MILITARY JUSTICE PERSONNEL: Defense Function: Civilian Counsel

2019 (October Term)

United States v. Watkins, 80 M.J. 253 (Congress has provided members of the armed forces facing trial by general or special court-martial with counsel rights broader than those available to their civilian counterparts; an accused has the right to detailed military counsel, military counsel of choice if reasonably available and, at his own expense, civilian counsel of choice; appellant’s right to civilian counsel of choice is further protected under RCM 506(c) which states that defense counsel may be excused only with the express consent of the accused, or by the military judge upon application for withdrawal by the defense counsel for good cause shown; nevertheless, this right to civilian counsel of choice is not absolute and must be balanced against society’s interest in the efficient and expeditious administration of justice; a trial court has wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar). 

(when an accused seeks to excuse and replace civilian counsel, he also may implicitly be seeking a continuance in order to procure replacement counsel; a military judge should require the accused to explicitly address this issue on the record; when an accused’s request to release and replace counsel could create the need for a continuance, the factors announced in US v. Miller, 47 MJ 352 (CAAF 1997), can guide the trial court in balancing the accused’s fundamental right to counsel of choice, the efficient and expeditious administration of justice, and the demands of the court’s calendar; principal among these in situations such as this are timing considerations, namely, whether an accused’s request to release counsel requires a continuance and, if so, what the length of such a continuance might be; other factors include surprise, nature of any evidence involved, timeliness of the request, substitute testimony or evidence, availability of witnesses or evidence requested, prejudice to the opponent, whether the moving party has received prior continuances, good faith of the moving party, use of reasonable diligence by the moving party, possible impact on the verdict, and prior notice).   

2010 (September Term)

United States v. Hutchins, 69 M.J. 282 (in addition to military defense counsel furnished at government expense, the accused may be represented by civilian counsel provided by the accused). 

2008 (Transition)

United States v. Rhoades, 65 M.J. 393 (in the military justice system, a person serving as civilian counsel must be a member of the bar of a federal court or of the bar of the highest court of a state; alternatively, a person can serve as defense counsel if otherwise authorized to practice law by a recognized licensing authority and determined to be qualified by the military judge). 


United States v. Beckley, 55 MJ 15 (where appellant’s wife was earlier represented by civilian defense counsel’s law firm in a divorce action against appellant, and where appellant’s wife did not consent to that firm’s subsequent representation of appellant on criminal charges which bore some factual relationship to the divorce action, good cause existed for the withdrawal of civilian defense counsel).

(where only one party waived a conflict of interests issue, neither the staff judge advocate’s office nor the trial court violated the Sixth Amendment or Articles 27 and 38 by infringing on appellant’s choice of specific civilian defense counsel).


United States v. Steele, 53 MJ 274 (neither the Code nor the Manual expressly disqualifies a civilian attorney from representing an accused at courts-martial on the grounds that his or her bar status is designated as “inactive”).

(admission to practice law is the necessary indicia that a level of competence has been achieved and reviewed by a competent licensing authority; this determination is not necessarily eviscerated when sanctions are imposed by a state bar or by changes in counsel’s status where those matters do not demonstrate a negative determination of counsel’s competence).

(civilian counsel’s “inactive” status in his state bar associations did not reflect adversely upon his competence; nor did it reflect any change in the determination of his competence to practice law by any of those state bar associations; thus, the mere fact that appellant’s civilian counsel did not maintain an active status in his licensing states was not a per se disqualifying factor).


United States v. Voorhees, 50 MJ 494 (1999) (counsel was not ineffective for failing to object to qualifications of the convening authority to take post-trial action where the record does not establish that the convening authority was disqualified and counsel may tactically elect to forego possible objection in order to seek further favorable treatment from the convening authority).

United States v. Gray, 51 MJ 1 (1999) (civilian defense counsel representing appellant in state capital proceeding was not shown to have engaged in unreasonable professional conduct where: appellant presented no evidence to that effect at his court-martial; civilian defense counsel avoided death penalty in state court and knew that appellant faced possible capital court-martial on other charges; and civilian defense counsel successfully objected to references in state proceeding to offenses under investigation by military authorities).

United States v. Gray, 51 MJ 1 (1999) (any constitutional error with respect to Sixth Amendment right to counsel arising from civilian defense counsel representing appellant in state capital proceeding and failing to limit use of appellant’s state-court guilty plea was harmless beyond a reasonable doubt).

United States v. Hicks
, 52 MJ 70 (1999) (appellant’s civilian defense counsel had no actual conflict of interests, despite claim that counsel would have had to admit his own incompetence in raising a defense of mistake due to erroneous pre-trial legal advice, where:  (1) record did not show that a stipulation to the lawfulness of a no-contact order was coerced or an effort by civilian defense counsel to protect himself from claim of bad legal advice; (2) there was never a claim that being in the other party’s yard or house would not violate the no-contact order; and, (3) the factual contest at trial was one of credibility, not the legality of the no-contact order).

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