Robert E. BECKLEY, Sergeant
U.S. Army, Appellant
Crim. App. No. 9701282
United States Court of Appeals for the Armed Forces
Argued October 4, 2000
Decided May 18, 2001
BAKER, J., delivered the opinion of the
Court, in which CRAWFORD, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ.,
joined. SULLIVAN, J., filed a concurring opinion.
For Appellant: Major Jonathan F. Potter (argued); Colonel Adele H. Odegard(on brief); Lieutenant Colonel David A. Mayfield and Major Scott R. Morris.
For Appellee: Captain Karen J. Borgerding (argued); Lieutenant Colonel Edith M. Rob and Major Anthony P. Nicastro (on brief) ; Major Patricia A. Ham.
Military Judges: Larry S. Merck, Richard J.
Hough, and Keith H. Hodges
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
Judge BAKER delivered the opinion of the Court.
On December 19, 1996, and February 4, March 5-6, July 16, and August 4-5, 1997, appellant was tried at Fort Bliss, Texas, by a general court-martial composed of officer and enlisted members. Appellant was convicted, pursuant to his pleas, of attempted escape from custody, attempted disobedience of a lawful command, false official statement, and assault with a dangerous weapon, in violation of Articles 80, 107, and 128, Uniform Code of Military Justice (UCMJ), 10 USC §§ 880, 907, and 928, respectively. The members sentenced appellant to a bad-conduct discharge, confinement for 3 years, total forfeitures, and reduction to Private E-1. The convening authority approved the sentence and awarded appellant 343 days of pretrial confinement credit towards his sentence to confinement. The Court of Criminal Appeals affirmed in an unpublished opinion.
We granted review of the following issue:
As noted by the court below, the genesis of the initial charges against appellant, both those ultimately dismissed and those to which appellant pled guilty, is as follows:
The following evening, 28 August 1996, appellant returned to his quarters to check up on his wife. During this time period, a fire of suspicious origin caused substantial damage to the quarters. Both appellant and Mrs. Beckley were questioned as suspects by a Criminal Investigation Command [CID] agent. Mrs. Beckley claimed to have been in a hotel room with a male friend at the time of the fire. Initially, appellant falsely claimed not to have been at the quarters at all on the evening of the fire. He later admitted that he had been there, but denied causing the fire. This change of story caused appellant to become the prime suspect for the arson.
On 29 August 1996, appellant was ordered by his company commander not to contact Mrs. Beckley. On the early morning of 30 August 1996, appellant attempted to see his wife, but she refused to come to the door and instead called the military police (MP). Appellant was apprehended and transported to the MP station. While there, appellant attempted to escape and in a struggle with an MP, appellant managed to unholster the MPís pistol, causing a round to be chambered. Other MPs assisted in subduing appellant and placing him in the detention cell.
On December 19, 1996, at trial, and during the first Article 39(a) session, appellant was represented by Captain (CPT) Joel Novak, detailed military defense counsel, and Mr. Frank Hart, civilian defense counsel. The detailed military judge was Colonel (COL) Larry Merck. At the next Article 39(a) session, on February 4, 1997, Mr. Joseph Lucas replaced Mr. Frank Hart as civilian defense counsel. Mr. Lucas stated on the record that he was licensed by the State of Texas. At the Article 39(a) session on March 5, 1997, the detailed military judge was COL Keith Hodges. At trial, appellant was represented by CPT Joel Novak, detailed military defense counsel, and Mr. Jim Darnell and Mr. Jim Maus, civilian defense counsel.
February 4, 1997, Article 39(a) Session
On January 31, 1997, the prosecution moved the court to order Mr. Lucas to show cause why he should not withdraw from representing appellant because the Lucas firm previously represented Mrs. Beckley. Specifically, in November of 1996, Mrs. Beckley, appellantís then-wife, retained Ms. Herron, an attorney and a salaried employee of Mr. Lucas in Mr. Lucasí law firm, to represent her in a divorce proceeding against her husband. Later, probably January 16, 1997, appellant retained Mr. Lucas to represent him. Upon learning that the firm represented both Mrs. Beckley and appellant, and in spite of the fact that Mrs. Beckley hired the Lucas firm first, the firm returned part of Mrs. Beckleyís money to her and informed her that they could no longer represent her. Ms. Herron and Mrs. Beckley testified to these facts during an Article 39 (a) on February 4, 1997. Additionally, Mrs. Beckley testified that she did not wish to waive the conflict of interest she had with the Lucas firm.
In response to the Governmentís motion, the military judge made the following findings:
(2) Property contained in those quarters belonging to Mrs. Beckley were [sic] burned. The quarters were the Beckley quarters.
MJ: Several of the charges also involved offenses alleging that Sergeant Beckley refused to obey orders to stay away from his wife, Mrs. Beckley. Mrs. Beckley will be a witness in this case and she is an interested person in this case. On the 25th of November, Mrs. Beckley paid $300.00 to the Lucas Law Firm. She went in to hire an attorney to represent her in a divorce proceeding against her husband. At that time she talked to Ms. Herron, who was an associate or a salaried employee of Mr. Lucasí. Ms. Herron talked with her about what Mrs. Beckley wanted to have done. They discussed confidential matters, to include the marital status and the marital situation for Mrs. Beckley, the fire, and other matters concerning the divorce proceeding and maintenance and also child custody. This is confidential material. On the 13th of December, Ms. Herron, or a member of the Lucas Law Firm filed a divorce petition with the 383rd Judicial Circuit. On approximately the 28th of December, or thereafter, Sergeant Beckleyís family contacted Mr. Lucas or Mr. Lucasí firm, seeking to have him represent their son, Sergeant Beckley, the accused soldier in this case. Sometime, approximately after the 7th of January, after Mr. Hart had been contacted, Mr. Hart being the former attorney, and advised that he was no longer needed on the case, Mr. Lucas began talking with Sergeant Beckley concerning his case. Sometime around the 15th or 16th of January, Mr. Lucas was actually retained by Sergeant Beckley. On the 7th of January, Ms. Herron discovered that there apparently was a conflict brewing in the situation in that she was representing Mrs. Beckley and apparently Mr. Lucas was representing Sergeant Beckley. On that date Ms. Herron talked to Mr. Lucas and advised him of her concerns. Mr. Lucas said, "Donít talk to me about anything. Have Mrs. Beckley come to see you, you cannot represent her, and have her come in and explain that to her." Sometime around the 17th of January, Mrs. Beckley was advised by the law firm of the conflict and that they could no longer represent her; that she should come and sign a waiver. Mrs. Beckley did not consent to this withdrawal, and did not agree to any waiver, and she has not agreed to any waiver to this point.
MJ: Now, the court finds that this situation was innocently entered into. That there was nothing intentional by either party, Ms. Herron or Mr. Lucas with regard to this apparent conflict.
MJ: The court makes the following additional findings:
At this point, the military judge stated: "The government asked me to take Mr. Lucas off the case. Iím not going to do that." He then explained to appellant the possible implications of this decision. He explained that Mr. Lucas may not be able to cross-examine appellantís wife if she was called to testify, to conduct voir dire on anything dealing with his wifeís testimony, to present evidence that would discredit appellantís wife or impeach her testimony, and to argue in opening and closing statements "any matters that have been presented concerning" appellantís wife.
March 5, 1997 Article 39(a) Session
On February 22, 1997, Mr. Lucas submitted a Motion for Withdrawal. In the motion, Mr. Lucas stated that at the time of the February 4, 1997, Article 39(a) session, there was "no conflict between counsel and governmentís witnesses in this case." He also stated that "[a]fter a thorough investigation of this case, a conflict appears to exist and requires counsel to withdraw." As support for the motion, Mr. Lucas attached the State of Texas Bar Rule 1.06. Mr. Lucas also referenced Army Regulation (AR) 27-26, Rules 1.6 through 1.9. These rules provide guidance to a lawyer or the lawyerís firm concerning conflicts of interest that arise in representing clients that are opposing parties to the same litigation.
The motion was considered by COL Keith H. Hodges, who was the new military judge detailed to the court-martial. Mr. Lucas stated, on the record, his reasons for withdrawing.
Second, that caused Mr. Lucas "great concern." As a result, the next day he spoke with a State Bar representative and explained the problem to him. At that time, the representative said, "I donít see any problem unless something comes up that, in the future, that would cause something adverse to Mrs. Beckley."
Third, approximately 10 days later, after obtaining the CID file and further investigating the case, information was obtained that Mrs. Beckleyís car may have been seen in the area at the time of the fire. Mr. Lucas thought the information was adverse to Mrs. Beckley.
Fourth, even though Mr. Lucas never spoke to Ms. Herron about her representation of Mrs. Beckley, after discovering the adverse information, Mr. Lucas again contacted the State Bar representative. He was advised that adverse information would bar him from representing appellant.
Fifth, based on this advice, Mr. Lucas concluded that he had a conflict or an appearance of conflict under Texas Rule 1.6.
Sixth, after stating his reasons for withdrawing from his representation of appellant, Mr. Lucas also stated that the "prosecution and command" have "done everything in the world to discredit me." He referred to an ethics class given by the command on February 28, 1997, in which Ms. Herron, Mr. Lucas, appellant, and Mrs. Beckley were mentioned by name in a handout. The handout discussed the ethical implications of Mr. Lucas and his firm representing appellant and Mrs. Beckley.
Although Mr. Lucas stated on the record that he was withdrawing because of a conflict discovered after the first Article 39(a) session, the military judge continued to question Mr. Lucas about what impact MAJ Meredithís threat to report him to his bar association and the ethics class had on his decision to withdraw from representing appellant. The following exchange took place:
CDC: Yes, sir.
MJ: Do you believe that what Colonel Holland or Major Meredith purportedly did is relevant to my determination of whether or not you should withdraw:
CDC: I would like to answer that like it is relevant to my thinking of everything that has happened in this case, but to your decision, no.
MJ: I donít understand the distinction.
CDC: Well, Your Honor, - - - -.
MJ: See, what youíre saying is, itís not relevant, but on the other hand you left the door open which says, "I feel, I, Mr. Lucas, feel intimidated and threatened and Iím afraid to continue to represent Sergeant Beckley because I donít know what they will do to me," and therefore depriving Sergeant Beckley of his choice of lawyers.
CDC: I understand the predicament youíre in, Your Honor. No matter what happens, because of the information that was received by me, after a careful investigation of this case, I have to get out, period. I think Iíve said that three or four times. And thatís not even a question. But I also think, and as I understand, after rehashing all of the ethical rules, I think that when something happens that should not happen, I have a duty to report it to the court.
MJ: You got it.
CDC: And thatís why I did not.
MJ: What Iím saying is, do you waive, as much as you can waive, given your current situation, ---you fulfilled your duty to report it to the court and Iíll see that further action is taken in terms of the ethics rules. My question to you is, is the fact that you were threatened and what they might to [sic] do to you or your reputation or cause you expense or time or effort, is that a factor in your withdrawing?
CDC: No, Your Honor, it canít be because I would have to withdraw any way [sic]. It cannot be, because no matter what would happen, and I explained that to Sergeant Beckley, not [sic] matter what happens, because of the information that we gathered I had no choice.
After this exchange took place, the military judge reviewed the final paragraph of Mr. Lucasí Brief in Support of Motion to Withdraw, and called it an "appellate hand grenade." Because of this concern, the military judge revisited Mr. Lucasí reasons for withdrawing, as follows:
CDC: That is correct.
MJ: That tells me, that because they have consistently threatened and humiliated you, they left you no choice but to withdraw from the case.
CDC: I have no choice but to withdraw from the case, and maybe thatís a bit strong.
MJ: Because of the threats or because of the conflict?
CDC: Because of the conflict. Your Honor, had they told us what the conflict was the day that they said I had a conflict, which they did [sic], we wouldnít be here today.
CDC: Yes, Your Honor. When you were questioning me, you asked me about, you know, the final decision. The final decision was this conflict that came into being. But I donít want to mislead the court. The day after the threat I told Sergeant Beckley and Captain Novak that I might have to get off, and I do want to represent to this court that that did worry me and it was a lot of my concern, but the crowning blow was the conflict, and I donít want to minimize the effect that the threats and the rest of the thing affected me.
MJ: Well, weíre back to where we were. Youíve described the subsequent information to be the crowning blow as in the straw that breaks the camelís back.
CDC: Yes, sir.
MJ: Okay. And thatís different than- - -itís a different position than without the threats you still would have had [sic] removed yourself?
CDC: No, it is not, Your Honor. It is not. Iím not trying to say that at all. What Iím saying is, is that this final thing I probably would have had to go off any way.
MJ: Well, thatís different too. Probably would have had [sic] gone off. See, hereís my dilemma. My dilemma is, do I need to have a fact finding situation concerning the threats that were made. If the threats that were made is [sic] contributing factor to your getting off the case, then I have to do something different than what I plan on doing. If, however, the threats are immaterial to your having to get off the case, if you would have to get off the case any way [sic], then I donít need to go into the threats.
CDC: Your Honor, I believe that I would have to get off the case any way [sic] and I donít have a problem with that.
MJ: How sure are you?
CDC: Very sure.
MJ: Well, would you say no doubt?
CDC: There may have been a way around it, but I donít know if that would have materialized or not.
MJ: So then, I have no choice but to conclude then that you might still be staying on the case if the threats werenít made?
CDC: The chance of that is very remote. There could be a possibility of that. Thereís always a possibility of things.
MJ: So what do I do?
CDC: Pardon me?
MJ: So what do I do? So if I got Major Meredith relieved and I got Colonel Holland relieved and shipped away from Fort Bliss would you stay on this case?
CDC: Because Iíve determined that thereís a conflict that is adverse to Mrs. Beckley.
March 6, 1997, Article 39(a) Session
Notwithstanding this exchange, after recessing for the evening, the next morning the military judge expressed his intention to hold an evidentiary hearing into the allegations expressed in the concluding paragraph of Mr. Lucasí Brief in Support of Motion to Withdraw. Col Holland, MAJ Meredith, CPT Novak, and Mr. Lucas all testified. At the conclusion of the testimony, the military judge adopted the findings of fact made by the first military judge at the first Article 39(a) session and made the following additional findings of fact:
I find that Colonel Holland was the prime mover, that is, the one pushing on the motion to have Mr. Lucas withdraw. I find that his reasoning for doing so was motivated by legitimate ethical concerns and Colonel Holland was correct, a conflict existed. It still exists with respect to Mrs. Beckley Ė no matter Mr. Lucasí choice in whether to stay on the case. I find that but for Colonel Hollandís legitimate concern, the government, that is the prosecutors, would not have sought to have Mr. Lucas removed on the conflict issue. Further, I find that the government generally, and Major Meredith specifically, had no reason or desire to have Mr. Lucas leave the case, but for the conflict issue. The theories offered on that point is [sic] utterly without merit.
Colonel Holland did send Major Meredith with the mission of informing Mr. Lucas that no matter what Mr. Lucasí involvement on the Beckley case, that Colonel Holland or someone else under his name was going to file a grievance against Mr. Lucas. That position is fully supported by the facts; not only before Colonel Hough, but even more so [sic] clearly before this court during these last two sessions. Whatever words that Major Meredith used, I canít say what he said, because he doesnít recall, but itís certainly a reasonable interpretation by Mr. Lucas that Mr. Lucas believed that he was being told that if he remained on the case, a grievance would be filed. Why Mr. Lucas did not bring this to the attention of the court right then and there, instead of waiting a month, tells me that Mr. Lucas didnít believe him Ė in the sense that he wasnít intimidated. He "blew off" Major Meredith and this threat was not a concern to him.
I find that the ethics class was planned in advance of the prior motions session and was to be an ethics class. I find that the class would have been given whether the conflict matter had been litigated or not. Unbeknownst to Colonel Holland in advance, the matters in Appellate Exhibit XXXI-A were used for the instruction. The only things in that class that had anything to do with the conflicts motions were motions filed by both parties and a recitation of the facts. Curiously though, the defense complains about these documents being provided to the students. There is nothing meaningful or substantial in these documents that are [sic] untrue. In other words, while the defense didnít like being the subject of the class, there is no evidence that the handouts or the discussion was [sic] derogatory, inflammatory or humiliating. It was a real-life discussion of a real-life situation. That no one thought to pursue this matter until Colonel Holland got involved is a good reason that this was a topic that needed to be taught. Captain Novak, who is co-counsel in this case, was present and did not object to the class and, in fact, remained. Wisely, he did not participate in the discussion on that matter. Looking back, I think it would have been wiser to wait teaching that instruction until after the Beckley trial was had, however, it was not unlawful or improper to do so. It was a legitimate topic for a class. It was needed and there was no evil intent of [sic] having discussed it.
A question has been asked, "Why were names omitted from one scenario but included in another?" I adopt Colonel Hollandís explanation. I find as a fact that one was a matter still under litigation, that is the Love Notes, whereas the other matter was something that had been litigated publicly and in a public trial. I find that the motive, reason and intent of conveying the information to Mr. Lucas by Major Meredith was to appraise [sic] him of something that he did not appreciate then, but admits to appreciating now and that is that he should not be on this case, because of the conflict between Sergeant and Mrs. Beckley. He also should not be Mrs. Beckleyís lawyer.
Colonel Hollandís concern was a legitimate one and one that was kind and fair to tell Mr. Lucas about in advance that Colonel Holland believed Mr. Lucas had a serious ethical dilemma. It was also something that Sergeant Beckley needed to know to assist in his choice. As evidenced by the fact that we are now in the first half of the month of March, and that means that thereís been a delay in your pretrial confinement. . . .It was also the courteous and professional thing to do, to see that he was informed Ė to advise an attorney that you believe you had to make an ethical complaint. If the complaint were made later, a motive in making the complaint would also have been suspect. Also, the government was well within their rights in this case to end what they saw as a serious appellate issue of a Constitutional dimension. Much has been suggested about the professional disagreements between Mr. Lucas and Major Meredith. All thatís worth noting is that they disagree and do not necessarily hold each other at high stand [sic].
I find that the motion to withdraw is not based upon a genuine fear or a genuine belief that the government wanted Mr. Lucas off for strategic or tactical trial advantage. Those are all the findings that I have.
As noted by the military judge in his findings of fact, questions about the prosecutionís personal and professional animosity toward Mr. Lucas were raised by Mr. Lucas as a motive for them to get him off the case. During his testimony, MAJ Meredith stated several times that he regarded Mr. Lucas as a lawyer who "fights dirty." Nevertheless, when asked by the prosecution about his motive in telling Mr. Lucas of COL Hollandís intention to file an ethics complaint, MAJ Meredith testified:
* * *
Well, why would I Ė Look it, Mr. Lucas, in spite of the fact that Iíve said he fights dirty and all that, in another sense, I consider him a friend. Iíve talked with him many times. Heís very vigorous. I think that he does well for his clients. Why would I want another guy to be getting in trouble over ethics stuff? I wouldnít mind beating him in court, but I donít want him to be getting into trouble over ethics business.
As we recently discussed in United States v. Spriggs, 52 MJ 235, 237-38 (2000):
In Wheat v. United States, 486 U.S. 153 (1988), a case involving the joint representation of codefendants, the Supreme Court held that the right to counsel is not absolute. It said:
In the military the right to counsel, likewise, is not absolute. RCM 506(c), which implements Articles 27 and 38, provides that defense counsel may be excused "with the express consent of the accused, or by the military judge upon application for withdrawal by the defense counsel for good cause shown."
This is not a case where we must labor to define the parameters of "good cause." Here, "good cause" is provided by the ethical standards of the legal profession, in particular, Texas State Bar Rule 1.06(b), which prohibits representing a person "if the representation of that person . . . involves a substantially related matter in which that personís interests are materially and directly adverse to the interests of another client of the lawyer or the lawyerís firm." Rule 1.06(c) permits representation that would otherwise be prohibited by Rule 1.06(b) if "the lawyer reasonably believes the representation of each client will not be materially affected; and each affected or potentially affected client consents" after full disclosure of the facts and circumstances. (Emphasis added.)
Similarly, Rule 1.7 of AR 27-26 (1 May 1992), provides that "[a] lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless. . .each client consents after consultation." (Emphasis added.) Rule 8.3 also requires an Army lawyer to report an ethical violation by "another lawyer."
Whether appellantís and Mrs. Beckleyís interests were directly adverse from the moment the Lucas firm agreed to represent appellant or became directly adverse upon the later discovery of information adverse to Mrs. Beckley, it is very clear from Mrs. Beckleyís testimony at the February 4, 1997, Article 39(a) session that she refused to consent to Mr. Lucasí or his firmís representation of appellant. At no time did Mr. Lucas indicate at any point during trial that Mrs. Beckley had changed her mind concerning the matter of representation. The only consent indicated on the record was appellantís. However, both the Texas and the Army Rules are clear that consent of both affected parties is required.
As the Supreme Court noted in Wheat:
The Court went on to review anew why the right to counsel does not override the broader societal interests in the effective administration of justice. It stated:
In applying Wheat to this case, where only one of the parties waived the conflict of interest,2 we have no problem holding that neither the Staff Judge Advocateís office nor the trial court violated the Sixth Amendment or Articles 27 and 38 by infringing on appellantís choice of counsel.
Mr. Lucas' allegations regarding the conduct of the Staff Judge Advocate's office does not change our analysis in this case. The military judge concluded after extensive litigation that the Staff Judge Advocate had a legitimate concern about Mr. Lucas' ethical dilemma, and that it was an exercise of professionalism to so inform Mr. Lucas before reporting him to the bar association. Further, the military judge made repeated and commendable efforts to probe the nature and reasons for Mr. Lucas' withdrawal and to ensure that it was not the product of government overreaching. Mr. Lucas repeatedly stated on the record that he had to withdraw because of a conflict of interest, not because of what he characterized as harassment and intimidation by the Office of the Staff Judge Advocate. The military judge had every right to take this officer of the court at his word.
This is not to say that the actions of the Office of the Staff Judge Advocate were not correctly perceived as heavy-handed. The actions of the Office of the Staff Judge Advocate may have been more than circumstances required, and rather than avoiding an appellate issue, these actions became part and parcel of the appeal. Nevertheless, they were not the cause for Mr. Lucasí withdrawal. Mr. Lucas had an actual conflict of interest for which he was required to withdraw.
The decision of the United States Army Court of Criminal Appeals is affirmed.
1 The issue raised at the lower court was:
SULLIVAN, Judge (concurring):
Justice Brandeis said: "Sunlight is said to be the best of disinfectants." * Accordingly, I am obliged to draw attention to certain facts in this case. Although I join in affirming this case, I am troubled with the Staff Judge Advocateís conduct. Under the Rules for Courts-Martial, only an accused or the military judge may excuse the defense counsel after formation of the attorney-client relationship. See RCM 505(d)(2)(B) & 506(c), Manual for Courts-Martial, United States (1995 ed.). Here, trial counsel made a motion pursuant to RCM 505(d)(2)(B)(iii) and 905 to have defense counsel show cause why he should not withdraw. Cf. United States v. Iverson, 5 MJ 440, 442-3 (CMA 1978)("Absent a truly extraordinary circumstance rendering virtually impossible the continuation of the established relationship, only the accused may terminate the existing affiliation with his trial defense counsel prior to the case reaching the appellate level.") (footnotes omitted). The military judge, however, refused to order defense counsel to withdraw.
Notwithstanding the judgeís ruling, the Staff Judge Advocate acted outside the courtroom and took actions that may have resulted in the defense counsel terminating his relationship with his client. The Staff Judge Advocate instructed MAJ M., his Chief of Criminal Law, to inform Mr. Lucas, appellantís civilian defense counsel, that someone from the Office of the Staff Judge Advocate would file an ethics complaint against him. Record at 222. Moreover, in the midst of appellantís trial, the Command gave an ethics class based on the facts of appellantís case which appellantís military defense counsel attended. Record at 223-24. In my view, these actions are clearly not consistent with the spirit of the above Rules for Courts-Martial, but I vote nevertheless to affirm since such errors were clearly harmless in this case. Art. 59(a), UCMJ, 10 USC § 859(a). The judge must run the courtroom, not the Staff Judge Advocate.
* Louis D. Brandeis, Other Peopleís Money 92 (1932).