Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General

Published date03 May 2024
Record Number2024-09257
Citation89 FR 36723
CourtDefense Department,Navy Department
SectionProposed rules
Federal Register, Volume 89 Issue 87 (Friday, May 3, 2024)
[Federal Register Volume 89, Number 87 (Friday, May 3, 2024)]
                [Proposed Rules]
                [Pages 36723-36729]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2024-09257]
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                DEPARTMENT OF DEFENSE
                Department of the Navy
                32 CFR Part 776
                [Docket ID: USN-2024-HQ-0002]
                RIN 0703-AB19
                Professional Conduct of Attorneys Practicing Under the Cognizance
                and Supervision of the Judge Advocate General
                AGENCY: Department of the Navy, Department of Defense (DoD).
                ACTION: Proposed rule.
                -----------------------------------------------------------------------
                SUMMARY: This rule proposes to remove existing general information
                about the professional responsibility requirements of attorneys
                practicing under the cognizance and supervision of the Judge Advocate
                General (JAG) and includes a new requirement for all non-U.S.
                Government attorneys to file a notice of appearance before appearing in
                any matter for which the JAG is charged with supervising the provision
                of legal services. It also proposes to remove existing content relating
                to the Rules of Professional Conduct and replaces it with complaint
                processing procedures.
                DATES: Comments will be accepted until July 2, 2024.
                ADDRESSES: You may submit comments, identified by docket number and/or
                Regulation Identifier Number (RIN) number and title, by any of the
                following methods:
                 Federal Rulemaking Portal: http://www.regulations.gov. Follow the
                instructions for submitting comments.
                 Mail: Department of Defense, Office of the Assistant to the
                Secretary of Defense for Privacy, Civil Liberties, and Transparency,
                Regulatory Directorate, 4800 Mark Center Drive, Mailbox #24, Suite
                08D09, Alexandria, VA 22350-1700.
                 Instructions: All submissions received must include the agency name
                and docket number or RIN for this document. The general policy is for
                submissions to be made available for public viewing at http://www.regulations.gov without change, including any personal identifiers
                or contact information.
                FOR FURTHER INFORMATION CONTACT: CDR Matthew Bailey, Office of the
                Judge Advocate General (Administrative Law), Department of the Navy,
                1322 Patterson Ave. SE, Suite 3000, Washington Navy Yard, DC 20374-
                5066, telephone: 703-614-4386.
                SUPPLEMENTARY INFORMATION:
                Background
                 This rule was promulgated on September 1, 1994; amended on March
                21, 2000; and further amended on November 4, 2015.
                Changes Proposed in This Rule
                 DoD/Navy is proposing to remove three of the current part's five
                subparts which do not affect the public and update two others to bring
                them into compliance with the current Judge Advocate General (JAG)
                Instruction pertaining to this subject matter, JAG Instruction 5803.1
                (Series), ``Professional Conduct of Attorneys Practicing Under the
                Cognizance and Supervision of the Judge Advocate General (JAG)''
                (available at www.jag.navy.mil).
                 The three subparts that are proposed to be removed (Subparts C, D,
                and E) concern internal Navy processes that are currently memorialized
                in JAG Instruction 5803.1 (series) (https://www.jag.navy.mil/library/instructions/JAGINST_5803-1E.pdf).
                 The proposed revision of Subpart A (General) removes existing
                general information about the professional responsibility requirements
                of attorneys practicing under the cognizance and supervision of the JAG
                and includes a new requirement for all non-U.S. Government attorneys to
                file a notice of appearance before appearing in any matter for which
                the JAG is charged with supervising the provision of legal services.
                 The proposed revision of Subpart B (Rules of Professional Conduct)
                removes existing content relating to the Rules of Professional Conduct
                and replaces it with a revised version of current Subpart C (Complaint
                Processing Procedures). The proposed revision of Subpart B (Rules)
                includes new content relating to processing professional responsibility
                complaints, interim suspensions of attorneys, ethics investigations,
                effect of separate proceedings, public notice, and requests for
                reinstatement.
                Legal Authority for This Regulatory Action
                 Title 10 U.S.C. 806 grants the JAG the authority to assign judge
                advocates for duty and requires the JAG to make frequent inspections in
                the field in supervision of the administration of military justice.
                Title 10 U.S.C. 806a provides that the President shall prescribe
                procedures for the investigation and disposition of charges,
                allegations, or information pertaining to the fitness of military
                judges. Title 10 U.S.C. 826 prescribes the qualifications for military
                judges in the armed forces. Title 10 U.S.C. 827 sets forth the
                requirements for the detail of trial counsel and defense counsel in the
                armed forces. Title 10 U.S.C. 1044 authorizes the Secretaries of the
                military departments to provide legal assistance to servicemembers and
                their dependents. The Manual for Courts-Martial, United States, 2019,
                is the official guide to the conduct of courts-martial in the U.S.
                armed forces (available at https://jsc.defense.gov/Portals/99/Documents/2019%20MCM%20(Final)%20(20190108).pdf?ver=2019-01-11-115724-
                610). The U.S. Navy Regulations, 1990 is the principal regulatory
                document of the Department of the Navy, endowed with the sanction of
                law, as to duty, responsibility, authority, distinctions and
                relationships of various officials, organizations and individuals
                (available at https://www.secnav.navy.mil/doni/navyregs.aspx).
                Department of Defense Instruction 1442.02 (series), ``Personnel Actions
                Involving Civilian Attorneys'' (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/144202p.pdf), prescribes
                Department of Defense policy for personnel actions involving civilian
                attorneys and outside assignments of attorneys from the Department of
                Defense Office of the General Counsel and Defense Legal Services
                Agency. Secretary of the Navy Instruction 5430.27 (series),
                ``Responsibility Of The Judge Advocate General Of The Navy And The
                Staff Judge Advocate To The Commandant Of The Marine Corps For
                Supervision And Provision Of Certain
                [[Page 36724]]
                Legal Services'' (available at https://www.secnav.navy.mil/doni/Directives/05000%20General%20Management%20Security%20and%20Safety%20Services/05400%20Organization%20and%20Functional%20Support%20Services/5430.27E.pdf), prescribes the responsibilities of the Judge Advocate
                General of the Navy and the Staff Judge Advocate to the Commandant of
                the Marine Corps for the supervision and provision of certain legal
                services. JAG Instruction 5803.1 (series) establishes rules of
                professional conduct for attorneys practicing under the cognizance of
                the Judge Advocate General of the Navy, establishes procedures for
                filing complaints of professional misconduct, and prescribes procedures
                for engaging the outside practice of law.
                Expected Impact of the Proposed Rule
                 This rule impacts non-U.S. Government attorneys representing
                clients in matters under the cognizance of the Judge Advocate General
                of the Navy. Clients who obtain non-USG attorneys to represent them in
                matters for which the JAG is charged with supervising the provision of
                legal services will incur costs relating to the amount of time required
                for their counsel to prepare and file a notice of appearance. The cost
                will vary widely depending on the charged rate of the attorney in
                question and the time required to prepare the notice. For purposes of
                estimating the costs involved, it is reasonable to use the mean hourly
                wage for lawyers as informed by the Bureau of Labor and Statistics,
                $78.74. Because the Navy does not keep a log of the numbers of civilian
                attorneys privately hired to represent individual clients in litigation
                that would be subject to the new notice of appearance requirement, the
                net cost to the public cannot readily be quantified. Generally, the
                time required for an attorney to prepare and file a notice of
                appearance in a case should not exceed one hour. Thus, a reasonable
                quantifiable cost to attorneys to file such notice should be the cost
                of one billable hour.
                 Additionally, the proposed revision will affect members of the
                public who would benefit from being aware of the professional
                responsibility complaint procedures that cover attorneys who practice
                under the cognizance of the Judge Advocate General of the Navy. It is
                standard practice of most tribunals to require a filing of a notice of
                appearance for attorneys who are not otherwise certified to practice
                before such tribunals. Navy believes the removal of Subparts C, D, and
                E offsets the costs of preparing and filing a notice of appearance by
                reducing the amount of time required for lawyers to read and understand
                the requirements.
                Regulatory Reviews
                Executive Order 12866, ``Regulatory Planning and Review,'' and
                Executive Order 13563, ``Improving Regulation and Regulatory Review''
                 Executive Orders 12866, as amended by 14094 (88 FR 21879, April 11,
                2023), and 13563 direct agencies to assess all costs and benefits of
                available regulatory alternatives and, if regulation is necessary, to
                select regulatory approaches that maximize net benefits (including
                potential economic, environmental, public health and safety effects,
                distribute impacts, and equity). Executive Order 13563 emphasizes the
                importance of quantifying both costs and benefits, of reducing costs,
                of harmonizing rules, and of promoting flexibility. This rule is not a
                ``significant regulatory action'' under Executive Order 12866.
                Congressional Review Act
                 This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
                Paperwork Reduction Act
                 This rule does not contain a collection of information requirement
                subject to review and approval by the Office of Management and Budget
                under the Paperwork Reduction Act.
                Regulatory Flexibility Act
                 The DON certifies that this action is not subject to the relevant
                provisions of the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)).
                Unfunded Mandates Reform Act (UMRA)
                 This action does not contain any unfunded mandate as described in
                UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
                small governments. This proposed rule does not impose any mandates on
                small entities.
                Executive Order 13132: Federalism
                 The DON has determined that this action does not contain policies
                with Federalism or ``takings'' implications as those terms are defined
                in Executive Order 13132 and Executive Order 12630, respectively.
                List of Subjects in 32 CFR Part 776
                 Administrative practice and procedure; Conflict of interests;
                Government employees; Lawyers.
                 Accordingly, 32 CFR part 776 is proposed to be revised to read as
                follows:
                PART 776--PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE
                COGNIZANCE AND SUPERVISION OF THE JUDGE ADVOCATE GENERAL
                Sec.
                Subpart A--General
                776.1 Notice of appearance.
                Subpart B--Complaint Processing Procedures
                776.2 Policy.
                776.3 Related investigations and actions.
                776.4 Informal complaints.
                776.5 The complaint.
                776.6 Initial screening.
                776.7 Processing the complaint.
                776.8 Interim suspension.
                776.9 Ethics investigation.
                776.10 Effect of separate proceeding.
                776.11 Action by the Judge Advocate General.
                776.12 Finality.
                776.13 Report to licensing authorities.
                776.14 Public notice.
                776.15 Requests for reinstatement.
                 Authority: 10 U.S.C. 806, 806a, 826, 827, 1044.
                Subpart A--General
                Sec. 776.1 Notice of appearance.
                 All non-U.S. Government (USG) attorneys must file a notice of
                appearance before making any appearance representing an individual in a
                matter for which the Judge Advocate General (JAG) is charged with
                supervising the provision of legal services. This notice of appearance
                must:
                 (a) State the jurisdiction(s) in which they are licensed and
                eligible to practice law,
                 (b) Certify that they are in good standing with each jurisdiction,
                 (c) Certify that they are not subject to any order disbarring,
                suspending, or otherwise restricting them in the practice of law, and
                 (d) State that they understand they are subject to the provisions
                of JAG Instruction (JAGINST) 5803.1 (series) (Professional Conduct of
                Attorneys Practicing under the Cognizance and Supervision of the Judge
                Advocate General), including those on professional disciplinary action.
                Each notice of appearance must be maintained in the official record of
                the proceeding.
                [[Page 36725]]
                Subpart B--Complaint Processing Procedures
                Sec. 776.2 Policy.
                 (a) It is the JAG's policy to investigate and resolve,
                expeditiously and fairly, all allegations of professional impropriety
                lodged against covered attorneys under JAG supervision.
                 (b) Rules Counsel approval will be obtained before conducting any
                formal investigation into an alleged violation of the Rules of
                Professional Conduct set forth in JAGINST 5803.1 (series) (``the
                Rules''), or the American Bar Association (ABA) Model Code of Judicial
                Conduct (``the Code of Judicial Conduct''). The Rules Counsel (as
                designated per JAGINST 5803.1 (series)) will notify the JAG prior to
                the commencement of any investigation. Any investigation into alleged
                violations of the Rules will be conducted according to the procedures
                set forth in this enclosure.
                Sec. 776.3 Related investigations and actions.
                 Acts or omissions by covered attorneys may constitute professional
                misconduct, criminal misconduct, mismanagement, poor performance of
                duty, or a combination of all four. Care must be taken to characterize
                appropriately the nature of a covered attorney's conduct to determine
                who may and properly should take official action.
                 (a) Questions of legal ethics and professional misconduct by
                covered attorneys are within the exclusive province of the JAG. Ethical
                or professional misconduct will not be attributed to any covered
                attorney in any official record without a final JAG determination, made
                in accordance with JAGINST 5803.1 (series), that such misconduct has
                occurred.
                 (b) Criminal misconduct is properly addressed by the covered USG
                attorney's commander through the disciplinary process provided under
                the Uniform Code of Military Justice (UCMJ) and implementing
                regulations, or through referral to appropriate civil authority.
                 (c) Allegations of mismanagement are properly addressed by the
                covered USG attorney's reporting senior. Mismanagement involves any
                action or omission, either intentional or negligent, which adversely
                affects the efficient and effective delivery of legal services, any
                misuse of government resources (personnel and material), or any
                activity contrary to operating principles established by Navy
                regulations or JAG policy memoranda.
                 (d) Poor performance of duty is properly addressed by the covered
                USG attorney's reporting senior through a variety of administrative
                actions, including documentation in fitness reports or employee
                appraisals.
                 (e) Prior JAG approval is not required to investigate allegations
                of criminal conduct, mismanagement, or poor performance of duty
                involving covered attorneys. When, however, investigations into
                criminal conduct, mismanagement, or poor performance reveal conduct
                that constitutes a violation of JAGINST 5803.1 (series) or of the Code
                of Judicial Conduct in the case of judges, such conduct shall be
                reported to the Rules Counsel immediately.
                 (f) Generally, professional responsibility complaints will be
                processed in accordance with JAGINST 5803.1 (series) upon receipt.
                Rules Counsel may, however, on a case-by-case basis, delay such
                processing to await the outcome of pending related criminal,
                administrative, or investigative proceedings.
                 (g) Nothing in this part or JAGINST 5803.1 (series) prevents a
                military judge or other appropriate official from removing a covered
                attorney from acting in a particular court-martial or prevents the JAG,
                the Staff Judge Advocate (SJA) to the Commandant of the Marine Corps
                (CMC), or the appropriate official from reassigning a covered attorney
                to different duties prior to, during, or subsequent to proceedings
                conducted under the provision of JAGINST 5803.1 (series).
                Sec. 776.4 Informal complaints.
                 Informal, anonymous, or ``hot line'' type complaints alleging
                professional misconduct must be referred to the appropriate authority
                (such as the JAG Inspector General (IG) or the concerned supervisory
                attorney) for inquiry. Such complaints are not, by themselves,
                cognizable under JAGINST 5803.1 (series) but may, if reasonably
                confirmed, be the basis of a formal complaint described in Sec. 776.5.
                Sec. 776.5 The complaint.
                 (a) The complaint shall:
                 (1) Be in writing, signed (by hand or electronically), and offered
                to any superior to the subject of the complaint;
                 (2) Demonstrate that the complainant has personal knowledge, or has
                otherwise received reliable information indicating, that:
                 (i) The covered attorney concerned is, or has been, engaged in
                misconduct that demonstrates a lack of integrity, that constitutes a
                violation of the Rules or the Code of Judicial Conduct or a failure to
                meet the ethical standards of the profession; or
                 (ii) The covered attorney concerned is ethically, professionally,
                or morally unqualified to perform his or her duties; and
                 (3) Contain a complete, factual account of the acts or omissions
                constituting the substance of the complaint, as well as a description
                of any attempted resolution with the covered attorney concerned.
                Supporting statements and documentation, if any, should be attached to
                the complaint.
                 (b) Forwarding a document that contains the information required in
                paragraphs (a)(2) and (3) of this section (e.g., a command
                investigation or non-judicial punishment package) can also serve as a
                complaint under this part.
                 (c) A complaint may be initiated by any person.
                Sec. 776.6 Initial screening.
                 (a) Receipt of complaint. Complaints involving conduct of a Navy or
                Marine Corps trial or appellate judge shall be forwarded to the Office
                of the Judge Advocate General (OJAG) (Code 05). All other complaints
                shall be forwarded to OJAG (Code 13) or, in cases involving Marine
                Corps judge advocates or civil service and contracted civilian
                attorneys who perform legal services under the cognizance and
                supervision of the SJA to CMC, to Research and Civil Law Branch, Judge
                Advocate Division, Headquarters Marine Corps (JAR). In cases involving
                Marine Corps judge advocates, including trial and appellate judges,
                where the SJA to CMC is not the Rules Counsel, the cognizant Rules
                Counsel (per JAGINST 5803.1 (series)) will notify the SJA to CMC when a
                complaint is received. OJAG (Code 05), OJAG (Code 13), and JAR shall
                log all complaints received.
                 (b) Review for compliance and sufficiency. The cognizant Rules
                Counsel shall initially review the complaint to determine whether it
                complies with the requirements set forth in Sec. 776.5. Complaints
                that do not comply with the requirements may be returned to the
                complainant for correction or completion, and resubmission to OJAG
                (Code 05), OJAG (Code 13), or JAR. If the complaint is not corrected or
                completed and resubmitted within 30 days of the date of its return, the
                Rules Counsel may close the file without further action. OJAG (Code
                05), OJAG (Code 13), and JAR will maintain copies of all correspondence
                relating to the return and resubmission of a complaint.
                 (1) Summary dismissal. Upon initial review of a complaint, the
                cognizant Rules Counsel may summarily dismiss the complaint if the
                Rules Counsel determines the JAG does not have
                [[Page 36726]]
                jurisdiction or the complaint, on its face, fails to establish probable
                cause to believe a violation of the Rules or the Code of Judicial
                Conduct has occurred. A dismissal letter will be sent to the
                complainant. If, in the judgment of the Rules Counsel, it is deemed
                necessary, a copy of the dismissal letter and the complaint will be
                sent to the covered attorney for information purposes. There is no
                appeal from a summary dismissal. The SJA to the CMC may delegate this
                authority to the Deputy SJA to the CMC. No other delegations are
                authorized.
                 (c) Initial notice and opportunity to comment. If Rules Counsel
                determines that the complaint complies with JAGINST 5803.1 (series) and
                contains sufficient evidence to believe probable cause to establish a
                violation of that instruction may exist, the covered attorney shall
                receive notice and an opportunity to comment. OJAG (Code 05), OJAG
                (Code 13), and JAR will ensure a copy of the complaint and allied
                papers are provided to the covered attorney who is the subject of the
                complaint. Service of the formal complaint and other materials on the
                covered attorney must be accomplished through personal service,
                registered/certified mail sent to the covered attorney's last known
                address reflected in official Navy and Marine Corps records or in the
                records of the State bar(s) that licensed the attorney to practice law,
                or email sent in a manner that verifies receipt by the covered
                attorney. The covered attorney's supervisory attorney must also be
                provided notice of the complaint. The covered attorney concerned may
                elect to provide an initial statement, within 10 calendar days from
                receipt, regarding the complaint for the Rules Counsel's consideration.
                The covered attorney will promptly inform OJAG (Code 05), OJAG (Code
                13), or JAR if he or she intends not to submit any such statement.
                 (d) Rules counsel review. Complaints, and any statement submitted
                by the covered attorney concerned, shall be further reviewed by the
                cognizant Rules Counsel to determine whether the complaint establishes
                probable cause to believe that a violation of the Rules or the Code of
                Judicial Conduct has occurred.
                 (1) The cognizant Rules Counsel shall close the file without
                further action if the complaint does not establish probable cause to
                believe a violation has occurred. The Rules Counsel shall notify the
                complainant, the covered attorney concerned, and the supervisory
                attorney, that the file has been closed. OJAG (Code 05), OJAG (Code
                13), and JAR will maintain copies of all correspondence related to the
                closing of the file.
                 (2) The cognizant Rules Counsel may close the file if there is a
                determination that the complaint establishes probable cause but the
                violation is of a minor or technical nature appropriately addressed
                through corrective counseling. The Rules Counsel shall report any such
                decision, to include a brief summary of the case, to the JAG. (In cases
                relating to Marine Corps judge advocates, including trial and appellate
                judges, in which the SJA to CMC is not the cognizant Rules Counsel, an
                information copy shall be forwarded to the SJA to CMC.) The Rules
                Counsel shall ensure the covered attorney concerned receives
                appropriate counseling and shall notify the complainant, the covered
                attorney concerned, and the supervisory attorney that the file has been
                closed. OJAG (Code 05), OJAG (Code 13), and JAR will maintain copies of
                all correspondence related to the closing of the file. The covered
                attorney concerned is responsible, under these circumstances, to
                determine if his or her Federal, State, or local licensing authority
                requires reporting of such action.
                 (3) If the Rules Counsel determines there is probable cause to
                believe a violation of the Rules or the Code of Judicial Conduct has
                occurred, and the violation is not of a minor or technical nature, the
                Rules Counsel shall notify the JAG, forward the complaint as delineated
                in Sec. 776.7, and cause an ethics investigation to be conducted in
                accordance with Sec. 776.9 of this part. (In cases relating to Marine
                Corps judge advocates, including trial and appellate judges, in which
                the SJA to CMC is not the cognizant Rules Counsel, the SJA to CMC shall
                also be notified.)
                Sec. 776.7 Processing the complaint.
                 (a) The cognizant Rules Counsel shall forward the complaint, a
                Rules violation sheet describing the specific alleged violations, and
                any allied papers, as follows:
                 (1) In cases involving a military trial judge, if practicable, to a
                covered attorney with experience as a military trial judge (normally
                senior to the covered attorney complained of and not previously
                involved in the case) and assign the officer to conduct an ethics
                investigation into the matter;
                 (2) In cases involving a military appellate judge, if practicable,
                to a covered attorney with experience as a military appellate judge
                (normally senior to the covered attorney complained of and not
                previously involved in the case) and assign the officer to conduct an
                ethics investigation into the matter;
                 (3) In all other cases, to such covered attorney as the cognizant
                Rules Counsel may designate (normally senior to the covered attorney
                complained of and not previously involved in the case), and assign the
                officer to conduct an ethics investigation into the matter.
                 (b) The Rules Counsel shall provide notice of the complaint (if not
                previously informed) as well as notice of the ethics investigation:
                 (1) To the covered attorney against whom the complaint is made as
                well as the supervisory attorney;
                 (2) In cases involving a covered USG attorney on active duty or in
                civilian Federal service, to the commanding officer, or equivalent, of
                the covered USG attorney concerned;
                 (3) In cases involving Navy or Marine Corps judge advocates serving
                in Naval Legal Service Command (NLSC) units, to Commander, NLSC;
                 (4) In cases involving Navy attorneys serving in Marine Corps
                units, involving Marine Corps attorneys serving in Navy units, or
                involving Marine Corps trial and appellate judges, to the SJA to CMC
                (Attn: JAR);
                 (5) In cases involving trial or appellate court judges, to either
                the Chief Judge, Navy-Marine Corps Trial Judiciary or Chief Judge,
                Navy-Marine Corps Court of Criminal Appeals, as appropriate; and
                 (6) In cases involving covered attorneys certified by the Judge
                Advocates General/Chief Counsel of the other uniformed services, to the
                appropriate military service attorney discipline section.
                Sec. 776.8 Interim suspension.
                 (a) Where the Rules Counsel determines there is probable cause to
                believe that a covered attorney has committed misconduct and poses a
                substantial threat of irreparable harm to his or her clients or the
                orderly administration of military justice, the Rules Counsel shall so
                advise the JAG. Examples of when a covered attorney may pose a
                ``substantial threat of irreparable harm'' include, but are not limited
                to:
                 (1) When charged with the commission of a crime which involves
                moral turpitude or reflects adversely upon the covered attorney's
                fitness to practice law, and where substantial evidence exists to
                support the charge;
                 (2) When engaged in the unauthorized practice of law (e.g., failure
                to maintain good standing in accordance with JAGINST 5803.1 (series));
                or
                 (3) When unable to represent client interests competently.
                 (b) Upon receipt of information from the Rules Counsel, the JAG may
                order
                [[Page 36727]]
                the covered attorney to show cause why he or she should not face
                interim suspension pending completion of an ethics investigation. The
                covered attorney shall have 10 calendar days in which to respond.
                Notice of the show cause order shall be provided as outlined in Sec.
                776.7(b) of this part.
                 (c) If an order to show cause has been issued under paragraph (b)
                of this section, and the period for response has passed without a
                response, or after consideration of any response and finding sufficient
                evidence demonstrating probable cause to believe that the covered
                attorney is guilty of misconduct and poses a substantial threat of
                irreparable harm to his or her client or the orderly administration of
                military justice, the JAG may direct an interim suspension of the
                covered attorney's certification under Articles 26(b) or 27(b), UCMJ,
                or Rule for Courts-Martial (R.C.M.) 502(d)(3), or the authority to
                provide legal assistance, pending the results of the investigation and
                final action under JAGINST 5803.1 (series). Notice of such action shall
                be provided as outlined in Sec. 776.7(b).
                 (d) A covered attorney may, based upon a claim of changed
                circumstances or newly discovered evidence, petition for dissolution or
                amendment of the JAG's imposition of interim suspension.
                 (e) Any ethics investigation involving a covered attorney who has
                been suspended pursuant to this rule shall proceed and be concluded
                without appreciable delay. However, the JAG may determine it necessary
                to await completion of a related criminal investigation or proceeding,
                or completion of a professional responsibility action initiated by
                other licensing authorities. In such cases, the JAG shall cause the
                Rules Counsel to so notify the covered attorney under interim
                suspension as well as those officials outlined in Sec. 776.7(b). Where
                necessary, continuation of the interim suspension shall be reviewed by
                the JAG every 6 months.
                Sec. 776.9 Ethics investigation.
                 (a) Investigation. The purpose of the ethics investigation is to
                determine whether, by clear and convincing evidence, in the opinion of
                the officer appointed to conduct the investigation (the investigating
                officer, or IO), the questioned conduct occurred and, if so, whether
                clear and convincing evidence demonstrates that such conduct
                constitutes a violation of the Rules or the Code of Judicial Conduct.
                The IO is to recommend appropriate action in cases of substantiated
                violations. Upon receipt of the complaint, the IO shall promptly
                investigate the allegations, generally following the format and
                procedures set forth in the Manual of the Judge Advocate General
                (JAGMAN) for the conduct of command investigations. Reports of relevant
                investigations by other authorities including, but not limited to, the
                command, the Inspector General, and State licensing authorities should
                be used. The IO should also identify and obtain sworn affidavits or
                statements from all relevant and material witnesses to the extent
                practicable, and identify, gather, and preserve all other relevant and
                material evidence.
                 (b) Notice. When an ethics investigation is initiated, the covered
                attorney concerned shall be so notified, in writing, by the Rules
                Counsel as outlined in Sec. 776.7(b). The covered attorney concerned
                will be provided written notice of the following rights in connection
                with the ethics investigation:
                 (1) To request a hearing before the IO;
                 (2) To inspect all evidence gathered;
                 (3) To present written or oral statements or materials for
                consideration;
                 (4) To call witnesses at his or her own expense (local military
                witnesses should be made available at no cost);
                 (5) To be assisted by counsel (see paragraph (c) of this section);
                 (6) To challenge the IO for cause (such challenges must be made in
                writing and sent to the Rules Counsel via the challenged officer); and
                 (7) To waive any or all of these rights. Failure to affirmatively
                elect any of the above rights within 10 days of receipt of notice shall
                be deemed a waiver by the covered attorney.
                 (c) Opportunity to be heard. If a hearing is requested, the IO will
                conduct the hearing after reasonable notice to the covered attorney
                concerned. The hearing will not be unreasonably delayed. The hearing is
                not adversarial in nature and there is no right to subpoena witnesses.
                Neither the Federal nor Military Rules of Evidence apply. The covered
                attorney concerned or his or her counsel may question witnesses that
                appear. The proceedings shall be recorded but no transcript of the
                hearing need be made. The covered attorney may be represented by
                counsel at the hearing. Such counsel may be:
                 (1) A civilian attorney retained at no expense to the Government;
                or
                 (2) In the case of a covered USG attorney, another USG attorney:
                 (i) Detailed by the cognizant Defense Services Office (DSO), Law
                Center, or Legal Service Support Section (LSSS); or
                 (ii) Requested by the covered attorney concerned, if such counsel
                is deemed reasonably available in accordance with the provisions
                regarding individual military counsel set forth in Chapter I of the
                JAGMAN. There is no right to detailed counsel if requested counsel is
                made available.
                 (d) Assistants. The IO may appoint and use such assistants as may
                be necessary to conduct the ethics investigation.
                 (e) Report. The IO shall prepare a report which summarizes the
                evidence, to include information presented at any hearing.
                 (1) If the IO believes that no violation has occurred or, by clear
                and convincing evidence, that the violation has occurred but the
                violation is minor or technical in nature and warrants only corrective
                counseling, then he or she may recommend that the file be closed.
                 (2) If the IO believes by clear and convincing evidence that a
                violation did occur, and that corrective action greater than counseling
                is warranted, he or she shall:
                 (i) Provide his or her detailed findings of fact and opinions,
                based on the findings of fact, on which Rules the covered attorney
                violated;
                 (ii) Recommend appropriate disciplinary action; and
                 (iii) Forward the ethics investigation to the Rules Counsel with a
                copy to the attorney investigated.
                 (f) Rules counsel review. The Rules Counsel shall review all ethics
                investigations. If the report is determined by the Rules Counsel to be
                incomplete, the Rules Counsel shall return it to the IO, or to another
                IO, for further or supplemental inquiry. If the report is complete,
                then:
                 (1) If the Rules Counsel determines, either consistent with the IO
                recommendation or through the Rules Counsel's own independent review of
                the investigation, that a violation of the Rules or the Code of
                Judicial Conduct has not occurred and that further action is not
                warranted, the Rules Counsel shall close the file and notify the
                complainant, the covered attorney concerned, and all officials
                previously notified of the complaint. OJAG (Code 05), OJAG (Code 13)
                and/or JAR, as appropriate, will maintain copies of all correspondence
                related to the closing of the file.
                 (2) If the Rules Counsel determines, either consistent with the IO
                recommendation or through the Rules Counsel's own independent review of
                the investigation, that a violation of the Rules or the Code of
                Judicial Conduct has occurred but that the violation is of a minor or
                technical nature, then the Rules Counsel may determine that corrective
                counseling is appropriate and
                [[Page 36728]]
                close the file. The Rules Counsel shall report any such decision, to
                include a brief summary of the case, to the JAG. (In cases relating to
                Marine Corps judge advocates, including trial and appellate judges, in
                which the SJA to CMC is not the cognizant Rules Counsel, an information
                copy shall be forwarded to the SJA to CMC.) The Rules Counsel shall
                ensure that the covered attorney concerned receives appropriate
                counseling and shall notify the complainant, the covered attorney
                concerned, and all officials previously notified of the complaint that
                the file has been closed. OJAG (Code 05), OJAG (Code 13), and/or JAR,
                as appropriate, will maintain copies of all correspondence related to
                the closing of the file. The covered attorney concerned is responsible,
                under these circumstances, to determine if his or her Federal, State,
                or local licensing authority requires reporting such action.
                 (3) If the Rules Counsel believes, either consistent with the IO
                recommendation or through the Rules Counsel's own independent review of
                the investigation, that professional disciplinary action greater than
                corrective counseling is warranted, the Rules Counsel shall forward the
                investigation, with recommendations as to appropriate disposition, to
                the JAG. (In cases relating to Marine Corps judge advocates, including
                trial and appellate judges, in which the SJA to CMC is not the
                cognizant Rules Counsel, an information copy shall be forwarded to the
                SJA to CMC.)
                Sec. 776.10 Effect of separate proceeding.
                 (a) For purposes of this section, the term ``separate proceeding''
                includes, but is not limited to, court-martial or similar civilian
                proceeding.
                 (b) In those cases in which a covered attorney is determined to
                have committed misconduct by clear and convincing evidence, or a higher
                burden of proof, at a separate proceeding which the Rules Counsel
                determines has afforded procedural due process rights equal to that
                provided by an ethics investigation under this part, the previous
                determination regarding the underlying misconduct is res judicata with
                respect to that issue during an ethics investigation. A subsequent
                ethics investigation, in accordance with Sec. 776.9, shall be convened
                to decide, based on such misconduct, whether the underlying misconduct
                constitutes a violation of these Rules, whether the violation affects
                his or her fitness to practice law, and what sanctions, if any, are
                appropriate.
                 (c) Notwithstanding paragraph (b) of this section, the Rules
                Counsel may dispense with the ethics investigation and, after affording
                the covered attorney concerned written notice and an opportunity to be
                heard in writing, recommend to the JAG that the covered attorney
                concerned be disciplined under JAGINST 5803.1 (series) when the covered
                attorney has been:
                 (1) Decertified or suspended from the practice of law or otherwise
                subjected to professional responsibility discipline by the Judge
                Advocate General or Chief Counsel of another Military Department;
                 (2) Disbarred or suspended from the practice of law or otherwise
                subjected to professional responsibility discipline by the Court of
                Appeals for the Armed Forces or by any Federal, State, or local bar; or
                 (3) Convicted of a felony (or any offense punishable by 1 year or
                more of imprisonment) in a civilian or military court that, in the
                opinion of the Rules Counsel, renders the attorney unqualified or
                incapable of properly or ethically representing the Department of the
                Navy or a client when the Rules Counsel has determined that the
                attorney was afforded procedural protection equal to that provided by
                an ethics investigation under this part.
                Sec. 776.11 Action by the Judge Advocate General.
                 (a) The JAG is not bound by the recommendation rendered by the
                Rules Counsel, IO, or any other party, but will base any action on the
                entire administrative record as a whole. Nothing in this part or
                JAGINST 5803.1 (series) limits the JAG's authority to suspend from the
                practice of law in DON matters any covered attorney alleged or found to
                have committed professional misconduct or violated the Rules, either in
                DON or civilian proceedings, as detailed in JAGINST 5803.1 (series).
                 (b) The JAG may, but is not required to, refer any case to the
                Professional Responsibility Committee for an advisory opinion on
                interpretation of the Rules or their application to the facts of a
                particular case.
                 (c) Upon receipt of the ethics investigation, and any requested
                advisory opinion, the JAG will take such action as the JAG considers
                appropriate in the JAG's sole discretion. The JAG may, for example:
                 (1) Direct further inquiry into specified areas.
                 (2) Determine the allegations are unfounded, or that no further
                action is warranted, and direct the Rules Counsel to make appropriate
                file entries and notify the complainant, covered attorney concerned,
                and all officials previously notified of the complaint.
                 (3) Determine the allegations are supported by clear and convincing
                evidence, and take appropriate corrective action including, but not
                limited to:
                 (i) Limiting the covered attorney to practice under direct
                supervision of a supervisory attorney;
                 (ii) Limiting the covered attorney to practice in certain areas or
                forbidding him or her from practice in certain areas;
                 (iii) Suspending or revoking, for a specified or indefinite period,
                the covered attorney's authority to provide legal assistance;
                 (iv) Finding that the misconduct so adversely affects the covered
                attorney's ability to practice law in the naval service or so
                prejudices the reputation of the DON legal community, the
                administration of military justice, the practice of law under the
                cognizance of the JAG, or the armed services as a whole, that
                certification under Article 27(b), UCMJ, or R.C.M. 502(d)(3), should be
                suspended or is no longer appropriate, and directing such certification
                to be suspended for a prescribed or indefinite period or permanently
                revoked;
                 (v) In the case of a judge, finding that the misconduct so
                prejudices the reputation of military trial and/or appellate judges
                that certification under Article 26(b), UCMJ, should be suspended or is
                no longer appropriate, and directing such certification to be suspended
                for a prescribed or indefinite period or to be permanently revoked; and
                 (vi) Directing the Rules Counsel to contact appropriate authorities
                such as the Chief of Naval Personnel or the Commandant of the Marine
                Corps so that pertinent entries in appropriate DON records may be made;
                notifying the complainant, covered attorney concerned, and any
                officials previously notified of the complaint; and notifying
                appropriate tribunals and authorities of any action taken to suspend,
                decertify, or limit the practice of a covered attorney as counsel
                before courts-martial or the U.S. Navy-Marine Corps Court of Criminal
                Appeals, administrative boards, as a legal assistance attorney, or in
                any other legal proceeding or matter conducted under JAG cognizance and
                supervision.
                Sec. 776.12 Finality.
                 Any action taken by the JAG is final.
                Sec. 776.13 Report to licensing authorities.
                 Upon determination by the JAG that a violation of the Rules or the
                Code of Judicial Conduct has occurred, the JAG may cause the Rules
                Counsel to report
                [[Page 36729]]
                that fact to the Federal, State, or local bar or other licensing
                authority of the covered attorney concerned. If so reported, notice to
                the covered attorney shall be provided by the Rules Counsel. This
                decision in no way diminishes a covered attorney's responsibility to
                report adverse professional disciplinary action as required by the
                attorney's Federal, State, and local bar or other licensing authority.
                Sec. 776.14 Public notice.
                 The JAG will periodically publish JAGNOTE 5803, a listing of
                attorneys whose certification or authority to practice law in any area
                under the cognizance of the JAG is currently suspended, revoked, or
                limited.
                Sec. 776.15 Requests for reinstatement.
                 (a) Attorneys whose certification or authority to practice law in
                any area under the cognizance of the JAG has been suspended may request
                reinstatement no earlier than 5 years after the effective date of
                suspension. Attorneys whose certification or authority to practice law
                in any area under the cognizance of the JAG has been revoked may not
                request reinstatement.
                 (b) Requests for reinstatement must be signed under oath, and must
                describe with particularity the manner in which he or she meets each of
                the criteria listed as follows:
                 (1) The attorney has fully complied with all conditions imposed at
                the time of the imposition of sanctions;
                 (2) The attorney has not engaged in or attempted to engage in the
                unauthorized practice of law within the Department of the Navy during
                the period of suspension;
                 (3) If the attorney was suffering under a physical disability or
                other infirmity at the time of the imposition of sanctions, including
                alcohol abuse, the attorney must provide independent evidence that the
                disability or infirmity has been removed. Attorneys whose disability or
                infirmity included the possession or use of controlled substances in
                violation of Article 112a, UCMJ, shall not be reinstated;
                 (4) The attorney has recognized the wrongfulness and seriousness of
                the misconduct for which sanctions were imposed;
                 (5) The attorney has not engaged in other professional or personal
                misconduct since sanctions were imposed;
                 (6) Notwithstanding the misconduct that resulted in imposition of
                sanctions, the attorney has the requisite honesty and integrity to
                practice before general courts-martial and all other administrative and
                judicial proceedings under the cognizance of the JAG;
                 (7) The attorney has kept informed about recent legal developments
                and is competent to practice before general courts-martial and all
                other administrative and judicial proceedings under the cognizance of
                the JAG; and
                 (8) Sufficient time has elapsed since imposition of sanctions and
                revocation of sanctions would be appropriate in view of the seriousness
                of the misconduct that resulted in sanctions and the effect that
                revocation of sanctions would have on the reputation of the community
                of covered attorneys who practice under the cognizance and supervision
                of the JAG.
                 (c) The decision whether to grant a request for reinstatement is
                solely within the discretion of the JAG. Although the JAG will consider
                the factors listed in this section and any additional information
                provided by the requesting attorney, the JAG has complete discretion to
                determine whether reinstatement would be appropriate. The JAG's
                decision is final.
                 Dated: April 25, 2024.
                J.E. Koningisor,
                Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy,
                Federal Register Liaison Officer.
                [FR Doc. 2024-09257 Filed 5-2-24; 8:45 am]
                BILLING CODE 3810-FF-P
                

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