Dirty Little Secret

When I am speaking with a potential new client that has a pending command investigation, one question that inevitably comes up is what work is included in exchange for the retainer fee. Unlike many if not most of my competitors, my retainer agreement includes efforts to keep their issue from becoming an action, whether it is nonjudicial, administrative, or criminal UCMJ. I am often greeted with skepticism that I would use those funds to work and “lean forward” on behalf of the client. On one occasion when I was speaking to the parent of a potential client (who hired me), I was frankly asked, why it would be in MY best interest as the attorney to stop action from occurring when I structure my fees that I do not get paid additional funds if the action does not go that one step closer to command action or even trial. My answer is always the same: if the client walks away happy, he is more likely to recommend me to someone in need down the line, and that is always in my best interest in the long run. Plus there’s that whole karma thing.

The Dirty Little Secret among civilian practitioners is that for many if not most of them the retainer is “free money” that is not earned. The funds are provided as a guarantee that the attorney will make himself available when your issue becomes an action, but those funds are not put toward assisting the client’s predicament.

Some practitioners bill up front for the entire potential action, so that if a potential client is facing an investigation that has an eye toward court-martial, they bill the client for the entire court-martial under the guise of informing you that they have an incentive to work hard to stop your case from going forward because it would mean they are paid the same for less work. What this concept overlooks, however, is that there is also an incentive to convince you to plead your case out with a plea deal than there is to work hard to keep your case out of court altogether.

The best possible compliment any of my clients can pay me is a referral. The happiest client is the one that paid the least amount for a result that keeps them out of a courtroom, an end state that means no blemish on their record whatsoever. A retainer agreement with the Law Office of Jocelyn C. Stewart translates to every effort to make the investigation itself the end of the matter and a distant memory.

A recent client was pending a command investigation for adultery with a subordinate. The basis for the investigation was that his soon to be former spouse had turned over “text messages” from between the client and his subordinate and a late night phone call between the client and this subordinate. The messages were spoofed, a creation of the disgruntled spouse. The command was sending the action up the chain of command for disposition to a general officer memorandum of reprimand. My efforts resulted in providing evidence of the phone records and educating the command about how easy it is to spoof messages to demonstrate that the messages were a fabrication. Additionally, the client was forced to explain that the subordinate had reached out to him to ask him question about making a restricted versus an unrestricted sexual assault report; she decided not to report at all and so he was not acting in his capacity as a victim advocate and was legally permitted to make the disclosure he did. The end result for the client was no action taken and his flag was lifted, just in time for him to compete for a slot in a coveted career-progressing professional school. He sent me a message last week again thanking me and informing he was accepted into the school. If I had not made the efforts when I did, he would have received the letter of reprimand and it quite likely would have been filed in his official record and would have triggered a board of inquiry for this young officer. But I earned my retainer instead of just squirreling it away under the auspices of a “guarantee” for future work.  The former client happily recommends me to those in need.

A client at the Air Force Academy was facing investigation by military law enforcement for sexual assault with an eye toward court-martial. Retainer in hand, investigative efforts by the defense revealed that the complainant had engaged in instant messaging with another male the night of the alleged sexual assault. In her remarks, she made fun of the sexual skills of my client, mocked him, and said that she would never report him “because he never even heard her say ‘stop.’” When later this young lady faced elimination from the Academy herself, she reported the encounter as a sexual assault. Although the case went forward to charging and an Article 32(b), the evidence and cross-examination during the proceeding resulted in dismissal of all charges, the lifting of the client’s flag, and his successful graduation and commissioning into the U.S. Air Force.  The client’s family happily referred me to another Air Force Academy cadet’s family when their son was facing a similar allegation.

There are cases that can be stopped before they progress. The facts of every situation are different, but every Service member deserves the best effort at stopping the action in its tracks. Not every civilian practitioner is willing to take those early steps. The Law Office of Jocelyn C. Stewart is.

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