U.S. v. Rhoades, 65 M.J. 393

First Principles: Constitutional Matters: Right to Counsel

1. under the Sixth Amendment, the accused in a criminal proceeding has the right to the assistance of counsel for his defense; under the UCMJ, an accused has the right to representation by military counsel provided at no expense to the accused, and the accused may be represented by civilian counsel; the right to counsel of choice under the Sixth Amendment, as well as under the UCMJ, is not absolute; the need for fair, efficient, and orderly administration of justice may outweigh the interest of the accused in being represented by counsel of choice; for example, disqualification of an accused’s chosen counsel due to a previous or ongoing relationship with an opposing party, even when the opposing party is the government, does not violate the Sixth Amendment

Military Justice Personnel: Defense Function: Generally

1. under RCM 502(d)(4), a person may not serve as defense counsel if the person is or has been the accuser, an investigating officer, a military judge, or a court-martial member, subject to express waiver by the accused; in addition, no person who has acted as counsel for a party may serve as counsel for an opposing party in the same case; the disqualifications listed in RCM 502(d)(4) are not exclusive, and counsel may be disqualified based upon otherwise applicable standards of professional responsibility

Military Justice Personnel: Defense Function: Right to Counsel

1. under the Sixth Amendment, the accused in a criminal proceeding has the right to the assistance of counsel for his defense; under the UCMJ, an accused has the right to representation by military counsel provided at no expense to the accused, and the accused may be represented by civilian counsel; the right to counsel of choice under the Sixth Amendment, as well as under the UCMJ, is not absolute; the need for fair, efficient, and orderly administration of justice may outweigh the interest of the accused in being represented by counsel of choice; for example, disqualification of an accused’s chosen counsel due to a previous or ongoing relationship with an opposing party, even when the opposing party is the government, does not violate the Sixth Amendment

Military Justice Personnel: Defense Function: Responsibilities

1. at the outset of the trial, defense counsel must advise the court as to whether counsel has acted in any matter which might tend to disqualify the counsel

Military Justice Personnel: Defense Function: Civilian Counsel

1. in the military justice system, a person serving as civilian counsel must be a member of the bar of a federal court or of the bar of the highest court of a state; alternatively, a person can serve as defense counsel if otherwise authorized to practice law by a recognized licensing authority and determined to be qualified by the military judge

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. under RCM 901(d)(3), if it appears that any counsel may be disqualified, the military judge shall decide the matter and take appropriate action
2. the military judge must rule on a disqualification motion prior to trial on the merits; because it may be difficult at that stage to assess with precision whether, or to what extent, the grounds for disqualification could affect the trial, the military judge is afforded broad discretion in ruling on disqualification motions
3. even when an accused is willing to waive a grounds for disqualification of counsel, the military judge has substantial latitude in deciding whether to accept the waiver; although courts must recognize a presumption in favor of an accused’s counsel of choice, that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict
4. in view of the broad discretion afforded a military judge when acting on a pretrial disqualification motion, the military judge is not required to determine whether there is proof beyond a reasonable doubt that the attorney is guilty of a statutory post-employment restriction, such as 18 USC § 207(a)(2), designed to protect the integrity of government functions, including trial proceedings; rather, a record that demonstrates a reasonable likelihood that counsel’s representation would violate that restriction is sufficient to show a serious potential for conflict that may overcome the presumption in favor of the accused’s counsel of choice; under such circumstances, the military judge has discretion to disqualify counsel
5. the decision by the military judge to disqualify appellant’s civilian defense counsel did not constitute an abuse of discretion and did not deprive appellant of his right to counsel of choice under the Sixth Amendment, where the record was sufficient to demonstrate a reasonable likelihood that the counsel’s representation of appellant at trial would violate 18 USC § 207(a)(2), a statute designed to protect the integrity of government functions, including trial proceedings; civilian defense counsel had served as an active duty judge advocate at appellant’s installation immediately prior to entering private practice and had provided advice to CID agents and other military trial attorneys with respect to the investigation of appellant that led to the charges at issue, and these events took place within the statutory restriction period; as such, counsel’s continued representation created a serious potential for conflict, which provided a sufficient basis for the military judge to refuse appellant’s waiver of conflict-free representation

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

1. an appellate court reviews a military judge’s decision on a motion to disqualify counsel for an abuse of discretion; the military judge’s ruling will be overturned only if the findings of fact are clearly erroneous or the decision is influenced by an erroneous interpretation of the law