There is a gap in minimum requirements for civilian practitioners in military justice practice. And though there are training conferences and tools for uniformed military practitioners, there is a gap in an outline of minimum requirements for military justice practitioners (JAGs or JA’s or Judge Advocates) to practice as well. I hear there are discussions to outline minimum requirements and benchmarks, but that so far those considerations largely have focused on requirements for prosecutors. Because let’s face it, no one leading the charge on behalf of the government is concerned with the defense. Though they should be.
I recall the first time I swore the oath as a civilian practicing in a court-martial in 2012. I remember thinking that all I needed in order to appear on behalf of a servicemember was that I was licensed in some state and in good standing, and I remember being confused by the lack of additional requirements. That was it then, and that remains the only requirement today. In the state where I hold my license to practice law, Louisiana, so long as I do not practice Louisiana law, I do not have an annual continuing legal education requirement. At all. I am certain that other states have similar waivers. There is no current requirement for civilian practitioners to meet any military specific continuing legal education hours. The only way that I remain current on military justice practice is by committing myself to staying current. There are no watchdogs to make sure that I do; there are no written policies that demand more. Theoretically, the uniformed defense counsel detailed to any given case can act as a safety net to ensure that I do not flounder about. When military counsels themselves are inexperienced and new, who is there to ensure the accused is protected? The answer, at least until now, is no one.
Years ago in 2008 when I was practicing in uniform as a defense counsel at Fort Hood, our office saw numerous civilian practitioners flow in and out of trials. Some were competent, though others were not. Many relied on the military defense counsel to do all of the work so that they could collect a paycheck and be on their merry way. On one occasion, I knew of a military counsel that was forced to oversee every move made by the civilian defense counsel. This civilian had never practiced on active duty or even in the reserve component of any service branch. He did not know military procedure and routinely erred. Weeks later, we learned that he was to be disbarred in Texas, and later was. When there is no crossover between jurisdictions (as between Texas and the military), problems happen. When there is no requirement for annual continuing legal education seminar hours that are specific to military practice, the accused suffers.
Every day, military members go in search of suitable civilian practitioners. Rightly or wrongly, there is and likely always be a skepticism by some military accused and their families that the uniformed defense counsel does not solely have their best interest at heart. Often, there is concern for their lack of experience. Armed with Google and a smartphone, military accused goes to the World Wide Web in search of competent and zealous representation. With funds being expended for flashy websites and touted accolades (that likewise are not policed for unethical representations), servicemembers make their best guess at whom should lead their court-martial defense. Sadly, military defense counsel are precluded by regulation from giving any feedback on their choice. There is an expression among uniformed defense counsel (and maybe prosecutors) that captures when the accused chooses poorly; they are known as “pretrial fines.” It literally is self-induced punishment to that servicemember to hire incompetent counsel; he is throwing away his money and he is placing his trust in someone that can do little for him.
With prosecutions for sexual assault allegations taking so much of today’s military court-martial court time, the stakes are too high to allow lax standards to continue. It is time for change. It is time to “raise the bar.” And that is what I intend to do through this organization.
When I have broached the subject of launching this non-profit organization with others, some in the industry and others not, I was met with questions as to whether or not it was in my best personal financial interest to “raise the bar” of others’ ability to practice. “Won’t that hurt my practice?,” they ask. The fact is, I frankly do not care. As a practical matter, there will always be those that find value in my particular skill set and in the attributes that I bring to a member’s defense. And frankly with Congressional interference and the constant tinkering of Article 120 and the Military Rules of Evidence (including the latest changes in the Military Justice), I envision my job security will continue to exist. But what I cannot condone by my silence any longer is the fleecing of our members that is occurring when incompetent and unethical civilian practitioners appear on their behalf. What I cannot allow to continue is members being made to feel that they must plead guilty because their inexperienced military defense counsel feels better about it, less nervous to confront a contested case. I cannot read another record of trial where good issues are waived because the counsel failed to object. I cannot hear another question from a uniformed counsel in the field that wants my advice about what to do when it is so clear that the hired civilian counsel has no idea what he is doing or simply wants to swoop in at the last minute to “wing it.” I cannot stomach another story where a civilian practitioner lied to his client about submitting an alternate disposition, telling him it was turned down when, in fact, it had never been submitted to the convening authority. I just cannot.
So, here we are. The International Association of Military Defense Lawyers intends to fill the gap, to advocate for change, and ultimately to “raise the bar” in military justice practice. Our servicemembers deserve better. I hope you will take up the cause with me. I entreat you to help in our grass roots efforts for change. I trust you want what we do: the best possible representation for each and every military accused. They deserve the very best and we intend to ensure they get it.