MILITARY JUSTICE PERSONNEL: Defense Function: Individual Military Counsel                    


2010 (September Term)

United States v. Hutchins, 69 M.J. 282 (by statute, the accused may request representation by individual military counsel of the accused’s own selection, subject to the availability of such counsel under applicable statutory and regulatory standards).  


2000

United States v. Spriggs, 52 MJ 235 (case contains detailed discussion of the right to individual military counsel, including:  the source of the right; standards and limitations applicable to requests for individual military counsel; assessing claimed prior attorney-client relationships and the limitations on severing such relationships; and burdens applicable to requests for individual military counsel and motions for individual military counsel).

(in support of motion for individual military counsel, accused failed to establish an attorney-client relationship that would be protected under the “good cause” limitations on severance where:  (1) the record did not demonstrate that attorney agreed to enter an attorney-client relationship with accused; (2) accused’s responses to the military judge revealed that accused understood that there was no agreement to enter into an attorney-client relationship; and, (3) the record did not reveal that the attorney engaged in any substantive activity for accused beyond discussing some of the pending charges and the possibility of representation).

(if a civilian attorney happens to be a reservist, that person’s availability as individual military counsel must be determined on the basis of activities undertaken in his or her military status, not on the basis of attorney-client relationships developed in civilian practice).

(record contained ample basis for denying individual military counsel request under the good-cause standard where:  (1) the judge advocate was routinely separated from active duty; (2) the attorney did not agree to represent the accused in his civilian capacity or in his capacity as a reservist; (3) a 15-day involuntary call to active duty would have been inadequate time for the attorney to investigate, prepare, and try a general court-martial; (4) the accused failed to show that an attorney-client relationship was established in the context of the attorney’s military assignment; and, (5) the accused failed to show that the attorney accomplished substantial trial preparation while in his military assignment).

(absent government misconduct, the routine separation of a judge advocate from active duty normally terminates any attorney-client relationship established on the basis of the attorney’s military status, except when:  (1) the attorney agrees to represent the client in his or her civilian capacity; or (2) the attorney enters the reserves and is ordered to represent the client to the extent permitted by applicable law based upon a determination by the appropriate official of reasonable availability).



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