NCM 76 1004 | U.S. Navy-Marine Corps Court of Military Review | Jul 22, 1977
Contrary to his pleas appellant was convicted of striking a noncommissioned officer, disobeying a noncommissioned officer, disrespect toward a noncommissioned officer, assaulting a noncommissioned officer, assault and battery, disrespect toward a Second Lieutenant, and willful disobedience of an order in violation of Articles 91, 128, 89 and 90, UCMJ, 10 U.S.C. §§ 891, 928, 889, 890. His sentence provides for a bad conduct discharge, confinement at hard labor for 4 months, and forfeiture of $240 per month for 4 months.
When the record was initially before this Court for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866, appellant argued that he was erroneously denied requested individual military counsel with whom he had formed an attorney-client relationship. See United States v. Catt, 23 USCMA 422" court="None" date_filed="1975-06-06" href="https://app.midpage.ai/document/united-states-v-catt-8576030?utm_source=webapp" opinion_id="8576030">23 U.S.C.M.A. 422, 428, 50 C.M.R. 326, 332, 1 M.J. 41, 48, (1975). We remanded the case to the convening authority with the option of referring the case to a special court-martial for a hearing before a military judge to determine whether an established attorney-client relationship had been severed without good cause by denial of requested counsel. United States v. Taylor, No. 76 1004 (N.C.M.R. 10 September 1976). A hearing was subsequently held at which the military judge found that no attorney-client relationship existed.
The case is before us again and appellant assigns the following errors:
I. THE CONVENING AUTHORITY AND THE MILITARY JUDGE ERRONEOUSLY DENIED APPELLANT’S REQUESTED INDIVIDUAL MILITARY COUNSEL WITH WHOM APPELLANT HAD FORMED AN ATTORNEY-CLIENT RELATIONSHIP.
II. APPELLANT WAS DENIED A SPEEDY DUBAY HEARING.
III. THE DUBA Y HEARING LACKED JURISDICTION.
IV. THE ORIGINAL STAFF JUDGE ADVOCATE’S REVIEW PREJUDI-CIALLY FAILS TO FAIRLY SUMMARIZE THE TESTIMONY OF SERGEANT TANAKA.
V. TO HIS SUBSTANTIAL PREJUDICE, APPELLANT WAS NOT GIVEN AN OPPORTUNITY TO REBUT OR CHALLENGE THE STAFF JUDGE ADVOCATE’S REVIEW.
We find no prejudice and affirm.
I
In November 1975, Lieutenant Kelly, the defense counsel in another case, interviewed appellant as a witness at Camp Fuji, Japan. Although the evidence is conflicting we find that appellant discussed briefly with him the subject of an Article 15 proceeding at which charges against appellant had been dismissed and subsequently resurrected. Lieutenant Kelly told appellant he would help him as much as he could, probably in an Article 15 appeal, and gave him a business card. The subject matter involved three of the seven specifications of which appellant now stands convicted. Most of the remaining offenses occurred after the interview. On 15 December 1975 appellant was informed of the sworn charges and, indicating he had talked over his case with Lieutenant Kelly, requested him as individual military counsel. Appellant had returned to Okinawa, Lieutenant Kelly to his permanent duty station at Yokosuka, Japan, Lieutenant Kelly’s commanding officer determined that he was not available because of his workload.
The issue is whether an attorney-client relationship was established which entitled appellant to be represented by Lieutenant Kelly in the absence of good cause for denial of his services. The severance of an existing, viable attorney-client relationship without good cause dictates reversal regardless of the amount of prejudice sustained. United States v. Catt, supra. Circumstances which would justify the denial of the services of requested defense counsel on the basis of nonavailability may not necessarily justify denial of the aid of counsel who has established a bona fide
The Court of Military Appeals has held that where legal advice of any kind is sought from a professional legal advisor in his capacity as such, the attorney-client privilege arises for the purpose of protecting confidential communications from disclosure by the attorney in the absence of waiver, and, as a basis for requiring that an attorney avoid the appearance of conflict of interest by refraining from assisting in the prosecution of one from whom he has received related confidences. United States v. Turley, 8 USCMA 262" court="None" date_filed="1957-09-27" href="https://app.midpage.ai/document/united-states-v-turley-8571861?utm_source=webapp" opinion_id="8571861">8 U.S.C.M.A. 262, 24 C.M.R. 72 (1957); United States v. McCluskey, 6 U.S. C.M.A. 545, 20 C.M.R. 261" court="None" date_filed="1955-12-16" href="https://app.midpage.ai/document/united-states-v-mccluskey-8571490?utm_source=webapp" opinion_id="8571490">20 C.M.R. 261 (1955). An attorney, who on a previous occasion has represented or advised an accused person must avoid the slightest suspicion, the very appearance, of assisting — little or much, directly or indirectly, consciously or unconsciously — in the prosecution of his erstwhile client from whom he may have acquired private information. Since an attorney is bound to avoid divulging a client’s confidences to the latter’s disadvantage, doubts concerning equivocal or apparently inconsistent conduct on the part of the attorney must be resolved against him — that is, it must have been regarded as having been antagonistic to the best interests of his client. United States v. Turley, supra. The integrity of the legal profession and our system of justice demand no less. However, the issue is different when the question is whether an attorney-client relationship has been sufficiently established for the purpose of entitling an accused to representation by requested counsel in the absence of a showing of good cause for denial of his services. Cf. United States v. Eason, supra. Drumgo v. Superior Court, 8 Cal. 3d 930" court="Cal." date_filed="1973-03-05" href="https://app.midpage.ai/document/drumgo-v-superior-court-1354047?utm_source=webapp" opinion_id="1354047">8 Cal.3d 930, 106 Cal.Rptr. 631, 506 P.2d 1007 (en banc 1973), cert. denied, 414 U.S. 979" court="SCOTUS" date_filed="1973-10-23" href="https://app.midpage.ai/document/dickinson-v-united-states-8987713?utm_source=webapp" opinion_id="8987713">414 U.S. 979, 94 S. Ct. 272" court="SCOTUS" date_filed="1973-10-23" href="https://app.midpage.ai/document/stein-v-lewisville-independent-school-district-8987618?utm_source=webapp" opinion_id="8987618">94 S.Ct. 272, 38 L.Ed.2d 223 (1973). An accused is entitled to be represented by military counsel of his own selection if reasonably available. Article 38(b), UCMJ, 10 U.S.C. § 838(b). We recognize that Article 38(b) must not be given grudging application in determining the reasonable availability of requested counsel. United States v. Quinones, 23 USCMA 457" court="None" date_filed="1975-06-27" href="https://app.midpage.ai/document/united-states-v-quinones-8576038?utm_source=webapp" opinion_id="8576038">23 U.S.C.M.A. 457, 50 C.M.R. 476, 1 M.J. 64 (1975). However, the overriding policy considerations which militate against disclosure of confidential communications with an attorney or the appearance of an attorney engaging in conflicting interests by assisting in the prosecution of one from whom he has received confidences do not exist when determining whether an accused is entitled to representation by requested counsel with whom he has previously consulted but who is not reasonably available.
In civilian jurisprudence an accused who is entitled to appointed counsel is not entitled to select counsel of his choice although he has consulted with the requested counsel. Drumgo v. Superior Court, supra. A civilian accused has no right to appointment of counsel of his choice. A military accused has a right to counsel of choice if reasonably available, not merely because he consulted him. The interest of the individual accused in selecting counsel of his choice must be balanced against the interest of society in the most effective utilization of limited military legal resources to achieve and maintain a military justice system of high quality for the benefit of society as a whole and all military accused. The interest of society and the mandate of Article 38(b) tip the scale in favor of the accused requesting counsel of his choice if the requested counsel is reasonably available. In the absence of other considerations a different result ensues if requested counsel is not reasonably availa
II
We reject appellant’s contention that denial of a speedy DuBay
Ill
Appellant contends that the DuBay hearing lacked jurisdiction because the convening order failed to detail any members. His contention is without merit. As appellate Government counsel points out, the Court of Military Appeals has remanded cases to trial judges to be appointed by convening authorities for DuBay evidentiary hearings. See United States v. Alexander, 25 U.S.C.M.A. 382, 54 C.M.R. 1108 (Interim) 2 M.J. 237 (1977). The appointment of members is not a jurisdictional prerequisite for such a DuBay proceeding.
IV and V
Appellant complains that the original staff judge advocate’s review fails to summarize fairly the testimony of a key prosecution witness. Any deficiency has been waived by trial defense counsel’s failure to object or comment upon the review when afforded the opportunity to do so. United States v. Goode, 23 USCMA 367" court="None" date_filed="1975-04-04" href="https://app.midpage.ai/document/united-states-v-goode-8576011?utm_source=webapp" opinion_id="8576011">23 U.S.C.M.A. 367, 50 C.M.R. 1, 1 M.J. 3 (1975). Appellant also contends that failure to serve the subsequent staff judge advocate’s review of the DuBay hearing in accordance with the mandate of the Court of Military Appeals in Goode was prejudicial error because the staff.judge advocate utilized the wrong standard in determining whether appellant had formed an attorney-client relationship
The fourth and fifth assignments of error are denied.
The findings of guilty and sentence as approved on review below are affirmed.
. See United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411 (1967).