him or her that a preliminary inquiry 
will be conducted. Service of complaints, charges, and other materials 
shall be made by personal service, or by registered or certified mail 
sent to the covered attorney's last known address reflected in official 
Navy or Marine Corps records or in the records of the state bar(s) 
which licensed the attorney to practice law.
    (c) The Rules Counsel shall also provide a copy of the charges to 
the commanding officer, or equivalent, of the covered USG attorney 
concerned if the complaint involves a covered USG attorney on active 
duty or in civilian Federal service.
    (d) The Rules Counsel shall also forward a copy of the charges as 
follows:
    (1) In cases involving Navy or Marine Corps judge advocates serving 
in Naval Legal Service Command (NLSC) units, to Vice Commander, NLSC;
    (2) In cases involving Navy attorneys serving in Marine Corps 
units, or involving Marine Corps attorneys 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 military service attorney discipline section 
if the complaint involves covered attorneys certified by the Judge 
Advocates General/Chief Counsel of the other uniformed services.


Sec. 776.82  Interim suspension.

    (a) Where the Rules Counsel determines there is probable cause to 
believe that a covered attorney has committed misconduct or other 
violations of this part, and poses a substantial threat of irreparable 
harm to his or her clients or the orderly administration of military 
justice, the Rules Counsel shall so advise the JAG. Examples of when a 
covered attorney may pose a ``substantial threat of irreparable harm'' 
include:
    (1) When charged with the commission of a crime which involves 
moral turpitude or reflects adversely upon the covered attorney's 
fitness to practice law, and where substantial evidence exists to 
support the charge;
    (2) When engaged in the unauthorized practice of law (e.g., failure 
to maintain good standing in accordance with Sec. 776.71); or
    (3) Where unable to represent client interests competently.
    (b) Upon receipt of information from the Rules Counsel, JAG may 
order the covered attorney to show cause why he or she should not face 
interim suspension, pending completion of a professional responsibility 
investigation. The covered attorney shall have 10 calendar days in 
which to respond.
    (c) If an order to show cause has been issued under paragraph (b) 
of this section, and the period for response has passed without a 
response, or after consideration of any response and finding sufficient 
evidence demonstrating probable cause to believe that the covered 
attorney is guilty of

[[Page 37489]]

misconduct and poses a substantial threat of irreparable harm to his or 
her client or the orderly administration of military justice, JAG may 
direct an interim suspension of the covered attorney's certification 
under Articles 26(b) or 27(b), UCMJ, or R.C.M. 502(d)(3), or the 
authority to provide legal assistance, pending the results of the 
investigation and final action under this instruction.
    (d) Within 10 days of JAG's decision to impose an interim 
suspension, the covered attorney may request an opportunity to be heard 
before an impartial officer designated by JAG. Where so requested, that 
opportunity will be scheduled within 10 calendar days of the request. 
The designated officer shall receive any information that the covered 
attorney chooses to submit on the limited issue of whether to continue 
the interim suspension. The designated officer shall submit a 
recommendation to JAG within 5 calendar days of conclusion.
    (e) A covered attorney may, based upon a claim of changed 
circumstances or newly discovered evidence, petition for dissolution or 
amendment of JAG's imposition of interim suspension.
    (f) Any professional responsibility investigation involving a 
covered attorney who has been suspended pursuant to this section shall 
proceed and be concluded without appreciable delay. However, JAG may 
determine it necessary to await completion of a related criminal 
investigation or proceeding, or completion of a professional 
responsibility action initiated by other licensing authorities. In such 
cases, JAG shall cause the Rules Counsel to so notify the covered 
attorney under interim suspension. Where necessary, continuation of the 
interim suspension shall be reviewed by JAG every 6 months.


Sec. 776.83  Preliminary inquiry.

    (a) The purpose of the preliminary inquiry is to determine whether, 
in the opinion of the officer appointed to conduct the preliminary 
inquiry (PIO), the questioned conduct occurred and, if so, whether it 
constitutes a violation of this part or the Code of Judicial Conduct. 
The PIO is to recommend appropriate action in cases of substantiated 
violations.
    (b) Upon receipt of the complaint and charges, the PIO shall 
promptly investigate the charges, generally following the format and 
procedures set forth in the Manual of the Judge Advocate General for 
the conduct of command investigations. Reports of relevant 
investigations by other authorities including, but not limited to, 
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; and
    (3) Provide the covered attorney 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 covered attorney 
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 this part or of the Judicial Code has occurred.
    (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 may recommend that the file be 
closed.
    (2) If the PIO determines by a preponderance of the evidence that a 
violation did occur, and that corrective action greater than counseling 
may be warranted, he or she shall then recommend what further action is 
deemed appropriate.
    (e) The PIO shall forward (via the OEGCMJ in appropriate Marine 
cases) the results of the preliminary inquiry to the Rules Counsel, 
providing copies to the covered attorney concerned and all parties to 
whom the charges were previously sent.
    (f) The Rules Counsel shall review all preliminary inquiries. If 
the report is determined by the Rules Counsel to be incomplete, the 
Rules Counsel shall return it to the PIO, or to another inquiry 
officer, for further or supplemental inquiry. If the report is 
complete, then:
    (1) If the Rules Counsel determines, either consistent with the PIO 
recommendation or through the Rules Counsel's own review of the report, 
that a violation of this part or Code of Judicial Conduct has not 
occurred and that further action is not warranted, the Rules Counsel 
shall close the file and notify the complainant, the covered attorney 
concerned, and all officials previously provided copies of the 
complaint. JAG(13) and/or JAR, as appropriate, will maintain copies of 
all correspondence related to the closing of the file.
    (2) If the Rules Counsel determines, either consistent with a PIO 
recommendation or through the Rules Counsel's own review of the report, 
that a violation of this part has occurred but that the violation is of 
a minor or technical nature, then the Rules Counsel may determine that 
corrective counseling is appropriate and close the file. The Rules 
Counsel shall report any such decision to the JAG. The Rules Counsel 
shall ensure that the covered attorney concerned receives appropriate 
counseling and shall notify the complainant, the covered attorney 
concerned, and all officials previously provided copies of the 
complaint that the file has been closed. JAG(13) and/or JAR, as 
appropriate, will maintain copies of all correspondence related to the 
closing of the file. The covered attorney concerned is responsible, 
under these circumstances, to determine if his or her Federal, state, 
or local licensing authority requires reporting such action.
    (3) If the Rules Counsel determines, either consistent with a PIO 
recommendation or through the Rules Counsel's own review of the report, 
that further professional discipline or corrective action may be 
warranted, the Rules Counsel shall:
    (i) In cases involving Marine Corps attorneys not serving as 
defense counsel or attached to Navy units, request, on behalf of JAG, 
that the subject attorney's OEGCMJ appoint a disinterested covered 
attorney (normally senior to the covered attorney complained of and not 
previously involved in the case) to conduct an ethics investigation 
into the matter;
    (ii) In all other cases, appoint, on behalf of JAG, a disinterested 
covered attorney (normally senior to the covered attorney complained of 
and not previously involved in the case) to conduct an ethics 
investigation; and
    (iii) Notify those supervisory attorneys listed in paragraphs (c) 
and (d) of Sec. 776.81.


Sec. 776.84  Ethics investigation.

    (a) Whenever an ethics investigation is initiated, the covered 
attorney concerned will be so notified, in writing, by the Rules 
Counsel.
    (b) The covered attorney concerned will be provided written notice 
of the following rights in connection with the ethics investigation:
    (1) To request a hearing before the investigating officer (IO);
    (2) To inspect all evidence gathered;
    (3) To present written or oral statements or materials for 
consideration;

[[Page 37490]]

    (4) To call witnesses at his or her own expense (local military 
witnesses should be made available at no cost);
    (5) To be assisted by counsel (see paragraph (c) of this section);
    (6) To challenge the IO for cause (such challenges must be made in 
writing and sent to the Rules Counsel via the challenged officer); and
    (7) to waive any or all of these rights.
    (c) The covered attorney 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 covered USG attorney, another USG attorney:
    (i) Detailed by the cognizant Naval Legal Service Office (NLSO), 
Law Center, or Legal Service Support Section (LSSS); or
    (ii) Requested by the covered attorney concerned, if such counsel 
is attached to the cognizant NLSO, Law Center, LSSS, 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 made available.
    (d) If a hearing is requested, the IO will conduct the hearing 
after reasonable notice to the covered attorney 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 covered attorney concerned or his or her counsel may 
question witnesses that 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 covered attorney shall be considered.
    (e) The IO may appoint and use such assistants as may be necessary 
to conduct the ethics investigation.
    (f) The IO shall prepare a report which summarizes the evidence, to 
include information presented at any hearing.
    (1) If the IO believes that no violation has occurred or that the 
violation is minor or technical in nature and warrants only corrective 
counseling, then he or she may recommend that the file be closed.
    (2) If the IO believes that a violation did occur, and that 
corrective action greater than counseling is warranted, he or she shall 
then recommend what further action is deemed appropriate.
    (g) The IO shall forward the ethics investigation, including the 
IO's recommendations, to the Rules Counsel, as follows:
    (1) In cases involving Navy or Marine Corps attorneys serving with 
NLSC units, via Vice Commander, NLSC;
    (2) In cases involving Navy attorneys serving with Marine Corps 
units, via the Commandant of the Marine Corps (Attn: JA);
    (3) In cases involving Navy or Marine Corps attorneys serving in 
subordinate Navy fleet or staff billets, via 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, via the Trial Judiciary Chief Judge;
    (5) In cases involving Marine Corps attorneys serving in defense 
billets, via the Chief Defense Counsel of the Marine Corps;
    (6) In cases involving Marine Corps attorneys not serving in 
defense counsel billets or in Navy units, via the OEGCMJ over the 
concerned attorney; and
    (7) In cases involving covered attorneys certified by the Judge 
Advocates General/Chief Counsel of the other U.S. Armed Forces, via the 
appropriate military service attorney discipline section of that U.S. 
Armed Force.
    (h) The Rules Counsel shall review all ethics investigations. If 
the report is determined by the Rules Counsel to be incomplete, the 
Rules Counsel shall return it to the IO, or to another inquiry officer, 
for further or supplemental inquiry. If the report is complete, then:
    (1) If the Rules Counsel determines, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the 
investigation, that a violation of this part or Code of Judicial 
Conduct has not occurred and that further action is not warranted, the 
Rules Counsel shall close the file and notify the complainant, the 
covered attorney concerned, and all officials previously provided 
copies of the complaint. JAG(13) and/or JAR, as appropriate, will 
maintain copies of all correspondence related to the closing of the 
file.
    (2) If the Rules Counsel determines, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the 
investigation, that a violation of this part or Code of Judicial 
Conduct has occurred but that the violation is of a minor or technical 
nature, then the Rules Counsel may determine that corrective counseling 
is appropriate and close the file. The Rules Counsel shall report any 
such decision to the JAG. The Rules Counsel shall ensure that the 
covered attorney concerned receives appropriate counseling and shall 
notify the complainant, the covered attorney concerned, and all 
officials previously provided copies of the complaint that the file has 
been closed. JAG(13) and/or JAR, as appropriate, will maintain copies 
of all correspondence related to the closing of the file. The covered 
attorney concerned is responsible, under these circumstances, to 
determine if his or her Federal, state, or local licensing authority 
requires reporting such action.
    (3) If the Rules Counsel believes, either consistent with the IO 
recommendation or through the Rules Counsel's own review of the 
investigation, that professional disciplinary action greater than 
corrective counseling is warranted, the Rules Counsel shall forward the 
investigation, with recommendations as to appropriate disposition, to 
JAG.


Sec. 776.85  Effect of separate proceeding.

    (a) For purposes of this section, the term separate proceeding 
includes, but is not limited to, court-martial, non-judicial 
punishment, administrative board, or similar civilian or military 
proceeding.
    (b) In cases in which a covered attorney is determined, at a 
separate proceeding determined by the Rules Counsel to afford 
procedural protection equal to that provided by a preliminary inquiry 
under this instruction, to have committed misconduct which forms the 
basis for ethics charges under this instruction, the Rules Counsel may 
dispense with the preliminary inquiry and proceed directly with an 
ethics investigation.
    (c) In those cases in which a covered attorney is determined to 
have committed misconduct at a separate proceeding which the Rules 
Counsel determines has afforded procedural protection equal to that 
provided by an ethics investigation under this instruction, the 
previous determination regarding the underlying misconduct is res 
judicata with respect to that issue during an ethics investigation. A 
subsequent ethics investigation based on such misconduct shall afford 
the covered attorney a hearing into whether the underlying misconduct 
constitutes a violation of this part, whether the violation affects his 
or her fitness to practice law, and what sanctions, if any, are 
appropriate.
    (d) The Rules Counsel may dispense with the preliminary inquiry and 
ethics investigation, and if warranted, recommend to JAG that the 
covered attorney concerned be disciplined,

[[Page 37491]]

consistent with this subpart, after providing the covered attorney 
concerned written notice and an opportunity to be heard in writing, in 
those cases in which a covered attorney has been:
    (1) Decertified or suspended from the practice of law or otherwise 
subjected to professional responsibility discipline by the Judge 
Advocate General of another Military Department;
    (2) Disbarred or suspended from the practice of law or otherwise 
subjected to professional responsibility discipline by the Court of 
Appeals for the Armed Forces or by any Federal, State, or local bar; or
    (3) Convicted of a felony (or any offense punishable by one year or 
more of imprisonment) in a civilian or military court which, in the 
opinion of the Rules Counsel, renders the attorney unqualified or 
incapable of properly or ethically representing the DON or a client 
when the Rules Counsel has determined that the attorney was afforded 
procedural protection equal to that provided by an ethics investigation 
under this instruction.


Sec. 776.86  Action by JAG.

    (a) JAG is not bound by the recommendation rendered by the Rules 
Counsel, IO, PIO, or any other interested party, but will base any 
action on the record as a whole. Nothing in this instruction limits JAG 
authority to suspend from the practice of law in DON matters any 
covered attorney alleged or found to have committed professional 
misconduct or violated this part, either in DON or civilian 
proceedings.
    (b) JAG may, but is not required to, refer any case to the 
Professional Responsibility Committee for an advisory opinion on 
interpretation of subpart B of this part or its application to the 
facts of a particular case.
    (c) Upon receipt of the ethics 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) Direct further inquiry into specified areas.
    (2) Where determining the allegations to be unfounded, or that no 
further action is warranted, direct the Rules Counsel to make 
appropriate file entries and to notify the complainant, covered 
attorney concerned, and all interested parties of such determination.
    (3) Where determining the allegations to be supported by clear and 
convincing evidence, take appropriate corrective action including, but 
not limited to:
    (i) Limiting the covered attorney to practice under direct 
supervision of a supervisory attorney;
    (ii) Limiting the covered attorney to practice in certain areas or 
forbidding him or her from practice in certain areas;
    (iii) Suspending or revoking, for a specified or indefinite period, 
the covered attorney's authority to provide legal assistance;
    (iv) Where finding that the misconduct so adversely affects the 
covered attorney's continuing ability to practice law in the naval 
service or that the misconduct so prejudices the reputation of the DON 
legal 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)), or 
R.C.M. 502(b)(3), should be suspended or is no longer appropriate, 
directing such certification to be suspended for a prescribed or 
indefinite period or to be removed permanently;
    (v) In the case of a judge, where finding 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)), should be 
suspended or is no longer appropriate, directing such certification to 
be suspended for a prescribed or indefinite period or to be removed 
permanently; and
    (vi) Directing 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; 
notifying the complainant, covered attorney concerned, and any 
officials previously provided copies of the complaint; and notifying 
appropriate tribunals and authorities of any action taken to suspend, 
decertify, or limit the practice of a covered attorney as counsel 
before courts-martial or the U.S. Navy-Marine Corps Court of Appeals, 
administrative boards, as a legal assistance attorney, or in any other 
legal proceeding or matter conducted under JAG cognizance and 
supervision.


Sec. 776.87  Finality.

    Any action taken by JAG is final, subject to any remedies afforded 
by Navy Regulations or any other regulation to the covered attorney 
concerned.


Sec. 776.88  Report to licensing authorities.

    Upon determination by JAG that a violation of the Rules or the Code 
of Judicial Conduct has occurred, JAG may cause the Rules Counsel to 
report that fact to the Federal, state, or local bar or other licensing 
authority of the covered attorney concerned. If so reported, notice to 
the covered attorney shall be provided by the Rules Counsel. The JAG's 
decision in no way diminishes a covered attorney's responsibility to 
report adverse professional disciplinary action as required by the 
attorney's Federal, state, and local bar or other licensing authority.

Subpart D--[Reserved]

    Dated: July 1, 1999.
Ralph W. Corey,
Commander, Judge Advocate General's Corps, U.S. Navy, Alternate Federal 
Register Liaison Officer.
[FR Doc. 99-17137 Filed 7-9-99; 8:45 am]
BILLING CODE 3810-FF-P