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Choosing Your Civilian Lawyer

Even though military law is a fairly small specialty focus, the number of civilian court-martial lawyers that are hanging their “shingle” and practicing before military courts-martial is on the rise. With Internet advertising and many civilian military attorneys who offer global availability, you can find yourself overwhelmed by your options. To help you sift through potential candidates, review the list of suggested questions below:

  1. Have you ever served in the military as a military attorney (a.k.a. Judge Advocate or “JAG”)?

Opinions on this will differ from person to person, but no one can debate that former Judge Advocates are more likely to have more court-martial experience than attorneys who never served as military attorneys. Be aware that some civilian attorneys will advertise their prior military experience, but not all of these civilian attorneys served as Judge Advocates; many went to law school after their service obligations and never practiced in military courts as active duty officers.

  1. If you served in the military as a military attorney, how many of your assignments did you serve practicing criminal law?

Each branch of service demands that their attorneys become knowledgeable in all facets of military law, and criminal law is only one of those facets. Personnel decisions are made to require Judge Advocates to become “generalists.” Specialization in criminal law is specifically discouraged and with the exception of Navy O-4s and above, may cost an officer promotion. Find out how many assignments the potential civilian practitioner served in military justice.

  1. If you served in the military as a military attorney and practiced criminal law, what was your branch of service?

Not all branches of service try as many courts-martial as others. The Army tries the most courts-martial of any of the other services, combined. If the civilian practitioners you are vetting previously served in the Air Force, the Navy, the Marine Corps, or the Coast Guard, you will need to be sure to examine closely the number of cases they tried and the types of cases they tried.

  1. If you served in the military as a military attorney, did you serve as a military defense counsel?

While I agree that experience as a military trial counsel (command prosecutor) is helpful to a criminal defense counsel, anyone who practiced only as a military prosecutor is not as experienced as someone who practiced as both. Make sure also that when the civilian practitioner advertises that they were a “federal prosecutor,” that he actually practiced in courts-martial. Often, civilian practitioners spent time while in the military in a position known as a “special assistant U.S. Attorney.” While it sounds impressive, in most instances, this person will only have handled plea bargains and only in misdemeanor offenses like DUI or traffic or speeding tickets.

  1. If you served in the military as a military defense counsel, how busy was your jurisdiction and what kinds of cases did you handle?

Not withstanding the difference in the number of courts-martial tried among the branches of service, not every base handles the same caseload. For instance, from 2010 – 2012, the busiest court-martial jurisdiction in the Army (and in the service) was Fort Hood, Texas. From 2012 to 2014, Joint Base Lewis-McChord has been the busiest jurisdiction for court-martial prosecutions. Examine closely the bases that the civilian practitioners you are vetting served in because not all provide the same opportunities to gain court-martial experience. It is important to note that even in the busiest jurisdictions, not every counsel is afforded the opportunity to try difficult or complex cases. Be sure to ask the attorneys you are vetting what kinds of cases they tried, i.e., were they desertion / AWOL (UA) cases, or were they sexual assaults and murder cases?

  1. If you served in the military, what were the circumstances of your departure from the military? Were you ever made to sit before a Board of Inquiry? If so, what type of misconduct was the Board of Inquiry for? What were the results of your Board of Inquiry?

People often assume that every prior service officer left active duty under normal Honorable conditions of service, but that is simply not the case. Many civilian practitioners (myself included) left military service Honorably under our own terms and for our own reasons; others left service under less than fully Honorable conditions or because they were being pressured out for misconduct. When you have someone who is standing up for you in court, you have the right to know what is that person’s professional reputation. Each branch has a small Judge Advocate General’s Corps and whether a person’s professional reputation is tarnished becomes quickly known; when an attorney represents you, their reputation may be the first impression you make on the prosecutor and on the military judge.

  1. If you served in the military as a Judge Advocate, were you required to leave the service because you failed to promote?

Promotion boards are never perfect, and sometimes quality officers slip through the cracks, but one factor you may wish to consider is whether or not the attorney you are vetting was made to leave the service for failing to promote by two consecutive promotion boards. The reputation of the attorney sitting by you at counsel table sets the tone for the seriousness with which you are fighting your allegations, and rightly or wrongly, if your attorney was “twice passed over,” you may not be sending the message you desire.

  1. Do you practice law in any state or federal, non-military jurisdictions? In other words, do you exclusively practice military courts-martial?

Very few civilian defense counsel only practice in military courts-martial. Most also use their state license to defend criminal cases in the state where they live. Dividing an attorney’s focus between state and military practice may mean that he is not staying current on the latest amendments to the UCMJ or on the latest military case law. Congress is rapidly implementing revisions to the rules for courts-martial and to the sexual assault statute: Article 120, UCMJ. From my vantage point, it would be incredibly difficult to stay current on military practice if you are also practicing in other jurisdictions.

  1. How many clients do you represent at any given time? Do you practice in volume or do you only take a select number of cases?

You will learn a great deal by the answer to these questions. Some practitioners may charge less than others because they practice in “volume,” which means they make money by representing several people but not charging each as much as their competitors. From my personal perspective, taking on a high number of clients means that issues could get missed, details may be overlooked, and preparation may be compromised. When the stakes are as high as they are in a court-martial, I know that I personally would want someone representing me that will give my case the individual time and attention that it warrants. Remember that as you compare attorneys and undoubtedly prices for services, if it sounds too good to be true, it probably is.

  1. Have you ever had your license to practice law suspended for any reason?

Surprisingly enough, there are civilian military court-martial lawyers that have had their licenses suspended based on ethics complaints. Whereas it is vital to be a zealous and hard-hitting trial attorney, compromising ethical standards is dangerous to a client. If an attorney acts on a case in an unethical manner, the attorney could draw a penalty that ends up hurting the client’s case. The most practical example occurs when a military defense lawyer surprises the prosecution with evidence at the last possible minute; you might first assume that a surprise move is good for your case, ultimately the military judge could delay your trial to give the Government time to investigate this new evidence. Depending on what the evidence is, giving the Government an opportunity to dig deeper may end up hurting your case.

  1. Has any military appellate court ever found that your action on a case as a defense counsel amounted to “ineffective assistance of counsel?”

Every military court-martial lawyer that practices at the trial level has his actions on any given case reviewed by the client’s appellate attorney (if there is a conviction). If the trial attorney’s behavior fell so far below the standard of what is considered “effective,” the appellate court may find the defense attorney was “ineffective” on behalf of his client. Many clients may raise the claim of “ineffective assistance” on their own, and it is seldom seen as anything worthy of a hard look, but if the appellate counsel believes the trial attorney’s actions were ineffective, then that appellate attorney will raise the matter himself in the appellate brief. If the appellate court agrees that the trial defense lawyer was ineffective, this is a serious matter for any future clients to consider when deciding what civilian military court-martial lawyer to hire.