Professional Ethics and the Military Defense Counsel

• Author: By Captain Warren H. Horton
• Pages: 03

The quality of military justice depends almost completely upon the ethics of those who administer the Uniform Code of Military Justice, 1960. Foremost among this group, whose moral judgment is tested daily, is the military defense counsel, by necessity often an officer of limited background, bath militarily and professionally.' In the unusual organization required by the military service, the defense counsel finds himself opposing his normal client, the government, and practicing before a judge who is often his law partner. He has the case prepared and reviewed by his senior law partner and "boss," the Staff Judge Advocate and later the case is ultimately reviewed and actianed by the Convening Authority, who has almost infinite power over his perjon and c&reer.l

This organization, by its very nature, requires a higher stand-ard of ethical conduct on the part of the individuals administering the judicial system than does a comparable civilian system. This is true because a civilian system of justice neither has nor requires a close knit organization. The desired standard of ethical conduct in the military justice system is usually attained and often exceeded through the medium of establishing high standards of both professional training and personal character for selection, certification, and appointment as professional legal officers. There is, however, a paucity of training for non-lawyer military personnel in the field of ethics, It is, therefore, appropriate that the ethical prob-lems of the military counsel be examined and emphasized so they may be easily recognized and solved by interested persons.

To appreciate the decisional dilemma produced by the military organization, the meaning of the word ethics must be explored. Ethics has been defined as the branch of philosophy dealing with

*This article B B ~

adapted from a. thesis presented to The Judge Adra. cste General's School, C. S. Army, Chsrlottesmlle, Virgmia, shile the author was a. member of the Sixth Advanced Clarn. The opinions and eancluaions presented herein are those of the author and do not nee. essariiy reprelent the view of The Judge Advocate General's School norany other governmental agene?.

I*

JAGC, U.S. Army, Staff Judge Advocate Seetian, Headquarters Fourth United States Army, Fort Sam Houston, Texas; member of the Florida State Bar; graduate of Stetnon University Law School.' JAGA, llema to Executive Oflee. Subieot: S.1165, 85th Congrenr, A

Bill To Provide Incentive Pay and Related Benefits far Judge Advocates

and Legal SPeEialist of the Armed Forces (1867).'TlO&E 12-IT, Department a i the Army, 20 Dee 1855: U.S. V. Gmu,

6 USCMA 615, 20 CMR 331 (1866).

A M la18 61

the moral duty of man in his obligations to others and in perfecting him8elf.j Morals and ethics both refer to a habit of right action with the individual and sanctioned by the custom af the society in which he lives. Ethics, hawever, refers more to the prineipies of right in the abstract while moral tends to refer to the actions sanctioned by the social and religious When, as here, a subject is discussed from an ethical viewpoint, there is the suggestion of going back to first principles and judging it as a matter of abstract right and wrong.

A complete reevaluation is not always required as the foundation of legal ethics is said to lie in bath the positive law and in reason.s That portion found in the positive law is reflected in iegislation and in the decision of courts, while the portion founded in reason consists primarily in the application of widely accepted principles of good conduct to the specific problem of the military counsel. The general principles have been stated for the use of the individual not by society as a whole but by the minor group of society most conversant with the problems involved and the function regulated. Far the legal profession these principles have takenthe farm of "Canons of Ethics" formulated by State and local Bar Assmiations and by the American Bar Ass~ciation.~

These standards, while promulgated by the minor group, must stand the appraisal and criticism of the public as any failure to conform or exceed the prevailing norms of society a8 a whale carries with it a loss of prestige far the entire minor group.'

With the guidelines furnished by the positive law and by the standards of the group a8 expressed in the various canons, ethical problems are eased but not solved as the duties owed by the professional legal person are many and often conflict. The duties of a lawyer hare been listed thusly: Ist, to the State as an officer and citizen; Zd, to the Court as an officer and adviser; 3rd, to his client as a fiduciary; and 4th, to his brother lawyers. The lawyer cannot be honest to one duty and dishonest to another. His duties must be performed to a11 without infringing upon or impairing the rights of others and when he so performs his conduct is then can- ' Wsbetev's h'ew Collegiate Dtotzonory (2d Ed., 1956)

Cvabb's English Synanymes (1917).

LBostan, The Souroe and Formulafinn 01 Ethical Preoepla, 78 Cent. L. J.

'American Bar Asreciatian. Conona ai Pmjessionol Ethics (1967) (here'Ross, Social Canh.01 (1901).

400 (1910.

inafter cited as Canon. ABA).

611 *w MIIB

PROFESSIONAL ETHICS AND THE DEFENSE COUNSEL

sidered ethicaLs The duties of the military coun8el are not materially different from the duties of his civilian counterpart.

The judicial system of which the military defense counsel is a part was effectuated in 1951 by the promulgation of the Uniform Code of Military Justice and the Manual for Cowts-Martial, United States, 1!?51.g While this system emanates from Congress'power to make rule^ far the Government and regulation of the land and naval forces,"1n rather than the judicial authority of the Constitution,11 it is judicial in nature.12 Although the system is said to be an instrument in the hands of the executive pawer for the regulation of the Armed Forces1s there appears to have been a recent trend enhancing it with an increasing aura of judicial 1ikene~s.l~

Whether the military justice system is truly judicial in nature or not is perhapa not the prime consideration as the system does encompass an arrangement whereby one person represents another, accused of crime, before a body empowered to punish. The very nature of the representation is sufficient to require B special standard of conduct on the part of the attorney.I6 The administration of military justice is conducted by lawyer and lay person alike, and yet, although the UCIIIJIB and the I\fanual1' incorporate certain ethical principles, there has been no definitive body of standards enunciated similar to the canons of ethics instituted by other bars. Despite this, the requirements contained in the UCXJ and the

' Report of the Committee on Admissions of the New Yo7k County Low~eis Association, Year Book, Neu York County Lawyers Association (1909).'lo U.S.C. 801-940 (1962 Ed., Supp. Y), placed in force and effect by

Executive Order 10214, dated February 8, 1051 (hereinafter referred to as the UCMJ or the Code). Its prov%ions are implemented by the Manual for Coirts-.9Ja~tioi, Cnited StaCa, 1961 (hereinafter referred to BQ the Manual).

I"

U.S. Conrt., art. I, set. 8, cI. 14.

"US const., art. 111.

"Runkla V. US.,

122 U.S. 643 (1887)."Ez P a m Quirin, 317 U S

1 (1042).

"Snedeker, Military Juatiee Cnder The Unifan Code 47 (1053)."Meinhard Y. Salmon, 240 N.Y. 458, 164 N.E. 645 (1028), wherein Chief

Jvdge Cardozo said: "Many form8 of eanduet permissible in a workaday world far those acting at arm's length, am forbidden to those bound by fidueiary ties. A trustee ia held to samethmg itdeter than the morals of the market place. Not hamsty alone, hut the punctilio of an honor the most aenaitive, IS then the standard of behavior. As ta thin there has developed B tradition that is unbending and inveterate , , . , Only thus has the level of conduct for fiduciaries becn kept at a level higher than that trodden by the crowd."

"Arts. 6(e), 22(h). 26, 27, 32(b), 34, 37, 38, 42, 43, 51, and 64, UCYJ. "Pam. 36, 88, SO, 40, 42, 43, 44, 45, 48, 41, and 48, MCM, 1061,

Manual, as well as the Canons of Professional Ethics af the American Bar Association, have been stringently applied to the conduct of military counsel by the Court of Xilitary Appeals.'s All military personnel who are lawyers remain subject to the ethical standards to ivhich they subscribed in becoming a member of the civilian bar, regardless of their position or work in the military service." The other judicial officers and counsel are guided only by the UCMJand the Manual provisions 8s interpreted in cases decided by the Court of Xilitary Appeals. These decisions are rarely available ta non-lawyer special court-martial personnel. It has been stated that military tribunals probably never can be constituted in such B manner as to have the same kind of qualifications deemed essen-tial to fair trials of civilians in federal courts.2' However, the application of ethical principles to all persons in the military system makes the attainment of such a standard of justice very

es of the military defense counsel must not only of his personal ethical limitations, but also the protections afforded him and his client by the obligations an the others active in the 8ystem.z1 The principal persons whose ethical duties interrelate with the defense counsel are the Conrening Authorit)., the Staff Judge Advocate, the Law Officer and the Trial Counsel.

It is the object of this article to examine and analyze the professional ethics which pertain to the military defense counsel, to eom-pare in a limited manner civilian practice in the fields of conflicting

"V.S. \.. Tuviea, 8 USCMA 262. 24 CHR 72 (1951). The Court stated at page 265 while discussing the attorney-client relationnhip: "[?lo eour-ither Federal or S t a b h a s been mare sealoue in safegvarding and atrengthening the privilege arising therefrom than this Court. We need not look...