The canons, The Code, and Counsel: the Ethics of Advocates Before Courts-Martial

• Author: By Lieutenant Colonel Robert J. Chadwick
• Pages: 01

The author begiw by disoussing the ABA Canona of Pro-fessional Ethics end the American College of Trial Lawyers Code of Trial Conduct, w they apply to the military oficer-lawyer. Hasing concluded that the Canow and Trial Code do apply to m d i t w ofiioer-lawyers, he turns to a detailed analysis of various a r m which give rise to ethical problems. In each of these areaa, he discusses the rules set forth in the UCMJ, Manual, Canons, Qnd Trial Code, 08 well aa the judicial decisions.

I. INTRODUCTION

The battle is the payoff. Ralph Ingersoll.[Olur battles still are won by justice. William Moody, An Ode in Time of Hesitation.

A court-martial is a battle-ombst in the military arena.' Tactics are the means by which one seeks to defeat an adversary once the battle is joined, be it small unit tactics in the sodden, steamy jungles of South Vietnam or trial tactics before that long, green table in the battle-scarred halls of military justice.

*This article WBI adapted from B thesis presented to The Judge Advocate General'a School, U.S. Army, Charlotteaville. Virginia, while the author was a member of the Fifteenth Advanced Course. The opiniona and eoneiu-.ions presented herein m e those of the author and de not neceisarily repielient the views of The Judge Advocate General's Sehwl or any other governmental P g m w

** USYC; Headquarters, U.S. Marine Corps; A.B., 1951, Columbia College; LL.B., 1958, Columbia Law School; LL.M., 1961, New York University; member of the bars of the State of New Jomey, the U.9. Diatriet Court for the Diatrict of New Jersey, and the US

Court of Military Appeala.'Sea Latimer, A Camparotive Andy& of Fadem1 and .MiliBry C~iminol Piactice, 29 TEMP. L. 9. 1, 16 (1965).

*This article WBI adapted from B thesis presented to The Judge Advocate General'a School, U.S. Army, Charlotteaville. Virginia, while the author was a member of the Fifteenth Advanced Course. The opiniona and eoneiu-.ions presented herein m e those of the author and de not neceisarily repielient the views of The Judge Advocate General's Sehwl or any other governmental P g m w

** USYC; Headquarters, U.S. Marine Corps; A.B., 1951, Columbia College; LL.B., 1958, Columbia Law School; LL.M., 1961, New York University; member of the bars of the State of New JOT~BY.the U.9. Diatriet Court for the Diatrict of New Jersey, and the U.S. Court of Military Appeala.

Piactice, 29 TEMP. L. 9. 1, 16 (1965).

'Sea Latimer, A Camparotive Andy& of Fadem1 and .MiliBry C~iminol

All too often, however, the objectives gained by battle are proclaimed to justify the means employed-whether fair or foul. Despite the no-holds-barred protestations of those who would thus espouse this Machiavellian concept of subordinating morals to expediency, the ends do not justify the means. It is not unimportant what a trial lawyer does so long 8s he wins his case. Surely, for the prosecution, the ultimate aim is justice rendered and not conviction at m y cast. Similarly, for the defense counael, partisan advocate though he may be, acquittal by any means should not be his goal. As ne hare rules of land warfare to govern combat in the field, 80 must we have and observe ground rules of forensic engagement. The trial attorney must face and resolve the apparent dilemma between the tactics needed to ensure victory and the related need for justice every day of his professional career in the courtroom.>

Every attorney's trial tactics differ in many respects with reference to those af other lawyers, 8s does his sen.% of justice. But the field of honor on which advocates join battle as champions of their clients is circumscribed by well-delineated sidelines beyond which the combatants may not pass. The goal is secured by effectively using the entire available latitude of the field while staying in bounds. The ground rules which govern the advocate's permissible latitude of trail tactics constitute a practical, down-to-earth, bread-and-butter subject. Rehearings of reversed eaurts-martial cast time and money as well as professional embarrassment.

The most recent, mast interesting, and undoubtedly one of the future leading cases on the conduct of counsel was rendered during 1966 by the Court of Military Appeals in Z'nited States F.

Lewis.' That case contains and condemns a virtual catalog of unethical practices of bath trial and defense counsel, including: (1) both counsel testifying without withdrawing from the case, in contravention af Canon 19: (2) counsel referring to defendant's attempted negotiation of a pretrial agreement; (3) trial counsel mentioning misconduct of the accused not charged: (4) acrimoni-ous exchanges between counsel in an effort to blacken each other's reputation, coupled with such epithets as "two bit piece of cat-meat" who "came out here with B crawling Army negotiation

'See Line, Trial Tmtioa and Justioe, in A ~ R ~ C A X LAW STUDENT

ASBOCIA.

'16 U.S.C.I.A. 145, 36 C.Y.R. 301 (1B66).

TION, LAWYER'S PR08LKXS OF ConscleKcE 48-49 (1953). 2

ETHICS OF ADVOCATES

deal" and "damn liar"; and (6) defense counsel and trial counsel becoming more concerned with hammering at each other than in giving the accused a fair trial.

The accused, in B classic understatement, made the subsequent observation that counsel in their zeal to attack each other same-how overlooked him. The Court of Military Appeals severely criticized both counsel, who were senior attorneys, holding that their activities, coupled with the failure of the law officer to control them, denied the accused a fair trial and required a reversal of the conviction.

To fulfill his mission and adequately represent his client, every advocate's sights must be focused on the source and content of the ethical considerations which govern his trial tactics.

A. THE LAWYER'S PROFESSIONAL ETHICS

1. Pwposes of Professional Ethics.

Ethics form a small portion of the complex system of discipline which civilized society has imposed upon itself through laws, customs, moral standards, and even social etiquette-rules of many kinds, enforced in many uwys. A code of professional ethics constitutes a phfession's voluntary assumption of self-discipline, supplementing but not supplanting the rules of conduct observed by the general public. Such a code of ethics is a practical working tool as necessary to the professional practitioner as his theoretical principles and technical procedures?

A profession is characterized by highly complex activities which necessitate an extensive training period for its practitioners to acquire the needed skill and knowledge to enable them to render specialized Service to a client. The complexity of the specialized service makes it impossible in many instances for the client to judge adequately the caliber of the services rendered until it is too late to take corrective action. In view of the general public's inability to judge the quality of these services, and since the professional practice provides the means of livelihood for the practitioner, a potentially deep conflict of interest exists. In effect, the adoption and self-regulation of B code of ethics is the profession's way of informing its members of the standards of

'CAREY li D a ~ m n ,

ETHICAL

Sr~ao~ms

3-4 (1066)

OF THE ACCOUNT~RC

PROFEPS~N

conduct required from them and of notifying the public that the profession will protect the public's interest.

Professional legal ethics are basic principles of right action far attorneys at law. Such ethics do not involve solely moral questions, but also include behavior designed for practical, as well as idealistic, purposes. "Ideais are standards conceived ab perfect but not yet attained and perhaps even unattainable. Ideals are gads but they are not enforceable by rules."

A code of professional ethics may be designed in part to encourage ideal behavior, but basically such a code is intended to be enforceable. It must set requirements at a higher level than the rules of conduct observed by the general public, but to be a practical working tool, its requirements must be at a level lower than the ideal. To utilize a concept established by Carey and D0herty.O professional legal ethics may be regarded as a mixture of moral and practical concepts, with a sprinkling of exhortation to ideal conduct designed to evoke right action on the part of the members of the legal profession-ail reduced to rules which are intended to be enforceable, to some extent at least, by disciplinary action.'

2. Origin of the Canons of Professional Ethics.

Where do the ethical rules far attorneys originate? Throughout the civilian community in the United States, they have come from the American Bar Association, from state societies of attorneys. and from those State jurisdictions where such rules have been promulgated under authority of law. While not identical, the rules of these various organizations are similar. The basic principles are the same, although the farm, arrangement, and extent of coverage may differ. The ethical principles of the American Bar Associatian-denominated the Canons of Professional Ethics-govern the professional conduct of the largest number of attorneys; and these Canons are the most widely

'Id. at 6.

' Id'Sea Sutton, Re.Eua!uatzon o i lhs Canons ai Pmissiiono! Ethics' A Revhr's Vicwpoint. 31 TENI. L. RPY. 132, 135 (1965). erit~eizing the American Bar AJbociation Canons of Professional Ethiea for their mixture of the horatory and the prohibitory-Betting forth hiiheit professional Blipiiatmns in some parts and only minimum standards in athers.

'The ABA has 123.000 members. See 12 AMERICAS BAR NEWS, No. 1, p. 10 (15 Jan. 1957).

ETHICS OF ADVOCATES

known outside the profession. They have been adopted in whole or in part by many of the state bar associations.e

There are six source^ of authority that define the military

officer-lawyer's ethical obligations: (11 the Uniform Code of Military Jutice;l' (2) the Manu1 for Courts-Martial, United States, 1951 ;I1 (3) appellate opinions of the United States...