Do Not Resuscitate for Military Justice

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There are times when we, as (ethical) military justice practitioners, are compelled to tell would-be clients or even current clients when we should take no further steps on their behalf. All cases are unique, and it is not often, but it does occur.

The most common example arises when callers inquire about “expunging” their military “arrest records.” The short answer is that there is not a meaningful way to do it. Is there a process? Sure. Can we take oodles of money from people to apply? You betcha. But should we? In almost all cases the answer is no, we should not.

I cannot fathom the weight medical providers must feel when they are compelled not to try to continue saving a life. And the title of this post should not be construed as making light of that burden. Certainly, it is not the same as telling a legal client that they should not assert a right that they have to ask for a legal remedy. But there are parallels.

When the experts know that there will be no chance of winning or when that chance is so miniscule as to represent virtual certainty, it is appropriate to be transparent and forthright. Sometimes that includes turning away people who want to press on, no matter how blunt we are about their abysmal chances for success.

This is a frustrating process to be the gatekeeper, let me tell you. Especially when so many callers are told that there is a simple fix to titling / indexing, but that they (this master lawyer dishing out such incorrect advice) don’t handle this matter, but he / she is / they are certain that the Law Office of Jocelyn C Stewart can take care of that for you.

Look. Don’t get me wrong. We love word of mouth referrals. Keep them coming. For all other kinds of cases, please.

It becomes all the more difficult to deliver the bad news when someone else has created an expectation that there is an easy fix when there’s not.

How many blogposts do I need to write on the topic before people in the industry know there is no easy fix to clearing a military “arrest” record. The military does not even have a mechanism to expunge a conviction, other than Presidential Pardon. Seriously.

In light of the number of calls we get on topics of expungement and un-indexing, I have written plenty of material to try to help people understand the extremely hard road ahead of them on either process. When callers or online requests for consult ask for the easy fix, we send them the link to resources while explaining this really is not an area where we take on work.

The latest caller screamed at my senior paralegal. He berated her and condescended to her by telling her that his grandfather raised him that you always try. Well, golly. Good for your grandfather. But I am fairly certain the caller’s grandfather was not telling him to ignore expert legal advice and to throw away money when those experts are telling you that you will not win.

Always try. Hardly.

In certain circumstances, a person has to come to the sometimes weighty realization that trying in the face of certain loss is nonsensical. For us, even unethical. Sometimes you have to follow the “do not resuscitate” instructions.

*** Perhaps with future callers who insist on wanting to try, we will send them the link to supporting the advocacy efforts of International Association of Military Defense Lawyers. What needs to change is the entire process of titling / indexing. Word has it that with the new changes to Army CID that law enforcement officers will not even approach judge advocates for titling opinions – they will be doing them all on their own. Seriously. What needs to change is the titling process, not our attitudes toward “trying” or not trying. Sigh. Deep breath. “Be the change that you want to see.” – Mahatma Gandhi ***

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