GIERKE, J., delivered the opinion of the Court, in which COX, C.J., and CRAWFORD, J., joined. SULLIVAN and EFFRON, JJ., filed dissenting opinions.

For Appellant: Colonel John T. Phelps, II (argued);, Lieutenant Colonel Adele H. Odegard, Major Leslie A. Nepper, and Captain John C. Einstman (on brief).

For Appellee: Captain Kelly R. Bailey (argued); Lieutenant Colonel Eugene R. Milhizer (on brief); Captain Mary E. Braisted.

Military Judge: Robert F. Holland
 

A special court-martial composed of officer and enlisted members convicted appellant, contrary to her pleas, of willfully disobeying a lawful command from a superior commissioned officer and communicating a threat, in violation of Articles 90 and 134, Uniform Code of Military Justice, 10 USC §§ 890 and 934, respectively. The order in question was a "no contact" order, prohibiting appellant from having contact with the estranged wife of Corporal (CPL) B and her children. Appellant had admitted that she was involved in a romantic relationship with CPL B and was pregnant with his child. However, because the lawfulness of the order was stipulated, evidence of this admission was not disclosed to the members.

The adjudged and approved sentence provides for a bad-conduct discharge, confinement and partial forfeiture of pay for 6 months, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.

This Court remanded the case for further factfinding and a determination whether appellant was represented at trial by conflict-free counsel. 49 MJ 158 (1998). The Court of Criminal Appeals obtained an affidavit from appellant, asserting that she disobeyed the no-contact order because a civilian lawyer, who also represented her at this special court-martial, "advised [her] not to obey the order because it was bias [sic] and vague," and because CPL [B] "was never given the opportunity to rebute [sic] the order."

The Court of Criminal Appeals did not obtain an affidavit from the civilian lawyer. Therefore, there is no conflict of affidavits to be resolved. See generally United States v. Ginn, 47 MJ 236 (1997).

Upon further review, the Court of Criminal Appeals rejected appellant’s claim of ineffective representation. The court’s reasoning was as follows:

This Court granted review of the conflict-of-interest issue.¹ Appellant argues that, in order for her civilian lawyer to effectively represent her, he would have had to raise the defense of mistake due to erroneous pre-trial legal advice, thereby admitting his incompetence. Final Brief at 4. Thus, appellant argues that the lawyer had an actual conflict of interest, id. at 7, because he could not effectively defend appellant and defend the propriety of his own conduct at the same time. For the reasons set out below, we disagree.

The order in question was given to appellant in writing by her commander, Captain (CPT) Gervais. It includes the following directive language:

CPT Gervais testified that she gave the order on February 22, 1995, at 1:15 p.m. She testified that appellant disobeyed it within 40 minutes after it was given. A "General Counseling Form" reflects that CPT Gervais received a telephone call from Mrs. B, complaining that while she was talking to CPL B on the telephone, appellant called her vulgar names. Appellant signed the form, indicating that she concurred in the accuracy of the information on it.

CPT Gervais counseled appellant about the order again on April 11, 1995. On this date, Mrs. B called CPT Gervais and complained that CPL B and their son "were residing" with appellant. Appellant declined to concur in the accuracy of the counseling form. She wrote, "I nonconcur do [sic] to the grounds that I was advised by my civilian attorney that the command order was bias [sic] and that CPL [B] has every right to have his child in any visinity [sic] he deems proper, due to the grounds that coustady [sic] has not been determined by a court of law."

The theory of the prosecution was that appellant disobeyed the order by being in Mrs. B’s house and the yard. The theory of the defense was that appellant attended a barbecue at a house approximately 1000 feet from Mrs. B’s house, parked her car 300-400 feet from Mrs. B’s house, and was never "near" the house or Mrs. B. Appellant testified that she did not disobey the order and that she was never in the house or the yard, and she supported her testimony with corroborating witnesses. The prosecution produced testimony that appellant and CPL B were seen in the house and the yard.

When an alleged conflict of interest is at issue, "a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980), quoted in United States v. Breese, 11 MJ 17, 20 (CMA 1981). The burden of proof is on the defense. United States v. Calhoun, 49 MJ 485, 489 (1998), citing Strickland v. Washington, 466 U.S. 668, 687 (1984).

An allegation of ineffective representation presents a mixed question of law and fact, which we review de novo. United States v. Smith, 44 MJ 459, 460 (1996).

Appellant voluntarily stipulated that the order was given and that it was lawful. She does not assert, and the record does not show, that this stipulation was the product of any concern by her civilian attorney for protecting himself from an accusation of giving bad advice.

Although defense counsel criticized the order for vagueness in both his opening statement and closing argument, the focus of his criticism was on the term "near." Appellant’s complaints about the vagueness of the order before and after trial concerned the question how "near" to Mrs. B she could be without violating the order. Appellant’s complaint at her second counseling session was about applicability of the order to contact with CPL B’s son. At no time before, during, or after trial has appellant contended that she thought that being in Mrs. B’s house or yard would not violate the order.

The factual contest at trial was a credibility battle. The pivotal issue was not the legality of the order; it was whether appellant was at Mrs. B’s house. The Government witnesses said appellant was in Mrs. B’s house and the yard. Appellant and her witnesses said that she was never closer than 300 feet from Mrs. B’s residence. There was no issue whether 300 feet from the house was near enough to violate the order. Thus, defense counsel had no actual conflict of interest.

The court below found that appellant was effectively and vigorously defended. We agree.

The decision of the United States Army Court of Criminal Appeals on remand is affirmed.

FOOTNOTE:

¹ The granted issue is:

WHETHER APPELLANT WAS DENIED HER SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE OF THE CONFLICT OF INTEREST RAISED BY HER CIVILIAN DEFENSE COUNSEL’S REPRESENTATION AT COURT-MARTIAL WHEN HIS ERRONEOUS LEGAL ADVICE REGARDING THE LAWFULNESS OF APPELLANT’S COMMANDER’S ORDER LED TO ONE OF THE CHARGES AGAINST HER.
 
 

SULLIVAN, Judge (dissenting):

When I review the facts of this case, I think of this core idea expressed by Oliver Wendell Holmes, Jr.:

In the trial record and in an unopposed affidavit filed during this long appeal, there is evidence that

1. PFC Hicks, as a result of a domestic dispute, was given an order by a superior officer "not to go near" Mrs. B’s residence.

2. After receiving this order, Hicks received advice from a civilian attorney [Mr. Hansrote] that she didn’t have to follow "the order, because it was bias [sic] and vague."

3. After receiving this legal advice, Hicks apparently violated the order.

4. After this violation of the order, she was court-martialed and convicted of willfully disobeying the order of a superior commissioned officer (as well as communicating a threat).

5. At trial, Hicks was represented by Mr. Hansrote, the very attorney who gave her the legal advice before she disobeyed the order.

Thus, the evidence in this record is that Hicks disobeyed an order only after receiving legal advice that the "company commander did not make the order clear enough to be followed." Unfortunately, the defense attorney did not clear up this unrebutted view of Hicks that she violated the order only after receiving advice from Mr. Hansrote ("After I received this advice I did not follow the order."). I cannot join the majority in affirming appellant’s convictions in these circumstances.

To better illustrate the conflict of interest in this case, it might be helpful to draw an analogy between appellant’s case and a civilian case where criminal charges might result from a client's receiving bad advice from his attorney. See United States v. Poludniak, 657 F.2d 948, 959 (8^th Cir. 1981) (advice of counsel can be considered on question of criminal willfulness), cert. denied sub nom. Weigand v. United States, 455 U.S. 940 (1982). If PFC Tereasa Hicks had received bad tax advice from attorney A before filing her federal income tax and if Hicks had been indicted on federal-income-tax charges as a result of filing a false income-tax return, it would almost be impossible to imagine that attorney A would be allowed to represent Hicks at trial. Para Technologies Trust v. Commissioner, T. C. Memo 1992-575, 64 T. C. M. (CCH) 922 (1992) (see Appendix). See W. LaFave and A. Scott, Substantive Criminal Law, §5.1(e)(4) at 596 n.131. Moreover if attorney B did try this case for Hicks, it is impossible to imagine that attorney B would not put attorney A (who gave the bad tax advice) on the stand as the principal witness for the defense. See United States v. Cancilla, 725 F.2d 867, 870-71 (2^d Cir. 1984).

The majority (like the court below in their unpublished opinion) focus on everything but the conflict-of-interest issue. They conclude:

1. "Defense counsel then informed the military judge that the defense did not ‘intend to challenge the lawfulness of the order.’" ___ MJ at (4).

2. That there "was a credibility battle" at trial on whether the order was violated. Id. at (6).

3. That the civilian defense counsel "effectively and vigorously defended" appellant. Id. at (7).

Yet resolution of these points does not determine the core of the granted issue on "the conflict of interest. . .[arising] when [that defense counsel’s] erroneous legal advice regarding the lawfulness of appellant’s commander’s order led to one of the charges against her." No, defense counsel’s informing the judge that he will not challenge the legality of the order is precisely what a conflicted attorney would do in order to avoid embarrassing himself by revealing to the court that before his client violated the order, he told her the order was not lawful. As for his client's losing the "credibility battle," that is not relevant to whether Hicks' trial attorney had a conflict. With regard to the defense counsel "effectively and vigorously" defending appellant, that is not determinative of whether he had a conflict. The defense counsel is not charged with a lack of vigor but with having a conflict of interest. Neither the trial record nor the majority opinion adequately answer the conflict-of-interest issue.

Here, Mr. Hansrote gave bad legal advice to PFC Hicks before she violated the no-contact order (as the evidence at trial and the unrebutted affidavit of Hicks indicates). He should never have represented Hicks at the trial because the "probity of [his] own conduct" was a "serious question" at this court-martial. ABA Model Rules of Professional Conduct 1.7(b) and Comment to Rule 1.7 (Lawyer's Interests) (1989); see United States v. Sorbera, 43 MJ 818 (A.F. Ct. Crim. App. 1996). If Mr. Hansrote had refused to represent Hicks at trial because of his conflict of interest, another conflict-free attorney most likely would have called Mr. Hansrote as a witness to tell the jury that his advice to Hicks led to her court-martial on the charge of disobeying an order. While I will not make any holding on whether the evidence of the bad legal advice would have saved Hicks from a conviction, since the general rule in the military is that one disobeys orders at one’s peril, I will hold that evidence of the advice that was given to Hicks certainly should have been brought out at the sentencing hearing in extenuation of Hicks’ conduct. See RCM 1001 (c)(1)(A), Manual for Courts-Martial, United States (1995 edition)^*/; para. 216(j), Manual for Courts-Martial, United States 1969 (Revised edition). A conflict-free attorney should have made this key argument at sentencing.

What I think needs to be done in this case is to remand it for a hearing under United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), to resolve this conflict-of-interest issue. See generally United States v. Smith, 36 MJ 455, 457 (CMA 1993). PFC Hicks claims that she was defended at trial by an attorney who advised her not to obey the order that she was found guilty of violating. Clearly, a court-martial based on due process of law demands that a client be represented by an attorney free of such a conflict. See generally United States v. Breeze, 11 MJ 17, 19 (CMA 1981). Let us make sure that PFC Hicks received such representation at this trial. The record before us now does not give us that assurance.

FOOTNOTE:

^*/ This Manual provision is cited to the version applicable at trial. The 1998 version is unchanged.
 
 

EFFRON, Judge (dissenting):

As the majority notes, we previously remanded this case for further factfinding and a determination whether appellant was represented at trial by conflict-free counsel. 49 MJ 158 (1998). Upon remand, the Court of Criminal Appeals obtained an affidavit from appellant who asserted that she was advised by her attorney that the no-contact order -- the order that she was convicted of violating -- was not a lawful order. The court below did not obtain an affidavit from counsel who allegedly provided that advice and then represented appellant at trial.

I agree with the majority that appellant did not claim at trial that she violated the order in reliance upon her attorney's advice that the order was unlawful; rather, she claimed at trial that she did not engage in any activity that violated the no-contact order in the first place. In that context, the potential conflict with her attorney was not as stark as it would have been had she claimed that her behavior was in reliance upon the attorney's advice.

Nonetheless, given the nature of the charge -- willful disobedience of an order -- a potential conflict remained. Appellant was faced with tactical choices at trial, including the options of: (1) not testifying, but attacking the Government's case, e.g., through cross-examination, with a view towards establishing a reasonable doubt; (2) testifying that she was not present at the site and therefore did not violate the order; or (3) adherence to that defense, but also presenting evidence of her attorney's advice for purposes of arguing to the court-martial panel that even if they found her to be present, they should take her attorney's advice into account on the issue of willfulness. Likewise, on sentencing, she was faced with similar tactical choices, in that she could have argued that, having found her to be present in violation of the order, the members should consider the effect of her attorney's advice as a matter in extenuation. RCM 1001(c)(1)(A).

In the absence of an affidavit from appellant's counsel, the court below was in no position to determine what advice appellant's counsel provided prior to the charged misconduct or the impact of that advice upon the tactical decisions at trial. I would remand so that the court below could order the necessary factfinding proceeding to make the appropriate legal determinations. See United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967).