Federal Health Law Course 2015 MAJ Elizabeth Witwer Agenda Client Capacity Attorney Capacity Supervisor Responsibilities Professional Responsibility Inquiries Recent Cases Resources Army Regulation 2726 ID: 700139
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Slide1
Professional Conduct for Lawyers
Federal Health Law Course 2015
MAJ Elizabeth WitwerSlide2
Agenda
Client CapacityAttorney CapacitySupervisor Responsibilities
Professional Responsibility InquiriesRecent CasesSlide3
Resources
Army Regulation 27-26, Rules for Professional Conduct for Lawyers
Standards of Conduct, 5 C.F.R. Part 2635Model / State Bar Rules
State Bar Resources / Law Review ArticlesEncyclopedia of Ethical Failure, Department of Defense, OGC, Standards of Conduct OfficeAgency Professional Responsibility Office ReportsSlide4
CLIENT CAPACITYSlide5
P
o
t
ential Ethical Issues in Client CapacityDetermining capacity Decision-making Dealing with disclosuresUndue influenceSlide6
Le
gal Assis
tanc
e Scenario77 year old retired NCOEscorted to your office by one of her 4 adult children. Meets in private with you and says that she wants to update her will.In conversation, the client tells you she is becoming more concerned about growing forgetfulness and confusion.Slide7
L
e
g
al Assistance GuidanceABA Model Rule 1.14 – Client with diminished capacity“…the lawyer shall, so far as reasonably possible, maintain a normal client-lawyer relationship...”“…the lawyer may take reasonably necessary protective action…”Confidentiality?Applicability of ABA Model Rule 1.6?Slide8
L
e
g
al Assistance GuidanceABA Model Rule 1.6 – Confidentiality“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by...”“A lawyer may reveal information…to the extent the lawyer reasonable believes necessary: (4) to secure legal advice about the lawyer’s compliance with these Rules…”Slide9
Le
gal Assis
tanc
e ScenarioClient requests that her son sit in on consultationand speak for her.Wants to update her will – disinheriting the 3 children not present because they did not attend her 75th birthday.In conversation, the client tells you she is becoming more concerned about
growing forgetfulness and confusionSlide10
M
ili
ta
ry Justice ScenarioE4 with no deployment and series of minor misconduct (short AWOLs, disrespect, FTRs, spice use)Pre-Trial confinement ordered after return from latest AWOL TC tells DC that government would support a quick plea deal Initial investigation reveals potential delusionsSlide11
I
ssues
f
or Trial and Defense CounselProblem?Lacked mental responsibility for any charged offence and/orLacks capacity to stand trial.Solution? RCM 706 Inquiry (“sanity board”)Slide12
RCM 706 Inquiry:
Who initiates?
If it appears to
any commander who considers disposition of charges, or to any investigating officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility…the belief or observation shall be transmitted through appropriate challenges to the officer authorized to order an inquiry into the metal condition of the accused.Slide13
RCM 706 Inquiry:
Who Orders?
Before referral: convening authority
After referral: military judge** Some exceptionsSlide14
RCM 706 Inquiry:
Composition
When ordered, referred to board consisting of one or more persons.
Each member of board shall be physician or clinical psychologist.Preference for psychiatrist or clinical psychologist.Slide15
RCM 706 Inquiry:
Findings
Specify reasons for doubting mental capacity or responsibility.
Answer specific questions contained in RCM 706.Slide16
RCM 706 Inquiry
Disclosure & Actions
Defense: Receives full report
Government: Summary of ultimate conclusions*Actions: Case suspended, charges dismissed, administrative action, charges tried by court-martial* See MRE 302Slide17
ATTORNEY CAPACITYSlide18
Substance Abuse
Diminish an attorney’s practiceLead to professional problems: missed deadlines, poor judgment, financial problems50% of lawyer discipline cases involve substance abuse problems
Lawyers Assistance Programs provide hope and confidentiality
!Slide19Slide20Slide21
Substance Abuse and Discipline
Implicates Rules of Professional Responsibility relating to competence, diligence, and misconduct.Confidential referral to an assistance program.Report to appropriate authority, agency, or body.
(Rules 8.1 - 8.5)Slide22
NONLAWYER ASSISTANTSSlide23
Rule 5.3 Responsibilities Regarding Nonlawyer
Assistants
(a) A partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make
reasonable efforts to ensure that the office has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;Slide24
Rule 5.3
(b) a lawyer having
direct
supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer;Slide25
Rule 5.3
(c) a lawyer shall be held responsible for conduct . . . if:
the lawyer
orders or ratifies the conduct; or(2) the lawyer (direct supervisor) knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial actions.Slide26
Rule 5.5 Unauthorized Practice of Law
A lawyer shall not:(b)
assist a person who is not a member of the bar in the performance of
activity that constitutes the unauthorized practice of law.Slide27
Comment
. . . so long as the lawyer
supervises the delegated work and
retains responsibility for their work.Slide28
PROFESSIONAL CONDUCT INQUIRIESSlide29
The Process
Authorities:
AR 27-1
CH 7 (Professional Responsibility)CH 8 (Mismanagement)AR 27-26 Rules of Professional ConductABA Model Rules of Professional ConductABA Model Code of Judicial ConductCode of Judicial Conduct for Army Trial and Appellate JudgesSlide30
The Process:
Applies to
1.
All lawyers, paralegals, enlisted, WOs, civilian staff (Judge Advocate Legal Services, (JALS)) 2. Any civilian involved in any matter that falls under TJAG’s responsibility and authoritySlide31
Policy
TJAG Policy Memo 14-02
“Every lawyer will receive annual training on the Army Rules of Professional Conduct for Lawyers (AR 27-26), State Bar rules, and other applicable ethical standards…” At a minimum, each lawyer should receive three hours of professional responsibility training each year. All nonlawyer personnel, who perform duty in an Army or joint legal office, should receive one hour of professional responsibility training each year. Slide32
Self-Reporting Policy
TJAG Policy Memo 14-02 cont’d…
If notified that an allegation of misconduct, impropriety, or unfitness has been made in connection with practice of law,
SHALL immediately report, through appropriate technical channels to the Chief, Professional Responsibility, the nature and status of the allegation(s). If charged with a criminal offense SHALL immediately inform, through appropriate technical channels, the Chief, Professional Responsibility, in writing of the charge. Slide33
The Process
Allegations originate from:
IG Referrals
ACCA / CAAFJudge Advocates and CiviliansClients / Third PartiesSlide34
The Process:
What is the nature of the allegation?
Professional Responsibility?
Applies to all JALS membersMismanagement?Applies to all JALS members who are supervisors in Army legal offices under TJAG jurisdictionBoth?34Slide35
Classify the Allegation
Process
PRPSI (PRB, DJAG, TJAG)No Violation or MinorViolationTJAG/DJAGCase ClosedMSupervisorNot SupervisorIf SJA/DSJA/CJA is respondent must go to DJAG (even if closed).If allegation is founded, action with DJAG/TJAG.Not MismanagementBothCDCDPSICD GOMOR Withdraw Art 27(b)(2) certification
Suspend Report to licensing authorityPSISlide36
The Process:
Professional Responsibility
Conduct Credibility Determination (AR 27-1, Ch 7)
SJA or Senior Supervisory JA (SSJA) can directInformal. No due process attaches. Purpose: Is allegation credible?No. Done.Yes. Does it raise substantial question as to honesty, trustworthiness or fitness?No. Done.Yes, then . . . Slide37
The Process:
Professional Responsibility
Coordinate with PRB to get permission to conduct a Preliminary Screening Inquiry (PSI).
Only PRB, DJAG, or TJAG can direct (authorize). SSJA (or PRB) appoints PSI Inquiry Officer.Due process attaches. If PSI finds:No violation, or minor or technical violation, then SSJA and PRB close case, with counseling as appropriate.Substantial violation, then action by DJAG or TJAG.Slide38
The Process:
Mismanagement
Respondent a supervisor?
No. Done.Yes. Proceed.CD procedure is the same (AR 27-1, Ch 8).Informal. No due process attaches. Purpose: Is allegation credible?No. Done.Yes. Adversely affect legal services? Or, misuse gov’t resources? Or, violate ARs or TJAG policy memoranda?No. Done.Yes, then . . . Slide39
The Process:
Mismanagement
Coordinate with PRB to get permission to conduct a Preliminary Screening Inquiry (PSI).
Only PRB, DJAG, or TJAG can direct (authorize). SSJA (or PRB) appoints PSI Inquiry Officer.Due process attaches. If PSI finds:No violation, or minor or technical violation, then SSJA and PRB close case, with counseling as appropriate.Exception: If respondent is SJA / DSJA / CJA, DJAG must resolve. Substantial violation, then action by DJAG or TJAG.Slide40
The Process:
Double Whammy
PSI finds no violation (or minor, technical):
Closed.* Counseling as appropriate.PSI finds violation:TJAG / DJAGGOMORWithdraw Art 27(b)(2) certification – JASuspend from RCM 109(a) practice – JA or civ attySuspend from JA dutiesReport to licensing authority* In Mismanagement cases, file must go to DJAG for action / closure if Respondent is SJA, DSJA, CJA or equivalent.Slide41
The Process
Inquiries are informal (
i.e.
, no board).Need thorough analysis supported by evidence. Conclusions alone are insufficient.Evidence must support findings.Findings must support recommendations.Standard: Preponderance of Evidence.(Clear and convincing in 99% of substantiated cases.)Slide42
Professional Responsibility Trends
For all ranks, most commonly violated rule is Rule 8.4 (Misconduct).Rule 8.4 Misconduct: commit criminal act; engage in conduct involving dishonesty, fraud, deceit, or misrepresentation
Many young JAs don’t understand (& complain about):
Use and purpose of legal technical (tech) chainSJA’s role as senior legal advisor responsible for all legal advice, including subordinates’ legal adviceNot all direction given to subordinate lawyer is an attempt to improperly influence the lawyer’s professional judgmentSlide43
Mismanagement Trends
Mismanagement ComplaintsLeadership styleDiscontent over evaluations
Management decisionsPerception of unfairness
Perception of reprisalSlide44
Department of JusticeOffice of Professional ResponsibilitySlide45
Department of JusticeOffice of Professional ResponsibilitySlide46Slide47
Department of Justice
Office of Professional ResponsibilitySlide48
Department of JusticeOffice of Professional ResponsibilitySlide49
Department of JusticeOffice of Professional ResponsibilitySlide50
SOCO Encyclopedia of Ethical FailureSlide51
Federal agent demoted for identifying herself as a federal agent.Slide52
The ultimate debate:Coke or Pepsi?Slide53
Pin-heads ignore GPC proceduresSlide54
Support my organization: I can shoot big guns.Slide55
Financial Disclosures Are a
NuisanceSlide56
$11,000 Fine for Failure to FileSlide57
Uncle Sam Wins!Slide58
General discovers that aides are not supposed to feed catsSlide59
Questions? Suggestions?
MAJ Witwer
Kathryn.witwer@usuhs.edu