Even though military law is a fairly small specialty focus, the number of civilian attorneys that are hanging their shingle and practicing before military courts martial is on the rise. With internet advertising and many attorneys who offer global availability, you can find yourself overwhelmed by your options. To help you sift through potential candidates, I provide you the following list of suggested questions.
Have you ever served in the military as a military attorney? Now, certainly opinions on this question will differ from person to person, but no one can debate that a former judge advocate, that is a person who practiced military law as a military officer, is going to be more likely to have more experience than an attorney who has never practiced as a military attorney. Be aware that some civilian attorneys will advertise their prior military experience but have not practiced as judge advocates. Many, in fact, went to law school after their service obligations end and some even after they actually retired from the military. So be wary of anyone who may look experienced but has really only been practicing law a brief number of years.
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. That is so that they learn each and every area of military law. Specialization in criminal law is specifically discouraged except for folks who may have served in the Navy and were 04s or higher. With the exception of those folks, all other officers are supposed to generalize or it can affect their promotion. Ask. Find out how many assignments this potential civilian practitioner actually served in military justice.
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 other services combined. If the civilian practitioner, or practitioners, that you are vetting previously served in the air force, the Navy, the Marine Corps, or even the Coast Guard, you will need to be sure to examine closely the number of cases they tried and how many of those cases they took all the way to a verdict.
If you served in the military as a military attorney, did you serve specifically as a military defense counsel? While I agree that experience as a military trial counsel, that is a command prosecutor, is helpful when practicing as a criminal defense counsel, anyone who practiced only as a military prosecutor is not going to be as experienced as someone who practiced both. Make sure that also when you’re with potential civilian practitioners, if they advertise that they were a “federal prosecutor” that this person actually practiced in military courts martial. Often civilian practitioners spent time while they were in the military in a position known as a special assistant U.S. Attorney or a special assistant United States attorney. While it sounds impressive, in most instances, this person will only have handled plea bargains and only in minor level offenses like misdemeanors, such as DUI or traffic or speeding tickets.
If you served in the military as a military defense counsel, how busy was your jurisdiction and what kinds of cases did you handle? Notwithstanding the difference in the number of courts martial that are tried among the various branches of service, not every base handles the same caseload. For instance, from 2010 to 2012 the busiest court martial jurisdiction in the Army, and in the service for that matter, was Fort Hood, Texas. From 2012 until the present Joint Base Lewis McChord has been the busiest jurisdiction for court-martial prosecutions. Examine closely the basis that your potential civilian practitioner practiced in when you’re vetting them, because not all provide the same opportunities to gain court martial experience. It’s important to know that even in those busy jurisdictions, not every council is given the opportunity to try difficult or complex cases. Be sure to also ask those attorneys that you are vetting what kinds of cases they tried. Did they try desertion and AWOL cases that are considered easier, or were they given opportunities in sexual assault cases or murder cases?
If you served in the military, what were the circumstances of your departure from the military? Were you made to ever sit before a Board of Inquiry? If so, what type of misconduct was the Board of Inquiry for and what were the results of your Board of Inquiry? People often assume that every prior officer left active duty under normal, honorable conditions of service, but that simply is not the case. Many civilian practitioners, myself included, left military service honorably under our own terms and for our own reasons. There are others who left the service under less than fully honorable conditions or because they were being pressured out misconduct. When you have someone who is standing up for you in court, I believe you have the right to know what is that person’s professional reputation. Each branch has a very small Judge Advocate General’s Corps and whether a person’s professional reputation is tarnished is something that is quickly found out. When an attorney represents you, their reputation may be the first impression that you make on the recorder and that you make on the military judge.
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 certainly sometimes quality officers slip through the cracks, but one factor that you may wish to consider is whether or not the attorney you are looking to hire was made to leave the service for failing to promote by two consecutive promotion boards. The reputation of the attorney sitting by 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 that you wish.
Do you practice law in any state or federal non-military jurisdictions? In other words, do you only practice military court martial law? Very few civilian practitioners only practice in military courts martial. Most also use their state license to defend criminal cases in the state where they live. Some even take on family law cases. Dividing an attorney’s focus between state and military practice may mean that that attorney is not staying current on the latest amendments to the UCMJ or on the latest military case law that’s coming out of the appellate courts. Congress is rapidly implementing revisions to the rules for courts martial and to the sexual assault statute, and even the military rules of evidence. From my vantage point, it would be incredibly difficult to stay completely current on military practice if you are also practicing in other jurisdictions.
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 those two questions. Some practitioners may charge less than others because they practice in volume. Volume 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 for your case 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 I believe it warrants. Remember that as your attorneys and undoubtedly prices for their services, if it sounds too good to be true, it probably is.
Have you ever had your license to practice law suspended or revoked for any reason? Surprisingly enough, there are civilian military court martial lawyers that have had their licenses suspended and they have had them suspended based on substantiated ethical allegations. No one more than I agrees that it is important and vital to have a zealous and hard-hitting trial attorney on their side, but compromising ethical standards is dangerous to the 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 would be if a military defense lawyer tries to surprise the prosecution with evidence at the very last possible minute. You might first assume that a surprise move like that could be good for your case, but ultimately the military judge has the option of delaying the trial to give the government time to investigate this new evidence, depending upon what that evidence is. Giving the government an opportunity to dig deeper may end up actually hurting your case.
Has any military appellate court ever found that your action on a case, or inaction, 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 that client’s appellate attorney, assuming of course there was 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 in fact ineffective on behalf of this client. Many clients raise the claim of ineffective assistance of counsel on their own and it is seldom seen as anything worthy of a really hard look. But if the appellate counsel believes that the trial attorney’s actions were ineffective, then that appellater attorney can raise the matter himself in the appellate brief. If the appellate court actually agrees that the trial defense lawyer was ineffective, that’s a very serious matter, in my opinion, for any future to consider when deciding what civilian military court martial lawyer to hire.
I hope you find the questions that I’ve provided will be useful to you as you are considering the choices that you have when it comes to representing you as a military court martial lawyer.