Professional Responsibility Lt Col Christy Haynes AF/JAA-PR [email protected] 202-404-5313

Professional Responsibility

Lt Col Christy Haynes

AF/JAA-PR

[email protected]

202-404-5313

Overview

• Guidance• Headlines• Selected Rules and Scenarios• Social Media

Sources of Guidance

• AFI 51-110, Professional Responsibility Program

• JAGINST 5803.1D, Professional Conduct of Attorneys Practicing Under The Cognizance and Supervision of The Judge Advocate General

• AR 27-26, Rules of Professional Conduct for Lawyers

• ABA Model Rules

What about nonlawyers?

“This instruction applies to all military and civilian lawyers, paralegals, and nonlawyer assistants in the AFJAGC.”

AFI 51-110, para 2

Rule 5.3, Responsibilities Regarding Nonlawyer Assistants

Headlines from Around the StatesLawyer Disciplined for Using Personal Laptop at Work to Earn Extra Bucks from JustAnswer.com

Prosecutor’s CLE-Entry Typo Leads to Mistrial Request in Child-Murder Case

Prosecutorial misconduct cited as judge orders new trial post-Katrina bridge killings

Law Firm Booted Off Case After Lawyer Held Dunkin’ Donuts Depositions, Dissed Opposing Counsel

Rule 5.1 – Responsibilities of a Supervisory Lawyer

• A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure the other lawyer conforms to the Rules.

• Supervisory Lawyers may be held responsible for subordinates violations if:• Orders conduct• Knowingly ratifies• Knows of violation and fails to remedy

Test Your Knowledge!

The Chief Judge does not provide guidance or ensure any method is used to identify conflicts with cases. Is this Okay? Or Not Okay?

The Answer…

This is Not Okay!

A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure the other lawyer conforms to the Rules.

Rule 5.3 – Responsibilities Regarding Nonlawyer Assistants• Senior Air Force lawyer responsible for

compliance

• Must make reasonable efforts to ensure conduct is compatible with professional obligations

• A lawyer is responsible for conduct of a nonlawyer if the conduct is a violation of the Rules for a lawyer and the lawyer• Orders conduct• Knowingly ratifies• Knows of violation and fails to remedy

Test Your Knowledge! A paralegal assigned to your office has been

notarizing documents without actually witnessing the signature. The paralegal thinks it is okay because she knows the person and it is more efficient this way.

Okay? Or not Okay?

The Answer…

This is Not Okay!

A lawyer shall be responsible…if the lawyer has direct supervisory authority over the person, and know of the conduct at a time when its consequences can be avoided or mitigated, but fails to take reasonable remedial action.

Leadership ResponsibilityIn Re Cohen 847 A.2d 1162 (D.C. 2004): firm failed to offer associates rudimentary ethics training or mechanisms for review and guidance by supervisorsKentucky Bar Ass’n v. Weinberg, 198 S.W.3d 595 (Ky. 2006): supervisory attorney did not maintain institutional controls, such as tickler systems…periodic review of files…in order to monitor and direct control over filesAttorney Grievance Comm’n v. Flicker, 924 A.2d 1105 (Md. 2007): lawyer in high volume practice failed to implement adequate system for assigning cases to associates, fostering “an environment where rules regarding diligent representation and communication with clients were almost inherently violated.”

Bottomline: Leaders need to foster ethical atmosphere

Rule 8.3 – Reporting Professional Misconduct

A lawyer having knowledge that another lawyer has committed a violation of the AFRPC that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall inform the appropriate professional authority.


After hearing arguments for a case, you believe defense counsel’s lack of preparation resulted in prejudice to the client. Are you required to report this?

What if there was no prejudice to the client?


The correct answer is: It depends.

If the violation raises a “substantial question” about honesty, trustworthiness, or fitness as a lawyer in other respects, then you must report it.

Rule 1.1 - Competence

• A lawyer shall provide competent representation to a client. Competent representation requires:• Legal knowledge• Skill• Thoroughness• Preparation

• Comment 2 to ABA Model Rule: “A lawyer can provide adequate representation in a wholly novel field through necessary study.”


TC and ATC are both in their first assignment and have very little court experience.

Are they competent?

The Answer…

The correct answer is: Yes.

A newly admitted lawyer can be as competent as a practitioner with long experience. A lawyer can provide adequate representation through adequate study.

Rule 1.3 - Diligence• A lawyer shall act with reasonable diligence and

promptness in representing a client.

• Duty to perform work within a reasonable time and with commitment and dedication to the interests of the client.

• Requirement to meet deadlines, appear at scheduled legal proceedings, and actively carry matter forward.

• Comment 2 to ABA Model Rule: “A lawyer’s workload must be controlled so that each matter can be handled competently.”


Defense counsel is very busy and decides to rely on his paralegal to gather all the documents needed to respond to the discovery request. The paralegal failed to provide all the documents required to properly respond to the discovery request.

Is this a violation of Rule 1.3, Diligence?

What about other professional responsibility violations?

The Answer…

The correct answer is: It Depends!

Comment 2 to ABA Model Rule: “A lawyer’s workload must be controlled so that each matter can be handled competently.”


Arguments are scheduled for next week and defense counsel requests a continuance. This is the third continuance request by defense counsel.

Is this a violation of Rule 1.3, Diligence?

The Answer…


Lawyers are required to meet deadlines, appear at scheduled legal proceedings, and actively carry matter forward.

Rule 1.4 – Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.


The accused tells the trial judge he does not want to plead guilty and his lawyer has pressured him to plead guilty.

Is this a violation of Rule 1.4, Communication?

The Answer…


A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.


The IG receives a complaint from an inmate at a Naval Consolidated Brig, Miramar. The inmate claims his appellate defense counsel will not talk to him and he does not know what is going on with his case.

Is this a violation of Rule 1.4, Communication?

The Answer…


A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

Rule 1.6 -Confidentiality

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary….(4) to comply with other law or court order.


The lawyer is scheduled to provide testimony in a DOJ deposition regarding a case that did not result in disciplinary action by the Air Force.

If the lawyer provides testimony in the deposition is this a violation of Rule 1.6, Confidentiality?

The Answer…


Unless the client consents or the lawyer is ordered to provide testimony.

Rule 1.7 - Conflict of Interest

• Lawyer shall not represent a client if:• the representation of that client will be directly

adverse to another client; or• the representation of that client may be materially

limited by lawyer’s responsibilities to another client, third person, or own interest;

• unless lawyer reasonably believes the rep will not adversely affect relationship and gets client consent

• Caveat – can’t consent to some conflicts (i.e. directly adverse clients in litigation)

Rules 1.8 & 1.9 - Conflict of Interest• Rule 1.8 – addresses specific, prohibited transactions

• 1.8(b) a lawyer shall not use info relating to representation of a client to the disadvantage of the client unless client consents except as permitted/required under Rule 1.6/Rule 3.3

• Rule 1.9 - Conflict of Interest: Former Client• Continuing duty to former client• Can’t represent another in the same or a substantially

related matter in which that person interests are materially adverse to the interests of the former client, unless former client consents or

• Use information related to the representation to the disadvantage of the former client except as permitted by Rule 1.6/Rule 3.3 or when information generally known


At the conclusion of the findings case, but before sentencing, ATC realizes she saw the accused in legal sentence several months ago.

Is this a violation of Rule 1.7? Rule 1.9?

The Answer…


If the accused is a current client it is a conflict. If the accused is a former client, it is a conflict if it is a substantially related matter in which that person interests are materially adverse to the interests of the former client, unless former client consents.

Rule 3.3 - Duty of Candor

• A lawyer shall not knowingly:• Make a false statement of fact or law to a

tribunal or fail to correct a false statement previously made

• Fail to disclose known adverse legal authority

• Offer evidence the lawyer knows to be false

Test Your Knowledge!Trial Counsel prepped the OSI agent to testify and explained the answers must be truthful. Direct examination goes well but during cross the agent provides false testimony. What should TC do?

A. Nothing, TC advised the OSI agent to be truthful and has no additional obligation.

B. TC must remedy the situation.

C. TC should wait until the court ends and talk to the agents supervisor.

The Answer…

The correct answer is: B

TC must remedy the situation.

Rule 3.5 – Impartiality and Decorum of the Tribunal

A lawyer shall not:

(a) seek to influence a judge, court or board member…

(b) communicate ex parte with such a person except as permitted by law

(c) engage in conduct intended to disrupt a tribunal.


The SPCM has concluded and defense counsel has a case the following week with the same military judge. Defense counsel meets with the judge to discuss some issues with the upcoming case.

Okay? Or Not Okay?

The Answer…

This is Not Okay!

A lawyer shall not communicate ex parte.

Rule 4.1 – Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client unless restricted by Rule 1.6


TC is interviewing a defense character witness for a GCM involving drug use. TC tells the witness that the government has evidence that the government does not have. Based on testimony, you realize TC provided false information to the witness.

Okay? Or Not Okay?

The Answer…

This is Not Okay!

A lawyer may not provide a false statement of material fact. A statement is material if it could or would influence the hearer.

Rule 8.4 - Misconduct

• Violate rule/induce another • Commit criminal act involving dishonesty• Engage in dishonesty, fraud, deceit or

misrepresentation• Engage in conduct prejudicial to

administration of justice• State/imply ability to influence improperly

a gov’t agency or official

Test Your Knowledge!The SJA told the Article 32 IO “We really need to refer all the charges and take this case to a GCM.” The SJA made this statement because the Commander wanted all the charges referred to a GCM. Is this a violation of Rule 8.4?

A. No, as long as the SJA really believes the accused is guilty then it’s okay.

B. No, in the military we follow orders and the Commander wants all charges referred. The SJA should do everything possible to make that happen.

C. Yes, if the conduct is improper, has a direct bearing on the judicial process, and potentially impacts the process to a serious and adverse degree.

The Answer…

The correct answer is: C

If the conduct is improper, has a direct bearing on the judicial process, and potentially impacts the process to a serious and adverse degree then it is prejudicial to the administration of justice.


Your spouse served you with divorce papers. The following day you transferred $400,000 in marital assets to an overseas account. You were emotionally traumatized by the breakup of the marriage and refused to comply with court orders to provide spousal support and pay for other expenses.

Does this violate Rule 8.4, Misconduct?



A lawyer is subject to discipline under 8.4 (d) for conduct that does not involve the representation of a client.

In Re Ring, 692 N.E.2d 35 (Mass. 1998)


You and your friends are going to buy baseball season tickets. You collect the money and are responsible for buying tickets. You decide to keep the money and not buy the tickets.




Rule 8.4 (c) also extends to dishonesty dealings with the world at large.

People v Rishel, 50 P.3d 938


You go out with your friends on Saturday night and have a few drinks. You think you are okay to drive home, but you are arrested and charged with DUI.




Some states consider this a violation and some states do not. Crimes involving alcohol and drugs are usually deemed to fall within Rule 8.4 (b).

Kentucky Bar Association v Dunn, 968 S.W. 2d 158


Your now ex-wife has filed a domestic violence complaint. You and your lawyer are confident there is nothing to it and you want your day in court. Before the trial, you are required to complete PR certification.

How do you certify?

Does it make a difference if you were acquitted in court?


You cannot certify absence of discipline. If you do, it is a violation of Rule 8.4 (c). For certification purposes, the outcome in court does not matter.

The Age of Social Media

Social Media

• Depending on what you are doing, many PR Rules potentially implicated:• Confidentiality• Inadvertent Creation of Attorney-Client

relationship• Ex Parte Communications• Misconduct

• Conduct prejudicial to administration of justice

• Misrepresentation, dishonesty

Social Media…HeadlinesLawyer expelled for five years for telling client to despoil social media content

NC judge reprimanded because Facebook friend with attorney appearing before him and exchanged comments

Illinois public defender disciplined for blogging about clients

FL public defender fired for putting photo of client’s leopard-print undies on Facebook

Test Your Knowledge! A lawyer is seeking impeachment material in

preparation of a case. The lawyer goes to the opposing party’s Facebook page and the Facebook pages of potential adverse witnesses for information. Is this a violation of the Rules?

A. No, if the lawyer is clever enough to find impeachment material it is not a violation.

B. It depends on what steps the lawyer takes to

obtain the information.

C. Yes, Facebook pages contain personal information

that cannot be used as impeachment material.

The Answer…

The correct answer is: B

It depends on what steps the lawyer takes to obtain the impeachment material.


TC is frustrated with the way the ADC has been acting regarding a GCM. TC thinks the ADC should get his client to accept the PTA. TC posts comments about a conversation with the ADC on facebook?

Okay? Or Not Okay?

The Answer…

The correct answer is: Not Okay!

Social MediaTrial-counsel asks the team paralegal to “friend” the accused on facebook. He does, and the paralegal views video of the accused apparently smoking marijuana, the charged offense.

Is this Okay? Or Not Okay?

The Answer…

The correct answer is: It depends!

Complaint Process

• Initial Review or Inquiry (as directed by MAJCOM SJA, AFLOA/CC or TJAG)• The MAJCOM SJA may forward the complaint to the

subject of the complaint and provide the subject an opportunity to provide an initial statement, if the subject desires to do so.

• AF/JAA-PR Review• Then to Advisory Committee (JAJ/JAC/JAZ)

for recommendation to TJAG • TJAG action

ComplaintsPR Complaints 2010-2013

2010 2011 2012 20130

2

4

6

8

10

12

14

16

ComplaintsSubstantiated

** note – complaints against 15 attorneys filed thus far in 2014

What are the Complaints About?

10% 3%

5%

9%

4%

3%8%

3%

28%

27%

Rules Implicated 2010-2013Rule 1.1 (Competence)

Rule 1.3 (Diligence)

Rule 1.6 (Confidentiality)

Rule 1.7 (Conflict)

Rule 1.13 (AF as Client)

Rule 3.4 (Fairness)

Rule 4.4 (Respect)

Rule 5.3 (Nonlawyer)

Rule 8.4 (Misconduct)

Other Rules

Documents

Professional Responsibility Lt Col Christy Haynes AF/JAA-PR [email protected] 202-404-5313