*1 STATES, Appellee, UNITED STEELE, Corporal,
Milton D. Lance Corps, Appellant.
U.S. Marine
No. 99-0314.
Crim.App. No. 97-1236. Appeals
U.S. Court of
the Armed Forces.
Argued April 2000. Aug.
Decided
EFFRON, J., opinion delivered the Court, CRAWFORD, C.J., in which SULLI- GIERKE, JJ., COX, S.J., VAN and joined. COX, S.J., concurring opinion. filed a (ar- Appellant: George For A. Gallenthin brief). (on gued); Lieutenant Dale O. Harris Collins, Appellee: Captain For J. William Irvin, (argued); Eugene Jr. E. Commander Captain Colonel M. Kevin Sandkuhler and (on brief). Michael D. Carsten Judge opinion EFFRON delivered the the Court. composed
A court-martial mil- itary judge sitting appellant, alone convicted pursuant pleas, conspiracy to mixed wrongful distribute cocaine and distribution cocaine, in violation of Articles 81 and 112a, Military Justice, Uniform Code of 912a, §§ respectively. USC 881 and He was discharge, sentenced to a dishonorable con- forfeitures, years, finement for 8 total grade. reduction to the lowest enlisted sentence, convening authority approved the and the Court of Criminal affirmed unpublished opinion. in an appellant’s petition, granted On review following of issue: *2 those motion attach granted appellant’s DE- to WAS APPELLANT WHETHER the Because documents on March 2000. AMENDMENT NIED HIS SIXTH contested, in documents not CI- facts those TO WHERE HIS RIGHT COUNSEL of this accept purposes as true for WAS we them DEFENSE COUNSEL VILIAN appeal. LAW TO PRACTICE UNAUTHORIZED HE ALL WHERE IN JURISDICTIONS awas These reveal that Mr. C documents TO PRAC- HAD BEEN ADMITTED states, Iowa, in the bar three member of TICE LAW. Hawan, Texas, he on the had stated and specified following issue: also the
We to of Iowa admitted the bar record. He was changed to A in his status was later WHETHER CIVILIAN COUNSEL but According IN a letter IS INACTIVE OR RETIRED “retired inactive.” to WHO and BAR MEMBER- Ethics and IN HIS from the Board of Professional STATUS Court, Supreme TO “[a] REMAINS AUTHORIZED Iowa Conduct of the SHIP® A practice BEFORE GENERAL PRACTICE to person who has been admitted IN TERMS OF COURT-MARTIAL has had license law Iowa and their 38(b)(2) UCMJ, AND 27 AND ARTICLES sta- suspended or on inactive law 502. tus, authority RCM law under the cannot of Mr. C of the outside Iowa.” Iowa license below, affirm For the reasons set forth membership in Hawan was admitted to bar Ap- of of Criminal the decision the Court entered inactive status. but he later peals. Supreme Rule According Hawan Court 17(d)(7), attorney may assume an “desire to I. BACKGROUND practice of inactive status and discontinue the Appellant represented by at de- was trial attor- law in The rule notes that an Hawaü.” counsel, T, Captain by tailed and a longer ney “shall on inactive status no counsel, Mr. C. Detañed civilian defense eligible a practice law.” Mr. C became defense counsel announced he was member of the of Texas of the bar State “qualified and in accordance with certified thereafter, Shortly request, he 27(b) in accordance with Article and sworn placed result of on inactive status. The 42(a) Military Article of the Code of Uniform eivüian “not that action was that counsel was Simüarly, civilian defense counsel Justice.” practice as an and authorized to announced, “I am licensed law in the STATE of TEXAS.” counselor at Iowa, highest the courts of the States of Hawan, Texas; previously and I am and QUALIFICATIONS II. OF
qualified and
and sworn in accor-
COUNSEL
certified
27(b)
42(a)
and
dance with Articles
of the
UCMJ,
Article
10 USC
entitles
Müitary
mili-
Uniform Code of
Justice.” The
general
special
an
or
court-
accused before
tary judge
appeüant
then advised
of his
martial to
detañed
rights
appellant
stated
ability
regard
defense
without
to his
by Captain
T
be-represented
he wished
27(b):
pay.
Under
and Mr. C.
(b)
de-
Trial counsel
defense counsel
Throughout
post-trial proceed-
trial and
court-martial—
tañed for
Ap-
ings, and before the Court of Criminal
(1)
advocate who is
must be
challenging
no claim
peals,
made
graduate of
accredited law school
status,
qualifications,
effectiveness
Fed-
member of
bar of a
or is a
either his detailed or civilian counsel.
of a
highest
or of the
court
eral court
However, in
Supplement to Petition for
State;
must be a member of
Court, appel-
in this
Grant of Review filed
of a Federal court or
foregoing Issue
moved
lant asserted the
State;
highest court
relating
pro-
to Mr.
to attach documents
C’s
(2)
Iowa,
must be certified as
fessional status as a member
Judge
Hawaii,
duties
perform such
and Texas bar associations. We
Advocate
General
the armed force mission to
before a federal court is
bar,
which he is a member.
derivative from
in a state
disbarment
the State does not result in
respect
Article 27 is silent with
to the
automatic disbarment
the federal court.
represented by
to be
Though that state action is entitled to re-
respect
any qualifications imposed
*3
spect,
conclusively binding
it is not
on the
upon civilian defense counsel.
544,
Ruffalo,
federal
In
courts.”
re
390 U.S.
38(b), UCMJ,
838(b),
§
10 USC
547,
1222,
(1968),
88 S.Ct.
277
by a
achieved
reviewed
tence has been
...
under
the Sixth
services
ineffective
authority.
competent licensing
This determi-
rejected in United States
Amendment” was
(9th
necessarily
Mouzin,
Cir.),
is not
evis-
competence
nation of
cert.
man,
F.2d
cert.
733
596
per
that continued
se rule
83 L.Ed.2d
469 U.S.
S.Ct.
*4
constitutionally
in an
trial is
inef-
ongoing
(1984),
rejected any “per
had
se rule” to
it
to
to the
allows us
fective. Admission
bar
court, repre
the effect “that in the federal
training,
that counsel has the
assume
lawyer suspended
prac
sentation
from
ability
a client
knowledge,
represent
and
to
automatically
state
tice
results
him.
licensure
who
chosen
Continued
has
right
Amendment
to
the denial
the Sixth
signal
pub-
the
normally gives a reliable
to
It
fact that an attor
“[T]he
counsel.”
noted:
to
purports
is what
lic that the licensee
he
not,
ney
suspended
is
does
with
or disbarred
attorney qualified
and
to advise
be—an
more,
signifi
rise
the constitutional
out
But it
an undeniable
a client.
is
counsel under the
cance
ineffective
Sixth
lawyers unhappily
experience
fact of
Rather,
Amendment.
a defendant must ordi
ranging
censure to
incur sanctions
from
narily point
preju
specific
conduct which
disbarment;
discipline
that sometimes that
him in
the
diced
order to raise
constitutional
incompetence or un-
flows from revealed
claim” of ineffective assistance of counsel.
turpitude
as to
trustworthiness or
such
Mouzin,
696-97;
785 F.2d at
see also United
All we
deserve no client’s confidence.
Maria-Martinez,
914,
v.
143
States
F.3d
lawyer’s
need
here is that
services
hold
(5th
denied, 525
Cir.1998),
916-19
cert.
U.S.
se,
case,
per
were
on a
not a
ineffective
1107,
876,
(1999);
142
119 S.Ct.
L.Ed.2d 776
basis.
664,
McKinney, 53
and United States v.
F.3d
698;
(5th
see United
v. Mitch-
Cir.),
785 F.2d at
States
nom.,
sub
v.
675
cert. denied
Wade
(D.C.Cir.2000).
ell,
1126,1130
States,
U.S,
216
901,
261,
F.3d
516
116
United
S.Ct.
(1995).
Our Court has addressed the
licensing authority’s
decision
admit a
foregoing
light
In
of the
consider
Hosken,
person to the
v.
bar.
Soriano
ations,
disquali
Mr.
hold that
C was not
supra, we
that a civilian
noted
counsel must
fied
his status
an “inactive”
virtue of
“qualified”
right
in order to make
the
Hawaii,
Iowa,
bars of
and
member of the
“meaningful
as intended
Contrary
appellant’s
Texas.
assertions
9
at 221.
the Code.” MJ
Civilian counsel
brief,
no evidence that Mr. C was
there is
recognized
some
must also
“authorized
suspended
practicing in
of the
from
licensing authority
engage
practice
membership.
states in which he held bar
Kraskouskas,
of law.”
We also note
Rule
Com manee was otherwise
ment, Department
Navy
heavy
failed
showing
JAGINST
to meet his
burden of
(Ch. 3,
1996),
May
5803.1A
30
states that “an that he was denied the effective assistance of
individual
‘inactive’
be considered
as to
Washington,
counsel.
Strickland
466 U.S.
particular juris
of law within a
104
27(b)(2) Navy Marine IV. CONCLUSION Corps adopt courts-martial. We decline to stringent more prac rule for civilian counsel Navy- decision of the United States ticing before courts-martial. Unless an ac Corps Marine Court of Criminal cused can demonstrate that civilian counsel affirmed. had never attained certified, deny could not be we shall not COX, Judge (concurring): Senior limit a accused’s under Article pick 38 to elect civilian I agree granted the resolution *5 his own civilian counsel. Once counsel is However, specified I am issues. dis- compe licensed to law a state or quieted by it acceptable the idea that is licensing authority, tent presume we shall civilian, military allow appear that civilian are they when courts-martial could not as defense counsel at courts-martial.* represent civilians civilian courts. Intui- tively, my it is belief defen- agree federal We with the cases cited dants, family as well as their licensing friends, above authority that once a state operate assumption under the that “JAGS” qualifications has reviewed the and admitted lawyers duly prac- who are authorized to attorney practice, subsequent change tice law in more of sovereign in bar one or necessarily status alone does not re- country. in a States of this sult determination that there has been a denial of the Amendment Sixth to coun- Furthermore, notwithstanding the cases appellant’s sel. We conclude that civilian upon majority opinion relied in the which disqualified was not be- have though let convictions even stand fore courts-martial virtue of the fact that lawyer disqualified practice, from was active he was “inactive” in the three states within I know of no federal or state who which he was licensed. disbarred, willingly suspended, would let a case, state, Texas, in at least one lawyer practice inactive in his or her court. prohibited practice Mr. C’s inactive status accept We should less for no our only within the state. Texas bar mem- accused. therefore, bership adequate, support rules, writing require If I I were would appearance counsel’s before a court-martial civilian) (military that counsel be in an regardless imposed by limitations Ha- “officially” status recognized which makes waii or Iowa. they may appointed repre- clear that parties they sent in a trial or that appellant presented Because criminal no client, may, go competence arising issue of from for a fee from a into a court- represent counsel’s room client. bar status and because That status perfor- recognition has not shown that civilian counsel’s simple carries with it the that the * recognized practice providing tions, The record before does not indicate for such us whether limita- generally recognized practice there is a in the appropriate it for the President to trial of criminal cases before federal district ap- consider whether similar limitations should courts that limits counsel who ply governing under the trials courts- rules are not in an in a state active status or federal UCMJ, § martial. 10 USC 836. See Art. generally bar. To the extent that there is a me to demean the permit competent” To less seems “legally profession perpetrate law and to nothing noble accept in order I would less clients. servicemembers, upon their fami- a fraud requirements of Uni- to meet the Justice, lies, large. public Military form USC Code of