[Federal Register Volume 75, Number 167 (Monday, August 30, 2010)]
[Rules and Regulations]
[Pages 52860-52861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21499]


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DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 776

[No. USN-2010-0019]
RIN 0703-AA88


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

AGENCY: Department of the Navy, DoD.

ACTION: Interim final rule.

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SUMMARY: The Department of the Navy (DON) is amending its rules to 
update existing sections relating to the professional conduct of 
attorneys practicing under the cognizance and supervision of the Judge 
Advocate General (JAG) for clients with diminished capacity. The 
amendment comports with current policy reflected in JAG Instruction 
5803.1 (Series), Professional Conduct of Attorneys Practicing Under the 
Cognizance and Supervision of the Judge Advocate General.
    The new rule allows a covered attorney to take preventative action 
when the attorney reasonably believes that a client has diminished 
capacity and is at risk of substantial physical harm to himself or 
herself unless immediate action is taken. Not having this immediate 
change negatively impacts an attorney's ability to preserve life when a 
client expresses the intent to harm himself or herself or an attorney 
receives information about a client's suicidal intentions. The JAG has 
directed that this change take effect immediately as the former version 
of the rule potentially created a professional responsibility violation 
if an attorney acted to preserve life or risked the client's life.

DATES: This interim final rule is effective August 30, 2010. Written 
comments received at the address indicated below by October 29, 2010 
will be considered and addressed in the final rule.

ADDRESSES: You may submit comments, identified by docket number and/or 
Regulatory Information Number (RIN) and title, by any of the following 
methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail: Federal Docket Management System Office, 1160 Defense 
Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and

[[Page 52861]]

docket or RIN number for this Federal Register document. The general 
policy for comments and other submissions from members of the public is 
to make these submissions available for public viewing on the Internet 
at http://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Janelle M. Beal, 
JAGC, U.S. Navy, Office of the Judge Advocate General (Administrative 
Law), Department of the Navy, 1322 Patterson Ave., SE., Suite 3000, 
Washington Navy Yard, DC 20374-5066, telephone: 703-614-7403.

SUPPLEMENTARY INFORMATION: The Department of the Navy is amending 32 
CFR part 776, to comport with current policy as stated in JAG 
Instruction 5803.1 (Series) governing the professional conduct of 
attorneys practicing under the cognizance and supervision of the Judge 
Advocate General for clients with diminished capacity. This rule 
updates the existing section to reflect the current policy of the Judge 
Advocate General to permit a covered attorney to take protective action 
and disclose a client's condition when he or she reasonably believes 
that the client has diminished capacity and is at risk of substantial 
physical self-harm if action is not taken. Thus, aligning the policy 
with ABA Model Rules of Professional Conduct (2010), Rule 1.14 (Client 
with Diminished Capacity). Interested persons are invited to comment in 
writing on this amendment. All written comments received will be 
considered in finalizing the amendment to 32 CFR part 776. It has been 
determined that this rule amendment is not a major rule within the 
criteria specified in Executive Order 12866, as amended by Executive 
Order 13258, and does not have substantial impact on the public.

Matters of Regulatory Procedure

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that 32 CFR Part 776 is not a significant 
regulatory action. The rule does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that 32 CFR part 776 does not contain a 
Federal mandate that may result in the expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 776 does not impose any 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995 (44 U.S.C. chapter 35).

Federalism (Executive Order 13132)

    It has been certified that 32 CFR Part 776 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 32 CFR Part 776

    Rules of Professional Conduct, and Complaint Processing Procedures.

0
For the reasons set forth in the preamble, the Department of the Navy 
amends 32 CFR Part 776, as follows:

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

0
1. The authority citation for 32 CFR Part 776 continues to read as 
follows:

    Authority: 10 U.S.C. 806, 806a, 826, 827.

Subpart B--Rules of Professional Conduct

0
2. Revise Sec.  776.33 to read as follows:


Sec.  776.33  Client with diminished capacity.

    (a) Client with diminished capacity: (1) When a client's ability to 
make adequately considered decisions in connection with the 
representation is diminished, whether because of minority, mental 
impairment, or for some other reason, the covered attorney shall, as 
far as reasonably possible, maintain a normal attorney-client 
relationship with the client.
    (2) When the covered attorney reasonably believes that the client 
has diminished capacity, is at risk of substantial physical, financial, 
or other harm unless action is taken and cannot adequately act in the 
client's own interest, the covered attorney may take reasonably 
necessary protective action, including consulting with individuals or 
entities that have the ability to take action to protect the client.
    (3) Information relating to the representation of a client with 
diminished capacity is protected by Sec.  776.25 of this part. When 
taking protective action pursuant to paragraph (a)(2) of this section, 
the covered attorney is impliedly authorized under Sec.  776.25 of this 
part to reveal information about the client, but only to the extent 
reasonably necessary to protect the client's interests.
    (b) [Reserved]

    Dated: August 24, 2010.
D.J. Werner,
Lieutenant Commander, Office of the Judge Advocate General, U.S. Navy, 
Federal Register Liaison Officer.
[FR Doc. 2010-21499 Filed 8-27-10; 8:45 am]
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