Cleaning Up After Somebody Else’s Sh*t for Military Justice Part 2

It is no secret that taking over a client’s case after less than zealous counsel was in the driver’s seat early on in the case frustrates me. I imagine it irritates other hard working attorneys. In a previous post I covered the frustration that comes from cookie cutter legal advice.

Trashed opportunity is the second kind of sh*t that I deplore being required to fix.

Some uniformed legal assistance attorneys and a smattering of newly minted uniformed defense counsel are wasting their client’s opportunities for advocacy.

For Officers (promotable to O-4) who become subject to a command investigation, they are entitled to respond to any derogatory findings. Many are being told by lawyers in the military system that they should not respond to the findings (which can be changed, by the way) until the findings are used in a reprimand or nonjudicial punishment against them. Wait – what? I take issue with telling a military client to foreclose on giving a statement as part of the investigation in 99 times out of 100. At least in that situation, there could be a shred of sound advice to “wait and see what they have on you.” But after the entire investigation is served on the Officer? No, never. Even if the command ignores the response matters, they did not waste their opportunity for advocacy. Even if the command takes derogatory action like dishing out a reprimand, it still was not a wasted effort. Because guess what? WHEN they next send that Officer to a board of inquiry to try to fire him, the investigation rebuttal becomes a required exhibit at his board. Perhaps those matters did not persuade the command, but you haven’t wasted a chance that they could resonate with a voting member of the board.

Can I guarantee that advocating at each stage will mean a different result? Certainly not. But why would anyone waste the chance to change the course of a given trajectory on a case? Even if the deciding commander is not swayed, we are always mindful of the “long game” – if the administrative action is heading to an eventual potential elimination, the board members will see these advocacy responses instead of a packet of “evidence” entirely shaped by the government.

Never waste an opportunity. Every client deserves a voice. Why silence it? If an attorney is telling you to waste a chance, you may want to evaluate if the core of their advice is a lack of desire to work on your behalf. Ensure your representation is prepared and ready to leverage all possible advantages on your behalf.


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