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Electronic Code of Federal Regulations

e-CFR data is current as of April 8, 2020

Title 32Subtitle AChapter VISubchapter GPart 776 → Subpart A


Title 32: National Defense
PART 776—PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL


Subpart A—General


Contents
§776.1   Purpose.
§776.2   Applicability.
§776.3   Policy.
§776.4   Attorney-client relationships.
§776.5   Judicial conduct.
§776.6   Conflict.
§776.7   Reporting requirements.
§776.8   Professional Responsibility Committee.
§776.9   Rules Counsel.
§776.10   Informal ethics advice.
§776.11   Outside practice of law.
§776.12   Maintenance of files.
§§776.13-776.17   [Reserved]

§776.1   Purpose.

In furtherance of the authority citations (which, if not found in local libraries, are available from the Office of the Judge Advocate General, 1322 Patterson Avenue SE., Suite 3000, Washington Navy Yard DC 20374-5066), which require the Judge Advocate General of the Navy (JAG) to supervise the performance of legal services under JAG cognizance throughout the Department of the Navy (DoN), this part is promulgated:

(a) To establish Rules of Professional Conduct (subpart B of this part) for attorneys subject to this part;

(b) To establish procedures for receiving, processing, and taking action on complaints of professional misconduct made against attorneys practicing under the supervision of the JAG, whether arising from professional legal activities in DoN proceedings and matters, or arising from other, non-U.S. Government related professional legal activities or personal misconduct that suggests the attorney is ethically, professionally, or morally unqualified to perform legal services within the DoN;

(c) To prescribe limitations on and procedures for processing requests to engage in the outside practice of law by those DoN attorneys practicing under the supervision of the JAG; and

(d) To ensure quality legal services at all proceedings under the cognizance and supervision of the JAG.

§776.2   Applicability.

(a) This part applies to all “covered attorneys” as defined herein.”

(b) “Covered attorneys” include:

(1) The following U.S. Government (USG) attorneys, referred to collectively as “covered USG attorneys” throughout this part:

(i) All active-duty Navy judge advocates (designator 2500 or 2505) or Marine Corps judge advocates (Military Occupational Specialty (MOS) 4402 or 9914).

(ii) All active-duty judge advocates of other U.S. armed forces who practice law or provide legal services under the cognizance and supervision of the JAG.

(iii) All civil service and contracted civilian attorneys who practice law or perform legal services under the cognizance and supervision of the JAG. This includes civilian attorneys employed by the DoN as Executive Agent for Combatant Commands, and for whom the JAG serves as the “qualifying authority” under the authority citations.

(iv) All Reserve or Retired judge advocates of the Navy or Marine Corps (and any other U.S. armed force), who, while performing official DoN duties, practice law, provide legal services under the cognizance and supervision of the JAG or are serving in non-legal MOS billets.

(v) All other attorneys appointed by the JAG (or the Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC) in Marine Corps matters) to serve in billets or to provide legal services normally provided by Navy or Marine Corps judge advocates. This policy applies to officer and enlisted Reservists, active-duty personnel, and any other personnel who are licensed to practice law by any Federal or state authority but who are not members of the Judge Advocate General's Corps or who do not hold the 4402 or 9914 MOS designation in the Marine Corps.

(vi) All qualified volunteer attorneys that have been certified as legal assistance attorneys by the JAG, or his designee, pursuant to the authority citations.

(2) The following non-U.S. Government attorneys, referred to collectively as “covered non-USG attorneys” throughout this part:

(i) All civilian attorneys representing individuals in any matter for which the JAG is charged with supervising the provision of legal services. These matters include, but are not limited to, courts-martial, administrative separation boards or hearings, boards of inquiry, and disability evaluation proceedings.

(3) The term “covered attorney” does not include those civil service or civilian attorneys who practice law or perform legal services under the cognizance and supervision of the General Counsel of the Navy.

(c) Professional or personal misconduct unrelated to a covered attorney's DoN activities, while normally outside the ambit of Subpart B of this part, may be reviewed under procedures established herein and may provide the basis for decisions by the JAG regarding the covered attorney's continued qualification to provide legal services in DoN matters.

(d) Although subpart B of this part do not apply to non-attorneys, they do define the type of ethical conduct that the public and the military community have a right to expect from DoN legal personnel. Accordingly, Subpart B of this part shall serve as the model of ethical conduct for the following personnel when involved with the delivery of legal services under the supervision of the JAG:

(1) Navy Legalmen and Marine Corps legal administrative officers, legal service specialists, and legal services reporters;

(2) Limited duty officers (LAW);

(3) Legal interns; and

(4) civilian support personnel including paralegals, legal secretaries, legal technicians, secretaries, court reporters, and other personnel holding similar positions. Covered USG attorneys who supervise non-attorney DON employees are responsible for their ethical conduct to the extent provided for in §776.55 of this part.

§776.3   Policy.

(a) Covered attorneys shall maintain the highest standards of professional ethical conduct. Loyalty and fidelity to the United States, the law, clients, both institutional and individual, and the rules and principles of professional ethical conduct set forth in subpart B of this part must come before private gain or personal interest.

(b) Subpart B of this part and related procedures set forth herein concern matters solely under the purview of the JAG. Whether conduct or failure to act constitutes a violation of the professional duties imposed by this part is a matter within the sole discretion of the JAG or officials authorized to act for the JAG. Subpart B of this part are not substitutes for, and do not take the place of, other rules and standards governing DoN personnel, such as the Department of Defense Joint Ethics Regulation, the Code of Conduct for members of the Armed Forces, the Uniform Code of Military Justice (UCMJ), and the general precepts of ethical conduct to which all DoN service members and employees are expected to adhere. Similarly, action taken per this part is not supplanted or barred by, and does not, even if the underlying misconduct is the same, supplant or bar the following action from being taken by authorized officials:

(1) Punitive or disciplinary action under the UCMJ; or

(2) Administrative action under the Manual for Courts-Martial (MCM), U.S. Navy Regulations, or under other applicable authority.

(c) Inquiries into allegations of professional misconduct will normally be held in abeyance until any related criminal investigation or proceeding is complete. However, a pending criminal investigation or proceeding does not bar the initiation or completion of a professional misconduct investigation stemming from the same or related conduct or prevent the JAG from imposing professional disciplinary sanctions as provided for in this part.

§776.4   Attorney-client relationships.

(a) The executive agency to which the covered USG attorney is assigned (DoN in most cases) is the client served by the covered USG attorney unless detailed to represent another client by competent authority. Specific guidelines are contained in §776.32 of this part.

(b) Covered USG attorneys will not establish attorney-client relationships with any individual unless detailed, assigned, or otherwise authorized to do so by competent authority. Wrongfully establishing an attorney-client relationship may subject the attorney to discipline administered per this part. See §776.21 of this part.

(c) Employment of a non-USG attorney by an individual client does not alter the professional responsibilities of a covered USG attorney detailed or otherwise assigned by competent authority to represent that client. Specific guidance is set forth in subpart E.

§776.5   Judicial conduct.

To the extent that it does not conflict with statutes, regulations, or this part, the current version of the American Bar Association Model Code of Judicial Conduct (as amended), hereafter referred to as the `Code of Judicial Conduct,' applies to all military and appellate judges and to all other covered USG attorneys performing judicial functions under the JAG's supervision within the DoN.

§776.6   Conflict.

(a) To the extent that a conflict exists between this part and the rules of other jurisdictions that regulate the professional conduct of attorneys, this part will govern the conduct of covered attorneys engaged in legal functions under JAG cognizance and supervision. Specific and significant instances of conflict between the rules contained in subpart B of this part and the rules of other jurisdictions shall be reported promptly to the Rules Counsel (see §776.9 of this part), via the supervisory attorney. See §776.53 of this part.

(b) In the case of Navy and Marine Corps personnel engaged in legal functions under Department of Defense (DoD) vice JAG cognizance and supervision (e.g., DoD Office of Military Commissions), this part and the applicable DoD professional responsibility rules apply. In such a case, to the extent that a conflict exists between Subpart B of this part and applicable DoD professional responsibility rules, the DoD rules shall take precedence.

§776.7   Reporting requirements.

Covered USG attorneys shall report promptly to the Rules Counsel (see §776.9 of this part) any disciplinary or administrative action, including initiation of investigation, by any licensing authority or Federal, State, or local bar, possessing the power to revoke, suspend, or in any way limit the authority to practice law in that jurisdiction, upon himself, herself, or another covered attorney. Failure to report such discipline or administrative action may subject the covered USG attorney to discipline administered per this part. See §776.71 of this part.

§776.8   Professional Responsibility Committee.

(a) Composition. This standing committee will consist of the Assistant Judge Advocate General (AJAG) for Military Justice; the Deputy Chiefs of Staff for Naval Legal Service Offices (or Defense Services Offices, effective 1 October 2012), and Region Legal Service Offices; the Chief Judge, Navy-Marine Corps Trial Judiciary; and in cases involving Marine Corps judge advocates, the Deputy Staff Judge Advocate to the Commandant of the Marine Corps (DSJA to CMC); and such other personnel as the JAG from time-to-time may appoint. A majority of the members constitutes a quorum. The Chairman of the Committee shall be the AJAG for Military Justice. The Chairman may excuse members disqualified for cause, illness, or exigencies of military service, and may appoint additional or alternate members on a permanent basis.

(b) Purpose. (1) When requested by the JAG, the SJA to CMC, or the Rules Counsel, the Committee will provide formal advisory opinions to the JAG regarding application of subpart B of this part to individual or hypothetical cases.

(2) On its own motion, the Committee may also issue formal advisory opinions on ethical issues of importance to the DoN legal community.

(3) Upon written request, the Committee may also provide formal advisory opinions to covered attorneys about the propriety of proposed courses of action under subpart B of this part. If such requests are predicated upon full disclosure of all relevant facts, and if the Committee advises that the proposed course of conduct does not violate subpart B of this part, then no adverse action under this rule may be taken against a covered attorney who acts consistently with the Committee's advice. Such requests must be made via the Rules Counsel.

(4) The Chairman will forward copies of all opinions issued by the Committee to the Rules Counsel.

(c) Limitation. The Committee will not normally provide ethics advice or opinions concerning professional responsibility matters that are then the subject of litigation.

§776.9   Rules Counsel.

Appointed by JAG to act as special assistants for the administration of subpart B of this part, the Rules Counsel derive authority from JAG and, as detailed in this part, have “by direction” authority. The Rules Counsel shall cause opinions issued by the Professional Responsibility Committee of general interest to the DoN legal community to be published in summarized, non-personal form in suitable publications. Unless another officer is appointed by JAG to act in individual cases, the following officers shall act as Rules Counsel:

(a) The SJA to CMC, for cases involving Marine Corps judge advocates, or civil service and contracted civilian attorneys who perform legal services under his cognizance;

(b) Assistant Judge Advocate General, Chief Judge, DoN (AJAG-CJ) for cases involving Navy and Marine Corps trial and appellate judges; and

(c) AJAG (Civil Law), in all other cases.

§776.10   Informal ethics advice.

(a) Advisors. Covered attorneys may seek informal ethics advice either from the officers named below or from supervisory attorneys in the field. Within the Office of the Judge Advocate General (OJAG) and the Office of the SJA to CMC, the following officials are designated to respond, either orally or in writing, to informal inquiries concerning this rule in the areas of practice indicated:

(1) Director, Criminal Law Division (OJAG Code 20): Military justice matters;

(2) Director, Trial Counsel Assistance Program (TCAP): Trial counsel matters;

(3) Director, Defense Counsel Assistance Program (DCAP): Defense counsel matters;

(4) Director, Legal Assistance Division (OJAG Code 16): Legal assistance matters;

(5) The DSJA to CMC and Head, Research and Civil Law Branch (JAR), Judge Advocate (JA) Division, Headquarters United States Marine Corps (HQMC): Cases involving Marine Corps judge advocates, or civil service and contracted civilian attorneys who perform legal services under the cognizance and supervision of SJA to CMC;

(6) Deputy Chief Judge, Navy-Marine Corps Trial Judiciary: Judicial matters; and

(7) Professional Responsibility Coordinator, Administrative Law Division (OJAG Code 13): All other matters.

(b) Limitation. Informal ethics advice will not normally be provided by JAG/HQMC advisors concerning professional responsibility matters that are then the subject of litigation.

(c) Written advice. A request for informal advice does not relieve the requester of the obligation to comply with subpart B of this part. Although covered attorneys are encouraged to seek advice when in doubt as to their responsibilities, they remain personally accountable for their professional conduct. If, however, an attorney receives written advice on an ethical matter after full disclosure of all relevant facts and reasonably relies on such advice, no adverse action under this part will be taken against the attorney. Written advice may be sought from either a supervisory attorney or the appropriate advisor in paragraph (a) of this section. The JAG is not bound by unwritten advice or by advice provided by personnel who are not supervisory attorneys or advisors. See §§776.8(b)(3) and 776.54(c) of this part.

§776.11   Outside practice of law.

A covered USG attorney's primary professional responsibility is to the client, as defined by §776.4 of this part, and he or she is expected to ensure that representation of such client is free from conflicts of interest and otherwise conforms to the requirements of Subpart B of this part and other regulations concerning the provision of legal services within the DoN. The outside practice of law, therefore, must be carefully monitored. Covered USG attorneys who wish to engage in the outside practice of law, including while on terminal leave, must first obtain permission from the JAG. Failure to obtain permission before engaging in the outside practice of law may subject the covered USG attorney to administrative or disciplinary action, including professional sanctions administered per subpart C of this part. Further details are contained in §776.57 and subpart D of this part.

§776.12   Maintenance of files.

Pursuant to SECNAVINST 5211.5 (series) and SECNAVINST 5212.5 (series) ethics complaint records and outside practice of law request files shall be maintained by the Office of the Chief Judge, DoN (Code 05) for judicial conduct matters; the Research and Civil Law Branch, JA Division, HQMC (JAR) for Marine matters; and the Office of the JAG, Administrative Law Division (Code 13) for all other matters.

(a) Requests for access to such records should be referred to the Office of the Chief Judge, Washington Navy Yard, 1254 Charles Morris Street SE., Suite 320 Washington, DC, 20374-5124; Deputy Assistant Judge Advocate General (Administrative Law), Office of the Judge Advocate General (Code 13), 1322 Patterson Avenue SE Suite 3000, Washington Navy Yard, DC, 20374-5066; or to Head, Research and Civil Law Branch, Office of the Staff Judge Advocate to the Commandant of the Marine Corps, Headquarters United States Marine Corps, 3000 Marine Corps Pentagon (Room 4D556), Washington DC, 20350-3000, as appropriate.

(b) Local command files regarding professional responsibility complaints will not be maintained. Commanding officers and other supervisory attorneys may, however, maintain personal files but must not share their contents with others.

(c) All records maintained under this part shall be maintained in accordance with the following procedures established by JAGINST 5801.2 (series) and DON Privacy Act Notice N05813-1:

(1) Records shall be maintained for a minimum of two years;

(2) Records shall be maintained for as long as an attorney remains subject to JAG-imposed limitations on practice; and

(3) Records pertaining to unsubstantiated complaints, or to attorneys who are no longer subject to limitation on practice, shall be destroyed after 10 years.

§§776.13-776.17   [Reserved]

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