When counsel use phrases like “I believe defense counsel is offering X evidence for an improper purpose” that is saying that you believe the defense counsel is unethical. Period. Lodging ethical allegations without considered deliberation is not professional.
In fact, I find it unprofessional to allege an improper purpose unless you actually believe that the defense counsel is offering the evidence and has no proper basis under any rule of evidence.
The Turn of a Phrase Can Make All the Difference
What I believe the government counsel who repeatedly stated this on the record meant to convey was that he believes the evidence, if admitted, would have a tendency to draw or create an impermissible inference. When a defense counsel offers evidence and cites to a rule to support its admission, if you disagree, I have no issue with your disagreement. But there is a professional way to disagree and an unprofessional way to disagree. Few on the government side seem to care about the distinction anymore. Worse, I believe few on the government side seem to understand that distinction.
Understanding the Issue
In the same case, I challenged the legal advisor for her lack of impartiality.
We had filed a notice pursuant to M.R.E. 412 in accord with the requirements outlined in AR 15-6 for an administrative separation board and in it we generally outlined the theories of relevance and necessity. The government counsel responded at 1642 hours several days later with a small tome / pleading document that cited to case law and opposed 4 out of 5 pieces of evidence. Before we had an opportunity to respond, or were even asked for our response to their brief, the legal advisor denied ALL 5 pieces of evidence, the next morning around 0830 hours.
The board president had a question about what he should consider when making his decision on the challenge of the legal advisor so he called the legal advisor’s supervisor, the Chief, Administrative Law for the Division. This officer is a post-grad course Major (has received an LLM in military law and crossed into the realm of middle manager).
Who Can You Learn From?
Instead of answering the question asked of him, this Officer inexplicably stated on the record that he believed the defense counsel was offering the evidence for an improper purpose. How can counsel come to learn about what constitutes professional conduct when what is being modeled for them by field grade Officers who are supposed to know better clearly do not?
Still more alarming is that the only people in the room that seemed to understand that this was an ethical slap in the face were the defense counsel.
Not a Matter of Over-Sensitivity
Lest you say that perhaps the defense bar is overly sensitive, I will reply as follows: it is not oversensitivity when you are the only one with any ounce of a depth of perception. One cannot be overly sensitive when one is the only one aware in the room. By its very nature, the insensitive oaf in the backdrop does not get to claim the other party is insensitive when they themselves are so obliquely ignorant of the issue to begin with!
It is not unethical to provide notice. It is not unethical to outline a theory of relevance. It is not unethical to articulate a cogent outline of necessity. In fact, most would call such behavior the definition of professional.
So, please for the love of the law and for the sake of civility and acting in a professional manner, before you open your mouth to say “I believe counsel is doing X for an improper purpose” instead say to yourself “I believe this counsel is being unethical because…” and see if you feel so great about saying it so freely and without considered or deliberate process about what you are saying. I imagine you may elect to rephrase.
And if you actually believe your opposing counsel is acting in an unethical manner, then I trust you’ll seek advice from your supervisor about how best to handle the matter. Above all else, act in a professional manner; it says a great deal about you as a counsel and will go a long way in common courtesy you will receive across the aisle.
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