U.S. v. Spriggs, 52 M.J. 235

Military Justice Personnel: Defense Function: Individual Military Counsel

1. case contains detailed discussion of the right to individual military counsel, including: the source of the right; standards and limitations applicable to requests for individual military counsel; assessing claimed prior attorney-client relationships and the limitations on severing such relationships; and burdens applicable to requests for individual military counsel and motions for individual military counsel
2. in support of motion for individual military counsel, accused failed to establish an attorney-client relationship that would be protected under the “good cause” limitations on severance where: (1) the record did not demonstrate that attorney agreed to enter an attorney-client relationship with accused; (2) accused’s responses to the military judge revealed that accused understood that there was no agreement to enter into an attorney-client relationship; and, (3) the record did not reveal that the attorney engaged in any substantive activity for accused beyond discussing some of the pending charges and the possibility of representation
3. if a civilian attorney happens to be a reservist, that person’s availability as individual military counsel must be determined on the basis of activities undertaken in his or her military status, not on the basis of attorney-client relationships developed in civilian practice
4. record contained ample basis for denying individual military counsel request under the good-cause standard where: (1) the judge advocate was routinely separated from active duty; (2) the attorney did not agree to represent the accused in his civilian capacity or in his capacity as a reservist; (3) a 15-day involuntary call to active duty would have been inadequate time for the attorney to investigate, prepare, and try a general court-martial; (4) the accused failed to show that an attorney-client relationship was established in the context of the attorney’s military assignment; and, (5) the accused failed to show that the attorney accomplished substantial trial preparation while in his military assignment
5. absent government misconduct, the routine separation of a judge advocate from active duty normally terminates any attorney-client relationship established on the basis of the attorney’s military status, except when: (1) the attorney agrees to represent the client in his or her civilian capacity; or (2) the attorney enters the reserves and is ordered to represent the client to the extent permitted by applicable law based upon a determination by the appropriate official of reasonable availability

Core Criminal Law Subjects: Motions, Generally: Burden

1. an accused who either alleges severance of an attorney-client relationship or seeks to invoke such a relationship for purposes of supporting an individual military counsel request must first demonstrate that, at the time of the request, the accused had a viable ongoing attorney-client relationship regarding the substance of the charges at issue; the accused must show a bilateral understanding on the part of both the attorney and the client as to the nature of the services to be provided

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. the ruling of a military judge on an individual military counsel request, including the question whether such a ruling severed an attorney-client relationship, is a mixed question of fact and law; legal conclusions are subject to de novo review, and findings of fact are reviewed under a clearly erroneous standard