United States v. Hohman, 70 M.J. 98 (RCM 505(d)(2)(B) and 506(c) provide specific options for severance of the attorney-client relationship; among those options, defense counsel may be excused by the military judge upon application for withdrawal by the defense counsel for good cause shown).
(although separation from active duty normally terminates a military attorney’s representation of his client, highly contextual circumstances may warrant an exception from this general guidance in a particular case).
(assignment of a new detailed trial defense counsel was sufficient to remedy the military judge’s procedural error in the severance of the status of the former detailed defense counsel upon his departure from active duty, given the responsibilities of the former counsel in relation to the defense team).
United
States v. Hutchins, 69 M.J. 282 (under the Rules
for Courts-Martial, an
established attorney-client relationship between an accused and defense
counsel
may be severed only under a limited set of circumstances; RCM
505(d)(2)(B) and
506(c), which provide the primary authority for severance of an
attorney-client
relationship, authorize four options; first, the detailing authority
may excuse
detailed defense counsel for good cause shown on the record; good cause
includes physical disability, military exigency, and other
extraordinary
circumstances which render counsel unable to proceed with the
court-martial
within a reasonable time; good cause does not include temporary
inconveniences
which are incident to normal conditions of military life; second,
defense
counsel may be excused with the express consent of the accused; under
the third
option, defense counsel may be excused by the military judge upon
application
for withdrawal by the defense counsel for good cause shown; the fourth
option
permits the detailing authority to excuse detailed defense counsel upon
appointment of individual military defense counsel requested by the
accused
under Article 38(a)(3)(B), UCMJ).
(the first detailed military
assistant defense
counsel did not follow the appropriate procedures with respect to the
termination of his participation in the court-martial prior to his
separation
from active duty; although counsel informed the accused that he would
no longer
serve as his counsel in view of his impending separation from active
duty, he
did not attend the next hearing of the court-martial despite still
being on
active duty; at that hearing, the military judge did not establish, on
the
record, the specific reason for the counsel’s absence, nor did the
military
judge establish on the record the basis under RCM 505 or 506 for
counsel’s
withdrawal from representation of the accused; in addition, none of the
remarks
made at that hearing contained a statement by or on behalf of the
detailing
authority excusing counsel from representing the accused; under the
circumstances of this case, the record of trial did not establish a
valid basis
for the termination of counsel’s participation).
(the first detailed military
assistant defense
counsel’s impending separation from active duty did not, by itself,
establish
good cause for severance of his attorney-client relationship with the
accused;
although separation from active duty
normally
terminates representation, highly contextual circumstances may warrant
an
exception from this general guidance in a particular case; in
any given
case, separation from active duty may amount to a routine personnel
action or
may implicate significant government interests; likewise, cancellation
or
postponement of a separation date, or recall to service in a reserve
status,
may involve routine action or significant interests; similarly,
considerations
pertinent to the role of a particular member of the defense team in a
specific
case may range from routine matters to complex considerations; absent a
record
developed at trial on these matters, the present case does not provide
an
appropriate occasion to set forth in detail the manner in which these
various
considerations should be weighed at trial and on appeal).
(any procedural deficiencies
concerning the
termination and replacement of the first detailed military defense
counsel did
not result in prejudice to the accused under applicable constitutional
and
statutory standards of law; the accused had the assistance of multiple
counsel
throughout the pertinent proceedings; after the assistant detailed
defense
counsel left the defense team, the accused had the assistance of a
replacement
assistant defense counsel detailed prior to trial; also, the military
judge, at
the request of the defense, granted a continuance to facilitate
preparation by
the new member of the defense team; the defense did not thereafter
request
additional time or resources to permit the reconstituted defense team
to
prepare for or conduct proceedings at trial; similarly, the personnel
action
leading to the severance in the present case resulted from a request
initiated
by the assistant defense counsel, not by the prosecution or the
command; in
that context, the case did not involve a violation of the accused’s
Sixth
Amendment right to counsel; also, the case did not involve structural
error;
the errors in this case involved oversights and omissions in addressing
the issue
of severance on the part of defense counsel, senior officials in the
defense
counsel structure, and the military judge; the case did not involve any
decision by the military judge to deny pertinent relief requested by
the
defense, such as a request for additional time or resources for trial
preparation, nor does the case involve a decision by the military judge
to
overrule a related defense objection; likewise, the case involves a
personnel
action initiated by a member of the defense team, and does not involve
governmental action undertaken for the purpose of altering the
composition of
the defense team).
United
States v. Rhoades, 65 M.J. 393 (under RCM
502(d)(4), a person may not serve
as defense counsel if the person is or has been the accuser, an
investigating
officer, a military judge, or a court-martial member, subject to
express waiver
by the accused; in addition, no person who has acted as counsel for a
party may
serve as counsel for an opposing party in the same case; the
disqualifications
listed in RCM 502(d)(4) are not exclusive, and counsel may be
disqualified
based upon otherwise applicable standards of professional
responsibility).