OPINION OF THE COURT
A gеneral court-martial, composed of officer and enlisted members, convicted appellant, contrary to his pleas, of a violation of a lawful general regulation (two specifications) and adultery (two specifications), in violation of Articles 92 and 134, Uniform Code of Military Justice, 10 U.S.C. §§ 892 and 934 [hereinafter UCMJ]. The convening authority approved the adjudged sentence to a dishonorable discharge, confinement for six years, forfeiture of all pay and allowances, and reduction to Private El. As a matter of clemency, the convening authority suspended for two years execution of that part of the sentence extending to confinement in excess of four years. The convening authority waived automatic forfeitures for six months and directed payment of such monies to appellant’s spouse pursuant to Article 58b(b), UCMJ, 10 U.S.C. § 858b(b).
In this Article 66, UCMJ, 10 U.S.C. § 866, appeal, appellate defense counsel assert eight assignments of error and appellant raises one issue for our consideration pursuant to United States v. Grostefon,
Appellate defense counsel contend in the eighth assignment of error, and the government concedes, that there was no evidence that appellant digitally penetrated Private (PVT) M’s vagina as alleged in Specification 2 of Charge I (violation of a lawful general regulation). We agree and will except the words, “and digitally penetrating her vagina,” from Specification 2 of Charge I in our decretal paragraph.
FACTS
In October 1996, military authorities at Fort Leonard Wood, Missouri began an investigation of cadre misconduct involving Initial Entry Training (IET) soldiers. In January 1997, the military police began an investigation of appellant, a drill sergeant, for indecent acts, adultery, and violation of a
Mrs. Wheeler and appellant provided post-trial affidavits alleging that CPT M’s participation as assistant trial counsel at appellant’s court-martial was improper. Mrs. Wheeler alleged that prior to appellant’s trial, CPT M asked Mrs. Wheeler to consent to his assistance in the prosecution of her husband. Mrs. Wheeler objected because of the adverse financial and emotional impact that appellant’s trial and sentence would have on her and her children. Mrs. Wheeler accused CPT M of violating her attorney-client privilege stating, “I have no doubt that things that I have told [CPT M] in confidence have aided in his investigation and prosecution of my husband.” Mrs. Wheeler was not on the defense witness list and did not testify in her husband’s court-martial.
Appellant’s post-trial affidavit indicates that CPT M called him in September 1997 on behalf of Mrs. Wheeler and urged him to sign a separation agreement. Appellant objected to the separation agreement’s proposal that he pay $1,300.00 per month in support. Appellant retained civilian counsel,
After arraignment, at an Article 39(a), UCMJ, session, the trial counsel announced that CPT M was detailed to appellant’s court-martial as assistant trial counsel by the Staff Judge Advocate, was qualified and certified under Articles 27(b) and 42(a), UCMJ, 10 U.S.C. §§ 827(b) and 842(a), and had “not acted in any manner which might tend to disqualify him from this court-martial.”
We ordered affidavits from trial counsel and CPT M to address allegations made in Mrs. Wheeler’s and appellant’s affidavits. Captain M’s post-trial affidavit states that his Deputy Staff Judge Advocate and a state bar ethics’ representative advised him to tell Mrs. Wheeler that their attorney-client relationship- was terminated about nine months earlier and that CPT M was legally authorized to and intended to assist in appellant’s prоsecution. Captain M never asked Mrs. Wheeler for permission to prosecute appellant. Captain M denied that he had any discussion with Mrs. Wheeler regarding “whether infidelity on the part of either partner was a source of marital discord” and he also denied that Mrs. Wheeler told him “anything related to the prosecution of [appellant.” Mrs. Wheeler did not indicate that “she believed [appellant was involved in any unprofessional or sexual relationships with trainees” and she never told CPT M anything about PFC A or PVT M.
Captain M’s affidavit indicates he did not believe that he ever talked to appellant about the Wheeler separation agreement because this was a function performed by other legal assistance office personnel. In any event, CPT M said that he was not responsible for re-typing separation agreements and would never get upset about changes to the contents of a separation agreement. Captain M also stated that he “was not aware that the [appellant was under investigation for adultery during the time of [his] representation of Mrs. Wheeler.” Captain M first became aware of appellant’s investigation after he left his duties at the Tax Center, and became a trial counsel in May 1998. Captain M told appellant’s military defense counsel before appellant’s trial began that he previously had an attorney-client relationship with Mrs. Wheeler.
DISCUSSION
Prosecutorial misconduct is generally defined as “action or inaction by a prosecutor in violation of some legal norm or standard, e.g., a constitutional provision, a statute, a Manual rule, or an applicable professional ethics canon.” United States v. Meek,
Disqualification Due to Being an Accuser
First, appellant asserts that CPT M is disqualified because he is an accuser, who ignored his ethical obligation to disqualify himself from acting as assistant trial counsel, and because CPT M was “still angry that the accused had refused to just sign the separation agreement, thereby creating additional work for [CPT M].” (Appellant’s Brief at 7-8). “No person shall act as trial counsel or assistant trial counsel ... in any case in which that person is or has been: (A) The accuser .... ” R.C.M. 502(d)(4).
Captain M’s contact with appellant and Mrs. Wheeler was official, as CPT M was performing legal assistanсe duties. Thereafter, CPT M and appellant’s civilian counsel negotiated the terms of Mrs. Wheeler and appellant’s separation agreement. Captain M was not appellant’s victim, was not “blackmailed” by appellant, and had no other personal contacts with appellant that caused CPT M to “initiate^ ] a charge out of hostile animus toward[s] [appellant].” Dinges,
Disqualification Due to Former Representation
Second, appellant argues that CPT M is disqualified due to his former representation of Mrs. Wheeler. Captain M is disqualified from acting as assistant trial counsel if appellant establishes three elements: “a former representation, a substantial relationship between the subject matter of the former representation and the issues in the subsequent case, and later adverse employment.” United States v. Hustwit,
We are not persuaded that an attorney should be forever barred from taking actions adverse to a former client’s interests. Clearly, if a prosecutor may prosecute a former ehent,
Army Reg. 27-26, Legal Services: Rules of Professional Conduct for Lawyers, Rule [hereinafter Rule] 1.9(a) (1 May 1992), was designed to avoid conflicts of interest by Army attorneys relating to their former clients. Rule 1.9(a), which is taken verbatim from Model Rule 1.9(a),
We compare the facts, circumstances, and legal issues of the past and present representations to determine whether they are related in some substantial way. If the prior representation is inextricably linked to the current case, including use of confidential information, then the trial counsel is disqualified.
Breach of Attorney-Client Confidentiality
Appellant’s third argument is that CPT M potentially breached his attorney-client relationship with Mrs. Wheeler by improper use of attorney-client confidences in appellant’s court-martial. Mrs. Wheeler’s affidavit asserts, “I have no doubt that things I told [CPT M] in confidence have aided in the investigation and prosecution of my husband.” Appellant argues, “it would be [] absurd to assume that CPT [M] in no way utilized information obtained within the umbrella of confidential client communications to successfully prosecute the accused.” (Appellant’s Brief at 6).
“Once the attorney-client relationship has been shown to exist, no court — either Federal or state — has been more zealous in safeguarding and strengthening the privilege arising therefrom than has [the United States Court of Appeals of the Armed Forces].” United States v. Turley,
Clearly, use of confidential, non-public information gained from the attorney-client relationship to facilitate prosecution of a former client, if it occurred as a matter-of-fact,
In Golston, the defense made a specific allegation of a breach of attorney-client confidentiality. Golston,
Duty to Disclose Prior Relationship
In Golston, our superior court determined that the trial counsel, who earlier had provided legal assistance to Mrs. Golston pertaining to a military police investigation of her for larceny, had a duty to “avoid even the appearance of wrongdoing in the attorney-client arena.” Golston,
Mrs. Wheeler was not listed on any witness list and ultimately did not testify, and CPT M’s prior attorney-client relationship with Mrs. Wheeler was not substantially related to appellant’s court-martial charges. Nevertheless, tidal counsel’s better course under R.C.M. 901(d) at the outset of the trial would have been to disclose to the military judge the existence of the past attorney-client relationship because depending on how the facts developed at trial, it could have potentially constituted a “matter[] ‘which might tend to disqualify’ ” CPT M.
Prejudice
Assuming arguendo that it was error for CPT M to act as assistant trial counsel, we will consider whether the failure of the trial defense counsel to object
We conclude that there was no plain error. Even if CPT M was disqualified from acting as assistant trial counsel, his participation did not materially prejudice appellant’s substantial rights. See United States v. Powell,
Conclusion
We find that CPT M did not commit prosecutorial misconduct and that CPT M did not cause prejudice to appellant or the military justice system.
Absence of Evidence of Digital Penetration
There was no evidence that appellant digitally penetrated PVT M’s vagina as alleged in Specification 2 of Charge I. Accordingly, we are required to except the words, “and digitally penetrating her vagina,” from Specification 2 of Charge I, and we will reassess the sentence.
Appellant, a drill sergeant, engaged in sexual intercourse in the drill sergeant’s latrine on three occasions with PVT M, and on a separate occasion with PFC A. Private M and PFC A were assigned to appellant’s platoon and undergoing IET at the time of appellant’s misconduct. Appellant also violated a general regulation by engaging in personal relationships with PVT M and PFC A. We are confident under these circumstances that the failure to except the words, “and digitally penetrating her vagina,” from Specification 2 of Charge I did not prejudice appellant as to the approved sentence, which included suspension of two of the six years of adjudged confinement. UCMJ art. 59(a), 10 U.S.C. § 859(a).
We have reviewed the other matters raised by appellate defense counsel and those personally raised by appellant under Grostefon and find them to be without merit. The court affirms only so much of the finding of guilty of Specification 2 of Charge I as finds that appellant did, at Fort Leonard Wood, Missouri, between 1 April 1997 and 5 June 1997, with knowledgе that PVT M was then an Initial Entry Training Soldier, violate a lawful general regulation, to wit: Fort Leonard Wood Regulation 350-12, paragraph 1-6, dated 22 January 1996, by wrongfully engaging in a personal relationship with the said PVT M, by having personal conversations with PVT M, by kissing her on numerous occasions and by touching her breasts, conduct and touching not necessary in the performance of official duties, in violation of Article 92, Uniform Code of Military Justice.
The remaining findings of guilty are affirmed. Reassessing the sentence based on the error noted and the entire record, and applying the criteria of United States v. Sales,
Notes
. Prior to appellant's trial, Mrs. Wheeler moved from Missouri to Washington State.
. We also requested that Mrs. Wheeler provide an additional affidavit detailing the specific information she told CPT M that was related to appellant's prosecution, including any details about how or what she knew about appellant’s relationships with PFC A or PVT M. Mrs. Wheeler received the request for an affidavit and indicated no such affidavit would be forthcoming.
. Appellant was not represented by civilian counsel at his court-martial.
. Rule for Courts-Martial [hereinafter R.C.M.] 901(d)(1) states that "[t]he trial counsel shall announce the legal qualifications and status as to oaths of the members of the prosecution and whether any member of the prosecution has actеd in any manner which might tend to disqualify that counsel.”
. The Golston decision was issued after appellant's case was tried.
. Lack of standing is no bar to consideration of an allegation of prosecutorial misconduct. Golston,
. Generally, failure to present the contested evidence moots the contested issue. See United States v. Dinges,
. "Accuser” was added to the list of disqualified persons based on the American Bar Association Standards, The Prosecution Function, §§ 3-1 (c); 3-3.9(c)(1979). See Manual for Courts-Martial, United States, (1998 ed.), app. 21, R.C.M. 502 analysis, at A21-27.
. See Wright v. United States, 732 F.2d 1048, 1058 (2d Cir.1984) (holding that prosecutors were not disqualified because there was no utilization of the criminal process to advance their own pecuniary interests); Annotation, What Circumstances Justify Disqualification of Prosecutor in Federal Criminal Case,
. A prosecutor is not disqualified from prosecuting a former client if the criminal trials are not closely or substantially related. See, e.g., Havens v. Indiana,
. A trial counsel is disqualified when the prior representation of the accused concerns "the very matter for which the accused was court-martialed.” Golston,
. The Comment to Model Rule 1.9 elaborates on the conflict of interest issue:
So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. ... Similar considerations can apply to the reassignment of military lawyers between defense and prosecution functions within the same military jurisdiction. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
... Information acquired by the lawyer in the course of representing a client may not subsequently be used or revealеd by the lawyer to the disadvantage of the client. However, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.
Model Rules of Prof’l Conduct Rule 1.9 cmt. (2002).
. See Golston,
. See Diaz,
. See People v. Shelson,
. See Green,
. Army Reg. 27-3, para. 4-8(a), states;
4-8. Attorney-client privilege
a. Communications between attorney and client are privileged. See AR 27-26. Those providing legal assistance will carefully guard the attorney-client relationship and protect the confidentiality of all privileged communications with their clients, as well as the confidentiality of other privileged information or documents that may be acquired. Privileged communicаtions will be disclosed only in accordance with applicable law. If a client authorizes the disclosure of privileged matters, such authorization should be obtained in writing, and the attorney should keep a copy of the authorization.
. DR 4-101(B) states:
(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
. Mrs. Golston was cross-examined by the assistant trial counsel, not her former counsel, about the very subject, a larceny investigаted by the military police, for which she sought the trial counsel's advice. Golston,
There is, in theory, no vice in the proposed questioning of a former client that springs from sources indeрendent of the client. But, as a practical matter, when sources other than matters of public record are cited, they are substantially more difficult to verify — especially where, as here, counsel may well have received confidential information from the [former client] on a wide variety of matters over a long period of time — and the court’s ability to protect the [former client’s] privilege is proportionately weakened.
United States v. James,
. Golston,
. See Golston,
. Appellаnt’s affidavit indicates he was aware of Mrs. Wheeler’s previous attorney-client relationship with CPT M. Captain M’s affidavit states that he told appellant’s trial defense counsel before trial of his prior attorney-client relationship with Mrs. Wheeler. No information has been submitted to the court contradicting these two statements of fact.
. On several occasions, however, our superior court has found plain error for due process violations. See United States v. Groce,