The ximeteenth Annual Kenneth J. Hodson Lecture: Military Lawyer Ethics

• Author: by Dean John Jay Douglass
• Pages: 02

Dean, K'anonal College of District Attorneys and Professor of Lay University of Houston School of Law

The Kenneth J Hodson Chair of Criminal Law u'asestablished at

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Judge Advocate Generalk School on June 24, 1971. me chair was named after Mqor General Hodson, tcho served as The Judge Advoeafe Generaljmm 1967to 1971. General Hodson retired in 1971, but u'as immediately recalled to active duty to serve as the Chief Judge of the A m y Court of Military Reuzew. He s m e d 1% that posi-tion until .Waarch 1974 Generat Hodson served owr thtrty years on active duty Dunng that time, he was active tn the American and Federal Ear Associatiom, and he authored much of the federal military justice tegzslotion esisting today He ?cas a member ofthe original staff and faculty of The Judge Advocate General's School zn Charlottesrille, Virginia. When the Judge Adwcate General's Corps was actmated as a regiment in 1986, General Hodson was selected as the Honomv Colonel of the Carps.

On February 22, 1990, &an John Jay h g l a s s delzvered the nineteenth Kenneth J Hodson Lectwe. Dean Douglass nceiued anA.B. (with distinction) from the L'niaersity of .Vebraska, a J D (withdistinction) fmm the Uniaersity OfMichigan School oflaw, an MA. from George Washzngton L'niuwsity, nnd an LL M from the L'ni%er-sity of Virginia School ofLnw He was a member of the L!S. A m y Judge Advocate General's Corps f m m 1952 until he Mired in 1974. Hts assignments zncluded StdjJudge Adcoca&, Ft. Rstey, .Military Judge, Senior Judge Adweate, Vietnam; and Commandant of The Judge Advocate General's School W i l e he wosseming as the Commandant, he establtshed the Kenneth J. Hodson Chair m Criminal Laic His military schooling includes the Command and General StUJ College and the C.S A m y War College. Dean Douglass 2s the Editor of Erhical Issues in Prosecution and of a series of hooks, Roles and Functions of the Prosecutor. He has also published several a r ~ t i c k 'm the Federal Bar Journal, Hastings Law Review. Journal of Legal Education, International Lawyer, bhlitary Law Review-, and other publzcatiom.

1. INTRODUCTION

   I am delighted be back at the School and to visit Charlattesrille once again My son~~n-law

   LE on the faculty of the Universiry of

   Virginia and I have a family here, and we hare retained our farm. The Arrows in Albemarle County I look back on my assignment as Commandant as one of the most eqoyable assigzments of my military career The pleasure comes from rhe opportunity the Commandant has to he a lawyer, diplomat. educator, administrator, and post commander

   It was particularl) pleasurable for me to be asked to give the hod^ son lecture I remember clearly the establishment of the Hodson Chair in Criminal Law dunng my tenure It is interesting that the first occupant of the Chair was the recently retired Judge Advocate General. Hugh Overhalt

   It 1s must fitting and appropriate that my topic for this Hodson ler-ture 1s on the subject of military lawyer ethics I knou of no officer mho marc exemplified Integrity and professionalism during a long and distinguished career than Kenneth Hodson

   A lawyer's professional responsibility includes the responsibility to work to improve the law and to work through bar groups to accomplish these improvements This includes the lawgers m uniform. who have a special responsibility m this regard because of their peculiar knowledge of the military application of the law. It IS unfortunate that too few have accepted this responsibility and came-quently have left It to the uninformed to change the law. All too few laxyers m uniform are members of the American Bar Association or other professional associations. and elen fewer participate actirel) in the work of these organizations

   So one has ever done more than General Hodson. both while inthe Army and subsequent to his retirement. to carq- Out thx lawyerl?. responsibility Within the American Bar Association. he served for many years as secretar) of che Criminal Justice Section. worked diligentlg as a member of the Cnmmal Justice Standards commit^ tee (these Standards are a monument to his work). was a member of the House of Delegates representing the Judge Advocate Aisocia~ tion, and recently was named by the President of the American Bar Assoc~ation to chair a Special Committee on Programs for Public Ser-vice Lawyers I am pleased to sene on that committee under his leadership U-henerer there 1s a big job. they call on Ken Hodson General Hodson has alaap fulfilled the directions of Rule G 1' urg-

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   ing lawyers to render pro bono public sewice by offering sewice to improve the law, the legal system, and the legal profession

   I have long had an interest in legal ethics and more particularly those of the Army lawyen. When I was named Commandant twenty years ago, in my first orientation of the faculty I suggested that each lecture include two items: 1) an example as to the litigatmn aspects of the lecture and, 2) a reference to the ethical implications of the lecture.

   I am not sure that this was always accomplished but it seemed important at the time For several years following my retirement I traveled the country speaking on ethics problems of military lawyen. At that time, my lectures dealt mainly with trial advocacy ethics and the professional responsibility of military judges.

   In the 199O's, one cannot be limited in discussing the ethics of military iawyen to the criminal iaw field The concerns of military lawyers include many areas of the law other than cnminal justice, though criminal trial advocacy remains the one area that generates far too many ethical problems. The legal acrivities of the Carps in the 1990's have far broader application than they did even fifteen years ago Consequently any discussion of ethics and the lawyer in uniform must cover a far broader field. The extent of participation of military lawyen in contracts, environmental law, war powers, or administrative law far exceeds anything we believed possible a few short years ago.

   11. PROFESSIONAL ETHICS

   It 1s well to bean by taking a look at the role of ethics m the professions. Every prafesaon is iookmg more closely at this important subject Business schools are emphasizing the topic, as are law, medicine, and accounting schools. The military profession has taken a closer in-depth look at the ethics of the officer, especially since Vietnam.

   At the outset you are reminded that even before you are lawyers, you are first officers in the Armed Forces. As military lawyers you do not face the terrible dilemmas of the combat officer. You do not send men to die, to destroy citiq or to order fire on civilians. Never-theiess, as advisors to those who do make these decisions, their ethical dilemmas are yours This is so at least vicariously %day each new weapon and its application are reviewed by military iawyem for legality, to include its relation to international law. Are there ethical implications to the review of these operations?

   1s

   The ethic of the officer corps does apply. It 1s well to recall as a first amom that the "essential attribute of the Army and its members

   1s megrit>-. It 1s the personal honor of the individual , ' ' 2

   You have been encouraged to include in your reading list works an mihtaq ethics. including those by Richard Gabriel and Yalkam h k i n 3The book edited by Wakin includes some of the best known writers on mihtar) ethics and is w-orth study and consideration

   There aas a time when a reminder That military lawyers were a pan of the military profession would have fallen largely on deaf eanI hope those days are gone forever. At thar time there was ajoke that the civilians did not believe we were lawyers. and that the military did not think ne were officen During the 1950's and 1960's, there were man) in the Corps who resented being considered as part of the Officer Corps. The military is an honorable profession equal-ly as honorable as IS the profession of la^ and you are fortunate to be a part of both

   Colonel Dennis Coupe4 and Map Bernard Ingoids m published ar tides have set out the background and history of the Rules of Professional Conduct far Army Lawyers, which were promulgated by TJ.4G in 1987 Credit must go to them for their research and analysis. 1 was not surprised to read that the impetus for consideration of these rules came from Colonel Bill Fulton. no- clerk of the U S Amy Court of lllilitars Review Colonel Fuiton \\-as Director of Academics during my term a~ Commandant, and this foresightedness is typical of him

   4lilitary laa?ers must bear m mind thar they are also subject to the disciplinary rules of the junsdicaon in which they are licensed to practice 0 Obviously there will be occasions when the ruies or the states' inrerpreratmn of them conflict or at least vary from Army Rules. Military Lawyers could face a contradiction in appropriate action Though the Amy Rules state that the Army rules mll supersede

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   those of the state, the state grievance board could well take a contrary view. At least The Judge Advocate General has not sought to mmunize you from the MModel Rules as the Attorney General recently sought to do for the Justice Department lawyen.'

   Those who have studied and commented on the Army rules are generally pleased with the results of the Army effort and that the rules as developed face up to the unique problems of the military They...