From: Chief Defense Counsel of the Marine Corps To: Chair, Ad Hoc Committee to Review the Criminal Justice Act Program

Transcription

1 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2, SUITE 1D130 ARLINGTON, VA In Reply Refer To: 5801 CDC/scn 30 Mar 2016 From: Chief Defense Counsel of the Marine Corps To: Chair, Ad Hoc Committee to Review the Criminal Justice Act Program Subj: WRITTEN COMMENTARY REGARDING STRUCTURE AND FUNCTION OF THE DSO Ref: (a) Judicial Conference Correspondence of March 11, 2016 Encl: (1) Written Commentary from CDC, USMC (2) MCO P A (Legal Administration Manual), Chapter 2 (The Marine Corps Defense Services Organization) (3) Draft, Legal Services Administration Manual, Volume I, Chapter 4 (Marine Corps Defense Services Organization) (4) USMC DSO CDC Policy Memos 1. Thank you for the opportunity to provide you with written commentary in advance of my testimony. I look forward to providing testimony and answering any questions starting at 2:45 on Tuesday, April 12, 2016 at the James A. Byrne United States Courthouse, 601 Market Street, Philadelphia, PA, in the Ceremonial Courtroom. 2. Should there be any questions or concerns about the foregoing, please feel free to contact me at (703) , or via at stephen.newman@usmc.mil. Very Respectfully, STEPHEN C. NEWMAN Colonel, U.S. Marine Corps

2 Colonel Newman Remarks My name is Colonel Stephen C. Newman. I am currently the Chief Defense Counsel of the Marine Corps, and the Officer-in-Charge of the Marine Corps Defense Services Organization (DSO). On behalf of the Marines of the DSO, I would like to thank this panel for the opportunity to provide you with insights into our history, our organizational structure, our organizational strengths, and organizational weaknesses. Rather than recite to you my military background, I have attached a short, one-page biography (enclosure 1). I do believe it is important for you to know one thing about me over the past twentysix years I have held virtually every billet a Marine Defense Counsel can hold in our Corps. I have been a line defense counsel in southern California; a Senior Defense Counsel in charge of the largest and most active defense section in the Marine Corps in eastern North Carolina; a Regional Defense Counsel in what was at that time the largest region in the Marine Corps, covering the entire east coast, New Orleans, and Iraq where I was personally called upon to defend a Marine at Camp Fallujah in 2004; and now as Chief Defense Counsel of the Marine Corps, leading an organization of over 70 attorneys, more than 20 legal services specialists, and two Highly Qualified Experts (former public defenders with extensive defense trial experience). As a result of my experience in what we now call the DSO over these past 26 years I feel that I am qualified to tell you about our history as an organization where we came from and how we got here; how we are structured and more importantly, why we are structured the way we are; and finally the strengths of such an organization but no analysis of strengths would be complete without an understanding of our weaknesses, which will also be honestly and openly addressed. My hope is that, in the end, a review of our organizational history and structure will inform you on three important points. First, that strategic change requires tactical patience. In the military we view plans and operations from three lenses. Those closest to the actual operation, with the most limited range of knowledge about larger priorities and overarching goals, are at the tactical level; above them are commanders and leaders at the operational level who have a slightly broader understanding of the mission. The senior leadership, those with the 1 Enclosure 1

3 greatest responsibilities, work at the strategic level. Strategic leadership means having a vision for where the organization has been, where it is, and where you want it to go. But communicating and realizing a vision to power brokers takes time. This delay is something not commonly understood by those on the ground working at the tactical level. Second, strategic change is hard, and requires commitment. These are complex and difficult problems which require complex and difficult solutions. If you can address these challenges within your existing structural authorities, do so. But if statutory or regulatory change is required, do not shy away from it just because it is hard. Piecemeal solutions only lead to piecemeal problems and years of delay. Finally, and perhaps most importantly, given that strategic change takes time; given that strategic change is hard; those of us doing the work have to build the record. We have to write memos, submit articles, participate in panels, and even provide written comments to committees. An established record is what will, over time, demonstrate the need for strategic change. Marine Corps Cultural Background: There is one more matter which I hope the Committee will appreciate as a part of the framework for my commentary. If speaking to a military audience, it would go without saying that the Marine Corps considers itself unique among the services. A common admonition heard on the training fields of Quantico, where we make our future leaders, is that our nation does not need a Marine Corps. The Army is quite proficient at ground operations; and the Air Force equally so in the air. Working together they make a potent team. Viewed in that light, the Marine Corps, which at its core is light infantry organizationally based around the Marine Air- Ground Task Force, may to the uninitiated appear redundant. But while it may be that our Nation doesn t need a Marine Corps, it is true that our Nation wants a Marine Corps. This animates the daily activity of all Marines everywhere everything we do centers around excellence, doing more with less, and taking nothing for granted. Marines exist in a warrior culture. Everyone who takes the title Marine is expected to be prepared to fight. We are instilled with our lore and legacy, and are trained to live up to it. We 2 Enclosure 1

4 take the title not just as a name, but as a solemn trust with those who went before us and as a solemn bond with our brothers and sisters who proudly display the Eagle, Globe and Anchor on their chest. These cultural influences, which cannot be fully explained in this brief paragraph, are foundational to the community of Judge Advocates where I serve. Note the use of the term Judge Advocate. Those organizational and cultural characteristics which make Marine Corps, writ large, distinct from our sister services bleed over into our legal services organizational structure. The unique construct of defense services within the Marine Corps cannot be understood without an understanding of the Marine Corps culture. Just as there are differences between the military and civilian justice systems, so there are cultural and structural differences within the Marine Corps that necessitate a different defense bar than the sister services despite the Uniform in Uniform Code of Military Justice. First, consider that a Corps is a main subdivision of an armed force. The Army, Navy, and Air Force have a Judge Advocate General s Corps, each of which is headed by a Judge Advocate General the top lawyer in that service. Lawyers in these services refer to themselves as JAGs. Generally speaking, an attorney in the sister services will serve as an attorney throughout his or her career. The Marine Corps, however, is already a Corps a main subdivision naval infantry working under the cognizance of the Secretary of the Navy. Therefore as a Corps, the Marine Corps does not have any further subdivisions or special corps within our service. It is, in fact, an anathema to our culture. We reject most distinctions between Marines absent that of rank. As such, the most senior lawyer in the Marine Corps is not a Judge Advocate General, but the Staff Judge Advocate to the Commandant of the Marine Corps, functionally independent of the Navy JAG, and independently responsible to the Commandant of the Marine Corps and the Service Secretary for the provision of Legal Services. Partially because there is no Judge Advocate General s Corps, Marine attorneys do not refer to themselves as JAGs. We are instead Marine Officers with law degrees we are Judge Advocates, not JAGs. 3 Enclosure 1

5 In fact, every Marine considers himself a rifleman and every Marine officer a provisional rifle platoon commander. This distinction is unique to the Marine Corps and it is vitally important to understanding our culture. Every Marine officer infantryman, logistician, aviator, or judge advocate attends the same Officer Candidate School. This is followed by an extensive six and a half month officer finishing course called The Basic School. As the name implies, this school imparts the basic skills required of a Marine rifle platoon commander (land navigation, weapons handling and employment, leadership, tactics, etc.). Only then do we ship off to Naval Justice School for training specific to our field. The added cost of this training pipeline underscores the value the institution places on this cultural nuance. Every judge advocate has the same baseline training as every other Marine Corps officer. This training renders all Marine officers line officers qualified to serve in any capacity needed. Neither does this distinction find its terminus at the conclusion of entry level training. Mid and senior-level career Marine officers take courses in leadership and common skills of increasing complexity. All Marines, regardless of specialty, compete against each other for promotions, assignment, and schools. A judge advocate is measured against and competes with logisticians, infantrymen, aviators, and combat engineers for promotion. This is not so in our sister service JAG communities, where they compete only among other JAGs. Whereas sisterservice JAGs are attorneys that happen to be in the Army, Navy, or Air Force; Marine judge advocates are Marines that happen to be attorneys. Second, the separate Corps model utilized by our sister services permits a level of independence and control over personnel assignments, resources, and career paths within their Corps structure that is difficult to mirror for Marine judge advocates. The service JAGs operate with significantly more administrative and personnel control over their lawyers than does the SJA to the Commandant of the Marine Corps. The unique Marine Corps construct for the provision of legal services worked very well for years, particularly in relation to the provision of operational law, command advice, and prosecution services. But in the mid 1980 s it became apparent that there were flaws in the application of this model to defense services. While the very fabric of the Marine Corps is resistant to a special corps, a hybrid model would need to 4 Enclosure 1

6 evolve if the Marine Corps wanted to retain a criminal defense capacity an evolution that continues to this day. Finally, it is important for you to have an idea of how charges are brought in our system. Ours is a command driven justice system. The Commander plays a quasi-judicial role, being responsible (through his representatives) for the entire judicial process. The commander has the authority to order a court into existence, exercise prosecutorial discretion, decide forum, select court-martial members, approve a sentence, and grant clemency. To assist in these legal determinations, the commander will have a staff judge advocate a military attorney assigned to the local General Officer in command as his or her staff officer responsible for command legal advice. There are three basic phases to every military case. First there is the evidence gathering phase. Felony type offenses are generally investigated by Naval Criminal Investigation Services, or NCIS. Misdemeanor type offenses may be investigated by Marine Corps Criminal Investigation Division, or CID. Of course such investigations may also be initiated by, or conducted in conjunction with local, state or Federal authorities. Evidence of criminal misconduct may also result from administrative investigations conducted by persons who have little to no legal training. For example, an administrative command investigation into lost or missing gear may result in a finding of financial malfeasance, or theft. Once the evidence is developed, it is typically presented to the Commander. With the advice of his or her Staff Judge Advocate, the Commander makes one of two key decisions: If in the Commander s mind the matter is minor misconduct easily addressed through non-judicial means, she has a range of tools at her disposal to do so; if, however, the evidence presents a more serious criminal matter, she will direct the development of a Request for Legal Services, or RLS. That RLS is delivered, with the evidence, to the local Legal Services Support Section (LSSS), one of four in the Marine Corps. They develop the evidence into charges, prepare a charge sheet, and swear it out in what we call preferral. Once preferred, the charges are assigned to a Trial Counsel. Both the charge sheet and all discovery associated therewith is similarly delivered to a local DSO Branch Office which is embedded within, and administratively assigned, to the LSSS. 5 Enclosure 1

7 If the charged matter is of the nature of a misdemeanor, it is typically sent to a Special Court Martial. The Special Court-Martial Convening Authority, or SPCMA, a Lieutenant Colonel or Colonel in command, then signs the referral block on the charge sheet, directing the convening of a Court-Martial. This is important. While we have standing military judges assigned to an independent judiciary, we have no standing courts. Each case is individually referred to a specific court convened for the sole purpose of presiding over that one trial. An order signed by a commander directing a court is called a convening order. If the matter is more serious, akin to a felony, the charges are sent to a Preliminary Hearing under Article 32 of the Uniform Code of Military Justice. This is best thought of as a probable cause hearing, not a grand jury proceeding. This is a necessary first step before going forward to the most serious forum available in our system, the General Court-Martial which may only be convened by a General Officer or General-Court Martial Convening Authority (GCMCA). At this hearing, a Judge Advocate will consider the evidence presented by the Trial Counsel, and any evidence presented by the defendant who is represented by counsel. Practically speaking however, the rights of the accused are extremely limited in this forum. The Preliminary Hearing Officer, or PHO, is tasked with deciding if there is probable cause to believe there is evidence of each element of each offense. If so, the PHO then makes a recommendation as to forum he may recommend administrative resolution, a special court, or a general court. He may also recommend the addition or subtraction of charges. The recommendation of the PHO is reduced to writing and delivered, along with the evidence, to the SPCMA. The SPCMA forwards his recommendation as to disposition with the evidence and PHO s recommendation to the GCMCA. The GCMCA SJA then takes that package, creates his own letter with regard to disposition recommendation, and delivers it to the GCMCA. The GCMCA is not bound by the recommendation of the PHO, the SPCMA or the SJA. He may refer any charges he deems necessary. If in his estimation the matter requires a GCM, he signs the referral block and the court is ordered. It is also at this juncture that the GCMCA may, in the extremely unusual circumstance, refer certain matters capital. 6 Enclosure 1

8 Evolution of Military Justice in the Marine Corps The structure, organization, and duties of judge advocates and legal communities within the Department of Defense have been the subject of intermittent scrutiny for decades. The past forty years have witnessed a slow, evolutionary process which leads us to where we stand today. In the Marine Corps, we trace it back to what we know as the 1969 study. What follows should serve the Committee well as a cautionary tale about how piecemeal solutions, a failure of accountability, and a lack of true institutional resolve for change can frustrate justice, lead to a crisis in the courtroom, and justify intense media scrutiny. Prior to the enactment of the Uniform Code of Military Justice in 1950, there was no significant role for Marine judge advocates. Good order and discipline was the exclusive purview of the commander. When the UCMJ was enacted in 1950, the assumption was that the Marine Corps would source its attorneys in the same manner that we source other professionals (corpsman, nurses, doctors (Medical Corps), dentists (Dental Corps) and chaplains (Chaplain s Corps)) through the Navy. That assumption was incorrect. World War II, Korea, and Vietnam bore witness to a number of attorneys serving as line officers in the Marine Corps in a variety of non-legal capacities. Because of their training and education, such officers were commonly assigned collateral duties related to military justice demonstrating not only a preference, but also an easily articulable value for Marine legal services to be provided by Marines. Further Congressional changes in the Military Justice Act of 1968 and the 1969 Manual for Courts-Martial prompted the Commandant of the Marine Corps to order a study evaluating the most practicable procedures for the provision of legal services in the Marine Corps. The landmark 1969 Study considered several models for the provision of Marine Corps legal services, including establishment of a separate, Marine JAG community and the use of Navy lawyers. The option the Commandant selected was the model in place in 1969, and is the model largely intact today: using Marine line officers who are also judge advocates to provide legal services to our Corps. 7 Enclosure 1

9 At the time the Commandant remarked, Marine Commanders will be better able to accomplish this function so vital to the Marine Corps by advice from Marine lawyers who think, are trained, and have experienced field hardships throughout their careers, the same as their Commanders. This statement reflects an understanding that Marine Commanders are likely to be more receptive to legal advice from a fellow Marine officer who has an understanding, not only of the specific legal issue, but also of the overall context of the challenges facing the Commander not to mention those cultural aspects of Marine life previously addressed. Further, the Commandant noted that the selected model, minimizes the appearance of a special corps within the Corps. It supports the Marine Corps family concept of taking care of its own. It ensures that the person who is providing this most essential and vital service, considers himself and is actually committed to complete involvement in the military community for whom he serves. To this day, the only military occupational specialty in the Marine Corps that requires a graduate degree is a judge advocate. As such the Marine Corps was the only service without a fully independent legal services corps. There are ample historical and Marine Corps-specific reasons for choosing not to create a fully independent organization. Yet as a military defender community, we continually struggle with the very same cultural aspects of our practice which make us special as Marines, balanced against our duty to Marines and Sailors to create a defense organization with sufficient authority to provide the zealous, high-quality representation they deserve. One lesson learned from our history is that the hallmark of an independent defense organization is the role of supervisory defense counsel in the determination of which defense counsel represents a particular accused. As previously noted, for many years departmental and service regulations assigned that authority to prosecutorial actors such as officers-in-charge of legal services support sections, directors of law centers, and to convening authorities. But that model creates an inherent conflict of interest with the provision of military defense counsel services, an issue which eventually led to substantial change in our structure. 8 Enclosure 1

10 Evolution of Defense Services in the Marine Corps Prior to and following 1969, the litigation capacity in the Marine Corps was resident in a hodgepodge grouping of Law Centers, and SJA offices. The SJA typically exercised broad powers on behalf of the convening authority over all aspects of military justice. He or she assigned cases, decided who would serve as prosecutor, and who would serve as defense counsel. This is important, because not only did the SJA assign subordinates their duties, he also wrote their performance evaluations. As such, the person whose job it was to advise the Commander (the one who brings the charges in our system) also assigned the person prosecuting the accused, the person representing the accused, and wrote performance evaluations for both. Later some of these authorities were consolidated into a Legal Services Support Section (LSSS) construct at some of our larger military installations (Camp Pendleton California, Camp Lejeune, North Carolina, and overseas at Okinawa, Japan). Under the LSSS construct, legal services were viewed as a combat service support function. As such the LSSS was a subordinate element of what is now known as the Marine Logistics Group (MLG). The LSSS Officer-in- Charge (OIC) was a Lieutenant Colonel who exercised authority over all attorneys attached to the LSSS, including trial and defense counsel. All misconduct across every unit aboard major these Marine Corps installations was sent to one of these three LSSSs for adjudication. The LSSS OIC would assign both the prosecutor and defense counsel to every case. The LSSS OIC became responsible for assignments of new counsel and resource allocation (see enclosure 2). But at several installations the authority of law center directors, who typically served side-byside with, or were dual-hatted as, the local SJA, remained largely intact. The next major event in our organizational evolution took place in 1973 when Secretary of Defense Melvin R. Laird, issued a memorandum in response to a Department of Defense report on racial discrimination in the military justice system. Most notably to the subject at hand, it went on to identify specific concerns that clients continued to view defense counsel as susceptible to unlawful pressures and influence by commanders and senior military lawyers. 1 In his memorandum, Secretary Laird directed the military departments to devise plans to place defense counsel under the auspices of the Judge Advocates General, and, in the case of Marines, 9 Enclosure 1

11 the Director of the Judge Advocate Division, HQMC (SJA to the Commandant). However, despite the development of plans to address the concerns by each of the Service Secretaries, budgetary and personnel constraints led to delays in implementation. Ultimately, only the Navy implemented minor reforms as a result of this memo.. The Navy started to assign both prosecutors and defense counsel to shore-based commands under the purview of the Judge Advocate General, but fell short of establishing an independent defense organization at that time. Shortly thereafter, the Marine Corps submitted a plan to place defense counsel under the Director, Judge Advocate Division, but this plan also failed to receive the necessary additional personnel and financial resources necessary for execution. Only the Air Force had the foresight to establish an independent defense counsel organization, initiated in But at least having made some effort to remove the role of the commander in the assignment of counsel, in November 1976 the Judge Advocate General of the Navy, in a letter to Director, Judge Advocate Division, suggested that the Marine Corps had done little in response to the Laird directive except to state that it was studying the matter. In his letter, the JAG wrote: Pursuant to my responsibility under [Article 6(a) UCMJ] to supervise the administration of military justice within the Department of the Navy, I suggest that the Director, Judge Advocate Division, Headquarters, U.S. Marine Corps, might wish to consider a reevaluation of the structure of Marine Corps trial defense counsel in light of field experience obtained over the past two years. Since [1974], Navy defense counsel have been supervised and graded by officers in charge of the respective Naval Legal Services Offices. This organizational structure implemented the directions of the Secretary of Defense to submit plans to revise the structure of the judge advocate organization to place defense counsel under the authority of the Judge Advocate General. It successfully carried out the recommendation of the Department of Defense Task Force Report on the Administration of Military Justice in the Armed Forces that all judge advocate defense counsel be placed under the direction of the appropriate service Judge Advocate General. Yet in the Marine Corps little changed. Defense Counsel remained under the cognizance of both the local SJA, LSSS OICs, and by extension, the Convening Authority. 10 Enclosure 1

12 Perhaps as the result of a lack of institutional change in the Services, 1976 bore witness to yet another study. From the Government Accountability Office (GAO) scrutinized the military justice system, including visits, interviews, and surveys throughout Department of Defense. In October 1978, the Comptroller General issued a 56-page report entitled "Fundamental Changes Needed to Improve the Independence and Efficiency of the Military Justice System." Perhaps highlighting institutional resistance to change, the report expressed continued concern relative to the absence of a truly independent defense organization among the services (with the exception of the Air Force). The report assessed, among other things, the best means for promoting the independence and effectiveness of counsel as well as being more fiscally efficient. The report concluded that: Differences in mission requirements and the physical diversity of installations and activities within and among the services do not, without fundamental changes, allow the services to adopt uniform defense or trial counsel organizational modes. However, we believe that more can be done within existing constraints to achieve greater counsel independence and ensure the impartial delivery of justice. [Although the] Marine Corps is testing an independent defense counsel organization, the Marine Corps has no plans for establishing a separate defense organization service-wide. (Emphasis added). The GAO went on to specifically recommended that "the Marine Corps complete development and implement such a plan [and] [t]he Secretary of Defense, in implementing [GAO's] recommendations, should consider directing the Army and the Marine Corps to authorize the staff and other resources necessary to establish independent defense counsel organizations without additional delay." (Emphasis added). On June 2, 1978, the Director, Judge Advocate Division commented on the GAO report in a letter to the Commandant of the Marine Corps by saying "[R]egrettably, but not surprisingly in light of the premises underlying the survey, the report is generally critical of various aspects of military justice in the armed forces, with a healthy slice of criticism directed at the Marine Corps." The Department of Navy, in its response, commented on the GAO finding that the Marine Corps had no plan for even taking the first step toward improving counsel independence. Specifically the Department of the Navy stated, in part: 11 Enclosure 1

13 The Marine Corps has never disputed that an organizational structure which 'insulates' defense counsel from command will do much to eliminate the so called 'appearance of evil.' Nor has the Marine Corps been unmindful of the fact that, as the GAO report points out, unhealthy perceptions concerning the posture of defense counsel are occasionally shared by persons within as well as without the system. The lessons learned from pilot programs are currently being evaluated at Headquarters Marine Corps with a view towards determining the desirability and feasibility of implementing similar or even more far reaching programs at other Marine Corps commands. For reasons that are inextricably related to force missions, service traditions, and available resources, the Marine Corps has approached the concept of an independent defense counsel organization with understandable caution. The Marine Corps should be given the additional time necessary to study and implement a plan for improving independence of counsel which will serve both the ends of justice and the Marine Corps mission. In December 1978, the Department of Defense responded to the GAO report by stating that "the Department of Defense does not believe that there is cause for wide ranging military justice reforms. The response further explained that "the Marine Corps will continue to devise a program that is consistent with their mission and the goal of improving the independence of trial defense counsel. DoD will monitor progress in these areas. Within a year, the Army joined the Air Force and created an independent defense organization, the Army Trial Defense Service (TDS), a vertical command and management structure separate and distinct from that of local commands. The creation of the Army TDS, which was given permanent organizational status in November 1980, left the Navy and Marine Corps as the only services without an independent defense function. In short, despite an identified organizational deficiency and two studies directly recognizing the need for structural changes, nothing of any significance changed. Predictably, distinctions between the way similarly-situated servicemembers were different services led to appellate scrutiny. In 1983, the Court of Military Appeals, when reviewing a troubling case where a Navy defense counsel had his fitness report written by a prosecutor, recognized that independent and unified defense organizations "have worked well in the Army and the Air Force" and applauded the Navy's plan to create the independent defense 12 Enclosure 1

14 commands. 2 Later that year, Congressional attention resulted in the Military Justice Act of That act provided the Secretary of each Department the authority to establish regulations for the detailing (assignment) of defense counsel in order to remove the convening authority from the detailing decision-making process. Within the Department of the Navy, the defense counsel's commanding officer, or his designee, became that detailing authority for defense counsel. Given that the Navy had previously removed their attorneys into shore based organizations supervised by other attorneys, Navy defense counsel were detailed by supervisory defense counsel. By contrast, the Marine Corps remained tethered to the command structure. There were no commanders of law centers or LSSSs, and therefore supervisory defense counsel remained responsible to their commander the very same persons prosecuting their clients. This obvious deficiency became readily apparent in early At that time the Marine Corps came under direct, intense scrutiny regarding the delivery of defense counsel services at a Law Center aboard a now defunct Marine Corps Air Station (MCAS) located in El Toro, California. In February 1984, a Marine officer stationed at MCAS, El Toro, wrote several Senators and Congressmen asking for an inquiry into the delivery of defense counsel services in the Marine Corps. While specifically mentioning previous Congressional interest leading to the establishment of independent defense counsel organizations in the Army and Air Force, he claimed: [T]he SJA's direct supervision and control over the assignments of defense counsel, therefore, is one of the most problematic defects in our system. Again, I would point out that this defect is unique to the Marine Corps. The Marine Corps system for affording defense counsel to accused persons presents inherent conflicts for counsel. This problem appears to be unique to the Marine Corps. I believe that Marines deserve the same level of justice and just as vigorous a defense as their counterparts in the other services enjoy. Congressional and media interest in response to this complaint led to two investigations and an appearance by the Base Commanding General on CNN. The first investigation focused on the defense counsel, their lack of experience, misperceptions, and the Law Center Director's 13 Enclosure 1

15 failure to discern the morale problems within the defense section. The second investigation focused specifically on matters such as assignment and reassignment of counsel; approval processes for the selection of individual military counsel; 3 the writing of performance evaluations; the sufficiency of facilities; morale; perceptions; the role of a Law Center Director dual-hatted as the command legal advisor (SJA); and ethical concerns. On September 4, 1984, in a letter to the Secretary of the Navy, the Commandant of the Marine Corps wrote: writing: [A]lthough our structure is basically sound, it exposes defense counsel to the potential for improper pressures under a supervisory and support system that is not designed to be continuous and reviewable at my Headquarters level. Accordingly, I have decided that structural and procedural changes will be implemented effective 1 February 1985 which will adopt some of the beneficial features of other services' defense counsel systems, tailored to Marine Corps missions and readiness. On September 20, 1984, the Secretary of the Navy responded to the Commandant, As you correctly point out, this case has exposed a potential weakness in the structure under which trial defense services are provided in the Marine Corps. Not only must we avoid situations in which defense counsel could be exposed to accusations of undue command influence, we must ensure both the appearance and the fact of fair play and due process. I commend the corrective measures you have taken and plan to take regarding this particular area, and welcome your determination to implement a new structure and procedures for the provision of trial defense services throughout the Marine Corps. In view of the clear need for separation of trial defense counsel from the staff judge advocate chain of command, please accelerate your proposed timetable. On November 15, 1985, MCO A was published. This order established the billets of Chief Defense Counsel (CDC) of the Marine Corps and three Regional Defense Counsel essentially a performance evaluation report chain, linking all Marine defense counsel and enlisted assistants within a stovepipe defense only reporting chain, and de-linking them from local cognizant command authorities. This was a huge step forward for our community, but still fell short of a truly independent defense function. It served two important functions. 14 Enclosure 1

16 First, it established a clear process for performance evaluations. This effectively eliminated opportunity for the local commander and/or SJA to threaten defense counsel with poor evaluations for effective performance. Second, it established a separate supervisory chain of command. The Regional and Chief Defense Counsels were now responsible for the morale, leadership, and mentorship of subordinate defense counsel, and were delegated detailing authority from the local commander. But despite these positives, this was clearly a half-measure. For example, local Law Center and LSSS directors retained operational control over assignment of officers and enlisted Marines to duty as Marine defense counsel. Counsel who performed well as defense counsel were quickly reassigned as prosecutors. Similarly, underperforming prosecutors were sometimes moved into the defense. Neither the RDC nor CDC had any significant influence on such personnel moves. Furthermore, while authority to assign cases was delegated to Regional and Senior defense counsel, that authority remained vested in the Commander who, at the stroke of a pen, could remove it. Threats to remove this authority persisted throughout my tenure as Regional Defense Counsel-East from Third, the role of the CDC was vague and defined mostly by the occupant, not by regulation. To some it appeared that the CDC s role was honorary, a title given to a retiring Colonel to bolster his or her resume. As evidence of this, the CDC was not co-located at the strategic level of the legal organization, Judge Advocate Division, Headquarters, U.S. Marine Corps. Instead the CDC could choose her geographic location to coincide with her desired retirement location. Fourth, RDCs were not selected by the CDC. Instead they were selected by Judge Advocate Division. Typically they were solid selections, but the opportunity to slide an underperforming Lieutenant Colonel always presented a tempting option. One early RDC, in an article in the Marine Corps Gazette the professional journal for Marine Officers referred to the structure as a paper tiger and argued for more robust independence and authority for supervisory defense counsel. 4 But with some minor modifications, such as the CDC moving into the Judge Advocate Division and gaining a voice in selection of his or her subordinate leaders, there was little significant change in roles, relationships, or responsibilities until Along the way there were agents for change those who saw obvious deficiencies concomitant to the piecemeal solutions being periodically put in place. They built the record. 15 Enclosure 1

17 RDCs wrote memos, submitted proposals for change, and wrote articles. CDCs took these proposals to their leadership. In 1998 it looked for a moment as if we were about to take that final step forward the Staff Judge Advocate to the Commandant submitted a proposal to the Commandant to create a completely separate and independent defense organization. In his proposal, the SJA to CMC explained: Since 1985, when the Marine Corps first addressed defense counsel independence, we've asked the question: did we go far enough? Currently, the only protections for our defense counsel are a separate reporting chain and commander/sja professionalism in honoring defense service functions. We are the only service without a fully independent defense organization. [W]e owe it to our Marines and their defense counsel to create a defense organization that is fully independent and capable of providing the zealous, high quality representation our Marines deserve. This proposal met stiff institutional headwinds. Unwilling to cede any authority to supervisory defense counsel, senior Marine judge advocates convinced the SJA to CMC to abandon his proposal. Regrettably he did so, and the Marine defense organization remained unchanged when the Commandant issued a new manual for legal administration in Over the next dozen years four different CDCs helped build the record. Each was frustrated by the role of the cognizant command authority in the provision of defense services; each submitted proposals to the SJA to CMC to create a more independent defense organization. While the specifics differed slightly, each recognized that the most important aspect of these authorities was assignment of counsel the authority to put the right counsel to the right case. This authority is critical to establishing an effective defense bar. As such, each proposal had one thing in common the transfer of assignment (detailing) authority and the authority to approve Individual Military Counsel requests from the cognizant command authority to the supervisory defense counsel. This formed the necessary first step to eliminate actual or perceived conflicts of interest in the counsel selection process. But each proposal, like the next, met similar institutional resistance to change. The results were predictable. 16 Enclosure 1

18 2010 once again saw the Marine Corps defense bar model subject to appellate scrutiny. The Navy and Marine Corps Court of Criminal Appeals had directed a DuBay hearing, a posttrial fact-finding hearing held by a military judge, to clarify certain points not found in the record. In this particular case, the hearing concerned the assignment of counsel. In full disclosure, I was deeply involved in this matter, as I was at the time of counsel assignment the Regional Defense Counsel-East. The accused was an officer who had been convicted in relation to a series of sex offenses unwanted touching and solicitation of sex from other Marines during a visit to Ireland in commemoration of World War II. But because of then-existing assignment policies, the accused s counsel was a judge advocate who served concurrently as a trial counsel (prosecutor) and a defense counsel within the same LSSS. To be clear, I was involved in this decision. But to be equally clear, I had little discretion in the matter, and made the best decisions I could based on the authorities that governed. The DuBay Judge acknowledged that full review of Marine defense structure was outside the scope of his mandate but nonetheless commented that: [T]his case should be instructive to the Marine Corps judge advocate community on many levels. The command structure as it currently exists clearly contributed to the events as they unfolded. Based on (by all accounts) the excellent working relationship among the OIC of the LSSS, the RDC, and the SDC at Camp Lejeune, this is presumably the best the current system can work. What of instances in which working relationships are strained? 5 In short, the Judge noted that even where personalities meshed; even in a system where the parties worked towards common sense solutions, the structural deficiencies were overwhelming. Ultimately, and directly as a result of these deficiencies, the Navy and Marine Corps Court overturned the conviction. Further exacerbating matters, several incidents throughout 2010 gave credence to the DuBay Judge s concerns. Defense counsel were threatened by an SJA with reprisal for doing their jobs; ordered by their commanding officer not to interview witnesses; opposed by their cognizant command authority in court; had detailing authority revoked (leaving clients at one installation with no defense counsel to provide representation); were subjected to short-tours as 17 Enclosure 1

19 defense counsel; and witnessed other incidents that raised legitimate concerns, particularly among junior defense counsel, about the fairness of how military justice is delivered in the Marine Corps. Agents for Change and Our Current Structure Partially as a result of these events, but largely due to the efforts of three visionary leaders things dramatically changed in Colonel Rosemarie Favors, U.S. Marine Corps (Retired), CDC from , set the conditions for change; then Colonel, now Brigadier General John Baker, U.S. Marine Corps, CDC from , developed the plan; and Major General Vaughn Ary, U.S. Marine Corps (Retired), Staff Judge Advocate to the Commandant of the Marine Corps from , provided the new vision for the provision of legal services in the Marine Corps. Capitalizing on a renewed interest in military justice by both Congress and the public, General Ary went about establishing the first complete reorganization of the provision of Marine Corps legal services since the 80 s. In doing so he did several important things. First, he established a clear, bright line between those tasked with providing command advice (SJAs) and those providing trial services (prosecutors and defense counsel). This helped establish a strong regulatory buffer between the cognizant command authorities and those serving in the courtroom. Second, he realigned trial services to each of the four Marine Corps installation commands. This completely changed the way in which the Marine Corps viewed legal services. Rather than being a logistical function, it became a base or station function, much like a hospital. In fact, one common refrain from General Ary was to turn our four LSSS s into teaching hospitals for young attorneys to learn and hone their craft. Third, and most importantly, he and General Baker established the Defense Services Organization. While still short of a truly independent defense structure like one may find in the Army or Air Force, he bolstered the role of the CDC; moved case assignment and Individual Military Counsel approval authority from commanders to the CDC; established clear and easily articulable professional criteria for those tasked to serve as CDC and as RDC; gave the CDC a stronger voice in the selection of his 18 Enclosure 1

20 subordinate leadership; directed parity in training and resource dollars; set minimum tour lengths for Defense Counsel; and directed the CDC retain operational control over the day-to-day functions of Marines assigned to the DSO. Presently the DSO remains under my operational control. I have four Regional Defense Counsel, each aligned with the four Legal Services Support Sections: RDC National Capital Region, located at Marine Corps Base Quantico, Virginia is responsible for to me for the provision of defense services in Northern Virginia, The District of Columbia, Maryland, western Europe, and the Reserve Force Structure in New Orleans,; RDC East, located at Marine Corps Base Camp Lejeune, North Carolina, responsible to me for the provision of defense services in North and South Carolina, Florida, and Georgia; RDC West, located at Camp Pendleton, California, responsible to me for the provision of Defense Services in California, and Arizona; and RDC Pacific, located in Okinawa, Japan, and responsible to me for the provision of defense services in Okinawa, mainland Japan, and Hawaii. Beneath my RDCs are 10 Senior Defense Counsel, one at each installation. They, in turn, have a number of line defense counsel responsible to them varying in number based on local organizational demand signal. In total I have more than 70 defense counsel, more than 20 enlisted support personnel, and two civilian Highly Qualified Litigation Experts. I exercise operational control over the organization through regular site visits, an established training campaign plan, advocating for resource and personnel allocations with my peers inside Judge Advocate Division, and policy memos establishing policies and procedures for counsel to follow. I also try to set a personal example by participating in and leading training events and by carrying a small caseload commensurate with my supervisory responsibilities. Challenges for the Future Despite the progress over the past four years, the Marine Corps remains the only service without a truly independent Defense Services Organization. We have taken many important steps forward, and I am constantly reminded that strategic change takes time, but there are still areas which require improvement. This has animated my tenure as CDC, and informs my CDC priorities over the past two years. Like my predecessors, I struggle to maintain those aspects of 19 Enclosure 1

21 our practice and culture which makes us different as Marines, while staying true to our DSO organizational creed: We are Marines - Judge Advocates and Legal Services Specialists - who are dedicated to defending our fellow Marines and Sailors, by providing them legal counsel in any matter required by statute, regulation, or otherwise authorized. We are zealous advocates for our clients, serving independently of the local chain of command and under the supervision of the Marine Corps Defense Services Organization. We zealously represent each and every client within the guidelines of the law, consistent with our professional ethics, and in accordance with our rules of practice. We selflessly perform our duties with the utmost integrity, motivation and pride, without fear of reprisal, or expectation of professional or personal gain. In the same spirit as Taking Care of Our Own, we are: Marines Defending Marines. The Lee Court pointed out a critical fact that the system under which we then operated was entirely personality dependent. So long as the personalities meshed; so long as the RDC and LSSS OIC were able to work together, the system could function at capacity. But because the Government retained carte blanch authority, even when functioning at capacity it was fundamentally deficient. The single greatest change in our system which resulted, and my most powerful tool, is that of counsel assignment. Organizationally the DSO remains somewhat of a paper tiger. I am responsible for the provision of defense services in the Marine Corps, yet I share my responsibility for my Marines with the Officers-in-Charge of the four Legal Services Support Sections. Marines remain assigned to those organizations. Only upon the decision of the LSSS OIC is an Officer or Marine made a part of the DSO. My level of participation in those decisions, and that of my subordinate leadership, remains entirely dependent on the personality of the parties involved. Secondly, the authorities granted to the DSO by General Ary are similarly personality-dependent. While I retain case assignment authority, the Government retains control over the personnel assignment process, both for individuals and billet location. The degree to which I am involved in that process is likewise personality-dependent. Finally, the Government retains the power of the purse. I have no independent budget. Instead, I must ask the Government to fund my travel, my training program, and civilian hiring. Despite the good 20 Enclosure 1

22 intentions of all parties involved, particularly when it comes to civilian hiring, competition for scarce dollars in a resource constrained environment is fierce. The same holds true for access to evidence my counsel have neither subpoena power nor independent defense investigators and must instead ask the prosecutor to produce, or the Military Judge to order production of, evidence and witnesses. So I end where I began. Strategic change takes time. Piecemeal solutions are not solutions, we must be prepared to do that which is hard. And we must build the record. I suggest that the greatest lesson this panel can take from the Marine DSO is not in our organizational structure, but is instead these three key points. It took nearly 43 years for the Marine Corps to implement the changes now in place and establish the DSO. Strategic change takes time, and requires tactical patience. Over those 43 years there were no less than three studies, and multiple proposals for change. But even a minor crisis at El Toro only led to stopgap measures. It took a subsequent crisis, United States v. Lee, and increased Congressional and public scrutiny over military justice, for there to be substantive change. It may have been wise to do the hard thing earlier rather than lurching from crisis to crisis, reacting to problems rather than solving them. We must be prepared to do the hard thing to implement true strategic change. Finally, the changes borne in 2012 the creation of the DSO and all the authorities concomitant thereto were only possible because for the past 43 years Marines have been making the record. The men and women who built the DSO were able to rely on years of thoughtful, thorough, analysis and an established record demanding strategic change. In view of how hard strategic change is, we must continue to build the record. We have made many great strides forward in the Marine Corps towards a truly independent defense function. But while the DSO is functionally independent, the opportunity to abuse resource allocation and personnel assignments in order to influence judicial outcomes is still possible. In my estimation the Marine Corps is one or two iterations away from striking the right balance between being a part of the Marine Corps structure and having the independence required for the unfettered and zealous advocacy of our clients. If the DSO can obtain parity with regards to independent funding, equipment, and resources; secure equal access to evidence, 21 Enclosure 1

23 experts, and investigators; and obtain a veto or right of first refusal when it comes to personnel assignments, the DSO will be where the GAO recommended it should have been in 1976: a truly independent defense counsel organization. I once again thank the Committee for the opportunity to provide comment, and am prepared to take your questions. The views and opinions in these remarks are those of the author and do not represent the views or opinions of the United States Marine Corps, the Department of the Navy, or the Department of Defense. 1 Unlawful Command Influence (UCI) has frequently been called the "mortal enemy of military justice" See United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986). Command influence in general is not per se unlawful in fact it is necessary and expected. However, in the military justice arena, command influence becomes unlawful when there is inappropriate interference with the independent discretion vested in each stakeholder to the military justice process (e.g. UCI can occur when senior personnel act outside the court to shape the proceedings by influencing court members (the jury) to vote a certain way, indicating repercussions if a witness testifies a certain way, or senior personnel have any ex parte communication with a military judge about a pending case). Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military. The effects of UCI are so negative to morale and so offensive to the notions of fair play and justice that even the appearance of UCI can lead to relief.... because the inherent power and influence of command are necessary and omnipresent facets of military life, everyone involved in both unit command and in military justice must exercise constant vigilance to protect against command influence becoming unlawful United States v. Harvey, 64 M.J. 13, (C.A.A.F. 2006). The mandate of United States [v.] Biagase, 50 M.J. 143 [C.A.A.F. 1999] could not be more clear. Undue and unlawful command influence is the carcinoma of the military justice system, and when found, must be surgically eradicated. And this is going to be what we are about to see, the eradication of something that has shocked the conscience of this court See United States v. Gore, 60 M.J. 178, 184 (C.A.A.F. 2004). 2 United States v. Nicholson, 15 M.J. 436, 439 (C.M.A. 1983). 3 Article 38(b) of the Uniform Code of Military Justice permits an accused to be represented by a defense counsel of his own selection if that counsel is determined to be reasonably available under applicable regulations. 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. A military accused in such proceedings has the right to representation by government-compensated military counsel regardless of indigence and also has the right to select a particular military counsel in limited circumstances. These rights reflect the unique nature of military life, in which members are subject to worldwide assignment and involuntary deployment under circumstances when civilian counsel are not readily available. United States v. Spriggs, 52 M.J. 235, (C.A.A.F. 2000). An additional counsel assigned to a case as the result of a by-name request made by an accused is referred to as individual military counsel or IMC. 4 LtCol J. M. Roake, USMC, The Marine Corps Defense Bar: A Paper Tiger, Marine Corps Gazette, Dec United States v. Lee, 66 M.J. 387 (C.A.A.F. 2008). 22 Enclosure 1

24 Colonel Stephen C. Newman Chief Defense Counsel of the Marine Corps, Officer-in-Charge, Defense Services Organization Colonel Stephen C. Newman was born in Detroit, Michigan. Raised in Indiana, he graduated from Eastbrook High School in After enlisting in the reserves of the United States Marine Corps, in 1984 he attended recruit training at Marine Corps Recruit Depot San Diego, California. In 1986 he graduated from Taylor University, Upland Indiana, with a Bachelors Degree in Political Science. While attending Capital Law School in Columbus, Ohio, he attended Officer Candidate School. Commissioned a Second Lieutenant in August of 1988, he returned to law school and received his Juris Doctor in During this period he was promoted to First Lieutenant. After graduating from The Basic School and Naval Justice School, in 1992 he reported to Marine Corps Logistics Base, Barstow, California where he served alternate periods as Trial Counsel, Defense Counsel, and Legal Assistance Officer, prosecuting and defending a variety of felony offenses. During this period he was promoted to Captain. In 1995 Captain Newman attended Amphibious Warfare School. Graduating in 1996, he was assigned as Deputy Staff Judge Advocate, 1st Force Service Support Group, I Marine Expeditionary Force. In December of 1995 he was reassigned as Staff Judge Advocate, 13th Marine Expeditionary Unit. During two deployments he participated in OPERATION SILENT ASSURANCE and OPERATION SOUTHERN WATCH, and was promoted to Major. In 1999 Major Newman was selected to attend The Graduate Course at The Judge Advocate General s School of the U.S. Army, where he received his LLM in Military Law (focus in International and Operational Law). Following school Major Newman served in the Republic of Korea as Deputy Chief, Operational Law Division, United States Force Korea, Ground Warfare Law Officer, Combined Forces Command, Korea, Operational Law Attorney, United Nations Command, and Staff Judge Advocate, United States Marine Corps Forces, Korea. During this period Major Newman was a member of a team that negotiated with the Democratic People s Republic of Korea, leading to the first subsequent agreement the Armistice Agreement in twenty years. In 2002 Major Newman was reassigned to the 2d Force Service Support Group, II Marine Expeditionary Force, where he served as Senior Defense Counsel, representing Marines in a variety of high-profile cases. In February 2004 he was promoted to Lieutenant Colonel and reassigned as Regional Defense Counsel, Eastern Region. Specifically requested for representation by a Marine facing detainee abuse charges, Lieutenant Colonel Newman deployed to Iraq in support of OPERATION IRAQI FREEDOM II. In 2005 he was reassigned as Deputy Staff Judge Advocate, Marine Corps Installations East. During this period Lieutenant Colonel Newman participated in OPERATION ENDURING FREEDOM where he served as Chief, Current Operations for Combined Forces Command, Afghanistan. Upon his return he served as the acting Staff Judge Advocate, Marine Corps Installations East and was selected to be a student at the National War College, Fort McNair, Washington, D.C., where he received his Masters Degree in National Security Strategy (with Enclosure 1

25 Honors). Following this he was assigned duties as Staff Judge Advocate and Law Center Director, Marine Corps Base Quantico, Virginia. In August 2009 he was promoted to Colonel. In July 2010 he assumed duties as SJA, 2d Marine Aircraft Wing, II Marine Expeditionary Force, supporting over 17,000 Marines and Sailors and 52 separate commanders at four Air Stations in three states. In July 2012 he assumed duties as Director, Code-46, Appellate Government Division, where he represented the United States before the Navy-Marine Corps Court of Criminal Appeals and Court of Appeals for the Armed Forces. In June of 2014 he assumed his present duties. Colonel Newman is a member of the Ohio Bar. His writings include Duress as a Defense to War Crimes and Crimes Against Humanity-Prosecutor v. Drazen Erdemovic, 166 MIL. L. REV. 158 (2000), and Observations On War, International Law, And World Systems Change: A Comparative Analysis Of Legitimacy As An Element Of Hegemonic Power (thesis manuscript, 2008). His personal decorations include the Legion of Merit (gold star in lieu of second award), Defense Meritorious Service Medal (oak leave cluster in lieu of second award), the Meritorious Service Medal, the Navy Commendation Medal, the Joint Service Achievement Medal, and the Navy Achievement Medal (gold star in lieu of second award). Enclosure 1

26 MCO P A Ch 7 10 Feb 2014 LEGADMINMAN CHAPTER 2 THE MARINE CORPS DEFENSE SERVICES ORGANIZATION PARAGRAPH PAGE PURPOSE GENERAL PERSONNEL TOUR LENGTH REASSIGNMENT COLLATERAL DUTIES DETAILING REPRESENTATION AT INITIAL REVIEW OFFICER HEARINGS REQUESTS FOR INDIVIDUAL MILITARY COUNSEL (IMC) PROFESSIONAL RESPONSIBILITY COMPLAINTS MISCONDUCT ALLEGATIONS ADMINISTRATIVE AND LOGISTICAL SUPPORT BUDGETING AND FUNDING GUIDANCE APPLICABILITY Enclosure 2

27 MCO P A Ch 7 10 Feb 2014 CHAPTER 2 THE MARINE CORPS DEFENSE SERVICES ORGANIZATION PURPOSE. The purpose of this chapter is to describe the organization, roles, and responsibilities of the Marine Corps Defense Services Organization (DSO), as provided for in law, regulations, and rules of professional conduct GENERAL 1. The Sixth Amendment to the United States Constitution provides, In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence. For Service members pending courtmartial, the right to counsel is provided by Congress through Article 27, Uniform Code of Military Justice (UCMJ) and implemented by the President through Rule for Courts-Martial (R.C.M.) 506, Manual for Courts-Martial (MCM). The Secretary of the Navy, through JAGINST F, The Manual of the Judge Advocate General (JAGMAN), provides Departmental policy and regulations regarding the right to counsel and the formation of the attorney-client relationship. This chapter, which supplements the JAGMAN, provides Service policy regarding the delivery of defense counsel services within the Marine Corps. Further, the Chief Defense Counsel of the Marine Corps (CDC) will publish policy and administrative procedures applicable to judge advocates serving as Marine defense counsel. These documents will be available on the DSO website. 2. Marine Corps defense counsel services are performed by commissioned officers who are licensed attorneys, certified as judge advocates under Article 27(b), UCMJ, and assigned to defense counsel billets in the DSO. Marine defense counsel serve at locations throughout the Marine Corps and are administratively attached to Legal Services Support Sections (LSSS). However, Marine defense counsel are under the operational control and supervision of and responsible and accountable to the CDC and the responsible Regional Defense Counsel (RDC) for the delivery of defense counsel services at their respective locations. 3. A Marine defense counsel must exhibit unfettered loyalty and professional independence in representing the client, and is ultimately responsible for acting in the client s best interest. A Marine defense counsel s primary duty is to provide zealous, ethical, and effective representation to Marines and other Service members; this duty is limited only by law, regulation, and the Rules of Professional Conduct (JAGINST D). 4. Attorney-Client Relationships a. A Marine defense counsel will not establish an attorney-client relationship with any individual unless detailed, assigned, or otherwise authorized to do so by his or her detailing authority. b. Once established, the attorney-client relationship, whether for a courtmartial or administrative separation board, may only be severed under the provisions of R.C.M. 505 and R.C.M. 506 of the UCMJ and the Rules of Professional Conduct. c. A Marine defense counsel shall continue to represent an accused posttrial until the accused is assigned an appellate defense counsel, if applicable, or until completion of any and all post-trial or post-board matters; however, for purposes of paragraph 2004 of this chapter, a Marine defense counsel s tour 2-2 Enclosure 2

28 MCO P A Ch 7 10 Feb 2014 with the DSO is considered complete when R.C.M. 1105/1106 matters, if applicable, have been submitted for every criminal case to which the defense counsel was detailed and comments on the Report of the Board have been submitted for every officer and enlisted administrative separation board to which the defense counsel was detailed. 5. Guiding Principles a. The Marine Corps DSO must be independent of unlawful pressure or influence. b. Funding for training, resources, and facilities shall be consistently provided across the Marine Corps legal community, and there shall be equitable distribution, commensurate with mission requirements, between the defense function and the prosecution function with respect to the following: access to resources, capabilities, and facilities; seats at continuing legal education courses; training funds; and support staff. c. Requests for specific case-related funding submitted to the convening authority shall be considered and processed consistent with Article 46, UCMJ, the MCM, and the JAGMAN. d. Marine defense counsel shall be provided sufficient time and access to clients to achieve a full and confidential exchange of legal, procedural, and factual information. To ensure confidential communications, private meeting spaces must be available at offices, confinement facilities, courtrooms, and all other places where clients and counsel must confer in confidence. e. To ensure that a Marine defense counsel s workload is not too large as to interfere with his or her ethical obligations to any individual client, supervisory attorneys shall consider factors such as an individual counsel s experience and caseload, case complexity, anticipated end of tour date, and traditional officer duties when assigning counsel to a particular case. f. A Marine defense counsel s ability, training, and experience should match the complexity of the case. Supervisory attorneys will only assign counsel who are properly qualified to handle a particular case PERSONNEL 1. Marine Corps Defense Services Organization (DSO). The Marine Corps DSO encompasses all defense counsel and defense support personnel assigned to Marine Corps Commands. The DSO operates under the supervision of, and is responsible and accountable to the CDC for the delivery of defense services throughout the Marine Corps. For purposes of this chapter, supervision includes professional responsibility oversight, defense-oriented training, assignment of defense counsel to particular cases, and execution of the day-to-day operations of the DSO. 2. Chief Defense Counsel of the Marine Corps (CDC). The CDC is the head of the DSO and responsible for supervision of all Marine defense personnel and the delivery of defense counsel services throughout the Marine Corps. a. The CDC shall be an experienced judge advocate serving in or selected to the grade of O-6/Colonel. The CDC is assigned in accordance with Article 6, UCMJ. The Staff Judge Advocate to the Commandant of the Marine Corps (SJA to 2-3 Enclosure 2

29 MCO P A Ch 7 10 Feb 2014 CMC) should, when possible, consult with the current CDC and take into consideration the following when selecting a successor CDC: (1) Designation with the Necessary Military Occupational Specialty (NMOS) of 4409 (criminal law); (2) Prior experience as a Defense Counsel (DC), Senior Defense Counsel (SDC), Officer-in-Charge, Defense Counsel Assistance Program (DCAP), and/or Regional Defense Counsel (RDC); and, (3) Significant litigation experience as either a trial or defense counsel or as a military judge. b. Upon assignment, the SJA to CMC will provide the CDC with an appointment in writing on behalf of the Commandant of the Marine Corps (CMC). The CDC's reporting senior and reviewing officer is the SJA to CMC. c. The CDC is assigned to Judge Advocate Division (JAD), Headquarters Marine Corps (HQMC) and receives administrative support from HQMC. d. The CDC is supported by a legal services specialist staff noncommissioned officer of appropriate experience and temperament selected in coordination with the Legal Services Chief of the Marine Corps. e. The CDC serves as the supervisory attorney for the RDCs, DCAP, SDCs, and DCs. f. Specific CDC duties include, but are not limited to: (1) Establishing standard operating procedures for the delivery of defense counsel services throughout the Marine Corps; (2) Conducting, at a minimum, one site inspection at each Legal Services Support Section (LSSS) and subordinate LSST annually; (3) Assessing through personal observations, inspections, reports of others, and records reviews, the practice, procedure, and techniques of defense counsel and enlisted support personnel in the performance of defense functions; (4) Assessing the adequacy of facilities and assets provided to defense counsel; (5) Monitoring the experience level of judge advocates assigned as defense counsel relative to judge advocates assigned as trial counsel; (6) Reporting to the SJA to CMC annually regarding the delivery of defense counsel services within the Marine Corps; (7) Detailing Marine defense counsel and auxiliary defense counsel to cases consistent with paragraph 2006 of this order and section 0130 of the JAGMAN; and (8) Making availability determinations for Marine defense counsel to serve as Individual Military Counsel (IMC) consistent with paragraph 2008 of this order and section 0131 of the JAGMAN. 2-4 Enclosure 2

30 MCO P A Ch 7 10 Feb 2014 (9) Ensure the selection of subordinate leaders within the DSO who are the best and fully-qualified to serve in leadership billets. (10) Ensure that the internal organization structure of the DSO best facilitates the accomplishment of the DSO mission. (11) Ensure proper mentorship and training for all DSO members. 3. Officer-in-Charge, Defense Counsel Assistance Program (DCAP). DCAP is directly responsible to the CDC for the training and support of the DSO Marines. a. DCAP is a Marine judge advocate, preferably serving in or selected to the grade of O-4/Major with the NMOS of 4409 (criminal law) who serves as head of DCAP. b. DCAP is administratively assigned to HQSVC Bn, HQMC and receives administrative support from HQMC. c. Specific DCAP duties include, but are not limited to: (1) Planning and coordinating DSO-wide and regional training events to ensure that defense counsel and support personnel receive appropriate training; (2) Monitoring defense counsel performance through personal observation, reading records of trial and briefs, and meeting and corresponding with senior judge advocates, military judges, and commanders; (3) Assessing and reporting to the CDC on the adequacy of support, assets, and facilities provided defense counsel at their location; and (4) Maintaining and updating web-based support, such as the DSO SharePoint site and the DSO public website. (5) DCAP may maintain a caseload that does not interfere with DCAP's responsibilities for training and mentoring personnel within the DSO. 4. Regional Defense Counsel (RDC). An RDC is administratively attached to the LSSS but is directly responsible to the CDC for the delivery of defense counsel services within a region. A legal services specialist non-commissioned officer with prior military justice or defense experience is assigned to each RDC office. a. RDCs are Marine judge advocates serving in or selected to the grade of O-5/Lieutenant Colonel, with considerable expertise in military justice matters and will normally possess the NMOS of 4409 (criminal law). b. RDCs serve as the supervisory attorney for the SDCs and DCs assigned to their LSSS and their subordinate LSSTs. c. RDCs select personnel to serve as Senior Defense Counsel and approve the assignment of judge advocates to serve as Defense Counsel. d. Subject to the approval of the CDC, RDCs organize defense leadership billets in their region to ensure efficient and effective DSO mission accomplishment. e. Specific RDC duties include, but are not limited to: 2-5 Enclosure 2

31 MCO P A Ch 7 10 Feb 2014 (1) Coordinating with local commands to ensure that defense counsel and support personnel receive appropriate training; (2) Conducting, at a minimum, semi-annual site visits to each subordinate LSST defense branch; (3) Monitoring defense counsel performance through personal observation, reading records of trial and briefs, and meeting and corresponding with senior judge advocates, military judges, commanders, and Naval Criminal Investigative Service supervisory special agents (NCIS SSA); (4) Assessing and reporting to the CDC on the adequacy of support, assets, and facilities provided to defense offices within the region; (5) Detailing defense counsel assigned to their respective region, provided that authority has been delegated by the CDC consistent with paragraph 2006 of this chapter; and, (6) Making IMC availability determinations for defense counsel assigned to their respective region, provided that authority has been delegated by the CDC consistent with paragraph 2008 of this chapter. f. An RDC s primary duty is the training, mentoring, and supervision of subordinate defense counsel in the RDC's region. If a RDC maintains a case load, it should not interfere with the RDC s responsibilities for training, mentoring, and supervising personnel within the region. 5. Senior Defense Counsel (SDC). An SDC is directly responsible to the RDC and CDC for the delivery of defense counsel services in support of the Marines and Sailors serviced by their LSST or an element thereof. a. SDCs are Marine judge advocates, preferably serving in or selected to the grade of O-4/Major, normally with the NMOS of 4409 (criminal law), who serve as head of the defense section for the LSST. SDCs will be appointed in writing by the RDC. b. SDCs are administratively attached to the LSST, but are responsible and accountable to their RDC and the CDC for the delivery of defense services by their LSST. c. Specific SDC duties include, but are not limited to: (1) Ensuring that defense counsel and support personnel receive appropriate training; (2) Monitoring defense counsel performance through personal observation, reading records of trial and briefs, and meeting and corresponding with senior judge advocates, military judges, commanders, and NCIS SSAs; (3) Assessing and reporting to the RDC on the adequacy of support, assets, and facilities provided defense counsel at their location; (4) Detailing defense counsel assigned to that SDC s specific location, provided that authority has been properly delegated by the RDC or CDC consistent with paragraph 2006 of this chapter; and 2-6 Enclosure 2

32 MCO P A Ch 7 10 Feb 2014 (5) Reporting periodically on the condition of trial defense services at his or her location to the RDC and/or CDC. d. An SDC will maintain a caseload that does not interfere with the SDC s responsibilities for training, mentoring, and supervising personnel within the section. 6. Defense Counsel. A defense counsel s primary duties are to represent Marines and Sailors in courts-martial, administrative boards, and other proceedings, to provide counsel as required by law or regulation, and to perform other duties as prescribed by the SDC, RDC, or CDC. Defense Counsel are administratively assigned to the LSST, but once assigned to a defense billet in the DSO, they are under the supervision of and responsible and accountable to his or her SDC, RDC, and the CDC. Defense counsel will be assigned to their duties by the cognizant LSSS OIC or LSST OIC detailing authority in written memorandum that includes an anticipated end date for their tour as a defense counsel. 7. Auxiliary Defense Counsel a. If needed to meet requirements, the LSSS or LSST OIC may identify a judge advocate that will be available to be detailed by the CDC or his or her designee to be a defense counsel for a particular case. Staff judge advocates, deputy staff judge advocates, trial counsel, victim legal counsel, or review officers may not serve as auxiliary defense counsel. b. As outlined in paragraph of MCO P1610.7F (PES), auxiliary defense counsel concurrently performing non-defense duties may receive simultaneous fitness reports from a member of the DSO to evaluate the auxiliary defense counsel s performance as a defense counsel and from his or her supervisor outside of the DSO to evaluate the performance of non-defense counsel duties. 8. Student Judge Advocates. Student judge advocates (MOS 4401) may be assigned by LSST OIC to support the LSST defense branch in a manner similar to that provided to support the military justice section. While assigned to the defense section, student judge advocates are under the supervision of and responsible and accountable to the DSO. While they may assist in the preparation of cases and are bound by the attorney-client privilege, they may not be detailed to represent clients. With the approval of the military judge, student judge advocates may sit at counsel table. 9. Enlisted Support Personnel a. A defense legal services specialist s primary duties are to assist defense counsel in their representation of Marines and Sailors in courtsmartial, administrative boards, and other proceedings and to perform other duties as prescribed by the SDC, DCAP, RDC, or CDC. b. Defense legal services support specialists are administratively assigned to the LSST, but once assigned to a defense billet in the DSO, they are under the supervision of and responsible and accountable to his or her SDC, RDC, and the CDC. c. The Office of the Chief Defense Counsel of the Marine Corps should be supported by a legal services support specialist with formal paralegal training and in the rank of at least a staff sergeant/e-6. Also, the Offices of the Regional Defense Counsel should be supported by a legal services support 2-7 Enclosure 2

33 MCO P A Ch 7 10 Feb 2014 specialist with formal paralegal training and in the rank of at least an E- 6/Staff Sergeant. 10. Judge Advocate Reserve Defense Services Branch (JRD) a. The DSO includes judge advocates who are members of the Reserve Component of the Marine Corps. These Reserve DSO members serve in billets within the Office of the CDC or in the RDC Offices. b. The most senior-ranking billet for a Reserve Component member of the DSO is Branch Head, Judge Advocate Reserve Defense Services Branch. This billet is held by an O-6/Colonel and is the Reserve counterpart to the Chief Defense Counsel of the Marine Corps. c. The Reserve DSO members are administratively attached to the Reserve Legal Support (RLS) Branch at the Judge Advocate Division, Headquarters, Marine Corps. However, these judge advocates are under the operational control and supervision of and responsible and accountable to the CDC TOUR LENGTH 1. After consultation with the RDC, the LSSS or LSST OIC will establish an anticipated end date for a Marine s tour with the DSO, which normally will be at least 18 months for defense counsel billets and 12 months for defense enlisted support personnel. When assigning a Marine to the DSO, the OIC will memorialize the anticipated end of tour date in writing and provide a copy of the assignment letter to the RDC. 2. The RDC will ensure, as far as practicable, that the agreed upon tour length for a defense counsel coincides with the termination of that defense counsel s duties and responsibilities. 3. If circumstances arise that require curtailing a defense counsel s tour before the previously established agreed upon end of tour date, the LSSS OIC and RDC shall together establish a new end of tour date. 4. If the parties cannot mutually agree upon a new end of tour date, the cognizant OIC, shall report, in writing, the circumstances requiring the tour curtailment to the SJA to CMC via the CDC. 5. A defense counsel tour is not considered to be complete until R.C.M. 1105/1106 and post-board matters have been submitted for every case to which the defense counsel remains detailed and written matters are submitted concerning the reports of administrative separation boards such as Boards of Inquiry or Involuntary Enlisted Administrative Separation Boards REASSIGNMENT 1. The reassignment of a Marine defense counsel requires careful planning and coordination between the RDC and the LSSS OIC. 2. Once a Marine defense counsel is slated for reassignment by the OIC, the responsible RDC must ensure that the defense counsel is not detailed cases anticipated to extend beyond the targeted reassignment date without the consent of the OIC. If the RDC and the OIC cannot reach an agreement on the detailing decision involving a case that will likely extend beyond the defense counsel s anticipated rotation date, the matter will be forwarded to the CDC for 2-8 Enclosure 2

34 MCO P A Ch 7 10 Feb 2014 resolution. If the CDC cannot resolve the matter, the matter will be forwarded to the SJA to CMC for final decision. 3. If a Marine defense counsel is pending reassignment, including discharge or retirement, prior to the completion of defense counsel duties, including posttrial representation, the responsible RDC must ensure the defense counsel has: a. Notified all remaining clients and any co-counsel in writing of the pending reassignment; b. Informed all remaining clients of their options with regard to the pending reassignment; c. Arranged for the client, when the reassignment creates a conflict of interest with a particular case, to consult with a conflict-free counsel about the matter and ensure the client s understanding of this advice is memorialized in writing, counter-signed by the client, and, in court-martial cases, provided to the military judge; and, d. Notified the military judge detailed to any ongoing courts-martial of the defense counsel s pending reassignment. 4. Absent a knowing and affirmative waiver by the client of the apparent conflict of interest, and approval by a military judge, judge advocates may not serve concurrently, including periods of transition between billets, as a judge advocate assigned to the DSO or an auxiliary defense counsel and as: a. A trial counsel or a victims legal counsel on any case; b. The deputy SJA or SJA to the convening authority of any case in which the defense counsel is still performing defense counsel duties, including posttrial representation; c. The LSST OIC that the defense counsel is assigned to; or, d. Other billets which would create a conflict of interest with concurrent service as a defense counsel COLLATERAL DUTIES 1. Marine defense personnel shall perform routine non-defense duties, such as unit PT, training, and standing duty so long as those collateral duties do not have a military justice connection or conflict with their statutory and ethical obligations to their clients. For example, a defense attorney cannot serve as a duty officer if he or she is responsible for checking Marines on or off restriction or is required to make command visits to the local confinement facility. A Marine defense counsel may, with the consent of the responsible RDC, augment the local legal assistance office. 2. Recognizing the smaller caseload in a combat or expeditionary environment, Marine defense personnel may also perform non-defense duties in an expeditionary or combat environment such as working group member in operational planning teams in civil affairs, information operations and detainee operations, or providing legal assistance so long as these duties do not have a military justice connection or conflict with their statutory and ethical obligation to their clients. Prior to assigning a Marine defense counsel to these duties, the 2-9 Enclosure 2

35 MCO P A Ch 7 10 Feb 2014 Marine Air Ground Task Force (MAGTF) SJA should consult with the responsible RDC DETAILING 1. For detailing purposes, the CDC is the OIC of the DSO under JAGMAN section 0130(b) and is the detailing authority for the DSO. Detailing authority includes the authority to remove a counsel from a case for good cause. The CDC may further delegate detailing authority for Marine defense counsel to subordinates within the DSO, subject to the restrictions set forth below. Further delegation of detailing authority will be published via CDC Policy Memorandum. 2. Prior to detailing a defense counsel to a particular case, the detailing authority will consider such factors as: the geographic locations of the accused and counsel, the expected location of the hearing the anticipated rotation date of the defense counsel, the counsel s caseload and experience, any applicable conflict-of-interest analysis, the case complexity, collateral duties assigned to the defense counsel, and the defense counsel s training and education requirements. The detailing of assistant defense counsel to contested and/or complex cases is encouraged. 3. When detailing a defense counsel to a particular case, the detailing authority shall ensure that: 1) standard detailing criteria are used; 2) the needs of the local commands are taken into consideration; 3) every accused receives zealous representation by a fully qualified counsel; and 4) every accused is detailed counsel in a timely manner. 4. The responsible detailing authority shall detail a defense counsel in writing to a particular case as soon as practicable and in no case later than: a. Ten days of being notified via , fax, or other written means by corrections personnel, command representatives, the military justice section, or some other government official that an accused has been placed in pretrial confinement or arrest under R.C.M. 305; b. Five days of being served notice of preferred charges; c. Five days of being served notice of the appointment of an Article 32, UCMJ, Investigating Officer; d. Five days of being served an administrative separation/board of inquiry package; or, e. As otherwise required by law or regulation. 5. The detailing authority will provide a copy of the detailing memorandum to the appropriate representative of the client s command and the cognizant prosecution section. 6. With the consent of the SJA to CMC, the CDC may detail himself or herself to a case. 7. If delegated the authority, RDCs may detail defense counsel assigned to their regions, except themselves, to cases supported by their LSSS Enclosure 2

36 MCO P A Ch 7 10 Feb If delegated the authority, SDCs may only detail counsel assigned to their LSST, including themselves, to cases supported by their LSST or an element thereof either because of geography or a specific request for legal services. However, SDCs who write fitness reports on subordinate counsel may not detail themselves to cases that involve clients with a conflict of interest with clients of a defense counsel for whom the SDC is the reporting senior. 9. Defense counsel are normally only detailed to represent an accused assigned to an organization that is supported by that defense counsel s LSST either as a consequence of geography or through a specific request for legal services. However, a defense counsel may be detailed to represent an accused assigned to an organization that is not normally supported by the defense counsel s LSST on a case-by-case basis. Factors that may necessitate such a detailing include, include but are not limited to, the following: unique requirements of the case; supporting units and organizations without defense counsel; conflict-of-interest cases; gaps in defense counsel coverage; and savings by using a counsel from another location. If such detailing decisions will result in non-local travel costs as defined by the Joint Federal Travel Regulations beyond those implicit in the request for legal services, then prior to detailing a defense counsel to the case, the authorized detailing authority shall get approval from the Convening Authority (CA) or his or her Staff Judge Advocate (SJA) for travel costs associated with that detailing decision. If the CA will not agree to fund the non-local travel costs associated with the detailing decision the issue will be forwarded to the CDC for resolution. If the CDC cannot resolve the funding issue, it will be forwarded to the SJA to CMC for final decision REPRESENTATION AT INITIAL REVIEW OFFICER HEARINGS. Unless the accused has previously been detailed a defense counsel, the responsible detailing authority shall ensure a defense counsel is assigned to represent Marines and Sailors at Initial Review Officer (IRO) Hearings conducted under R.C.M The defense counsel need not be assigned to the LSST that normally supports the command to which the accused is assigned and may instead come from the LSST closest to the confinement facility or by another Service s defense organization as approved by the RDC. A defense counsel s representation at an IRO hearing is a limited attorney-client relationship related solely to that hearing and does not create an attorney-client relationship for any other purpose or create an entitlement that the accused later be detailed the counsel who represented him or her at this hearing REQUESTS FOR INDIVIDUAL MILITARY COUNSEL (IMC) 1. Article 38, UCMJ, provides that an accused has the right to be represented by a military counsel of his own selection, if that counsel is reasonably available. Section 0131 of the JAGMAN sets forth standards for determining the availability of a requested IMC. 2. Determining Authority for IMC requests a. As the OIC of the DSO, the CDC is the determining authority under JAGMAN section 0131b(2) for all IMC requests for Marine defense counsel assigned to the DSO, except IMC requests for the CDC. The CDC may further delegate this authority to subordinates within the DSO, subject to the restrictions set forth below. b. The SJA to CMC is the determining authority on IMC requests for the CDC Enclosure 2

37 MCO P A Ch 7 10 Feb 2014 c. The CDC is the determining authority on IMC requests for RDCs and the OIC, DCAP. For IMC availability purposes, an RDC s organization encompasses the Legal Services Support Area (LSSA) of the LSST assigned, not the unit the RDC is administratively assigned. The OIC, DCAP s organization is the DSO, not the unit to which the OIC, DCAP is administratively assigned. d. If delegated the authority, RDCs are determining authorities on IMC requests for the SDCs and defense counsel assigned to their LSSS and subordinate LSSTs. For IMC availability purposes, an SDC or defense counsel s organization is the LSST assigned and the location of the units supported from that location, not the units to which the SDC or DC is administratively assigned. e. The determining authority for IMC requests for judge advocates not assigned to the DSO, including auxiliary defense counsel with active defense cases, is that judge advocate s OIC or commanding officer (CO). 3. If the requested defense counsel is made available as an IMC, the detailed defense counsel shall normally be excused from further participation in the case, unless the detailing authority approves a request from the accused that the detailed defense counsel act as associate counsel. 4. Administrative Review and Appeal of IMC Request Denials (1) The SJA to CMC s denial of an IMC request may not be appealed, but is subject to judicial review. (2) For all IMC requests denied by the CDC, the SJA to CMC is the immediate superior in command for administrative review and appeal. (3) For all IMC requests denied by an RDC, the CDC is the immediate superior in command for administrative review and appeal. (4) For all IMC requests denied by an OIC or CO, that officer s commander is the immediate superior in command for administrative review and appeal PROFESSIONAL RESPONSIBILITY COMPLAINTS. The SJA to CMC is the Rules Counsel for all Marine judge advocates, including Marine defense counsel. Informal professional responsibility complaints regarding Marine judge advocates performing duties as defense counsel will be resolved within the DSO. Formal professional responsibility complaints regarding Marine defense counsel will be forwarded via the responsible RDC and CDC to CMC (JAR) for resolution in accordance with any applicable CDC policy memos in effect MISCONDUCT ALLEGATIONS. Allegations of misconduct (other than professional responsibility complaints) concerning members of the DSO will be resolved through the administrative chain of command ADMINISTRATIVE AND LOGISTICAL SUPPORT. Cognizant commands will provide personnel, administrative, and logistical support, commensurate with mission requirements, to defense sections equitably with that provided to military justice sections BUDGETING AND FUNDING GUIDANCE 1. Funding to support the defense function should be provided equitably with command funding provided to support the prosecution function. Funding for 2-12 Enclosure 2

38 MCO P A Ch 7 10 Feb 2014 administrative and logistical support and training expenses for RDCs, SDCs, DCs, and their support personnel will be provided by local commands, as available. 2. All case-related expenses shall be provided by the convening authority, as required by JAGMAN section APPLICABILITY. This chapter is applicable to: Marine judge advocates assigned duty as Marine defense counsel; legal services specialists assigned as defense enlisted support personnel; members of the Judge Advocate Reserve Defense Services Branch; and military personnel from other services assigned to the DSO. This chapter does not apply to judge advocates or legal services specialists attached to commands external to the Marine Corps Enclosure 2

39 MCO DD MMM YYYY LSAM VOLUME I, CHAPTER 4 MARINE CORPS DEFENSE SERVICES ORGANIZATION PARAGRAPH PAGE PURPOSE GENERAL PERSONNEL TOUR LENGTH REASSIGNMENT COLLATERAL DUTIES DETAILING REPRESENTATION AT INITIAL REVIEW OFFICER HEARINGS REQUESTS FOR INDIVIDUAL MILITARY COUNSEL (IMC) PROFESSIONAL RESPONSIBILITY COMPLAINTS MISCONDUCT ALLEGATIONS ADMINISTRATIVE AND LOGISTICAL SUPPORT PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION BUDGETING AND FUNDING GUIDANCE GUIDANCE ON REFERRALS TO CIVILIAN DEFENSE COUNSEL APPLICABILITY Enclosure 3

40 MCO DD MMM YYYY VOLUME I, CHAPTER 4 MARINE CORPS DEFENSE SERVICES ORGANIZATION PURPOSE. This Chapter describes the organization, roles, and responsibilities of the Marine Corps Defense Services Organization (DSO) and its personnel, as a functionally independent organization and as provided for in law, regulations, and rules of professional conduct GENERAL. 1. The Sixth Amendment to the United States Constitution provides, In all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence. This right to counsel has been specifically assigned to service members by Congress through Article 27, UCMJ, and is implemented by the President through Rule for Courts-Martial (R.C.M.) 506, Manual for Courts-Martial (MCM). The Secretary of the Navy, through JAGINST F, Manual of the Judge Advocate General (JAGMAN), provides Departmental policy and regulations regarding the right to counsel and the formation of the attorney-client relationship. This Chapter, which supplements the JAGMAN, provides Service policy regarding the delivery of defense counsel services within the Marine Corps. The Chief Defense Counsel of the Marine Corps (CDC) also publishes policy, administrative procedures, and standards of practice applicable to judge advocates serving as Marine defense counsel. These documents are available on the DSO website. Where feasible, they are also made available on the DSO public website. 2. Marine Corps defense counsel services are performed by commissioned officers who are licensed attorneys, certified as judge advocates under Article 27(b), UCMJ, and assigned to defense counsel billets in the DSO. Marine defense counsel serve at locations throughout the Marine Corps and are administratively attached to Legal Services Support Sections (LSSS). However, Marine defense counsel are under the operational control and supervision of and responsible and accountable to the CDC and the responsible Regional Defense Counsel (RDC) for the delivery of defense counsel services at their respective locations. 3. A Marine defense counsel must exhibit unfettered loyalty and professional independence in representing his or her client, and is ultimately responsible for acting in his or her client s best interest. A Marine defense counsel s primary duty is to provide zealous, ethical, and effective representation to Marines and other service members. This duty is limited only by law, regulation, and the Rules of Professional Conduct (JAGINST D). 4-2 Enclosure 3

41 MCO DD MMM YYYY 4. Attorney-Client Relationships a. A Marine defense counsel will not establish an attorney-client relationship with any individual unless detailed, assigned, or otherwise authorized to do so by his or her detailing authority. b. Once established, the attorney-client relationship, whether for a court-martial or administrative separation board, may only be severed under the provisions of R.C.M. 505 and R.C.M. 506 of the UCMJ and the Rules of Professional Conduct. c. A Marine defense counsel shall continue to represent an accused post-trial until the accused is assigned an appellate defense counsel, if applicable, or until completion of any and all post-trial or post-board matters; however, for purposes of paragraph 4004 of this Chapter, a Marine defense counsel s tour with the DSO is considered complete when R.C.M. 1105/1106 matters, if applicable, have been submitted for every criminal case to which the defense counsel was detailed and comments on the Report of the Board have been submitted for every officer and enlisted administrative separation board to which the defense counsel was detailed. 5. Guiding Principles a. In order to be free from either apparent or unlawful pressure or influence, the Marine Corps DSO must not only be functionally independent, but it must appear to the public as being functionally independent, and must be treated as being functionally independent. b. Funding for training, resources, and facilities and personnel shall be consistently provided across the Marine Corps legal community, and there shall be equitable distribution, commensurate with mission requirements, between the defense function and the prosecution function with respect to the following: assignment of attorneys and enlisted support staff; access to resources, capabilities, and facilities; seats at continuing legal education courses; training funds. c. Requests for specific case-related funding submitted to the convening authority shall be considered and processed consistent with Article 46, UCMJ, the MCM, and the JAGMAN. d. Marine defense counsel shall be provided sufficient time and access to clients to achieve a full and confidential exchange of legal, procedural, and factual information. To ensure confidential communications, private meeting spaces must be available at offices, confinement facilities, courtrooms, and all other places where clients and counsel must confer in confidence. e. To ensure that a Marine defense counsel s workload is not too large as to interfere with his or her ethical obligations to any individual client, supervisory attorneys shall consider factors such 4-3 Enclosure 3

42 MCO DD MMM YYYY as an individual counsel s experience and caseload, case complexity, anticipated end of tour date, and traditional officer duties when assigning counsel to a particular case. f. A Marine defense counsel s ability, training, and experience should match the complexity of the case. Supervisory attorneys will only assign a counsel to a case when that counsel is properly qualified to handle that particular case PERSONNEL 1. Marine Corps Defense Services Organization (DSO). The Marine Corps DSO encompasses all defense counsel and defense support personnel assigned to Marine Corps Commands. The DSO is functionally independent. It operates under the supervision of, and is responsible and accountable to, the CDC for the delivery of defense services throughout the Marine Corps, who retains operational control over personnel assigned to the DSO. For purposes of this Chapter, operational control is defined as the authority to perform those functions of leadership over subordinate defense counsel involving their organization and employment, assigning tasks, designating goals and objectives, and giving authoritative direction necessary to accomplish the DSO mission. Operational control includes authoritative direction over all aspects of DSO operations and training necessary to accomplish the DSO mission, with the exception of case-specific decisions made by individual defense counsel concomitant to their representation of service members. 2. Chief Defense Counsel of the Marine Corps (CDC). The CDC is the Officer-in-Charge of the DSO. He exercises functional, day-to-day supervision and operational control over personnel assigned to the DSO, and is directly responsible to the Staff Judge Advocate to the Commandant for supervision of all Marine defense personnel and the delivery of defense counsel services throughout the Marine Corps. a. The CDC shall be an experienced judge advocate serving in or selected to the grade of O-6/Colonel. The CDC is assigned in accordance with Article 6, UCMJ. The Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC) should, when possible, consult with the current CDC and take into consideration the following when selecting a successor CDC: (1) Designation with the Necessary Military Occupational Specialty (NMOS) of 4409 (criminal law). (2) Prior experience as a Defense Counsel (DC), Senior Defense Counsel (SDC), Officer-in-Charge, Defense Counsel Assistance Program (DCAP), and/or Regional Defense Counsel (RDC). (3) Significant litigation experience as either a trial or defense counsel or as a military judge. 4-4 Enclosure 3

43 MCO DD MMM YYYY b. Upon assignment, the SJA to CMC will provide the CDC with an appointment in writing on behalf of the Commandant of the Marine Corps (CMC). This appointment should normally be for no less than two (2) years. The CDC's reporting senior and reviewing officer is the SJA to CMC. c. The CDC is administratively assigned to Judge Advocate Division (JAD), Headquarters Marine Corps (HQMC) and receives administrative support from HQMC. d. The CDC is supported by a legal services specialist staff noncommissioned officer of appropriate experience and temperament, serving as DSO Chief, selected in coordination with the Legal Services Chief of the Marine Corps (see paragraph c, infra.). e. The CDC serves as the supervisory attorney for the RDCs, DCAP, SDCs, and DCs. f. Specific CDC duties include, but are not limited to: (1) Establishing standing operating procedures and Standards of Practice for the delivery of defense counsel services throughout the Marine Corps. (2) Conducting, at a minimum, one site inspection at each Legal Services Support Section (LSSS) and subordinate LSST annually. (3) Assessing through personal observations, inspections, reports of others, and records reviews, the practice, procedure, and techniques of defense counsel and enlisted support personnel in the performance of defense functions. (4) Assessing the adequacy of facilities and assets provided to defense counsel. (5) Monitoring the experience level of judge advocates assigned as defense counsel relative to judge advocates assigned as trial counsel. (6) Reporting to the SJA to CMC annually regarding the delivery of defense counsel services within the Marine Corps. (7) Detailing Marine defense counsel and auxiliary defense counsel to cases consistent with paragraph 4006 of this Order and JAGMAN section (8) Making availability determinations for Marine defense counsel to serve as Individual Military Counsel (IMC) consistent with paragraph 4008 of this Order and JAGMAN section Enclosure 3

44 MCO DD MMM YYYY (9) Consulting with Judge Advocate Division in the identification of the DSO leadership, including but not necessarily limited to RDCs, DCAP, and the CDC/DSO Chief. (10) Establishing policies and procedures to ensure that the internal organization structure of the DSO best facilitates the accomplishment of the DSO mission. (11) Establishing policies to provide proper mentorship and training for all officer and enlisted DSO members. (12) In coordination with Judge Advocate Division, ensuring the equitable distribution of Headquarters-level resources and funds for training. (13) On behalf of the SJA to CMC, inspecting at least annually the equitable distribution of funds, training opportunities, resources and personnel within each LSSS. (14) Investigating and resolving all informal ethics complaints made in the case of DSO personnel (see para. 4009, infra.). (15) Investigating and forwarding all formal ethics complaints to the SJA to CMC (see para. 4009, infra.). (16) Establishing and maintaining a Judge Advocate Division CDC/DSO Headquarters Branch, functionally independent of but administratively assigned to and supported by Judge Advocate Division. (17) The CDC may maintain a personal caseload that does not interfere with the responsibilities otherwise described in this chapter. 3. Officer-in-Charge, Defense Counsel Assistance Program (DCAP). DCAP is directly responsible to the CDC for the training and support of the DSO Marines. a. The OIC, DCAP is a Marine judge advocate, preferably serving in or selected to the grade of O-4/Major with the NMOS of 4409 (criminal law). b. DCAP is administratively assigned to Judge Advocate Division and receives administrative support from HQMC. c. Specific DCAP duties include, but are not limited to: (1) Planning and coordinating DSO-wide and regional training events to ensure that defense counsel and support personnel receive appropriate training. (2) Monitoring defense counsel performance through personal observation, reading records of trial and briefs, and meeting and 4-6 Enclosure 3

45 corresponding with senior judge advocates, military judges, and commanders. MCO DD MMM YYYY (3) Providing advice and consulting with defense counsel in the field on pending litigation, either face-to-face, telephonically or through SharePoint. (4) Assessing and reporting to the CDC on the adequacy of support, assets, and facilities provided defense counsel at their location. (5) Maintaining and updating web-based support, such as the DSO SharePoint site and the DSO public website. (6) Other duties as assigned by the CDC. (7) DCAP may maintain a caseload that does not interfere with DCAP's responsibilities for training and mentoring personnel within the DSO. 4. Regional Defense Counsel (RDC). RDCs are administratively supported by the regional LSSS but are functionally independent of the LSSS. They are under the operational control of, and are directly responsible to the CDC for the delivery of defense counsel services within their region. RDCs are assisted by a legal services specialist SNCO (see paragraph e., infra.). a. RDCs are Marine judge advocates serving in or selected to the grade of O-5/Lieutenant Colonel, with considerable expertise in military justice matters and will normally possess the NMOS of 4409 (criminal law). They are identified as being qualified for service as an RDC by Judge Advocate Division (CDSP) acting in the capacity of occupational field sponsor, in coordination with and after receiving advice from the CDC. b. Funding for administrative and logistical support of RDCs and their support personnel, including travel, per diem, training and continuing legal education in connection with duties described in this Chapter, will be provided by the commands to which the RDCs are administratively attached. RDCs are administratively supported by their regional LSSS and assigned through the normal assignment process as follows: (1) The RDC, National Capitol Region and support personnel are administratively attached to Headquarters and Service Battalion, Marine Corps Base, Quantico, with Monitored Command Code TEM. (2) The RDC, Eastern Region and support personnel are administratively attached to Headquarters Battalion, Marine Corps Base, Camp Lejeune, with Monitored Command Code TEH. 4-7 Enclosure 3

46 MCO DD MMM YYYY (3) The RDC, Western Region and support personnel are administratively attached to Headquarters Battalion, Marine Corps Base, Camp Pendleton, with Monitored Command Code TEJ. (4) The RDC, Pacific Region and support personnel are administratively attached to Headquarters Battalion, Marine Corps Base, Camp Smedley D. Butler, with Monitored Command Code TEG. c. RDCs serve as the supervisory attorney for the SDCs and DCs assigned to their LSSS and their subordinate LSSTs. d. While assignment of counsel within the LSSS and LSST remains within the purview of the LSSS and LSST OICs, selection of personnel with the qualifications to serve as either Senior Defense Counsel or Defense Counsel is a coordinated effort between the RDC and LSSS OIC. e. Subject to the approval of the CDC, RDCs organize defense leadership billets in their region to ensure efficient and effective DSO mission accomplishment. f. Specific RDC duties include, but are not limited to: (1) Coordinating with local commands to ensure that defense counsel and support personnel receive appropriate training. (2) Conducting, at a minimum, quarterly site visits to each subordinate LSST defense branch. (3) Monitoring defense counsel performance through personal observation, reading records of trial and briefs, and meeting and corresponding with senior judge advocates, military judges, commanders, and Naval Criminal Investigative Service supervisory special agents (NCIS SSA). (4) Assessing and reporting to the CDC on the adequacy of support, assets, and facilities provided to defense offices within the region. (5) Detailing defense counsel assigned to their respective region, provided that authority has been delegated by the CDC consistent with paragraph 4006 of this Chapter. (6) Making IMC availability determinations for defense counsel assigned to their respective region, provided that authority has been delegated by the CDC consistent with paragraph 4008 of this Chapter. (7) Other duties as assigned by the CDC. g. An RDC s primary duty is the training, mentoring, and supervision of subordinate defense counsel in the RDC's region. If a RDC maintains a case load, it should not interfere with the RDC s 4-8 Enclosure 3

47 MCO DD MMM YYYY responsibilities for training, mentoring, and supervising personnel within the region. 5. Senior Defense Counsel (SDC). An SDC is directly responsible to the RDC and CDC for the delivery of defense counsel services in support of the Marines and Sailors serviced by their LSSS or LSST. a. SDCs are Marine judge advocates, preferably serving in or selected to the grade of O-4/Major, normally with the NMOS of 4409 (criminal law), who serve as head of the defense section for the LSST. SDCs will be appointed in writing by the RDC. SDCs are assisted by legal service specialists of appropriate grade and experience assigned by the LSSS or LSST OIC in consultation with the SDC. b. SDCs are administratively attached to an LSST or LSSS, but are functionally independent of the LSST or LSSS. They are under the operational control of and are directly responsible and accountable to their RDC and the CDC for the delivery of defense services by their LSST or LSSS. c. Specific SDC duties include, but are not limited to: (1) Ensuring that defense counsel and enlisted support personnel receive appropriate training. (2) Monitoring defense counsel performance through personal observation, reading records of trial, briefs, motions, and meeting and corresponding with senior judge advocates, military judges, commanders, and NCIS SSAs. (3) Assessing and reporting to the RDC on the adequacy of support, assets, and facilities provided defense counsel at their location. (4) Detailing defense counsel assigned to that SDC s specific location, provided that authority has been properly delegated by the RDC or CDC consistent with paragraph 4006 of this Chapter. (5) Reporting periodically on the condition of trial defense services at his or her location to the RDC and/or CDC. (6) Other duties as assigned by the RDC or CDC. d. An SDC will maintain a caseload that does not interfere with the SDC s responsibilities for training, mentoring, and supervising personnel within the section. 6. Defense Counsel. A defense counsel s primary duties are to represent Marines and Sailors in courts-martial, administrative boards, and other proceedings, to provide counsel as required by law or regulation, and to perform other duties as prescribed by the SDC, RDC, or CDC. Defense Counsel are administratively assigned to an LSSS 4-9 Enclosure 3

48 MCO DD MMM YYYY or LSST, but once assigned to a defense billet in the DSO, they are functionally independent of the LSST or LSSS and remain under the supervision of and are responsible and accountable to his or her SDC, RDC, and the CDC. Defense counsel will be assigned to their duties by the cognizant LSSS OIC or LSST OIC detailing authority in a written memorandum that includes an anticipated end date for their tour as a defense counsel. 7. Auxiliary Defense Counsel a. If needed to meet requirements, the LSSS or LSST OIC may identify a judge advocate that will be available to be detailed by the CDC or his or her designee to be a defense counsel for a particular case. Staff judge advocates, deputy staff judge advocates, trial counsel, victims legal counsel, or review officers may not serve as auxiliary defense counsel. b. As outlined in paragraph of MCO P1610.7F, Performance Evaluation System (PES), auxiliary defense counsel concurrently performing non-defense duties may receive simultaneous fitness reports from a member of the DSO to evaluate the auxiliary defense counsel s performance as a defense counsel and from his or her supervisor outside of the DSO to evaluate the performance of non-defense counsel duties. 8. Student Judge Advocates. Student judge advocates (MOS 4401) may be assigned by the LSSS or LSST OIC to support the LSSS or LSST defense branch in a manner similar to that provided to support the military justice section. Student Judge Advocates may likewise be assigned to augment the CDC/DSO Headquarters Element. While assigned to the DSO, student judge advocates are under the supervision of and responsible and accountable to the DSO. While they may assist in the preparation of cases and are bound by the attorney-client privilege, they may not be detailed to represent clients. With the approval of the military judge, student judge advocates may sit at counsel table. 9. Enlisted Support Personnel a. A defense legal services specialist s primary duties are to assist defense counsel in their representation of Marines and Sailors in courts-martial, administrative boards, and other proceedings and to perform other duties as prescribed by the SDC, DCAP, RDC, or CDC. b. Defense legal services support specialists are administratively assigned to the LSSS or LSST, but once assigned to a defense billet in the DSO, they are under the supervision of and responsible and accountable to his or her SDC, RDC, and the CDC. c. The Office of the Chief Defense Counsel of the Marine Corps/Officer-in-Charge, Defense Services Organization shall be supported by a legal services support specialist in the rank of at least a staff sergeant/e-6 or higher to serve as CDC/DSO Chief. This 4-10 Enclosure 3

49 MCO DD MMM YYYY SNCO should have formal paralegal training and prior experience as an RDC Chief, DSO section chief, defense clerk, or other relevant military justice experience. The CDC/DSO Chief shall perform the following duties: (1) Serve as the DSO Legal Chief. Lead, supervise, train, and support all Marine Corps DSO enlisted personnel. (2) Serve as senior enlisted advisor to the CDC on all matters pertaining to the DSO personnel, to include mentoring and the training of 4421s. (3) Support the four DSO regions and provide litigation support to defense counsel. (4) Serve as the CDC s representative for the DSO Inspection Program, inspecting all DSO office branches at least annually to ensure compliance with the standards set by the CDC are being met. (5) Other duties as required by the CDC. e. The Offices of the Regional Defense Counsel shall be supported by a legal services support specialist. This person shall be in the rank of at least an E-6/Staff Sergeant, possess the MOS 8015 (SNCO Degree Completion Program), normally will have formal paralegal training, have previously served as a DSO section chief, defense clerk, or possess other relevant military justice experience, and will be administratively assigned as described in paragraph b. supra. 10. Judge Advocate Reserve Defense Services Branch (JRD) a. The DSO includes judge advocates who are members of the Reserve Component of the Marine Corps. These Reserve DSO members serve in billets within the Office of the CDC or in the RDC Offices. b. The most senior-ranking billet for a Reserve Component member of the DSO is Branch Head, Judge Advocate Reserve Defense Services Branch. This billet is held by an O-6/Colonel and is the Reserve counterpart to the Chief Defense Counsel of the Marine Corps. c. Reserve DSO members may be detailed as respondent s counsel for administrative separation boards and boards of inquiry, but may not be detailed to courts-martial. d. The Reserve DSO members are administratively attached to the Reserve Legal Support (RLS) Branch at the Judge Advocate Division, Headquarters, Marine Corps. However, these judge advocates are under the operational control and supervision of and responsible and accountable to the CDC Enclosure 3

50 MCO DD MMM YYYY TOUR LENGTH 1. All members of the DSO shall have an established tour length and established rotation date. After consultation with the RDC, the LSSS or LSST OIC will establish an anticipated end date for a Marine s tour with the DSO, which normally will be at least 18 months for defense counsel, SDCs, and DSO enlisted support personnel. When assigning a Marine to the DSO, the OIC will memorialize the anticipated end of tour date in writing and provide a copy of the assignment letter to the RDC. 2. The RDC will ensure, as far as practicable, that the agreed upon tour length for a defense counsel coincides with the termination of that defense counsel s duties and responsibilities. 3. If circumstances arise that require curtailing a defense counsel s tour before the previously established agreed upon end of tour date, the LSSS OIC and RDC shall together establish a new end of tour date. 4. If the parties cannot mutually agree upon a new end of tour date, the cognizant OIC, shall report, in writing, the circumstances requiring the tour curtailment to the SJA to CMC via the CDC. 5. A defense counsel tour is not considered to be complete until R.C.M. 1105/1106 and post-board matters have been submitted for every case to which the defense counsel remains detailed and written matters are submitted concerning the reports of administrative separation boards such as Boards of Inquiry or Involuntary Enlisted Administrative Separation Boards REASSIGNMENT 1. The reassignment of any Marine defense counsel requires careful planning and coordination between the RDC and the LSSS OIC. 2. Once a Marine defense counsel is slated for reassignment by the OIC, the responsible RDC must ensure that the defense counsel is not detailed cases anticipated to extend beyond the targeted reassignment date without the consent of the OIC. If the RDC and the OIC cannot reach an agreement on the detailing decision involving a case that will likely extend beyond the defense counsel s anticipated rotation date, the matter will be forwarded to the CDC for resolution. If the CDC cannot resolve the matter, the matter will be forwarded to the SJA to CMC for final decision. 3. If a Marine defense counsel is pending reassignment, including discharge or retirement, prior to the completion of defense counsel duties, including post-trial representation, the responsible RDC must ensure the defense counsel has: a. Notified all remaining clients and any co-counsel in writing of the pending reassignment; 4-12 Enclosure 3

51 MCO DD MMM YYYY b. Informed all remaining clients of their options with regard to the pending reassignment; c. Arranged for the client, when the reassignment creates a conflict of interest with a particular case, to consult with a conflict-free counsel about the matter and ensure the client s understanding of this advice is memorialized in writing, countersigned by the client, and, in court-martial cases, provided to the military judge; and, d. Notified the military judge detailed to any ongoing courtsmartial of the defense counsel s pending reassignment. 4. Absent a knowing and affirmative waiver by the client of the apparent conflict of interest, and approval by a military judge, judge advocates may not serve concurrently, including periods of transition between billets, as a judge advocate assigned to the DSO or an auxiliary defense counsel and as: a. A trial counsel, SAUSA, or a victims legal counsel on any case. b. The deputy SJA or SJA to the convening authority of any case in which the defense counsel is still performing defense counsel duties, including post-trial representation. c. The LSST OIC that the defense counsel is assigned to. d. Other billets which carry the mantle of command presence and therefore would create a conflict of interest with concurrent service as a defense counsel. 5. Disputes over internal LSSS or LSST assignment or reassignment of DSO personnel will be resolved at the lowest possible level. Those disputes which cannot be resolved through the cooperative effort of the RDC and LSSS OIC will be adjudicated by the SJA to CMC, after consultation with the CDC COLLATERAL DUTIES 1. Marine defense personnel shall perform routine non-defense duties, such as unit PT, training, and standing duty, so long as those collateral duties do not have a military justice connection or conflict with their statutory and ethical obligations to their clients. For example, a defense attorney cannot serve as a duty officer if he or she is responsible for checking Marines on or off restriction or is required to make command visits to the local confinement facility. A Marine defense counsel may, with the consent of the responsible RDC, augment the local legal assistance office. 2. Recognizing the smaller caseload in a combat or expeditionary environment, Marine defense personnel may also perform non-defense 4-13 Enclosure 3

52 MCO DD MMM YYYY duties in an expeditionary or combat environment such as working group member in operational planning teams in civil affairs, information operations and detainee operations, or providing legal assistance so long as these duties do not have a military justice connection or conflict with their statutory and ethical obligation to their clients. Prior to assigning a Marine defense counsel to these duties, the Marine Air Ground Task Force (MAGTF) SJA should consult with the responsible RDC DETAILING 1. The CDC is the detailing authority for all judge advocates assigned to the DSO and auxiliary defense counsel. Detailing authority includes the authority to remove a counsel from a case for good cause. The CDC may further delegate detailing authority for Marine defense counsel to subordinates within the DSO, subject to the restrictions set forth below. Further delegation of detailing authority will be published via CDC Policy Memorandum. 2. Prior to detailing a defense counsel to a particular case, the detailing authority will consider such factors as: the geographic locations of the accused and counsel, the expected location of the hearing the anticipated rotation date of the defense counsel, the counsel s caseload and experience, any applicable conflict-of-interest analysis, the case complexity, collateral duties assigned to the defense counsel, and the defense counsel s training and education requirements. The detailing of assistant defense counsel to contested and/or complex cases is encouraged. 3. When detailing a defense counsel to a particular case, the detailing authority shall ensure that: a. Standard detailing criteria are used. b. The needs of the local commands are taken into consideration. c. Every accused receives zealous representation by a fully qualified counsel. d. Every accused is detailed counsel in a timely manner. 4. The responsible detailing authority shall detail a defense counsel in writing to a particular case as soon as practicable and absent good cause, in no case later than: a. Ten days of being notified via , fax, or other written means by corrections personnel, command representatives, the military justice section, or some other government official that an accused has been placed in pretrial confinement or arrest under R.C.M b. Five days of being served notice of preferred charges Enclosure 3

53 MCO DD MMM YYYY c. Five days of being served notice of the appointment of an Article 32, UCMJ, Investigating Officer. d. Five days of being served an administrative separation/board of inquiry package. e. As otherwise required by law or regulation. 5. The detailing authority will provide a copy of the detailing memorandum to the appropriate representative of the client s command and the cognizant prosecution section. 6. With the consent of the SJA to CMC, the CDC may detail himself or herself to a case. 7. The CDC is authorized to detail, or to delegate detailing authority, to assign counsel in certain officer and 1stSgt/MSgt cases pending investigation under Chapter 2, JAGINST F or under investigation by an Inspector General. 8. If delegated the authority, RDCs may detail defense counsel assigned to their regions, except themselves, to cases supported by their LSSS. 9. If delegated the authority, SDCs may only detail counsel assigned to their LSST, including themselves, to cases supported by their LSST or an element thereof either because of geography or a specific request for legal services. However, SDCs who write fitness reports on subordinate counsel may not detail themselves to cases that involve clients with a conflict of interest with clients of a defense counsel for whom the SDC is the reporting senior. 10. Defense counsel are normally only detailed to represent an accused assigned to an organization that is supported by that defense counsel s LSST either as a consequence of geography or through a specific request for legal services. However, a defense counsel may be detailed to represent an accused assigned to an organization that is not normally supported by the defense counsel s LSST on a case-bycase basis. Factors that may necessitate such a detailing include, include but are not limited to, the following: unique requirements of the case; supporting units and organizations without defense counsel; conflict-of-interest cases; gaps in defense counsel coverage; and savings by using a counsel from another location. If such detailing decisions will result in non-local travel costs as defined by the Joint Federal Travel Regulations beyond those implicit in the request for legal services, then prior to detailing a defense counsel to the case, the authorized detailing authority shall get approval from the Convening Authority (CA) or his or her Staff Judge Advocate (SJA) for travel costs associated with that detailing decision. If the CA will not agree to fund the non-local travel costs associated with the detailing decision the issue will be forwarded to the CDC for 4-15 Enclosure 3

54 MCO DD MMM YYYY resolution. If the CDC cannot resolve the funding issue, it will be forwarded to the SJA to CMC for final decision REPRESENTATION AT INITIAL REVIEW OFFICER HEARINGS. Unless the accused has previously been detailed a defense counsel, the responsible detailing authority shall ensure a defense counsel is assigned to represent Marines and Sailors at Initial Review Officer (IRO) Hearings conducted under R.C.M The defense counsel need not be assigned to the LSST that normally supports the command to which the accused is assigned and may instead come from the LSST closest to the confinement facility or by another Service s defense organization as approved by the RDC. A defense counsel s representation at an IRO hearing is a limited attorney-client relationship related solely to that hearing and does not create an attorney-client relationship for any other purpose or create an entitlement that the accused later be detailed the counsel who represented him or her at this hearing REQUESTS FOR INDIVIDUAL MILITARY COUNSEL (IMC) 1. Article 38, UCMJ, provides that an accused has the right to be represented by a military counsel of his own selection, if that counsel is reasonably available. JAGMAN section 0131 sets forth standards for determining the availability of a requested IMC. 2. Determining Authority for IMC requests a. As the OIC of the DSO, the CDC is the determining authority under JAGMAN section 0131b(2) for all IMC requests for Marine defense counsel assigned to the DSO, except IMC requests for the CDC. The CDC may further delegate this authority to subordinates within the DSO, subject to the restrictions set forth below. b. The SJA to CMC is the determining authority on IMC requests for the CDC. c. The CDC is the determining authority on IMC requests for RDCs and DCAP. For IMC availability purposes, an RDC s organization encompasses the Legal Services Support Area (LSSA) of the LSST assigned, not the unit the RDC is administratively assigned. The DCAP OIC s organization is the DSO, not the unit to which the DCAP OIC is administratively assigned. d. If delegated the authority, RDCs are determining authorities on IMC requests for SDCs and defense counsel assigned to their LSSS and subordinate LSSTs. For IMC availability purposes, an SDC or defense counsel s organization is the LSSS or LSST assigned and the location of the units supported from that location, not the units to which the SDC or DC is administratively assigned. e. The determining authority for IMC requests for judge advocates not assigned to the DSO, including auxiliary defense counsel with 4-16 Enclosure 3

55 active defense cases, is that judge advocate s OIC or commanding officer (CO). MCO DD MMM YYYY 3. If the requested defense counsel is made available as an IMC, the detailed defense counsel shall normally be excused from further participation in the case, unless the detailing authority approves a request from the accused that the detailed defense counsel act as associate counsel. 4. Administrative Review and Appeal of IMC Request Denials (1) The SJA to CMC s denial of an IMC request may not be appealed, but is subject to judicial review. (2) For all IMC requests denied by the CDC, the SJA to CMC is the immediate superior in command for administrative review and appeal. (3) For all IMC requests denied by an RDC, the CDC is the immediate superior in command for administrative review and appeal. (4) For all IMC requests denied by an OIC or CO, that officer s commander is the immediate superior in command for administrative review and appeal PROFESSIONAL RESPONSIBILITY COMPLAINTS. The SJA to CMC is the Rules Counsel for all Marine judge advocates, including Marine defense counsel. Informal professional responsibility complaints regarding Marine judge advocates performing duties as defense counsel will be resolved within the DSO. Formal professional responsibility complaints regarding Marine defense counsel will be forwarded via the responsible RDC and CDC to CMC (JCA) for resolution in accordance with any applicable CDC policy memos in effect MISCONDUCT ALLEGATIONS. Allegations of misconduct (other than professional responsibility complaints) concerning members of the DSO will be investigated and resolved through the administrative chain of command. Except in those cases where disclosure may jeopardize ongoing sensitive police operations, the responsible LSSS OIC shall immediately notify the responsible RDC and CDC in any case where a member of the DSO is suspected of any offense, and shall keep the RDC and CDC apprised of ongoing case developments. In cases where sensitive police operations are ongoing, notification shall be made as soon as doing so no longer hazards the investigation ADMINISTRATIVE AND LOGISTICAL SUPPORT. Cognizant commands will provide personnel, administrative, and logistical support, commensurate with mission requirements, to defense sections equitably with that provided to military justice sections PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION. Defense counsel will ensure that all personally identifiable information (PII) 4-17 Enclosure 3

56 MCO DD MMM YYYY is properly handled, redacted, and disposed of in accordance with SECNAVINST E, the Privacy Act, 5 U.S.C. 552a, paragraph 0141a of JAGINST , this Chapter, and any policies or procedures established by the CDC, USMC/OIC, DSO to prevent the unlawful or unauthorized disclosure of PII. All PII provided during discovery is provided pursuant to the Official Use exception of SECNAVINST , which is not applicable to defense clients. While a defense counsel may discuss PII with a client that is necessary to the preparation of the client s case, under no circumstances shall a defense counsel allow a client to copy or otherwise maintain PII BUDGETING AND FUNDING GUIDANCE 1. Funding to support the defense function should be provided equitably with command funding provided to support the prosecution function. Funding for administrative and logistical support and training expenses for RDCs, SDCs, DCs, and their support personnel will be provided by local commands, as available. 2. All case-related expenses shall be provided by the convening authority, as required by JAGMAN section GUIDANCE ON REFERRALS TO CIVILIAN DEFENSE COUNSEL 1. Marines retain the right to be represented by counsel of their choice, including civilian defense counsel hired at no expense to the United States Government. Marines periodically request advice or referrals from their detailed or individual military counsel for private, non-governmental defense counsel representation. DSO attorneys are obligated to honestly answer any and all questions posed to them by their clients, but will typically avoid recommending to a client which attorney among a group of two or more the client should select. 2. When asked for advice, DSO attorneys may answer specific questions about civilian attorneys, but shall make clear that any information they provide does not reflect any Federal, Department of the Navy, or Marine Corps endorsement of that attorney. Clients will be advised to consult publically available resources such as attorney referral services, local bar and state association web sites, etc. when making their decision. 3. DSO Branch Offices shall not maintain a list of private attorneys for purposes of referral. 4. Reserve judge advocates serving in any defense counsel capacity are prohibited from soliciting or receiving fees or compensation for the same matter about which they consulted with or advised a DSO client Enclosure 3

57 MCO DD MMM YYYY 5. Nothing in this section prevents or interferes with an attorney s ability to provide free, unfettered, and independent advice to individual clients consistent with this Chapter APPLICABILITY. This Chapter is applicable to: Marine judge advocates assigned duty as Marine defense counsel; legal services specialists assigned as defense enlisted support personnel; members of the Judge Advocate Reserve Defense Services Branch; and military personnel from other services assigned to the DSO. This Chapter does not apply to judge advocates or legal services specialists attached to commands external to the Marine Corps Enclosure 3

58 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000 ARLINGTON, VA In Reply Refer To: 5813 CDC 1 Oct 14 CDC Policy Memo 1.1 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: DSO MISSION STATEMENT, CREED, AND CDC EXPECTATIONS 1. Mission. The Defense Services Organization zealously defends Marines and Sailors facing disciplinary action in order to safeguard the Rights of those who safeguard our nation. 2. Creed. We are Marines - Judge Advocates and Legal Services Specialists - who are dedicated to defending our fellow Marines and Sailors, by providing them legal counsel in any matter required by statute, regulation, or otherwise authorized. We are zealous advocates for our clients, serving independently of the local chain of command and under the supervision of the Marine Corps Defense Services Organization. We zealously represent each and every client within the guidelines of the law, consistent with our professional ethics, and in accordance with our rules of practice. We selflessly perform our duties with the utmost integrity, motivation and pride, without fear of reprisal, or expectation of professional or personal gain. In the same spirit as Taking Care of Our Own, we are: Marines Defending Marines. 3. Expectations. a. Zealously defend your client each time, every time: (1) The client comes first. Be ethical. Be professional. Be respectful. But do so while putting your client first. (2) Success begins with preparation. You can t always expect to be the smartest person in the room. You can always expect to be the best prepared person in the room. Certainly that is what I expect of you.

59 Subj: DSO MISSION STATEMENT, CREED, AND CDC EXPECTATIONS (3) Success ends with professionalism. From the perspective of the client, our military justice process is intimate and personal. Never forget that. But don t let your passion for your client, or your ego, get in front of the interests of your client, or your professional reputation. (4) Do not use the word unethical casually. Casting an indictment on the professional reputation of opposing counsel, or of other parties involved in the process, has lasting implications for you, your client, and for the party so accused. (5) Be firm, but be right. I expect you to stand on your principles in the courtroom, and will stand with you when you do. But I expect you to be right. Do what must be done in the interest of your client, but do your homework. Investigate; visit crime scenes; talk to witnesses; read everything; talk to your peers; participate in moots and murder boards; consult our Highly Qualified Experts; use SharePoint; consult with appellate defense; call or your leadership, including me. Get out from behind your desk and do the legwork required to do the job right. (6) Read the law. I expect you all to stay up on recent developments from the Navy and Marine Corps Court of Criminal Appeals (NMCCA), the Court of Appeals for the Armed Forces (CAAF), Supreme Court litigation, and new legislation. Reading a post on a blog is good, but reading the caselaw, doing your own analysis, and discussing it with your peers is better. (7) Never be afraid to call me personally. I will never undercut your leadership, but by the same token I want to hear from you. I may not know the answer, but I may know someone who does, or where to look. b. Be good Marines. (1) Take care of yourself and your families. Take time go to the school play, the soccer game, or parent-teacher meetings. Take your spouse to the doctor. Visit your parents. Do those things necessary to take care of those who mean the most to you. There is time to both attend to your clients and your family. (2) Take care of each other. Whether married or single, children or none, you have a family it s the DSO. Take care of each other. 2

60 Subj: DSO MISSION STATEMENT, CREED, AND CDC EXPECTATIONS (3) Stay in shape. Making time for PT is like doing a personal budget pay yourself first. (4) Do your PME. Enroll in PME appropriate to your grade and make progress towards successful completion so that when you come in zone for promotion or resident school, it is not a discriminator for the board. (5) Support the local command and LSSS/LSST OIC. Participate in command functions, unit PT, and support your OIC, who is there to support you. c. The following five rules apply to our practice: (1) Never utter the word "unethical" about an attorney, judge, alleged victim, or other party to litigation without consulting your RDC or me. (2) Never interview an important witness by yourself. (3) Never decide to accept a deal without an affirmative decision from your client to do so. The final decision to plead guilty or to accept a deal belongs to the c1ient. We advise, they decide. (4) Never reveal client confidences unless authorized by the client or the Rules of Professional Responsibility. (5) Never go into court unprepared. 4. Conclusion. This CDC Policy Memo is effective immediately. CDC Policy Memo 1-10 is hereby cancelled. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO NMCTJ Code 52, OJAG STEPHEN C. NEWMAN 3

61 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 RM 1D130 ARLINGTON, VA In Reply Refer To: 5800 CDC 4 Aug 15 CDC POLICY MEMO 1.2 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: CHIEF DEFENSE COUNSEL S CRITICAL INFORMATION REQUIREMENTS Ref: (a) JAGINST F (JAGMAN) 1. Purpose. To update the Chief Defense Counsel s Critical Information Requirements in order to ensure the timely and effective sharing of information within the Defense Services Organization. 2. Discussion. CDC s CIRs are significant events that the CDC must be made aware of as soon as possible. Timely and accurate reporting of CDC CIRs prior to or immediately following an event significantly enhances the ability of the CDC to make timely decisions and initiate appropriate actions. Timely reporting of CDC CIRs can, in some situations, enable the CDC to prevent or shape events. 3. Policy. a. CDC s Critical Information Requirements. A CDC CIR will be initially reported via and the case affected will be annotated as a CDC CIR case in the DSO s Case Information System (CIS) and weekly report. (1) Immediate Reportable Items. All members of the DSO will immediately report simultaneously to the CDC, the applicable Regional Defense Counsel, and the applicable Senior Defense Counsel, regardless of the time of day or day of the week, the CDC CIRs listed below. (a) Death or serious injury to any DSO member or any DSO client. (b) Death or serious injury to any DSO member s immediate family (parent, spouse, or child).

62 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS (c) Any report of suspected misconduct or investigative action in the case of a member of the DSO, including but not limited to arrest, pretrial confinement, preferral of charges against, or notification of non-judicial punishment. (d) Any allegation that a member of DSO has acted unethically. (e) The filing of any pleading alleging another government attorney has acted unethically or has engaged in prosecutorial misconduct. Where feasible attach an electronic copy of the pleading to the notification. (f) Any suicide gesture by a DSO member. (g) Any interaction with a client, including individuals who are present for limited purposes such as NJP counseling, who in the estimation of the DSO member appears to be at risk for suicide. (h) Any possible or suspected loss, compromise, or spillage of classified material or information by any DSO member. 2. Items Reportable through the RDC. All members of the DSO will immediately report to their Regional Defense Counsel via their Senior Defense Counsel, the CDC CIRs listed below, and Regional Defense Counsels will ensure prompt forwarding to the CDC. (a) Any writ, appeal, or response to an Article 62 appeal by the Government. Where feasible attach an electronic copy of the pleading to the notification. (b) Any media interest in an investigation or case concerning a DSO client. (c) Any potential claim from a member of the DSO that a government attorney is acting unethically or has engaged in prosecutorial misconduct. (d) Any case alleging a violation of Article 118 (or an attempted 118), UCMJ or that has been defined as a national security case under paragraph 0126 of the reference. 2

63 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS (e) Any court hearing where a general or flag officer or staff judge advocate will be called as a witness. (f) Any case alleging misconduct by an officer above the grade of O-3 and Chief Warrant Officers above CWO-3, or an enlisted Marine above E-7. (g) Any case alleging unlawful command influence, prior to an articulation of the claim in a motion, correspondence, pleading, on the record statement, or to the government. 4. Conclusion. Paragraph 3(d)(1) of CDC PM 5-14 is hereby cancelled. This CDC Policy Memo is effective immediately. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO NMCTJ Code 52, OJAG STEPHEN C. NEWMAN 3

64 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000 ARLINGTON, VA In Reply Refer To: 5800 CDC 8 Oct 14 CDC POLICY MEMO 1.3 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES, CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE RETENTION POLICIES Ref: (a) MCO P (series) (b) DoN CIO Message, DoN SSN Reduction Plan Phase Three of 17 Feb 12 (c) JAGINST F (JAGMAN) 1. Purpose. To update certain business rules for the Marine Corps Defense Services Organization (DSO) related to DSO reporting requirements, work spaces, correspondence, case file retention and standardized forms in order to ensure the effective and efficient operation of the DSO as a functionally independent organization. 2. Discussion. a. Reference (a) establishes the DSO as a functionally independent organization. In it, the Chief Defense Counsel of the Marine Corps (CDC) is identified as the Officer-in-Charge of the DSO (OIC, DSO). The CDC is appointed by the Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC). The CDC is specifically tasked with establishing standard operating procedures and standards of practice for the delivery of defense counsel services throughout the Marine Corps. b. In his role as OIC of the DSO, reference (a) entrusts the CDC with operational control of all members of the DSO. Operational control is defined as the authority to perform those functions of leadership over subordinate defense counsel involving their organization and employment, assigning tasks, designating goals and objectives, and giving authoritative direction necessary to accomplish the DSO mission. Operational control includes authoritative direction over all aspects of DSO

65 Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES, CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE RETENTION POLICIES operations and training necessary to accomplish the DSO mission, with the exception of case-specific decisions made by individual defense counsel concomitant to their representation of servicemembers. See, e.g. FM MCRP 5-12A (Operational Terms and Graphics) at p c. Reference (a) entrusts local commanders with administrative control over DSO personnel. This authority is typically effected by the Officer-in-Charge, Legal Services Support Section (LSSS) or Team (LSST). Administrative control is defined as authority over subordinates in respect to administration and support, including control of resources and equipment, personnel management, unit logistics, individual and unit training, readiness, mobilization, demobilization, discipline, and other matters not included in the operational missions of the subordinate or other organizations. The policies below, which update certain standard operating procedures and establish some new requirements related to running RDC and DSO branch offices, ensure the lines between administrative and operational control over members of the DSO remain clear. Id. at p Policy. a. DSO Workspaces. DSO workspaces will be maintained in a professional manner. DSO personnel will ensure that only authorized personnel have access to DSO spaces and that privileged material and personally identifiable information (PII) are safeguarded at all times. The DSO office space should be clearly identified as being a branch office of the DSO and be separate and distinct from the rest of LSSS or LSST. To that end, there will be appropriate signage entering DSO workspaces. The DSO mission statement and creed and command-style photographs of the Senior Defense Counsel (SDC), Regional Defense Counsel (RDC), and the Chief Defense Counsel of the Marine Corps (CDC) are to be prominently displayed in the DSO hallway or on the wall of the client waiting room. Additionally, each client waiting room will have a copy of General Mattis letter to the DSO, contact information for local mental health providers, and the D-Stress Poster on the wall. b. DSO Correspondence. DSO letterhead will be used on all defense-related correspondence (except for court pleadings) with the DSO member s role and the identity of the client clearly articulated in the document itself. Social Security numbers (SSN) or any portion of a SSN shall not be included in any 2

66 Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES, CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE RETENTION POLICIES document unless authorized under reference (b). To the extent possible rely on EDIP. Defense-related s from a member of the DSO will identify the sender as a member of the DSO, the sender s role, identify of the client and, when appropriate, will identify the contents as work product or privileged communications. s containing PII must be digitally signed and encrypted and should include privacy sensitive notices in the subject line and body. c. Standard Forms. DSO personnel shall use the standard forms available on the DSO SharePoint portal unless: (1) Use of a particular form is not in the best interest of the client. (2) When a standard form does not meet the requirement of a particular circumstance. d. DSO Reporting Requirements. (1) CDC s Critical Information Requirements. CDC s CIRs are significant events that the CDC must be made aware of as soon as possible. Timely and accurate reporting of CDC CIRs prior to or immediately following an event significantly enhances the ability of the CDC to make timely decisions and initiate appropriate actions. Timely reporting of CDC CIRs can, in some situations, enable the CDC to prevent or shape events. A CDC CIR will be initially reported via and the case affected will be annotated as a CDC CIR case in the DSO s Case Information System (CIS) and weekly report. (a) Immediate Reportable Items. All members of the DSO will immediately report simultaneously to the CDC, the applicable Regional Defense Counsel, and the applicable Senior Defense Counsel, regardless of the time of day or day of the week, the CDC CIRs listed below. any DSO client. 1. Death or serious injury to any DSO member or 2. Death or serious injury to any DSO member s immediate family (parent, spouse, or child). 3. Any report of suspected misconduct or investigative action in the case of a member of the DSO, including but not limited to arrest, pretrial confinement, 3

67 Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES, CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE RETENTION POLICIES preferral of charges against, or notification of non-judicial punishment. 4. Any allegation that a member of DSO has acted unethically. 5. The filing of any pleading alleging another government attorney has acted unethically or has engaged in prosecutorial misconduct. Where feasible attach an electronic copy of the pleading to the notification. 6. Any suicide gesture by a DSO member. 7. Any interaction with a client, including individuals who are present for limited purposes such as NJP counselling, who in the estimation of the DSO member appears to be at risk for suicide. 8. Any possible or suspected loss, compromise, or spillage of classified material or information by any DSO member. (b) Items Reportable through the RDC. All members of the DSO will immediately report to their Regional Defense Counsel via their Senior Defense Counsel, the CDC CIRs listed below, and Regional Defense Counsels will ensure prompt forwarding to the CDC. 1. Any media interest in an investigation or case concerning a DSO client. 2. Any potential claim from a member of the DSO that a government attorney is acting unethically or has engaged in prosecutorial misconduct (this is prior to an articulation of the claim in a motion, correspondence, pleading, on the record statement, or which is mandated CIR direct to CDC in paragraph 3c(1)(a)9 above). 3. Any case alleging a violation of Article 118 (or an attempted 118), UCMJ or that has been defined as a national security case under paragraph 0126 of reference (c). 4. Any court hearing where a general or flag officer or staff judge advocate will be called as a witness. 4

68 Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES, CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE RETENTION POLICIES 5. Any case alleging misconduct by an officer above the grade of O-3 and Chief Warrant Officers above CWO-3, or an enlisted Marine above E Any case alleging unlawful command influence, prior to an articulation of the claim in a motion, correspondence, pleading, on the record statement, or to the government. (2) Regular Reports. The following reports will be filed by the deadline prescribed. (a) Weekly Litigation Snapshot. RDCs or their designee will send the CDC and the Officer-in-Charge, Defense Counsel Assistance Program an by close of business each Thursday listing the pending litigation for the following week and the results for litigation from the current week. (b) RDC Weekly Report. RDCs or their designee will upload the RDC Weekly Report to Reports Folder on SharePoint by close of business each Monday. The weekly report will identify significant new cases, provide updates in CDC CIR and other significant cases, identify significant motions litigated, list all cases completed, identify significant litigation for the following week and provide an up-to-date status of the RDC s cases. (c) Regional Monthly Report. RDCs or their designee will upload the Regional Monthly Report to the Reports Folder on SharePoint by the close of business on the fifth day of the month. The monthly report will identify completed and upcoming training, issues related to working environment, significant accomplishment and trends identified for the region. Additionally, the RDC will update the Monthly Litigation Statistics Report in the Monthly Report folder on SharePoint. The CDC s Legal Chief will ensure the Master Personnel Roster and Fiscal Year to Date Litigation Statistics Report is updated and placed into the Monthly Report folder by the seventh day of the month. (d) CDC Yearly Report. The CDC will provide the Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC) a yearly report in the format provided by the SJA to CMC. 5

69 Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES, CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE RETENTION POLICIES (3) Other Reports. (a) Case Information System. Each counsel shall update each individual case file on the Case Information System (CIS) within two working days of a significant case event. (b) DSO Training Tracker. RDC Chiefs will update the DSO Training Tracker in the Reports folder on SharePoint within five days of DSO member returning from a training event. (c) DSO Master Personnel Roster. RDC Chiefs will update the DSO Master Personnel Roster within one business day of a Marine joining or departing the DSO. (d) DSO At-Risk Client Roll-up. The CDC s Legal Chief will update the DSO At-Risk Client Roll-up within two business days of receipt of a CDC CIR or notice of the completion of suicide prevention related training event. (4) DSO Leadership Meetings. Each week the CDC will conduct a teleconference or videoconference with the RDCs and their Chiefs. The RDCs will conduct a teleconference with their SDCs. e. Case File Retention. Case files are the responsibility of the individual counsel, not the DSO. Case files are to be kept in a secure location and in a manner that safeguards the attorney-client privilege and the confidentiality of attorney work-product. Case files must include the detailing letter, notification of representation letter, the charge sheet or notification letter, the client interview checklist, a record that the client was provided the coping with stress letter, potential witness list with contact information, all discovery requests and responses, and, when applicable, a termination of representation letter. Counsel have an obligation to maintain their case files, even after leaving the DSO, at a minimum, for the time periods set forth below. These obligations supersede any state bar rule that would either authorize or permit destruction of a case file at an earlier point. (1) In a non-capital court-martial cases (general, special, or summary), defense counsel will retain the case file until the defense counsel has turned over the entire case file to either the client or successor counsel or the earlier of: 6

70 Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES, CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE RETENTION POLICIES (a) completion of appellate review, including any subsequent proceedings ordered by any appellate court and completion of appellate review of any such subsequent proceedings; (b) the completion of any administrative proceeding, including any authorized review, against the former client that the counsel knows will occur or reasonably believes will occur following the trial; or (c) the death of the client. (2) In a capital court-martial case, the defense counsel will retain the case file until: (a) the client is executed; (b) the client s death sentence has been set aside in a final order (in the event that such a final order occurs before the completion of appellate review and any subsequent proceedings ordered by an appellate court, the defense counsel will retain the case file in accordance with paragraph (d)(1)(a), above); or (c) the defense counsel has turned over the case file to either the client or successor counsel. (3) In an Article 32 investigation case in which charges are not referred to court-martial, the defense counsel will retain the case file until the earlier of: (a) one year after the statute of limitations for all offenses investigated has expired; (b) one year after the client s final discharge from the Armed Services; or (c) the death of the client. (4) In a nonjudicial punishment case in which the defense counsel entered into an authorized attorney-client relationship and nonjudicial punishment is imposed and the client is not the subject of an administrative separation board or board of inquiry, the defense counsel will retain the case file until the earlier of one year after the case is closed or the death of the client. 7

71 Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES, CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE RETENTION POLICIES (5) For administrative separation boards and boards of inquiry, the defense counsel will retain the case file until the earlier of two years after the board s completion or the death of the client. (6) A defense counsel who destroys a case file following the expiration of the time periods set out above will do so in a manner that safeguards the attorney-client privilege and the confidentiality of attorney work-product. 4. Conclusion. CDC PM 4-13 is hereby cancelled. This CDC Policy Memo is effective immediately. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO NMCTJ Code 52, OJAG STEPHEN C. NEWMAN 8

72 In Reply Refer To: 3000 CDC 17 Oct 14 CDC POLICY MEMORANDUM 1.4 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: DSO INSPECTION PROGRAM Ref: (a) MCO P (series) (b) Article 6, UCMJ (c) JAGINST D Encl: (1) Regional Defense Counsel Office Inspection Checklist (2) Senior Defense Counsel and Branch Office Inspection Checklist 1. Purpose. To establish an inspection program for the Marine Corps Defense Services Organization (DSO) consistent with policies and procedures established by the Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC) and to ensure the continued operation of the DSO as a functionally-independent organization. 2. Discussion. a. Reference (a) designates me as the Officer-in-Charge of the DSO. In this role, I exercise operational control of and general supervision over the professional development of Marine Corps judge advocates and support personnel performing defense functions. Reference (a) specifically tasks me with establishing standard operating procedures and standards of practice for the delivery of defense services throughout the Marine Corps. Reference (a) also tasks me with assessing the practices, procedures, and techniques of both defense counsel and support personnel in the performance of defense functions. This responsibility includes assessment of the facilities in which those functions are performed. b. This policy establishes a vigorous inspection program in order to reinforce those standard operating procedures and standards of practice, exercise supervision of defense functions, emphasize DSO functional independence, and support the Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC) in making frequent inspection in the field in supervision of the administration of military justice, as required by reference (b). I intend for this program to be robust, transparent, and regular, yet executed internally from within the DSO compliant with Rules 1.3, 1.6, and 5.1 of reference (c).

73 3. Policy. a. Each DSO branch office and detachment will be inspected at least annually. b. Annual inspections will typically be conducted in conjunction with the Article 6 Legal Services Inspection (LSI). However, the CDC may direct an off-cycle inspection of any branch office at the request of the SJA to CMC (or his designee), any SJA, Commander, Officer-in- Charge of a Legal Services Support Section or Team, or sua sponte. c. The CDC usually travels with the SJA to CMC during his Article 6 visits. Inspectors will travel to the inspection site in advance of the CDC, early enough to allow sufficient opportunity to prepare an after action report for the CDC s signature reporting out the result of the inspection in a manner compliant with reference (c). Upon approval and signature, the CDC will provide a copy of the report to both Officer-in-Charge of the Legal Service Support Section or Team, and to the SJA to CMC. The after action report will not contain any privileged information. d. Inspectors will usually be drawn from the office of the Chief Defense Counsel and/or Defense Counsel Assistance Program, but may also include members of the DSO selected by the CDC from a different region than the Regional Defense Counsel or Branch Office being inspected. Inspectors are specifically cautioned not to review any case files from any conflict cases during the course of their inspection. Inspectors will utilize the enclosure to inspect DSO branch offices. e. The CDC will fund costs associated with travel and per diem associated with assigning members of the DSO selected by the CDC from a different region than the branch office being inspected. 4. Conclusion. CDC PM 5-13 is hereby canceled. This CDC Policy Memo is effective immediately. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO STEPHEN C. NEWMAN

74 Regional Defense Counsel Inspection Checklist Inspector: Date: 01 General How does the RDC publish CDC CIRs to the Region? Does the RDC have CIRs separate from CDC CIRs, and if so, what are they? Are the CDC and RDC photos prominently displayed? Are the DSO Mission Statement and DSO Creed prominently displayed? Is there appropriate DSO signage on the interior and exterior of the building, as appropriate to location? Does the RDC have an updated photo and bio on the SJA to CMC public web page? Does the RDC maintain a Regional SharePoint page? How is it being used? When did the RDC last meet with the LSSS and LSST OICs in the region? When did the RDC last meet with the SJAs in his region? When did the RDC last meet with the Circuit Judge? When did the RDC last meet with the local Navy DSO CO? How are new counsel conducting in-calls with the RDC? 02 Personnel Have the RDC and RDC Chief been appointed in writing? Does the RDC appoint Regional SDCs using the standard letter format? What is the current structure by Grade & MOS for the RDC office? What is the total on hand by Grade & MOS in the RDC Office? What coded BICs are there in the RDC office, and are they filled by personnel with the appropriate MOS codes? Does the RDC office MCC have an MCC? If so, are both the RDC and Chief assigned to it? What is the average RDC and Chief tour length, and how is it managed? How does the RDC interact with the LSSS and LSST OIC on personnel management and tour length for counsel and enlisted support staff? 03 CLE/PME How does the RDC ensure his Marines (officer and enlisted) are afforded 1 Encl (1)

75 reasonable opportunities to attend schools in order to maintain their CLE and PME requirements? How are CLE assignments and expenditures tracked? Does the RDC maintain a quarterly training plan? Attach a copy Does the RDC perform quarterly regional training? Attach copies of this fiscal year s quarterly RDC training program schedules. 04 Budget Does the RDC have his own budget? If so, how is it administered and managed? What mechanisms are in place to ensure accountability for funds? What were the past fiscal year s expenditures, and what are the projected expenditures for the present fiscal year? What mechanisms are in place for the RDC to track DTS claims of counsel travelling for CLE and client related matters? How does the RDC ensure DTS claims are filed in a timely fashion and in accordance with regulation? 05 Evaluations Are FITREPS and proficiency/conduct marks processed in a timely manner? Does the RDC have a person designated as a trusted assistant for the processing of reports, and if so, who? Does the RDC maintain a master fitrep matrix identifying the MRO/RS/RO relationships? Has the CDC Chief been designated/identified as command reviewer for all enlisted fitreps? Is there an established billet description for each billet within the RDC s region? How does the RDC identify and address conflicts when writing fitness reports on conflicted counsel? 06 Awards How does the RDC ensure his counsel are properly recognized for their time in the DSO? Are letters of continuity drafted and submitted for personnel changing duties within the LSSS/LSST? What criteria does the RDC have for selection of the Regional DECOY? 07 Military Training Requirements Does the RDC maintain a copy of the LSSS/LSST training plan? How does the RDC track training requirements for DSO personnel assigned to his region? Are all Regional DSO PFT, CFT, Rifle and Pistol qualifications up to date? 2 Encl (1)

76 08 Record and File Maintenance Are retained correspondence files properly created, maintained, and stored in a dedicated file retention area? SECNAV M Chap 1 & 2; MCO E par 4A; NAVMC E Does each retained correspondence file folder have disposal instructions on the outside of the folder, and are they properly retired/disposed of when appropriate? SECNAVINST D par 7C.(5); MCO E; SECNAV M ; NAVMC E Are all retained correspondence files utilizing the member's DOD ID Number? DODI Is all privacy act information contained in retained correspondence files cross shredded when disposed? MCO E Is each retained correspondence file properly labeled with a standard subject identification code and open/closed dates? SECNAV M ; NAVMC E Are written internal control procedures (e.g. SOP binders, Policy Memoranda) maintained and updated? MCO D; MARADMIN 016/05; NAVMC E Are there Regional control measures in place to ensure access to both the DSO SharePoint and CIS pages are restricted to individuals that require it and are access rosters maintained and updated on a quarterly basis? 5 U.S.C. 552A (PRIVACY ACT) Is the RDC Office staffed with a personnel administrative clerk? If not, does the RDC see a need for a junior enlisted personnel administrative clerk? If so, explain What Regional control measures are in place to ensure every GCM case file contains a filed motion for investigator assistance or memoranda for the record explaining the reasons why one was not requested? 09 Legal Services Does the RDC maintain a personal caseload, and if so, what is the average number of cases the RDC does per calendar year? Does the RDC delegate detailing authority? If so, does he maintain delegation authority letters? Attach copies In cases where the RDC is detailed, is the standard notification of representation delivered to the Trial Counsel? Attach the most recent copy What mechanisms are in place for IMC requests within the Region? Describe How does the RDC define a complex case and what procedures does the RDC have in place to ensure Regional SDCs consult in accordance with CDC PM 3.1 (series)? What procedures has the RDC established for the region to identify 3 Encl (1)

77 and resolve conflicts? What procedures has the RDC established for requesting Navy Counsel in certain conflict cases? 4 Encl (1)

78 5 Encl (1)

79 Senior Defense Counsel (Branch Office) Inspection Checklist Inspector: Date: 01 General How does the SDC publish CDC and RDC CIRs to his/her Branch Office? Does the SDC have his/her own CIRs? Is the SDC appointed and designated in writing using the standard format? Has the SDC been delegated detailing authority as required by CDC PM 3.1 (series)? Does the SDC and his Chief receive the local Brig or Confinement report in accordance with CDC PM 3.1 (series)? When was the last time the SDC visited the local confinement facility used to house pretrial detainees? What were the conditions of pretrial confinement? Are CDC, RDC and SDC photos displayed as required? Are the DSO Mission Statement, Creed, Gen Mattis letter, Mental Health Contact Information, and D-Stress poster displayed as required? Does the SDC maintain a master military training/cle training plan? Have all Counsel conducted an in-call with the Circuit Military Judge, their LSST/LSSS OIC, and at least one local SJA in accordance with CDC PM 2.1 (series)? When was the last time the SDC personally met with the local SJAs, individually or as a group? Has the SDC personally met with/conducted an in-call with the Supervisory Special Agent In Charge? What mechanisms are in place for the SDC to receive regular feedback from military judges concerning the performance of Counsel? How do Counsel in this Branch Office collaborate on cases with other DSO attorneys worldwide? Do Counsel in this Branch Office have laptop computers and webcams? Do Counsel in this Branch Office have DCO accounts, and how are they used? What procedures are in place in the case of a search authorization for DSO spaces? Are the DSO spaces properly identified with appropriate exterior and 1 Encl (2)

80 interior signage? Does the DSO Branch Office have all the equipment necessary to accomplish its mission, including but not limited to: - Television and DVD player/vcr - A cross-hatch shredder - Color printers, copiers, and scanners - Laptop computers - Adobe Pro (most current version) - MS Office Professional - An audio player capable of playing a variety of audio files including those from Hearings and Courts, but also those provided in discovery or otherwise - At least one Webcam per office - At least one air-card per office - At least one digital video and/or still camera per office - At least one evidence ruler - At least one digital audio recording device Does the Branch Office have the office supplies it needs to accomplish its mission? Do all personnel in the Branch Office have access to a printed or electronic version of the following publications? 02 Personnel - MCM (2012 ed.) and Supplement (2012 ed.) - Military Judge s Benchbook - MCO B Ch 1 (LEGADMINMAN)(LSAM after publication of change) - MCO P F Ch 2 (MARCORSEPSMAN) - JAGINST F (JAGMAN) - United States Navy Regulations - Rules of Court - JAGINST D (Rules of Professional Conduct) - Trial Guide - Article 32 Investigating Officer s Guide - MCO (Victim Witness Assistance Program) - MCO B (SAPR Program) - NAVMC (Legal Services T&R Manual) - MCO E (MOS Manual) What is the Branch Office current FY Structure by Grade & MOS? What is the total on hand in this branch office by Grade & MOS? How does the SDC track personnel leave with regard to the docket and/or training requirements to ensure Counsel are present when required? Have all Counsel completed and submitted the Bio Data Sheet in accordance with CDC PM 2.1 (series)? Have all Counsel completed the New DC Orientation Checklist? Do Counsel adopt seasonal uniform changes in the courtroom? 2 Encl (2)

81 While in court do Counsel wear all ribbons to which entitled? Are Counsel in compliance with the Military Appearance Program in accordance with standards established by MCO W/CH 1? Are all Defense Counsel appointed in writing? Are Support personnel assigned to the DSO in writing? Do all Defense Counsel have an established rotation date? What is the average length of time an attorney spends as a Defense Counsel in the Branch Office? Give actual numbers, not estimates What is the average length of time a Marine spends as a Defense Clerk in this Branch Office? Give actual numbers, not estimates Is the information on each DSO member correct on SharePoint? Have DSO personnel established SharePoint alerts in accordance with CDC PM 2.1 (series)? Have all Branch Office personnel signed the 4421/4401 Statement of Understanding in accordance with CDC PM 2.2 (series)? What mechanisms are in place in the Branch Office to ensure personnel no longer have access to CIS and SharePoint upon their transfer or upon change of duties with the LSST/LSSS? How are 4421s being used in the Branch Office? Do they support all Counsel or just the SDC? Do all personnel (officer and enlisted) in the Branch Office have a Lexis account? Have all personnel (officer and enlisted) in the Branch Office been trained in legal research on Lexis? When was the last time Lexis training was held? How does the Branch Office access 3270? Have all 4421s been trained on how to draft motions, position papers, to IRAC, and use the Blue Book? Do all 4421s have a proper understanding of the SDC s expectations and duties? Do all 4421s have a proper understanding of DSO procedures related to NJP, Administrative Separations, Special Courts-Martial, Article 32 Hearings, and General Courts-Martial? Do all 4421s have a proper understanding on the limitations related to the provision of legal advice by a non-attorney? How does each Defense Counsel stay organized? How do they each track deadlines, s, phone messages, and appointments? Does each DSO office space present a neat, professional, military 3 Encl (2)

82 appearance? Is there any offensive or potentially offensive material displayed? Is each DSO office equipped with sufficient office furniture, including chairs and desks? Are there any potential fire or equipment hazards, is there a properly displayed emergency/fire exit plan, and do all DSO personnel in the Branch Office understand what to do in case of an emergency or fire? Is there a panic button anywhere in the office? How does the SDC conduct holiday and weekend liberty and safety briefs? Does the DSO Branch Office have a phone tree or other non-duty hours contact procedure? 03 CLE How does the SDC ensure his/her Marines are afforded reasonable opportunities to attend schools in order to maintain their CLE requirements? Are counsel being afforded opportunity to attend CLE outside of their regions (e.g., attend training other than RDC or SDC training)? Has each Counsel had the opportunity to attend at least one CLE outside his/her region? How does the SDC track CLE assignment and (as required) expenditures? How does the SDC ensure travel authorizations and vouchers are submitted and processed via DTS in a reasonable amount of time? Does the SDC have a local training program to train subordinate Counsel? How often does the SDC conduct local training for his Branch Office? Attach a copy of the local training curriculum/plan Are 4421 s given the opportunity to attend the Legal Research & Writing and Legal Ethics courses provided by the Naval Justice School, Newport, RI? How many from this Branch Office have attended? What other CLE opportunities have Branch Office 4421 s been provided in the past FY, both within the DSO region and otherwise? 04 Evaluations How does the SDC track fitness reports? Does the SDC maintain a master fitrep matrix identifying the MRO/RS/RO relationships? Are FITREPS and proficiency/conduct marks processed in a timely manner? Has the DSO Legal Chief been designated/identified as command reviewer for all enlisted fitreps processed in the DSO Branch Office? 4 Encl (2)

83 Does every individual have an established billet description in accordance with MCO P1610.7F 05 Awards Are recommended awards forwarded to the approval authority in a timely fashion and prior to a Marines departure? 06 Military Training Requirements Does the SDC maintain a training plan? Are rifle, pistol, PFT, CFT MCMAP and other military training requirements current for Marines assigned to the Branch Office? How does the SDC ensure that his Marines are afforded range and other military training opportunities on par with other Marines in the LSST/LSSS? Are all Marines in the Branch Office enrolled in PME appropriate to their grade? 07 Detailing and IMC Requests How does the SDC detail Counsel to cases? How does the SDC maintain Detailing Letters in his/her Branch Office? How does the SDC manage termination of detailing in relation to established tour lengths? Does the SDC use the standard format letter, and is it provided to the LSST/LSSS OIC and CDC? How does the SDC ensure his new Counsel complete the New DC Orientation Checklist prior to being detailed cases? How does the SDC maintain New DC orientation Checklists? Does the SDC allow new Counsel to sit as second chair in cases prior to completion of the New DC Orientation Checklist? What is the average time from notification to detailing for Marines not in pretrial confinement? Give actual numbers, not estimates What is the average time from notification to detailing for Marines in pretrial confinement? Is the standard notice of representation sent to the Trial Counsel within the required timeline in accordance with CDC PM 3.1 (series)? How does the SDC define a complex case and what procedures are in place to ensure each case is detailed to Counsel with experience appropriate to the charged offenses? How does the SDC ensure compliance with the requirement of CDC PM 3.1 (series) to consult with the RDC before detailing a complex case? How does the SDC manage IMC requests, and are they processed in accordance with the requirements of CDC PM 3.1 (series)? 5 Encl (2)

84 How does the SDC exercise the release of Counsel for good Cause to sever the Attorney-Client relationship in compliance with CDC PM 3.1 (series)? What procedures are in place to allow the SDC to identify and address conflicts within his Branch Office? What procedures are in place to request Navy DSO support in conflict cases? 08 Case Management, Records and Files Management, and Office Management Are attorneys in the Branch Office updating CIS in accordance with CDC PM 1.3 (series)? Are there Regional control measures in place to ensure access to both the DSO SharePoint and CIS pages are restricted to individuals that require it and are access rosters maintained and updated on a quarterly basis? 5 U.S.C. 552A (PRIVACY ACT) Does the Branch Office maintain local forms? Obtain copies How do counsel and support personnel store and access local and/or DSO-wide forms? How are files maintained? Are they properly secured in accordance with JAGINST c? Inspect for the following: - Can each individual Attorney s office be secured, and who has access? - Is there accountability for office keys, and how? - Who in the LSST/LSSS has master keys to the defense spaces, and how is their entry/exit controlled? - Does the office have file cabinets which can be locked or otherwise secured? - Do attorneys have lockable desk drawers? Does each client case file have at least the following: - Standard Detailing Letter - Notification of Representation Letter - Charge Sheet/Notification letter - Client Interview Checklist - Coping With Stress Letter - Potential Witness List (with contact information) - Discovery Request(s) - Termination of Representation Letter (as appropriate) Are retained files properly created, maintained, and stored in accordance with CDC PM 1.3 (series) What procedures are in place for Counsel who EAS or PCS to take their files with them? Does each retained file folder have disposal instructions on the outside of the folder, and are they properly retired/disposed of when 6 Encl (2)

85 appropriate? SECNAVINST D par 7C.(5); MCO E; SECNAV M ; NAVMC E; and CDC PM 1.3 (series) How are retained correspondence files identified, by SSN or EDIP? Is all privacy act information contained in retained correspondence files cross shredded when disposed? MCO E Is each retained correspondence file properly labeled with a standard subject identification code and open/closed dates? SECNAV M ; NAVMC E Are written internal control procedures (e.g. SOP binders, Policy Memoranda) maintained and updated? MCO D; MARADMIN 016/05; NAVMC E What procedures are in place to manage Personally Identifiable Information (PII) in accordance with MCO b? What procedures are in place to ensure PII is not available on desktops or on white boards during client meetings? Is the Branch Office staffed with a personnel administrative clerk? If not, does the SDC see a need for a junior enlisted personnel administrative clerk? If so, explain How does the SDC track deadlines for subordinate Counsel s dockets in the office? How does the SDC exercise his responsibility to supervise Counsel throughout the litigation process? How does the SDC provide feedback (ask both the SDC and Counsel)? What procedures are in place in the Branch Office for the conduct of murder boards and moots? What procedures are in place in the Branch Office to ensure every GCM case file contains a filed motion for investigator assistance or memoranda for the record explaining the reasons why one was not filed? 09 NJP/31b/Administrative Separation Rights Counseling: What procedures are in place for to provide Marines in need with their rights related to Non-Judicial Punishment, their rights when suspected of an offense under Article 31b, and their rights when notified of being processed for administrative separation? What is the policy for Counsel meeting with walk-in Marines with regard to the confidentiality of the communications between that Marine and the Counsel? What is the policy for formation of attorney-client relationships with walk-in Marines? Does the policy change with regard to the rank of the individual who walks in? What mechanisms are in place for the SDC to ensure policies and procedures with regard to confidentiality and formation of an attorney-client 7 Encl (2)

86 relationship are effectively communicated to Marines who walk in for counseling? What mechanisms are in place to account for the presence of walk-in personnel within the Branch Office? Is there a log book? Do they check in with a clerk? What information is obtained and how is it retained? 10 Professional Responsibilities: Are all assigned judge advocates and civilian attorneys licensed and in good standing with all licensing authorities? (JAGINST A, para. 3-2A; JAGINST , Rule 8.6; MARADMIN 049/12) Does the DSO Branch Office maintain proof of good standing for all judge advocates and civilian attorneys attached to it? (JAGINST A, para. 3-2A; JAGINST D, Rule 8.6; MARADMIN 049/12) Does the DSO Branch Office comply with the prohibition against maintaining files regarding professional responsibility complaints other than supervisory attorneys personal files? (JAGINST D, para. 14.b.) 8 Encl (2)

87 9 Encl (2)

88 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 RM 1D130 ARLINGTON, VA In Reply Refer To: 5813 CDC 24 Feb 16 CDC Policy Memo 1.5B From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM Ref: (a) SECNAVINST H (b) MCO J Ch 1 Encl: (1) Awards Flow Charts (2) Eligibility Matrix (3) DSO Marine of the Year Nomination Form (4) Defense Counsel of the Year Nomination Form Motion (5) Motion of the Year Nomination Cover Sheet 1. Purpose. To standardize procedures within the Marine Corps Defense Services Organization (DSO) in order to recognize those members of the DSO who have had the greatest positive impact on the mission of Marines Defending Marines, and to make service in the DSO something Marines in our community seek out as career enhancing and valuable. 2. Discussion. There are few more challenging tasks than those required of Marines defending Marines. Long hours and difficult work are systemic for both attorneys and legal service specialists alike. It is my honor and privilege to serve with you all, each of you as capable and professional as the next. Similarly, our clients are fortunate to have you standing by their side and diving headlong into the military justice fray each and every day. It therefore seems appropriate to formalize our existing awards program in a manner which will reflect credit on both the persons selected by the program, and the DSO as a whole. This program is intended to supplement, not replace, recognition by Commanders for meritorious performance of duty submitted in accordance with the references. 3. Policy. The DSO is divided into four regions. These regions are: National Capitol Region (NCR); East; West; and Pacific. We will recognize both legal services specialists and

89 Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM attorneys throughout the DSO in an appropriate manner. I intend for the DSO to be a desirable, career-enhancing place for all attorneys and legal service specialists. One way to do this is through public recognition of exceptional performance of duty. In addition to the Department of the Navy awards listed in the references, the established DSO awards are: Marine of the Year, Defense Counsel of the Year (DECOY), the Academic Writing Award and the Motions Practice Award. Deadlines and processes for all DSO awards are outlined in enclosure (1). 4. Personal Awards. Service in the DSO is personally and professionally rewarding. DSO Marines perform a valuable service to the Marines and Sailors they represent as well as to the Marine Corps. In order to ensure proper recognition of the contributions made by DSO personnel, I am standardizing the personal award administrative procedures within the DSO. a. End of Tour (EOT). An individual is recognized for sustained superior performance at the termination of the period during which that performance was demonstrated, such as at the end of an assigned tour of duty. Defense counsel executing PCS/PCA orders from the DSO will be nominated for a personal award when appropriate. b. Letter of Continuity. A letter of continuity should be prepared when it is believed that an individual is deserving of recognition but is only being reassigned and not executing permanent change of station orders. The letter of continuity can be prepared in letter format or as a summary of action and forwarded under separate cover to the individual s new reporting senior. The information contained in the letter of continuity should then be used for an end of tour award recommendation. Likewise, when a Marine is reassigned to the DSO, the reporting senior should obtain a letter of continuity at that time from the previous reporting senior. c. Specific Achievement. A specific achievement (or impact) award may be authorized for exceptional performance over a period of short duration, which is generally no longer than twelve months. However, specific achievement awards may not support an EOT award; neither the Summary of Action nor the citation issued for the period of meritorious service shall mention the specific achievement previously recognized. DSO impact awards shall be submitted by the cognizant Regional Defense Counsel (RDC) for the DSO Marine of the Year and the DSO Defense Counsel of the Year in accordance with paragraph 7(b). Additionally, circumstances may arise in which a personal impact 2

90 Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM award may be appropriate (e.g. a defense counsel prevents an imminent suicide). These awards will be provided to the RDCs for vetting and submission to the Legal Services Support Section (LSSS) OIC. d. Administrative Routing. All awards for defense counsel will be routed to the RDCs and then provided to the appropriate LSSS OICs. RDCs are responsible for originating Senior Defense Counsel (SDC) personal awards and forwarding them to the LSSS OIC. A courtesy copy of all forwarded awards will be provided to the DSO Legal Chief. The CDC will originate all RDC, Defense Counsel Assistance Program (DCAP), DSO Legal Chief, and civilian personal awards. Under no circumstances should personal awards go directly from SDCs to LSSS OICs. 5. Marine of the Year/Defense Counsel of the Year. RDCs shall establish written policies and procedures within their regions for selection of Marines worthy of recognition as DSO Regional Marine of the Year and Regional Defense Counsel of the Year (DECOY). In doing so RDCs are encouraged to consider the whole Marine concept and to solicit input from a variety of sources, including but not limited to LSSS and Legal Services Support Team (LSST) Officers in Charge, military justice personnel, military judges, and Staff Judge Advocates. a. Marine of the Year. Each Regional Defense Counsel shall establish a program to recognize the hard work and dedication of Legal Services Specialists in their region. Award eligibility criteria are depicted in enclosure (2). At a minimum: (1) Each DSO Region will recognize one Legal Services Specialist in the grade of E-5 and below as the Regional DSO Marine of the year. Regional Defense Counsel (RDCs) shall establish policies and procedures for nomination and selection within their regions, and will coordinate appropriate recognition with the Officer in Charge of the Legal Services Support Section or Team where the Marine selected is physically employed. (2) The four Regional DSO Legal Service Specialists of the Year will compete for selection as DSO Marine of the Year. RDCs will use enclosure (3) to submit their Regional DSO nominations. The Chief Defense Counsel of the Marine Corps (CDC), in consultation with the DSO Legal Chief and Reserve Chief Defense Counsel of the Marine Corps, will make the final selection. 3

91 Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM b. Defense Counsel of the Year(DECOY). In addition to the foregoing, each RDC shall establish a program to recognize the hard work and dedication of Judge Advocates in their region. Award eligibility criteria are depicted in enclosure (2). At a minimum: (1) Each DSO Region will recognize one Judge Advocate in the grade of O-4 and below as the Regional Defense Counsel of the year (DECOY). Senior Defense Counsel (SDCs) and RDCs are ineligible. RDCs shall establish policies and procedures for nomination and selection within their regions, and will coordinate appropriate recognition with the Officer in Charge of the Legal Services Support Section or Team where the Judge Advocate selected is physically employed. (2) The four Regional DECOY will compete for selection as DSO DECOY. RDCs will use enclosure (4) to submit their Regional DSO nominations. The Chief Defense Counsel of the Marine Corps (CDC), in consultation with the DSO Highly Qualified Experts, the Officer in Charge, Defense Counsel Assistance Program, and the Reserve Chief Defense Counsel of the Marine Corps, will make the final selection. c. Nomination Process. Each RDC shall submit their nominee for DSO Marine of the year and DECOY at least sixty calendar days prior to the annual DSO World-Wide Community Training. Use enclosures (3) and (4) for all submissions. 6. Writing Awards. Defending Marines requires far more than oral advocacy. An effective advocate is also an accomplished researcher and writer. The DSO Writing Awards will recognize the best in academic writing and motions practice in order to encourage our personnel to hone their research skills, improve their writing capability, and enhance the professionalism of the military legal community. This competition also establishes an effective mechanism for ensuring the top 60+ motions of each calendar year become available to the entire DSO, thereby strengthening our collective ability to more effectively represent and defend our clients. There are two categories eligible for recognition, academic writing and motions practice. a. Academic Writing Award. The DSO Academic Writing Award is an annual award intended to encourage DSO attorneys to submit articles for publication in professional journals, including but not limited to, law reviews and military professional journals. If there are no academic articles submitted during the award period, there shall be no award for that period. 4

92 Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM (1) Eligibility Criteria. Nominees must: (a) Be in the grade O-4 or below; (b) Be in a Defense Counsel billet at the time the article is published; (c) Not be a Regional Defense Counsel; (d) Be published during the established annual award period of 1 December to 30 November; (e) Be published in a recognized professional law review or journal, for example The Army Lawyer or The Marine Corps Gazette; length; (f) Have published a writing at least 1,500 words in (g) Have published in a subject of general interest to the legal or military community. (2) Articles written as part of an academic program are eligible so long as the author is a member of the DSO upon publication. (3) Nominations may be submitted via by any member of the DSO through the individual defense counsel s operational chain of command. Include appropriate citation to the source document in the nomination. (4) Submissions are encouraged, but not mandatory. (5) Nominations are due to the Chief Defense Counsel of the Marine Corps no later than 30 calendar days after the end of the established award period. Should the 30th day fall on a Holiday or Weekend, nominations are due the last business day preceding that Holiday or Weekend. (6) The CDC, in consultation with the Reserve CDC and DCAP, is the final arbiter of this award. b. DSO Motions Practice Award. The DSO Motions Practice Award is an annual award intended to encourage a vigorous motions practice across the Marine Corps. Second, it is intended to facilitate healthy turnover of new and updated 5

93 Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM motions in our DSO Motions Database. Extraordinary Writs are specifically included as eligible for this award. (1) Eligibility Criteria. (a) The award period is 1 December to 30 November. The motion must have been filed with the Navy and Marine Corps Trial Judiciary, the Navy and Marine Corps Court of Criminal Appeals, the Court of Appeals for the Armed Forces, IRO officer, or board during the established award period. (b) Substantial portions of the motion must have been drafted by the nominated counsel. Some duplication of minor administrative matters between motions is acceptable. If more than one counsel drafted the motion, the primary author will be the nominee. Disputes over primary counsel will be resolved at the Senior Defense Counsel (SDC) level. (c) Relief from the Trial or Appellate Court is a factor which adds credibility to the righteous nature of the motion, but is not in-and-of-itself determinative. (d) While there is no minimum or maximum length for nominated motions, a good rule of thumb is that a motion should be, as long as necessary and as short as possible. (e) The forum in which the motion was submitted (General Court-Martial, Special Court-Martial, Summary Court- Martial, Initial Review Officer Hearing, Board of Inquiry, or Administrative Separation Board) is irrelevant. (f) The Chief Defense Counsel of the Marine Corps, RDCs, DCAP, and Civilian Litigation Experts are not eligible for this award. (2) Nominations Process. (a) Defense Counsel. Participation in the DSO Motions Practice Award is mandatory. Each Defense Counsel in the DSO shall, at a minimum, submit one motion for consideration by his or her Senior Defense Counsel. On or before 30 November, select a motion you believe meets the relevant eligibility requirements. Scrub all motions of personally identifiable information (PII). Submit an electronic copy to your SDC, along with the completed defense counsel section of the nomination cover sheet (encl (5)). Do not include enclosures, appendices, exhibits, or attachments. 6

94 Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM (b) Senior Defense Counsel. On or before 15 December forward all motions electronically to your RDC. Select the best nomination and forward with completed SDC comments to the RDC for consideration (encl (5)). If the SDC wrote an original motion during the past calendar year, the SDC may submit that motion to the RDC for consideration in addition to the nominated motion. (c) Regional Defense Counsel. On or before 1 January forward all motions to the Officer In Charge, Defense Counsel Assistance Program. Select one nominee from your region. Forward your nomination for the DSO Motions Practice Award to the CDC with the completed cover sheet (encl (5)). (d) Reserve CDC/Civilian Litigation Specialists/DCAP. On or before 1 February provide input on the four finalists to the CDC. (e) Should any designated due date fall on a Holiday or Weekend, nominations are due the last business day preceding that Holiday or Weekend. (f) The CDC is the final arbiter of this award, with advice from DCAP. (g) The DSO Motions Practice Award will be presented in an appropriate ceremony at the Annual DSO World-Wide Community Training Event. c. Judging Criteria. (1) Senior Defense Counsel. SDCs have discretion to select the best motion submitted by their counsel during the award period. While the SDC selection criteria are discretionary, the nomination should be informed by, and nested within, CDC criteria. (2) Regional Defense Counsel. RDCs have discretion to select the best motion nominated by their SDCs. While the RDC criteria are discretionary, the nomination should be informed by, and nested within, CDC criteria. (3) CDC criteria. (a) Rubric: 7

95 Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM Persuasiveness Originality Citations Punctuation/Grammar Style Format 45% 20% 15% 10% 5% 5% (b) Persuasiveness-45%. Above all else, a motion must be persuasive. Persuasiveness is a subjective determination made by the CDC and informed by: relief granted (if any), input from the Reserve CDC, nominating RDC, nominating SDC, and the OIC of DCAP. (c) Originality-20%. Originality is a subjective judgment based on the novelty of the issue. For instance, a standard motion to compel witnesses would generally not score very high in originality. An ADSEP motion for an out of area witness to testify via FaceTime would grade higher. A motion to compel a former interpreter from Iraq with Department of State support would score high in originality. (d) Citations-15%. Citations need to be correct and accurate. This builds credibility in the argument and credibility with the judge. (e) Punctuation/Grammar-10%. Great attorneys can write well. Proper punctuation and grammar count. (f) Format-5%. While the substance of a motion should govern, the format and presentation is important. This recognition program will utilize the local circuit formatting conventions. (g) Style-5%. The writer s voice, also known as style, is very important. This is a subjective determination made by the CDC and informed by input from the Reserve CDC, nominating RDC, nominating SDC, and the OIC of DCAP. c. Subordinate Element Missions: (1) DCAP. (a) Collect any and all academic writing submissions and distribute to the CDC, Reserve CDC, and Civilian Litigation Specialists for review. (b) Compile all submitted motions for CD/hard drive distribution at the CDC conference and/or SharePoint. Be prepared to provide highlights from the newly created motions bank during the DSO World-Wide Community Training Event. 8

96 Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM (2) Civilian Litigation Specialists. Provide a nonmilitary perspective on the quality of nominated motions. 7. Recognition. a. Award recipients will be publically recognized at the CDC conference and will be included on a recognition plaque to be displayed at the office of the CDC. b. Recipients of the Marine of the Year and the Defense Counsel of the Year will be nominated for a Specific Achievement Award (as a Competitive Accomplishment) Navy and Marine Corps Achievement Medal by the RDC of the region where the nominee is physically employed in accordance with references (a) and (b). The DSO Academic Writing Award and the DSO Motions Practice Award recipients will receive a letter of appreciation from the CDC for inclusion within their OMPF. c. Award recipients and the regional nominees for Marine of the year and DECOY shall be included in a MARADMIN submitted for release by the Staff Judge Advocate to the Commandant of the Marine Corps announcing the selection. d. Each award recipient, including the DECOY, DSO Marine of the Year (when a Sergeant), the DSO Academic Writing Award, and the DSO Motion Practice Award receive a commendatory Fitness Report. (1) For the Defense Counsel of the Year or Marine of the Year, include a comment substantially similar to the following in the Marine s Section I: Directed Comment, Sect A, Item 6a: MRO was selected by the Chief Defense Counsel of the Marine Corps as the recipient of the 20[XX] [DSO Defense Counsel of the Year][DSO Marine of the Year]. [MRO s was selected over [70 of his or her peers][12 of his or her peers]. This award is reflective of superior MOS technical and tactical proficiency.] (2) For the DSO Academic Writing Award, and the DSO Motion Practice Award, include a comment substantially similar to the following in the Marine s Section I: Directed Comment, Sect A, Item 6a: MRO [drafted the motion][authored a published article] and was selected by the Chief Defense Counsel of the Marine Corps as 9

97 Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM the recipient of the 20[XX] [DSO Academic Writing Award][DSO Motions Practice Award]. [MRO s article (include amplifying comments about article, e.g. where published, significance of issues addressed, etc.)] OR [MRO s motion was selected out of thousands of motions submitted by over 70 defense attorneys and is reflective of superior MOS technical and tactical proficiency.] 8. Conclusion. The point of contact for this program is DCAP. This CDC Policy Memo is effective immediately. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO NMCTJ Code 52, OJAG STEPHEN C. NEWMAN 10

98 MARINE CORPS DEFENSE SERVICES ORGANIZATION MARINE OF THE YEAR NOMINATION FORM Thank you for taking the time to nominate one of our 4421 as Marine Corps Defense Services Organization Marine of the Year. The intent of this award is to recognize the DSO 4421 who has best epitomized the DSO Creed during this past Calendar Year: We are Marines Judge Advocates and Legal Services Specialists who are dedicated to defending our fellow Marines and Sailors, by providing them legal counsel in any matter required by statute, regulation, or otherwise authorized. We are zealous advocates for our clients, serving independently of the local chain of command and under the supervision of the Marine Corps Defense Services Organization. We zealously represent each and every client within the guidelines of the law, consistent with our professional ethics, and in accordance with our rules of practice. We selflessly perform our duties with the utmost integrity, motivation and pride, without fear of reprisal, or expectation of professional or personal gain. In the same spirit as Taking Care of Our Own, we are: Marines Defending Marines. In order to be eligible the 4421 must have served with the DSO during the last calendar year and remain on active duty through the date determined by the Chief Defense Counsel of the Marine Corps (published separately). The DSO Marine of the Year will be announced and recognized during the Annual DSO World-wide Community Training (DSO WWCT). It is not necessary that the nominee presently be a member of the DSO. Neither is it required that the nominee be present at the annual DSO WWCT, although it is preferred. Anyone may submit a nomination, which should be submitted on this form through the Nominee s RDC, but the four Regional DSO Marines of the year are automatic nominations. All nominations must be submitted sixty (60) calendar days prior to the first day of the DSO WWCT. Please complete as much of this form as possible, understanding that you may not have access to all the information requested. 1. Your Info: 2. Nominee s Name: 3. Nominee s Billets during the last calendar year: 4. Nominee s Current Battalion / Squadron Commander: 1 Encl (3)

99 5. Narrative Description why this Nominee should be DSO Marine of the Year: 6. Statistics: A. Number of Defense Counsel in Nominee s section: B. Cases processed by this section in the last calendar year, including pleas and Board Waivers: -GCMs: -SPCMs: -BOIs: -AdSep Boards: 7. Mentorship Please identify or describe specific examples of the Nominee teaching, training, or mentoring others in order to improve the practice of law: 8. Honoring the Creed Please identify or describe specific examples of how the Nominee honored the DSO Creed in the performance of his or her duties with the DSO. 9. Professionalism - Describe how this Nominee interacts with members of the opposite side of the bar, members of the Judiciary, Staff Judge Advocates, Officers-in-Charge, Law Center Directors, Convening Authorities, and family members of their clients. 10. Non-DSO duties - Does this Nominee have any non-duty related accomplishments worthy of consideration (e.g. volunteer work, significant accomplishments in PME, publication, deployments, or other awards received during this period)? If so, please describe. 11. Other Information: 2 Encl (3)

100 MARINE CORPS DEFENSE SERVICES ORGANIZATION DEFENSE COUNSEL OF THE YEAR (DECOY) NOMINATION FORM Thank you for taking the time to nominate one of our officers as DSO-wide Defense Counsel of the Year (DECOY). Wins and losses in the courtroom are important, but they matter less than recognizing the Judge Advocate in the DSO who has had the greatest impact in their region and the DSO over the last calendar year. In order to be eligible the Officer must have practiced as a defense counsel in the Region at some point during the last calendar year, and remain on active duty through a date specified by the Chief Defense Counsel of the Marine Corps (published separately). The DECOY will be announced and recognized during the Annual DSO World-wide Community Training (WWCT). It is not necessary that the nominee presently hold a Defense Counsel billet. Neither is it necessary that the nominee be present at the WWCT, but it is preferred. Anyone may submit a nomination, which should be submitted on this form through the Nominee s RDC, but the four Regional DECOY are automatic nominations. All nominations must be submitted sixty (60) calendar days prior to the first day of the DSO WWCT. Please complete as much of this form as possible, understanding that you may not have access to all the information requested. 1. Your Info (Name, Billet, Phone Number): 2. Nominee s Name: 3. Nominee s Billets during the last calendar year: 4. Nominee s Current Battalion / Squadron Commander: 5. Narrative Description why this Nominee should be DSO DECOY: 6. Statistics: A. Number of Defense Counsel in Nominee s section: B. Cases processed by this section in the last calendar year, including pleas and Board Waivers: -GCMs: -SPCMs: -BOIs: 1 Encl (4)

101 -AdSep Boards: C. Number of cases processed by this Nominee in the last calendar year, including pleas and Board Waivers: -GCMs (Identify # contested): -SPCMs (Identify # contested): -BOIs: -AdSep Boards: 7. Mentorship Please identify or describe specific examples of the Nominee teaching, training, or mentoring others in order to improve the practice of law: 8. Motion Practice - What motions have been written and argued by this Nominee? Identify the most significant motion written, the issues it addressed, how it well it was argued. Were there any creative or unique interpretations of the law advocated? Persuading the court on a particular point of law or motion should be noted, but prevailing on a motion for appropriate relief is not the most important factor to consider for the purpose of this nomination. 9. Advocacy In Contested Cases - Identify the Nominee s most significant accomplishment in a contested trial. Describe the Nominee s style and effectiveness with regards to advocacy, understanding of the Rules for Courts- Martial and Rules of Evidence, and how quickly he or she thinks on his or her feet in a contested trial. Acquittals and whether the trial was members or judge alone should be noted, but are not the most important factors to consider for the purposes of this nomination. 10. Advocacy in Uncontested Cases - Identify the Nominee s most significant accomplishment in a guilty plea. Describe the Nominee s style and effectiveness with regards to advocacy, understanding of the Rules for Court-Martial and Rules of Evidence, and how quickly he or she thinks on his or her feet in a guilty plea. Significant accomplishments and whether the plea was members or judge alone on sentence should be noted, but are not the most important factors to consider for the purposes of this nomination. 11. Post-Trial Matters - How effectively does this nominee advocate in the posttrial process? How well are post-trial matters written and advocated? Identify the most significant post-trial matter or issue raised or addressed by this nominee, if any. Identify any significant post-trial relief granted. 2 Encl (4)

102 12. Professionalism - Describe how this Nominee interacts with members of the opposite side of the bar, members of the Judiciary, Staff Judge Advocates, Officers-in-Charge, Law Center Directors, Convening Authorities, and family members of their clients 13. Non- DC duties - Does this Nominee have any non-duty related accomplishments worthy of consideration (e.g. volunteer work, significant accomplishments in PME, publication, deployments, or other awards received during this period)? If so, please describe. 14. Other Information - Please provide any other information you consider relevant to this nomination. 3 Encl (4)

103 To Be Completed by Defense Counsel: Motion Cover Sheet: Name: Relief Requested: Date Filed: Motion (Generally): Relief Granted: Date Argued: To be completed by SDC only for nominated motion: Comments: To be completed by RDC only for nominated motion: Comments: 4 Encl (5)

104 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000 ARLINGTON, VA In Reply Refer To: 5800 CDC 7 Oct 14 CDC POLICY MEMO 2.1 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: NEW DSO MEMBER ORIENTATION CHECKLIST Encl: (1) Biographical Data Sheet (available at ms/allitems.aspx) (2) New Defense Counsel Orientation Checklist (3) New Defense Legal Services Specialist Checklist 1. Purpose. To update the New Defense Counsel Orientation Checklist and to issue the New Defense Legal Services Specialist Checklist. To establish a baseline of knowledge for each defense counsel, legal services specialist and student judge advocates newly assigned to the Marine Corps Defense Services Organization (DSO) concerning the rules and regulations involved with serving as a defense counsel or enlisted support staff. I intend for the New DSO Member Orientation to be an iterative process, and to stimulate discussion between members of the DSO, supported staff judge advocates, and the judiciary regarding the role of the DSO in the military justice system. 2. Discussion. As part of our formal training program, each new member of the DSO will complete either the New Defense Counsel Checklist or the New Defense Clerk Checklist, as appropriate. These checklists are part of an on-going effort to improve and standardize defense training and practices. These checklists allow every Marine joining the DSO, regardless of rank or billet, to begin their assignment with a common understanding of the rules and regulations governing defense services and provide a better understanding of the defense's role in the military justice system. 3. Policy. Each new member of the DSO will complete enclosure (1) within seven (7) business days of being assigned to the DSO. Newly assigned defense counsel and student judge advocate will complete enclosure (2) within twenty-one (21) days of being

105 Subj: NEW DSO MEMBER ORIENTATION CHECKLIST assigned to the DSO. Newly assigned legal services specialist will complete enclosure (3) within fourteen (14) days of being assigned to the DSO. a. Completion of the enclosures is priority of effort for all newly assigned personnel. b. To the extent possible, newly assigned defense counsel shall be co-detailed as second chair alongside experienced counsel during completion of this checklist. Detailing authorities are encouraged to co-detail new counsel to a broad range of cases early. c. Newly assigned defense counsel may only be detailed solo to a case upon completion of the checklist, unless otherwise approved by their RDC. d. Enclosure (1) is available for download at In order to protect privacy interests, original copies of enclosure (1) will be delivered by the individual counsel via encrypted electronic mail message to the enlisted support staff of the Office of the Chief Defense Counsel of the Marine Corps, where they will be maintained under appropriate cover for preservation of personally identifiable information. e. Enclosures (2) and (3) will be maintained by the supervisory attorney for the duration of the Marine s assignment within the DSO, and are subject to inspection. 4. Conclusion. CDC Policy Memo 3-13 is hereby cancelled. This CDC Policy Memo is effective immediately. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO NMCTJ Code 52, OJAG STEPHEN C. NEWMAN 2

106 Enclosure (1)

107 Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401) Orientation Checklist (October, 2014) Instructions: Print this checklist and mark the blocks as you complete each item. You may complete in any order but should complete this within the next 21 days. Your Senior Defense Counsel (SDC) or mentor will initial on the line for each topic, confirming your completion. Where the checklist identifies that you discuss a topic with a DC, you may pick any in your region, but you may not conduct all discussions with the same DC. Administrative Tasks Read the following materials: Marine Corps Legal Services Strategic Action Plan Complete the following tasks: Send the CDC an introductory with a brief bio and Encl (1). Conduct an in-call with your LSSS or LSST OIC and discuss the role of the LSSS or LSST OIC (if new to the LSSS or LSST). Conduct an in-call with an SJA and discuss the role of the SJA. Conduct an in-call with the Legal Chief and discuss the role that legal services support specialists play in the provision of legal services. Meet with your local DSO NCO for a class on and access to CIS. Conduct an in-call or teleconference with the RDC Chief and discuss the role that 4421s in the DSO play in support of DCs. Request access to the DSO SharePoint by visiting select your certificate, click "REQUEST ehqmc PORTAL /MCATS ACCOUNT", and then send a digitally signed to HQMC IT Support Helpdesk at (HQMCITAS.FCT@usmc.mil). Call DCAP at (703) to introduce yourself and to be added to SharePoint. Create alerts for announcements, discussions, and acquittal alerts, and respond to the Who s Using SharePoint discussion thread. Set up your voic identifying yourself as a Defense Counsel. Create a Defense Connect Online account. Confirm your Lexis account. Pick a recent discussion topic on SharePoint, research the question asked and post a written response. Obtain access to the local Circuit s weekly docket. Ensure you have access to your local Defense Section shared drive. Obtain an electronic version of your branch s DSO letterhead. Create your signature block identifying yourself as a member of the DSO. Ensure you have hard copies of the following in your office: MCM, JAGMAN, LEGADMINMAN, JAGINST D, MARCORPSEPSMAN, Circuit Rules, CIS Handbook, and all CDC Policy Memoranda. Download the Practicing Military Justice handbook from TJAGLCS. Download the Electronic Military Judges Benchbook. Gain access to the Navy DSO motions bank. Enclosure (2)

108 Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401) Orientation Checklist (October, 2014) Duties of a Defense Counsel Read the following materials: DSO Mission Statement and Creed. DC 101 PowerPoint Presentation of 18 Sep Article 38, UCMJ. Rules for Courts-Martial 502 and 506 (particularly the discussions). JAGINST D (Rules of Professional Responsibility). Chapter 4 of the LSAM. All CDC Policy Memoranda. General Mattis letter to the DSO. Lessons Learned, by Larry Pozner. Common Court-Martial Definitions and Frequently Asked Questions. DCAP s Client Intake Packet Complete the following tasks: Familiarize yourself with the following Appellate Court Opinion and Digest websites: The Navy and Marine Corps Court of Criminal Appeals (NMCCA), found at: The Court of Appeals for the Armed Forces, (CAAF) found at: Familiarize yourself with the following military justice blogs: CAAFLOG, found at: 31Blog, found at: Court Martial Trial Practice, found at: SCOTUSBlog, found at: Familiarize yourself with the Detailing/IMC/Notice of Appearance Forms in the Checklists, Forms, and Templates section on SharePoint. Discuss the duties of a DC and all CDC Policy Memos with your SDC. Discovery & Witnesses Read the following materials: Rules for Courts-Martial 701, 702, and 703. Find motions to compel discovery, motion to compel witness production, motion for expert assistance and expert witness testimony on SharePoint. United States v. Coleman, 72 M.J. 184 (C.A.A.F. 2013). United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2010). Complete the following tasks: Obtain the approved templates for discovery, witness, and expert requests. Discuss reciprocal discovery obligations, the standards for lay witness on the merits and in sentencing, and the difference between expert consultants and witnesses with a DC. Draft a discovery request, and a discovery motion (compel, production, etc.) in a case to which you are detailed as second chair counsel. 2 Enclosure (2)

109 Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401) Orientation Checklist (October, 2014) Article 32 Pretrial Investigations Read the following materials: Article 32, UCMJ. Rules for Courts-Martial 405. Complete the following tasks: Observe an Article 32 pretrial investigation. Discuss Article 32 strategies, including waiver and discovery, with a DC. Discuss application of MRE 412 and 513 at an Article 32 with your SDC. Sit as second chair in an Article 32 pretrial investigation. Article 39a Sessions Read the following materials: Rules for Courts-Martial 904. United States v. Danylo, 73 M.J. 183 (C.A.A.F. 2013). United States v. Wilson, 72 M.J. 347 (C.A.A.F. 2012). United States v. Arriaga, 70 M.J. 51 (C.A.A.F. 2010). Rules for Court-Martial 905. United States v. Olano, 507 U.S. 725 (1993). United States v. King, 58 M.J. 110 (C.A.A.F. 2003). United States v. Treat, 73 M.J. 331 (C.A.A.F. 2014). Complete the following tasks: Discuss arraignment versus a motion for docketing with your SDC. Sit second chair in a motion session read all relevant pleadings prior. Discuss the effect of arraignment on the speedy trial clock with your SDC. Discuss the types, forms, and purpose of motions practice with your SDC. Guilty Pleas, Pretrial Agreements, and Sentencing Read the following materials: Trial Guide (most recent version) (particularly the guilty plea inquiry). DCAP Guilty Plea Checklist. Model PTA. Collateral Consequence Advice Forms. Rules for Courts-Martial United States v. Hines, 73 M.J. 119 (C.A.A.F. 2013). United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2012). United States v. Rose, 71 M.J. 138 (C.A.A.F. 2011). 3 Enclosure (2)

110 Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401) Orientation Checklist (October, 2014) Complete the following tasks: Observe a guilty plea and a sentencing hearing. Discuss how to prepare a client for providence and the pros and cons generically between contesting a case and accepting a PTA with your SDC. Sit second chair in a guilty plea. Contested Trials Read the following materials: Rules for Courts-Martial The Lessons Learned from the last 10 Acquittal Alerts on SharePoint. United States v. MacDonald, 73 M.J. 426 (C.A.A.F. 2013). United States v. Lubich, 72 M.J. 170 (C.A.A.F. 2012). United States v. Brewer, 61 M.J. 425 (C.A.A.F. 2005). Complete the following tasks: Observe a complete contested trial from voir dire to conclusion. Second chair an entire contested trial. The Role of the Military Judge Read the following materials: Your local Circuit Rules. United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2012). United States v. Phillips, 70 M.J. 161 (C.A.A.F. 2010). United States v. Wiechmann, 67 M.J. 456 (C.A.A.F. 2008). Complete the following tasks: In-brief with your local Circuit Military Judge. Discuss the role of the Military Judge and circuit rules with your SDC. Discuss standing courts vs. military courts and the role of the CA/SJA with your SDC. Clemency and the Post-Trial Process Read the following materials: Rules for Courts-Martial 1101, 1105, 1106, and Appellate Rights Statement. Appellate Leave Request and all orders cited therein. United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2009). United States v. Travis, 66 M.J. 301 (C.A.A.F. 2008). Complete the following tasks: Conduct an in-call with the Regional Review Officer to discuss the review process and the DC s role and responsibilities in that process. Prepare a clemency package under the supervision of another DSO attorney. 4 Enclosure (2)

111 Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401) Orientation Checklist (October, 2014) Non-Judicial Punishment & Summary Courts-Martial (the lower forums ) Read the following materials: Part V, Manual for Courts-Martial. JAGMAN, Chapter 1, Part B ( ). CDC PM 2.3 (series). Rules for Courts-Martial Appendix 9 of the Manual for Courts-Martial (SCM script). Article 64, UCMJ. Lower Forum PTA templates. United States v. Mead, 72 M.J. 479 (C.A.A.F. 2013) United States v. Cary, 62 M.J. 277 (C.A.A.F. 2006). Complete the following tasks: Watch the NJP counseling video. Observe NJP counseling at your LSSS or LSST. Conduct an NJP counselling under the supervision of another DSO attorney. Attend the next scheduled summary court-martial officer training class. Draft a lower forum PTA for another DSO attorney. Administrative Separations Read the following materials: Chapters 1 and 6, MARCORSEPMAN. Complete the following tasks: Discuss the ad board process with your LSST s Legal Administration Officer. Observe an administrative separation board. Discuss best practices in Ad Board litigation with your SDC. Sit as second chair on an Administrative Separation Board. Prepare a letter of deficiency for a separation where you either sat as second chair, or for an Administrative Separation Package you have reviewed under the supervision of another DSO attorney. Article 31(b) Rights Read the following materials: Article 31(b), UCMJ. Military Rules of Evidence 304 and 305. United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013). United States v. Clark, 69 M.J. 438 (C.A.A.F. 2010). United States v. Seay, 60 MJ 73 (C.A.A.F. 2004). United States v. Mapes, 59 MJ 60 (C.A.A.F. 2003). 5 Enclosure (2)

112 Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401) Orientation Checklist (October, 2014) Complete the following tasks: Find two motions to suppress due to inadequate rights advisement in the Motions Bank on SharePoint. Read the motions and discuss with your SDC. Observe an Article 31(b) rights counseling session. Discuss the pros/cons of a suspect making a statement with your SDC. Initial Reviewing Officer Hearings and Confinement Facilities Read the following materials: Rule for Courts-Martial 305. The local order addressing IRO hearings Any MOU with local confinement facilities. United States v. Mack, 65 M.J. 108 (C.A.A.F. 2007). United States v. Regan, 62 M.J. 299 (C.A.A.F. 2006). United States v. Crawford, 62 M.J. 411 (C.A.A.F. 2006). Complete the following tasks: Observe an initial reviewing officer hearing. Discuss the pros and cons of waiving an IRO hearing with a DC. Introduce yourself to the officer in charge of the nearest brig and/or civilian confinement facility, tour the facility, and familiarize yourself with their rules pertaining to communications with clients, requests for transport, client restraint outside the facility. When you have completed all items on this checklist, give the original to your SDC, who will arrange a meeting with the RDC. I,, Senior Defense Counsel, that the following named person,, has successfully completed the New Defense Clerk Orientation Checklist in accordance with CDC Policy memo Senior Defense Counsel Attorney 6 Enclosure (2)

113 Marine Corps Defense Services Organization New Defense Legal Services Specialist (4421) Checklist **Complete this checklist within the next 14 days. Have your respective defense chief review each area with you and initial the line when you are done. If you are the chief, have your supervisory attorney initial.** Name: Rank: Brank Office: Never give legal advice. General Overview of the Marine Corps Defense Services Organization. Discuss with the Senior Defense Counsel and the Defense Chief the following: DSO Mission & Creed Professionalism Always DSO Chain of Command vs. Administrative Chain Your Role as a DSO 4421 Walk-In Counseling Read the Information on Walk-In Counseling handout and the Adsep/NJP/Court-Martial Flowchart. Observe a walk-in counseling session from start to finish. Afterwards, ask the defense counsel any questions you may have about the process, rights of the Marine or Sailor, or your role as a defense clerk. Initial Court-Martial Client Intake Observe an initial court-martial client intake counseling session from start to finish. Afterwards, ask the defense counsel any questions you may have about the process, rights of the client, or your role in the court-martial process. Initial Ad-Sep Client Intake Observe an initial administrative separation client intake counseling session from start to finish. Afterwards, ask the defense counsel any questions you may have about the process, rights of the client, or your role in the AdSep process. Witness Interviews Observe a witness interview from start to finish, including the attorney s preparation time beforehand. Afterwards, ask the defense counsel any questions you may have about the process, rights, or your role. Client At-Risk for Suicide Read CDC PM 2.4 (series) and discuss its contents and the important role that you will play in helping at-risk clients with one of the senior members of your branch. SharePoint Visit select your certificate, click "REQUEST ehqmc PORTAL / MCATS ACCOUNT", and then send a digitally signed to HQMC IT Support Helpdesk (HQMCITAS.FCT@usmc.mil). Contact the DSO Chief at (703) to introduce yourself and ask to be added to SharePoint. Bookmark the DSO SharePoint website ( Go to the Welcome Aboard section. Read the New Clerks section and the 1 Enclosure (3)

114 Marine Corps Defense Services Organization New Defense Legal Services Specialist (4421) Checklist SharePoint & DCO Instructions guides in the How-To Guides section. Familiarize yourself with the Enlisted Corner. Create an enlisted discussion introducing yourself to your fellow 4421 s within the DSO. Establish SharePoint Alerts for Announcements, Defense Discussions and Enlisted Corner Discussions. Case Information System Familiarize yourself with how to add and update cases to CIS. Learn how to generate reports common for your office. Defense Personnel Master Roster Ensure that your correct information is on the roster for your respective branch office/region immediately. This will ensure continuity in the lines of communication throughout the DSO Access Ensure you have a logon ID and password that works for Know the commands to get to the screens with our client s BIR/BTR/ROS/Awards/ Page 11 information on them. Lexis Access Ensure you have a logon ID and password that works for both Westlaw and Lexis. Know how to search for cases by case name and by topic. Know how to Shepardize cases and be able to identify if the case is still good law. Know how to use Lexis to find individuals. Defense Connect Online Establish an account on Defense Connect Online (DCO). If you have questions how to do this, return to the How-To Guides section. Case File Management Familiarize yourself with how case files are stored within the branch office. Ensure files are stored securely to protect client confidentiality. Ensure proper OPSEC by not leaving your CAC, evidence, or client materials unattended. CDC Policy Memoranda Read all CDC Policy Memoranda, located on SharePoint. Client Confidentiality Re-read Rules 1.6 and 5.3 of JAGINST D. Complete the 4421 Statement of Understanding per CDC PM 2.2 (series). Communication Memorize and use the three rules of effective communication: 1. What do I know? 2. Who needs to know it? 3. Have I told them? Office Equipment Ensure familiarity with printers, scanners, and networked storage solutions. Know where and how to get resupplies when needed. Create a signature block identifying yourself as a member of the DSO and listing the contact info for your branch office. 2 Enclosure (3)

115 Marine Corps Defense Services Organization New Defense Legal Services Specialist (4421) Checklist Read Gen Mattis' letter to the DSO It is located in the Welcome Aboard section on SharePoint. DSO Website Visit & bookmark the DSO website: In-Call Have an in-person or DCO in-call with the RDC Chief. I,, Senior Defense Counsel, that the following named person,, has successfully completed the New Defense Clerk Orientation Checklist in accordance with CDC Policy memo Senior Defense Counsel Defense Clerk 3 Enclosure (3)

116 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000 ARLINGTON, VA In Reply Refer To: 5813 CDC 6 Oct 14 CDC Policy Memo 2.2 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: ETHICAL OBLIGATIONS OF DEFENSE SUPPORT PERSONNEL Ref: (a) JAGINST (series) Encl: (1) Statement of Understanding for Defense Support Personnel (2) Rule 5.3: Responsibilities Regarding Non-Attorney Assistants 1. Purpose. To ensure that all support personnel serving under the supervisory control of Marine defense counsel understand and comply with the ethics standards and procedures as prescribed by reference (a). Defense support personnel include all Marines (except judge advocates), civilian employees, and interns assigned to a defense office. 2. Discussion. In the increasingly complex and fast-paced world of litigation, Marine defense counsel rely heavily on the support and services of defense support personnel who perform a wide array of tasks and who must fully understand the ethical implications of their billets. Although defense support personnel are not governed by the reference, their supervisory attorneys have specific responsibilities regarding their training, understanding, and compliance with applicable ethics standards that are illustrated in enclosure (1). The reference specifically requires supervising attorneys to "make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the covered attorney." Rule 5.3a(l) and (2). Under certain circumstances, the covered attorney might even be responsible for the conduct of non-judge advocate personnel under his supervision if he orders the conduct, or fails to take remedial action when the consequences of the conduct can be avoided or mitigated. See Rule 5.3a(3). A copy of Rule 5.3 in its entirety is provided at enclosure (2).

117 Subj: ETHICAL OBLIGATIONS OF DEFENSE SUPPORT PERSONEL 3. Policy. Within two working days of the publication of this policy memo, defense support personnel will be re-briefed by their supervisory attorney regarding their ethical obligations. If they have not already done so, together they will each sign the Statement of Understanding (SOU) provided at enclosure (1). All newly assigned defense support personnel will be briefed by their supervisory attorney and sign the SOU within two days of reporting to a defense office. Until the SOU is executed, defense support personnel shall not have any access to attorneyclient confidential matters or attorney-work product. The original SOU will be maintained by the supervisory attorney and a copy will be provided to the defense support personnel for continued reference throughout their tour in the defense office. An electronic version will be uploaded into a designated file on your Regional Defense Counsel's office within the Defense Counsel of the Marine Corps SharePoint site. Supervisory attorneys shall re-read and re-execute the SOU with their subordinates at least annually. 4. Conclusion. CDC Policy Memo 1-11 is hereby cancelled. This CDC Policy Memo is effective immediately. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO NMCTJ Code 52, OJAG STEPHEN C. NEWMAN 2

118 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000 ARLINGTON, VA In Reply Refer To: 3000 CDC 17 Nov 14 CDC POLICY MEMORANDUM 2.3 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS Ref: (a) MCO P (series) (b) CDC Policy Memo 3.1 (series)(detailing and IMC Rules) (c) Article 31, UCMJ (d) R.C.M. 305, MCM (2012 ed.) (e) JAGINST (series)(rules of Professional Conduct) (f) CDC Policy Memo 2.4 (series)(suicide Awareness and Response to Clients in Crisis) (g) CDC Policy Memo 3.4 (series)(release of Counsel Due To Conflict of Interest) (h) CDC Policy Memo 2.1 (series)(new DSO Orientation Checklists) Encl: (1) Information for Walk-In Defense Counseling (2) Walk-in Counseling Roster (3) AdSep / NJP / Court-Martial Flowchart 1. Purpose. To provide updated guidance for the provision of uniform and consistent walk-in defense counseling and representation at Initial Review Officer (IRO) hearings by defense counsel assigned to the Marine Corps Defense Services Organization (DSO), in order to ensure that Marines and Sailors receive the clear, consistent, and uniformly correct advice and assistance, while reinforcing that DSO attorneys may not form or establish an attorney-client relationship except when specifically authorized by their detailing authority. 2. Discussion. a. Reference (a) tasks the Chief Defense Counsel of the Marine Corps (CDC) with establishing standards of practice for the delivery of Trial Defense Services Marine Corps wide. This

119 Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS mandate includes walk-in services and representation at IRO hearings. b. Walk In Defense Services. Walk in defense services play a crucial role in the defense of our Marines and Sailors. Ready, available, and suitable to the situation, they not only serve the best interest of the Marine seeking the service, but their timely and accurate application also facilitates the interests of good order and discipline. Walk-in defense counseling is intended to cover certain gaps in the legal system where a Marine or Sailor may require confidential legal advice, yet does not rate, or has not yet been detailed, his or her own defense counsel under reference (b). Walk in services include but are not necessarily limited to: (1) Confidential and privileged legal advice to Marines and Sailors facing non-punitive or administrative corrective actions such as nonjudicial punishment, summary courts-martial, fast track disposition packages, adverse entries into their service record books or officer qualification records, notifications of initiation of administrative separation processing, or other similar administrative procedures; and (2) Confidential and privileged legal advice to Marines and Sailors who have been advised of their Article 31(b) rights under reference (c) and have elected to exercise their right to consult with counsel. c. IRO Hearing Representation. Reference (d) accords Marines in pretrial confinement the right to request provision of military counsel for review of their continued confinement. In the absence of a preexisting attorney client relationship, counsel are typically assigned for the limited purpose of representation during pretrial confinement proceedings (pre referral). Like walk in counseling services, representation of Marines under these circumstances provides the DSO with an opportunity to cover a gap in the legal process where a Marine is pending preferred charges, is under restraint by military authorities, requires confidential legal advice, yet has not been detailed his or her own attorney. 3. Policy. a. Nature of the Relationship. Unless otherwise authorized by competent authority, DSO attorneys shall not form an attorney-client relationship as defined by Rule 1.2 of reference (e) with any servicemember receiving walk in services or in the course of IRO representation. While servicemebers seeking these 2

120 Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS services are not detailed counsel and there is no attorney client relationship, they nonetheless may be generically referred to as clients. b. Communications Remain Privileged. While communications between a DSO attorney and the individual receiving the walk in counseling or IRO representation remain privileged and confidential, providing these services does not, in and of itself, establish an attorney-client relationship as defined by Rule 1.2 of reference (e). c. Assignment of Duty is not Detailing. Merely being assigned counseling or IRO duty by a supervisory attorney does not constitute detailing of a DSO attorney to an individual case or as a personal representative for a Marine or Sailor seeking pretrial confinement representation or advice on applicable administrative or disciplinary proceedings. d. General Responsibilities of Counsel. As with everything we do, a DSO attorney advising a servicemember on a walk in basis or at an IRO hearing owes that servicemember a duty of honesty, integrity, candor and zealousness. This includes confidential and privileged communications and advice. In doing so, DSO attorneys shall ensure all parties understand that merely receiving legal advice under these circumstances does not establish an attorney client relationship unless and until that attorney is detailed by proper competent authority. In this light, a DSO attorney advising a client on a walk in basis, or representing a client at an IRO hearing, may perform the following non-exclusive list of general tasks: (1) Discuss the factual background surrounding the issue with the Marine or Sailor. (2) Review any and all related paperwork, documents or physical items. (3) Contact command representatives to seek clarification about any pending administrative procedure or processes. (4) Discuss the costs and benefits concomitant to accepting or refusing nonjudicial punishment, summary courtmartial, agreeing to a fast track disposition, waiving an administrative separation board, or making a statement to military or law enforcement authorities. 3

121 Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS (5) Provide technical explanations regarding basic principles of military law. (6) Discuss and provide general advice on potential courses of action related to the exercise of a due process or regulatory rights without forming an attorney-client relationship. e. Walk-in Specific Rules. (1) Only defense counsel certified and sworn under Articles 27(b) and 42(a) of the Uniform Code of Military Justice may provide walk-in counseling. Student Judge Advocates and legal services specialists may not provide legal advice. (2) Senior Defense Counsel (SDC) will maintain regular and consistent walk-in defense counseling hours which allow Marines and Sailors the maximum opportunity to speak with counsel, at a minimum two days per week. While typically reserved for Marines in pay grades E-5 and below and Sailors in pay grades E-6 and below, SDCs are authorized to make exceptions for more senior walk in clients as required. Staff Noncommissioned Officers (SNCOs) and Officers will typically be seen by appointment, normally arranged by the SDC. (3) Some installations are larger than others. Others are remote and do not have resident defense counsel. As such, in addition to walk-in counseling hours at the DSO branch office, SDCs are strongly encouraged to schedule walk-in counseling hours on a regular basis at locations convenient to large command populations and aboard installations where there is no resident defense counsel. Telephonic consultations may be appropriate in some cases. (4) When forces deploy forward without a defense counsel, the DSO is still responsible for providing walk-in counseling. The responsible RDC will coordinate with the Staff Judge Advocate of the deployed command and establish a support plan for the provision of walk in counseling to Marines and Sailors assigned to the deployed command in a manner which is responsive to the needs of the deployed commander. (5) DSO attorneys must have certain minimum documents and information at their disposal before providing counseling, whether done in-person or remotely. These documents include but are not limited to: 4

122 Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS (a) The charge sheet. (b) Administrative separation notification or similar documentation. (c) Any pages 11 and 12 of the member s Service Record Book. (d) A summary of the evidence that will be used at the hearing, if applicable. (6) If a Marine or Sailor comes in for walk-in counseling and does not have these materials, a member of the DSO may contact the command in order to obtain those documents. If the command refuses to provide the required documentation, the SDC should contact the respective Staff Judge Advocate for resolution. Counseling may be denied when no resolution is possible. (7) DSO Legal Services Specialists will conduct conflict checks on all personnel prior to the initiation of walk-in counseling. (8) Before speaking with an attorney a client may be required to watch any CDC approved video designed to answer many routine procedural questions regarding nonjudicial punishment, summary courts-martial, and administrative separation boards. (9) While personal, face to face counseling is preferable, operational commitments and remote locations may mean that this is not always possible. In such situations, the SDC may authorize remote telephonic or video teleconference counseling using locally available equipment, including telephones and web cam enabled computers using Defense Connect Online. The documentation and other requirements described above pertain, even under these circumstances, and counseling may be denied accordingly. (10) Use enclosure (1) as a discussion guide. Provide each Marine or Sailor counseled the Tools for Coping with Stress Memorandum found at enclosure (f). (11) DSO members will not sign forms or otherwise act as a witnesses attesting that the Marine or Sailor needing counseling has sought legal advice. SDCs may authorize the use of stamps by DSO Legal Services Specialists to validate that the individual did, indeed, receive the requested counseling. 5

123 Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS (12) There may be occasions where servicemembers present for walk-in counseling with adverse interests (e.g. coaccused). Typically each servicemember will have the opportunity to speak with a different DSO attorney. Where more than one DSO attorney provides walk-in counseling to servicemembers with adverse interests, those DSO attorneys are prohibited from later representing one of those servicemembers other than the party to whom he or she provided the walk-in counseling. (13) Resource constraints may periodically require one DSO attorney to provide joint walk in counseling to Marines and/or Sailors with adverse interests (e.g. co-accused). Joint walk in counseling may only be done with the specific approval of the DSO Branch Office SDC. A DSO attorney providing joint walk in counseling will not have privileged or confidential communications with the individuals being counseled. Furthermore, a DSO attorney who performs a joint counseling session is prohibited from later be detailed to represent any of the Marines or Sailors jointly counseled at any hearings or in any disciplinary proceedings arising out of the facts related to the joint walk in counseling. The Marines or Sailors receiving the joint walk in counseling must be notified of these limitations on their communications with the defense counsel. (14) Unless the defense counsel has been authorized to form an attorney-client relationship with the accused, a defense counsel will not advise the Marine or Sailor being counseled to accept or refuse nonjudicial punishment/summary court-martial, to request an administrative board, or whether or not to make a statement to investigators. To allow the Marine or Sailor to make an independent decision, the defense counsel should, based on the information provided, present the risks and benefits of either accepting or refusing nonjudicial punishment/summary court-martial, requesting and administrative board, or making a statement to investigators. (15) Each DSO Branch Office will maintain a record of all servicemembers who appear for walk in counseling in a manner which allows for entry the DSO s Case Information System (CIS), and which provides a record of compliance with reference (f). See enclosure (2). f. Initial Review Officer Hearing Specific Rules. (1) SDCs shall ensure a defense counsel is assigned to represent Marines and Sailors at initial review officer (IRO) 6

124 Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS hearings conducted under reference (d). Where an accused previously detailed defense counsel is later placed in pretrial confinement that attorney shall normally represent his or her client at the IRO hearing. (2) Because of a reduced number of available military confinement facilities, Marines are occasionally confined in civilian facilities or transferred to a confinement facility located aboard an installation distant from the location of the alleged crime and/or convening authority. Under these circumstances DSO attorneys from the closest LSST or LSSS shall normally provide IRO hearing support. (3) Unless serving as detailed defense counsel, a DSO attorney s representation of a Marine or Sailor at an IRO hearing is a limited attorney-client relationship related solely to that IRO hearing. DSO attorneys advising an accused concerning pretrial confinement should limit this advice to the legal issues and factual background surrounding pretrial confinement. Advising an accused of his or her rights concerning pretrial confinement or speaking on behalf of an accused at an IRO hearing does not, in and of itself, result in detailing of a DSO attorney to that servicemember. (4) DSO attorneys serving as IRO hearing advocates shall ensure that each individual accused they represent in that capacity understands the limited nature of their representation, that they are not detailed as counsel to their case, and that they are not their personal attorney or representative. (5) Absent a voluntary and knowing waiver obtained in writing in accordance with procedures established in reference (g), defense counsel shall not represent Marines or Sailors at IRO hearings with adverse interests. To allow for timely resolution of conflicts early notification by command representatives is strongly encouraged, preferably prior to scheduling the IRO hearing. The SDC of the Branch Office providing the IRO service is responsible for ensuring each Marine and/or Sailor receives conflict free IRO hearing counsel. (6) While personal, face to face IRO representation is preferable, operational commitments and remote locations may mean that this is not always possible. In such situations, the SDC of the DSO Branch Office providing the IRO service may authorize remote telephonic or video teleconference representation using locally available equipment, including telephones and web cam enabled computers using Defense Connect 7

125 Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS Online. Other requirements described above remain, even under these circumstances. 4. Education. Enclosure (3) is provided to assist counsel in explaining the different processes which may result from an allegation of misconduct. It may be helpful under certain circumstances. Use of enclosure (3) is not mandatory, however, all newly-assigned members of the DSO are required to review this flowchart with their Senior Defense Counsel in accordance with the requirements of reference (h). 5. Conclusion. CDC Policy Memo 2-13 is cancelled. This CDC Policy Memo is effective immediately. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO STEPHEN C. NEWMAN 8

126 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000 ARLINGTON, VA In Reply Refer To: 3000 CDC 14 Nov 14 CDC POLICY MEMORANDUM 2.4 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS Ref: (a) JAGINST D (b) MCO (c) CDC Policy Memo 1.3 (series)(dso Workspaces, Correspondence, Reports, and Case File Retention Policies) Encl: (1) Suicide Assessment Mnemonic (2) Tools to Cope with Stress Memorandum (3) Columbia Suicide Severity Rating Scale (4) CDC Quarterly Suicide Prevention Report 1. Purpose. To integrate policies and procedures into the daily practice of Judge Advocates and Legal Services Specialists assigned to the Defense Services Organization (DSO) in order to prevent future suicides, preserve and protect those members of the Marine Corps with whom we have daily contact, and ensure our clients receive the help and assistance they need when they need it. 2. Discussion. a. A common indictment of our client base is the old adage that 10% of the Marines take up 80% of the Commands attention. But never forget that the Commander s 10% is our 100%, and that disciplinary matters are a significant risk factor for suicide. Statistics from show that over 40% of Marines who died at their own hand were pending, or had recently resolved, legal issues. b. As Defense Counsel we are uniquely positioned to identify persons at risk of doing harm to themselves. The nature of the attorney client relationship provides us with a unique window into very personal and intimate details about the

127 Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS lives, families, and relationships of our clients. We, as their counsel, are frequently one of the few persons left in their world they trust. We will use this trust as the foundation upon which we sustain our ongoing efforts to combat suicide. c. Suicide is a very complex problem. While we are not trained mental health professionals, there are some common early warning signs which we, as Defense Counsel, may be able to identify. These early warning signs may not be easy to detect, but the unique nature of our relationships with our clients means that if anyone can recognize early warning signs it is us. Because the risk for our clients is significant we will continue to integrate suicide prevention tactics, techniques, and procedures into our practice in order to ensure our clients receive the care and help they need when they need it. d. The DSO has a historical commitment to reducing suicides. For at least the past five years we have worked hand in hand with the Headquarters Marine Corps (HQMC) Suicide Prevention Office to increase the DSO s awareness of the heightened risk of our client base. In the spring of 2010 we convened our first all-hands DSO Training in part to discuss and train on this issue; a tradition which continues today. Since then the HQMC Suicide Prevention Office has provided classes in a variety of locations to broad spectrum of the DSO on suicide prevention. In order to enable us to better protect our clients, the Judge Advocate General of the Department of the Navy revised Rule 1.14 of our Rules of Professional Conduct to give a defense counsel authority to make limited disclosures so that mentally troubled clients can get the help they need when they need it most. In the intervening years, the DSO has continued to aggressively train on this topic and raise awareness throughout the legal community. The results have been awe inspiring, with defense counsel across the globe taking action to get help for their clients by talking openly about suicide, being vigilant for warning signs, and where necessary making limited disclosures to get their clients help. Yet despite these efforts we continue to lose Marines to suicide. 3. Policy. Suicide prevention within the DSO is founded on trust, training and periodic reassessment. a. Pillar One Trust. The first pillar of the DSO suicide awareness and prevention program is trust. DSO attorneys must establish trust with their clients so that they may speak frankly, openly and honestly about suicide. Our functional independence as an organization cloaks each member of the DSO 2

128 Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS with some degree of trust, but it is up to each individual attorney to earn the trust of each of their clients through aggressive, zealous representation. Establishing trust permits members of the DSO to more effectively assess suicide risk factors. Use enclosure (1) as an easy mnemonic tool. DSO attorneys shall use enclosure (2) to discuss the risk factors with their clients during their initial intake interview and advise their clients where help is available. Additionally, DSO attorneys shall periodically assess the following non-exclusive list of risk factors with their clients throughout their representational relationship: (1) Does the client have a family history of suicide, or has the client previously been exposed to suicidal behavior by family members and/or friends? (2) Does the client have a family or personal history of psychiatric hospitalization or other psychiatric treatment or illness? (3) Does the client have a history of suicidal thoughts, ideations, or behavior (even if untreated)? (4) Has the client experienced any chronic personal losses, paying particular attention to multiple personal losses? (5) Does the client have a history of developmental trauma (e.g., abuse, neglect, family violence, early bullying, victimization)? (6) Does the client have a history of impulsivity, aggression, and/or violence against persons or animals, including thoughts, dreams and ideations? (7) Does the client suffer from low self esteem and/or high self hate? (8) Does the client have a history of substance abuse? (9) Has the client or a close family member suffered from a recent serious physical illness? (10) Does the client claim to be a perfectionist, or does the client exhibit behavior consistent with perfectionism? b. Understanding that any person who is the subject of disciplinary proceedings may suffer from some degree of 3

129 Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS frustration, disappointment, stress, and/or agitation, members of the DSO will pay particular attention for warning signs of suicide. Use enclosure (1) and Behavioral Health Information Network resources, available at for more detailed information, but some warning signs include: (1) Feelings of hopelessness, rage, and anger. (2) Feeling trapped. thing. (3) A desire to seeking revenge on a person, place or (4) Reckless and/or risk taking behavior. (5) Withdrawing from friends and family. (6) Anxiety, agitation, hyper vigilance and/or an inability to sleep. (7) Excessive sleepiness or sleeping all of the time. (8) Dramatic changes in mood or mood shifts. (9) Feeling like there is no reason to live. (10) Feeling no sense of purpose in life. c. When a client exhibits risk factors or warning signs of suicide, use enclosure (3) as an assessment tool and take action accordingly. d. Pillar Two Training. Training is the second pillar of the DSO suicide prevention platform. Training forms the foundation upon which defense counsel build suicide awareness and the ability to recognize situations in which they need to intervene. Suicide awareness and prevention training will be conducted at every level. It is a training focus of effort in the DSO. In addition to annual suicide prevention training and Never Leave a Marine Behind Suicide Prevention Training, the DSO will conduct the following additional training: (1) Regional Defense Counsel (RDCs) shall train all defense counsel and legal services specialists in their region on suicide awareness and prevention at least once per quarter. 4

130 Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS (2) RDCs shall report monthly on suicide awareness training and or incidents within their respective regions. (3) The Chief Defense Counsel of the Marine Corps (CDC) will make a quarterly report to Staff Judge Advocate to the Commandant of the Marine Corps on suicide awareness training and incidents within the DSO. Enclosure (4) pertains. (4) CDC will meet at least twice a year with HQMC Suicide Prevention Office to discuss the DSO s efforts to prevent suicide. (5) Each member of the DSO will become familiar with the Behavioral Health Information Network at (6) All New Defense Counsel Orientation Courses will include a period of instruction on dealing with at-risk clients and this policy memo. (7) Each new DSO attorney will review this policy memo personally with their Senior Defense Counsel. (8) The Defense Counsel Assistance Program (DCAP) will record suicide prevention training on the at-risk client database maintained on the DSO SharePoint. (9) Each year the DSO wide training program shall include at least one block of instruction on suicide awareness and prevention. e. Pillar Three Reassessment. The third pillar of the DSO suicide awareness and prevention program is regular reassessment. Client assessment is not a one and done matter. It requires engaged leadership and regular reassessment by all DSO personnel. As such, DSO attorneys and legal services specialists must be aware of suicide risks and warning signs and integrate them into their daily interactions with all clients. DSO personnel shall incorporate the following into their practice and daily interactions with our clients: (1) Continually assess clients for suicide risk. Ask the client at each meeting how they are doing and record the response in the case file. (2) Make a note of your assessment of the client s mental health after each meeting. 5

131 Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS (3) Regularly reassess and inquire about the risk factors and warning signs of suicide behavior. (4) Regularly and candidly discuss the extent to which a client uses or abuses alcohol and note this in the file. (5) Regularly ask clients about previous mental health problems and current mental health treatment. (6) At each client meeting be attentive to the client s current words, actions, and demeanor for risk factors and warning signs of suicide, using enclosure (1) as a mnemonic tool. (7) Use enclosure (3) as required to ask your client about risk factors and warning signs in a safe, evidence based manner. (8) Identify potential sentencing witnesses early, particularly family members, clergy, and other persons who ma form a support network for the client. Contact these witnesses early. Ask about their observations and assessment of the client in order to help identify any potential suicidal issues. (9) Each Senior Defense Counsel shall have a duty cell phone for their office which shall be manned and maintained in a ready, charged status during all off duty hours. Ensure each client has access to this number. Make sure each client also has ready access to resources and telephone numbers where other help is available. (10) All defense counsel shall have contact numbers for the local mental health providers next to their telephones. These numbers will also be posted in all branch office waiting rooms. f. Actions in Response to a Suicidal Client. If a client talks of suicide, death, or a desire to die, listen intently to your client and get as much information as you can. Ask questions, take notes, pay attention to the details, never assume that the client is joking or malingering, and do not leave the client alone until these issues are resolved. If you determine that your client is at risk of suicide, you need to do everything in your power to prevent the client from taking his or her own life. Follow these steps and remain with the client until the client is properly handed over to an informed, 6

132 Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS responsible member of your client s command or a qualified mental health professional: (1) Do not leave your client alone until the client has been handed over to responsible member of his or her command, or to a qualified mental health professional. (2) Without leaving your client unattended, but as soon as practicable, contact your supervisory attorney for assistance. Remember that reference (c) establishes this as a CDC Critical Information Requirement (CCIR). (3) Ask your client to contact a responsible member the client s command, in the defense counsel s presence, in order to request help from a mental health provider. (4) If he or she will not or cannot do so, ask your client for his or her permission for you to contact a responsible member of the client s command, in the client s presence, in order to request help from a mental health provider. (5) If the client does not wish to speak with his or her command, ask your client to contact a mental health provider, in the defense counsel s presence, for assistance. (6) If he or she will not or cannot do so, ask your client for his or her permission for you to contact a mental health provider, in the client s presence, for assistance. (7) Ask your client to tell the command representative and/or mental health provider the things that raised your concern about suicide or ask the client for permission for you to reveal those communications to the command representative and/or mental health provider. (8) If your client does not consent to the above, in accordance with Rules 1.6 and 1.14 of reference (a), make a determination of whether you reasonably believe that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client s own interest and whether you are permitted to reveal information about the client to the extent necessary to protect the client s interests. If necessary, consult a mental health provider about the case without revealing the identity of your client. 7

133 Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS (a) If you determine that reference (a) permits you to do so, contact an appropriate command representative and/or mental health provider. Inform this person that you are concerned for your client s safety. To the extent necessary explain that your client is suicidal, as well as the reasons why you believe your client to be suicidal. (b) If you determine that reference (a) does not permit you to reveal attorney-client communications in order to seek mental health assistance for your client, ensure that your client has the required mental health assistance points of contact, encourage your client to seek assistance voluntarily, ask your client to contract for his own safety, and then follow up with your client within 12 hours. (9) Document your discussions with the client and any actions that you took in a memorandum for the file. In addition, summarize your actions (mindful of attorney client confidential information) in the Suicidal Clients link of the DSO Sharepoint site. This should normally be done after you have successfully handed your client over to a mental health provider or an informed, responsible member of your client s command. g. Actions in Response to a Client Suicide. There will be occasions where, despite our best efforts, a Marine takes his or her own life. The following applies under such circumstances. (1) The immediate supervisory defense counsel of the attorney whose client took his or her own life will meet with the defense counsel in person as soon as practically possible in order to ensure that the defense counsel has the necessary support to deal with such a traumatic event. (2) The supervisory attorney shall report the incident as a CDC CIR as soon as possible. Include a report on the status of the defense counsel concerned. (3) The CDC and RDC will provide support as needed. (4) CDC will notify SJA to CMC. (5) CDC and RDC will consult with the SDC and defense counsel within one week of the incident to assess lessons learned. 8

134 Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS 4. Conclusion. a. It is your duty to ensure that your clients receive the help they need. You are in a very unique position and are privy to some of your clients innermost thoughts. Treat each situation with the gravity it deserves, and always be mindful that your client may be considering suicide. In many cases just knowing that someone cares, even one person, is sufficient to deter a suicide. The DSO will make sure that each client knows that no matter what they are presently going through someone cares about them. Together, we will continue to work to prevent the tragic loss of Marines through suicide. b. CDC Policy Memo 2-12 is cancelled. This CDC Policy Memo is effective immediately. STEPHEN C. NEWMAN Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO 9

135 This mnemonic has been created to help assess individuals for immediate suicide risk (American Association of Suicidology, 2006; Berman, 2006). The mnemonic is an easily memorized question, "IS PATH WARM?" Each letter corresponds with a risk factor noted as frequently experienced or reported within the last few months before suicide. The specific risk factors are: Suicide Ideation: Does the client report active suicidal ideation or has she written about her suicide or death? Does the client report the desire to kill herself? Does she voice a desire to purchase a gun with the intention of using the gun to kill herself? Does she voice the intention to kill herself with a gun, weapon, or car that she currently has in possession or can gain access to? Substance Abuse: Does the client excessively use alcohol or other drugs, or has she begun using alcohol or other drugs? Purposelessness: Does the client voice a lack or loss of purpose in life? Does she see little or no sense or reason for continued living? Anger: Does the client express feelings of rage or uncontrolled anger? Does she seek revenge against others whom she perceives have wronged her or are at fault for her current concerns or problems? Trapped: Does the client feel trapped? Does she believe there is no way out of her current situation? Does the client believe death is preferable to a pained life? Does the client believe that no other choices exist except living the pained life or death? Hopelessness: Does the client have a negative sense of self, others, and her future? Does the future appear hopeless with little chance for positive change? Withdrawing: Does the client indicate a desire to withdraw from significant others, family, friends, and society? Has she already begun withdrawing? Anxiety: Does the client feel anxious, agitated, or unable to sleep? Does the client report an inability to relax? Just as important, does the client report sleeping all the time? Either can suggest increased risk of suicide or self-harm. Recklessness: Does the client act recklessly or engage in risky activities, seemingly without thinking or considering potential consequences? Mood Change: Does the client report experiencing dramatic mood shifts or states?

136 DATE MEMORANDUM From: Detailed Defense Counsel, (insert local DSO office) To: Defense Client (insert name) Subj: TOOLS TO COPE WITH STRESS 1. Legal troubles are often very stressful, but there a number of healthy ways to cope with this stress. Several resources are readily available to help you overcome the stress and uncertainty that you may be experiencing. I have listed some of the options below. We will discuss these options today and you should know that not all of the services that are available from the various sources provide you with confidentiality; however, if you are having difficulties dealing with stress or having thoughts of suicide, you need to seek help from a qualified individual right away. a. National Suicide Prevention Lifeline (NSPL) is a nationwide network of crisis centers. If you are ever feeling desperate, alone, or hopeless, you can call the NSPL at TALK (8255). NSPL is a free, confidential, 24-hour hotline available to anyone in suicidal crisis or emotional distress. b. Base Mental Health (insert local contact info) provides licensed psychologists, psychiatrists, and social workers. In addition to you seeking services on your own initiative, if certain individuals, including members of your chain of command or me, believe that you are a danger to yourself, we can recommend to your commander that you be referred for a mental health evaluation. c. DStress Line is available to active duty, Reserve, families, loved ones, and former Marines who are located in certain areas. The line provides counseling for any stress related issues including work, personal, relationship, financial, and family. It is available 24 hours a day, seven days a week and is staffed with former Marines. The service is free and confidential d. Military One Source (MOS) provides telephonic, online and face to face counseling. MOS is provided by DoD at no cost to active duty, Reserve, and their families. The service is private and confidential; however, your identity must be verified for their internal records only e. Chaplains/Clergy (insert local contact info) have confidentiality and are trained to help you with the problems you are facing, including spiritual counseling. There is an absolute privilege for all information confided in a chaplain or clergy as a formal act of conscience or faith. 2. REMEMBER: You are a valuable person and a member of the Marine Corps Family and we are committed to providing you services and support during this stressful time. If you are having issues, please do not hesitate to ask for help. I can help you get in contact with a qualified counselor or you can seek help directly. If you have any questions concerning this information, please call me at (insert contact info). X. X. XXXXXXXXXX

137 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 RM 1D130 ARLINGTON, VA In Reply Refer To: 5800 CDC 4 Aug 15 CDC POLICY MEMO 2.5 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION POLICY ON THE HANDLING OF REAL EVIDENCE Ref: (a) JAGINST D of 01 May 2012 (Professional Conduct of Attorneys Practicing under the Cognizance and Supervision of the Judge Advocate General) (b) American Bar Association Standards for Criminal Justice: Defense Function at 190 (3d Ed. 1993) (c) CDC Policy Memo 2.3 (series)(guidance on Walk Ins and IRO Hearings) 1. Purpose. To establish a uniform practice for all DSO attorneys concerning the acceptance, possession, and inspection of real evidence, including knowledge concerning its location. 2. Discussion. a. No DSO attorney should ever be forced to half-step in the zealous defense of a Marine or Sailor out of fear of a hostile response by the very same persons who arrest, interrogate, investigate and seek to convict our clients. Yet experience dictates that the zealous defense of servicemembers sometimes leads to contact with real evidence and the chilling effect concomitant to the range of possible Governmental responses thereto is all too real. b. If we are doing our jobs right, contact with real evidence is virtually inevitable. Courts have essentially said as much, pointing out that client confidentiality may not allow a defense attorney the luxury of avoiding contact with real evidence: [T]he legal responsibility imposed upon lawyers who learn of the existence of tangible evidence of a completed crime in the course of an attorney-client

138 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS relationship is complex and far from settled. Moreover, a lawyer can be faced with a host of conflicting important obligations to balance, including the duty to preserve client confidences, investigate the case, and maintain an allegiance to the system of justice as an officer of the court. Wemark v. State, 602 N.W.2d 810, 816 (Iowa 1999). c. A sound attorney-client relationship is based on trust. Its absence makes defending our clients nearly impossible, particularly in view of the increasing complexity of criminal representation. Drawing further from the lessons in Wemark, this is particularly true for three principle reasons: (1) First, the law is so complex and so pervasive in today's society that a Marine needs the assistance of an attorney to resolve legal disputes with the Government. (2) Second, in order to effectively do their job, lawyers need full knowledge of all of the facts and evidence in their client s case. Frequently the best source of that information is the client. (3) Third, our clients will likely be reluctant to reveal all of the facts to their attorney without some assurance that, once disclosed, the attorney will not reveal those confidences. d. For these reasons confidentiality is the basis of the trust we seek from our clients. Furthermore, confidentiality is invoked through any communicative act between the attorney and his or her client. Except under very limited circumstances, an attorney may not disclose confidential information. e. When a client notifies his or her attorney of the existence of real evidence, or where a client attempts to provide or deliver that evidence to an attorney (personally or through a third party) it will generally be accompanied by some form of confidential communication. In fact, the mere act attempting to deliver a piece of real evidence may, in and of itself, be a communicative act. f. So while the item itself may need to be disclosed, the confidentiality of the communicative act accompanying the evidence may prevent counsel from revealing the contents of the 2

139 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS communication, including the source of their knowledge of the location or possession of the item. g. At the same time, our rules of practice generally prohibit interfering with access to evidence by all parties. Certainly our Code so requires. See ART. 46, UCMJ, 10 U.S.C An attorney may not suppress, obstruct, alter, conceal or destroy relevant items of real evidence which the law otherwise requires be produced, nor may an attorney counsel another to do so. Neither can an attorney conceal or fail to disclose information and/or evidence in his or her possession which the law requires he or she reveal. 1 In either case the attorney may jeopardize his or her license with an attendant allegation of obstruction of justice. Furthermore, our practice generally recognizes the military community s legitimate interest in safety, national security, and preventing the knowing destruction of evidence of a crime, even when it is in a Defense Counsel s possession. This remains true even though the interests of the client rarely align with those of the military community at large. h. The DSO will carefully balance these competing interests. First, we will remain true to our creed, and keep foremost in our minds our duty to our clients a duty which, on very rare occasions, may require that we accept, possess, inspect or even possibly forensically test real evidence. Not only might there be circumstances where a DSO attorney is unable to avoid contact with such evidence, but there may also be the unusual circumstance where he or she is ethically bound to accept it in zealous defense of his or her client. But second, these duties must be performed in the context of a system based on confrontation which states that defense counsel may not suppress, obstruct, alter, hinder or conceal evidence in counsel s possession from the prosecution, and which recognizes the military community s legitimate interest in safety, national security, and preventing the knowing destruction of evidence of a crime. i. For purposes of this Policy Memo real evidence is defined as being some item which has a role in the prosecution or defense of a preferred charge under the Uniform Code of Military Justice. It is original evidence brought before a tribunal, hearing, court or panel, or which either party seeks to produce before a tribunal, hearing, court or panel, addressed 1 The difficulty lies in determining when the law requires disclosure. If any question with regard to disclosure/nondisclosure of evidence exists, immediately seeking the advice of your supervisory attorney is required. 3

140 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS directly to the senses of the tribunal, hearing, court or panel, and not requiring the testimony of witnesses other than as may be required to lay a foundation for its admission. It is not a demonstrative aide. See, e.g., Smith v. Ohio Oil Co., 134 N.E.2d 526, 530 (Ill. 1956). This definition is intended, for example, to include both the knife used in a homicide and the wound caused by the knife. It is specifically intended to be read broadly to include any original documentary, physical, or electronic evidence either party seeks to produce concerning a preferred offense charged under the Uniform Code of Military Justice. As such it includes not only the knife and the knife wound, but would also include a cell phone and the text messages on that cell phone. j. In this regard real evidence may be viewed in two contexts, that which is exculpatory, genuinely enhancing the client s defense, and that which is incriminating or inculpatory. As it may be difficult initially to distinguish between these two types of evidence, and as evidence originally thought to be entirely innocuous may become incriminating as the scope of the investigation widens, consultation with your supervisory attorney, and familiarity with both reference (a) and the rules promulgated by your State licensing agency are critical. In all cases counsel will thoroughly document the case file. 3. Policy. a. Acceptance of Evidence Generally Discouraged. It is rarely necessary to accept real evidence from a client. No physical item should be accepted without a conscientious consideration of its necessity to provide an effective and zealous defense in the absence of some other means to preserve it. By definition, obviously inculpatory items should not be accepted. But before accepting any evidence from anyone, a DSO attorney should first ask: Is this evidence so necessary to my defense and so clearly exculpatory that I would be comfortable asking CID or NCIS to come to my office to take possession of the item? If the answer to this question is not yes then counsel should probably refrain from accepting the item. b. Acceptance of stolen property or contraband will require the defense attorney turn the item(s) over to the United States. See l(4)(a) below. c. While there is no mandatory disclosure rule in the DSO, neither is there any requirement that you as defense counsel 4

141 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS accept possession of any physical item from your client or from any third parties. (1) In all cases where a DSO attorney comes in contact with real evidence he or she shall immediately seek advice from his or her supervisory attorney before taking any action. (2) A DSO attorney shall not under any circumstances personally destroy or alter evidence. (3) A DSO attorney shall not under any circumstances advise any party to destroy or alter any piece of evidence. d. Knowledge of Evidence Generally Privileged. There is no mandatory disclosure rule in the DSO. If you learn of evidence but do not accept it into your possession, this information is privileged with three narrow exceptions: (1) First, where disclosure is necessary to prevent reasonably certain death or substantial bodily harm. (2) Second, where disclosure is necessary to prevent the client from committing a criminal act that a DSO attorney reasonably believes is likely to result in the significant impairment of national security or the readiness or capability of a military unit, vessel, aircraft, or weapon system. (3) Third, where disclosure is required pursuant to law or court order. 2 2 See Navy Rules of Professional Conduct, Rule 3.4 (a) (1). But note the prohibition is to unlawfully obstruct access to evidence of potential evidentiary value. Counsel is ethically bound not to conceal or knowingly fail to disclose evidence which he is required by law to reveal. Model Rules of Prof'l Conduct R. 3.3(a)(2), 3.4(a). In United States v. Rhea, 29 M.J. 991 (A.F.C.M.R. 1990) a case of first impression in the military, the court addressed the ethics of accepting real evidence from a client which is subsequently sought by the government. During a pretrial investigation, accused's counsel became concerned that an annotated calendar in their possession belonging to the alleged victim contained evidence of defendant's crime. The annotated calendar in the possession of the defense was specifically sought in a search authorization of the accused's quarters but had been given to the counsel by their client. On the advice of their respective state bars, the counsel requested an ex parte hearing before the trial judge, who ordered the material be turned over to the government. The evidentiary nature of the calendar only became apparent after the Art 32 hearing and the Government search authorization was granted. 5

142 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS e. Return to Original Source. Attorneys of the DSO are cautioned and encouraged to decline acceptance of incriminating evidence and return it to its original source. This does not interfere with an attorney s obligation to inspect an item for potentially exculpatory evidence. If a DSO attorney has taken temporary possession of an item as described in paragraph 2(j) above, that attorney is cautioned and encouraged not to retain possession of any incriminating evidence, but should instead return it promptly to its original source as soon as possible. (1)Where a DSO attorney unavoidably receives or takes possession of inculpatory and/or incriminating evidence, he or she is under no obligation to automatically deliver that evidence to those prosecuting his or her client. (2) Where possible such evidence may instead be returned to its original source. Reference (b) pertains. Where the original source is a third party (e.g. the client s spouse or significant other) clearly explain that: (a) You are not that third party s attorney, and you do not represent them. (b) You are not advising them to destroy, alter or otherwise conceal the evidence and can give them no advice about what to do with the evidence. (c) You do not want the evidence in your possession. (d) Document your case file accordingly. f. Where Return Is Not Possible. When it is not possible to return the evidence to its original source DSO attorneys should consider alternate methods of return or disclosure, including anonymous disclosure through your Regional Defense Counsel (RDC). 3 As always, document your case file accordingly. Any means of disclosure must specifically contemplate and protect: (1) The client's identity. (2) The client's words to you concerning the item. (3) Any other confidential information. 3 Before any disclosure it is highly recommended that you consult with your state bar on the state-specific implications of any proposed method of disclosure. 6

143 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS (4) The client's privilege against self-incrimination. g. Caution Urged. But be cautioned while this policy letter does not establish a rule of automatic delivery, neither does it divest you of responsibility for your actions. In addition to consulting with your supervisory attorney and reviewing reference (a), DSO attorneys who find themselves faced with taking possession of real evidence are encouraged to consult the rules promulgated by their State licensing agency before making any decisions. Document these consultations in your case file. h. Imminent Threat. Items which poses a threat of reasonably certain death or substantial bodily harm or present a reasonably certain risk of significant impairment to national security or the readiness or capability of a military unit, vessel, aircraft, or weapon system are generally defined as an imminent threat. If real evidence presents an imminent threat immediately contact your supervisory attorney who will contact appropriate authorities for anonymous disclosure. i. Implications of acceptance. Any decision to accept real evidence from a client or third party implies two things: (1) First, acceptance implies that you have engaged in a thoughtful analysis leading to the conclusion that accepting possession may assist in the effective representation of the client, and that the client s defense genuinely requires this evidence. In arriving at that decision you should consider alternative methods of preserving the evidentiary value of the item in lieu of possession. Frequently a photograph and a percipient witness able to lay an appropriate foundation for introduction of the photograph will satisfy the evidentiary considerations without requiring acceptance of the item in question. (2) Second, acceptance implies a willingness and capacity to establish and maintain a chain of custody for that real evidence. In those unusual circumstances where a DSO attorney is ethically bound to accept, or simply cannot avoid taking possession of, real evidence, create and maintain a chain of custody. (3) In the event counsel believes effective representation requires acceptance of an item of real evidence, and where feasible, seek a non detailed member of the DSO or DSO 7

144 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS support staff member to facilitate acceptance of the evidence in question. j. Duty of Disclosure to the Client. If you elect to take possession of physical evidence of any nature, even if you believe it to be exculpatory, at a minimum you have a duty to inform your client of: (1) The possibility that you may be required under the Rules of Professional Responsibility to turn the evidence over to the Government if it later proves to be in any way incriminating. Specifically advise your client that items not immediately incriminating may become incriminating as the investigation evolves. This advice should be given in the presence of another member of the DSO and documented in your case file. 4 (2) The possibility that acceptance of evidence may put you, the detailed counsel, in the position of having to withdraw as counsel on the case. Tell your client that the Rules of Professional Conduct prohibit counsel from being a witness in a case in which he or she is detailed, and that acceptance of the evidence may well make you a witness. Reference (a). This advice should also be given in the presence of another member of the DSO and documented in your case file. k. Pre preferral and Walk In Counseling: A servicemember may become aware that he or she is under investigation before charges are preferred, and a DSO attorney may be assigned to provide that servicemember with advice. Reference (c) explains that, while this does not necessarily equate to being detailed, such counseling is generally confidential. Should such a servicemember present with real evidence, or should a third party attempt to present real evidence to a DSO attorney on behalf of such a servicemember, the DSO attorney will typically decline acceptance in consideration of the following: 4 In United States v. Rhea, 29 M.J. 991 (A.F.C.M.R. 1990) defense counsel became aware of potential inclupatory nature of the item through the post Art 32 search authorization and sought a judicial order clarifying their obligation to disclose the evidence already within their possession within the parameters of the Navy Rules of Professional Conduct. The court acknowledged the apparently innocuous nature of the evidence at the time it was accepted by counsel. As the case progressed, however, it became vital corroboration in the testimony of a sexual assault complainant. 8

145 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS (1) Determine if the item presents, or if acceptance would present, an imminent threat. If so, follow the procedures described in paragraph 3.g. above. (2) If the evidence does not pose an imminent threat, decline to accept the item. Under no circumstances will any DSO attorney destroy or alter any evidence, nor will any DSO attorney render advice to any party to do so. Consult your supervisory attorney and document your case file or make a contemporaneous memo if no file exists. (3) Sometimes a non-client servicemember or third party will deliver real evidence without acceptance by a DSO attorney, e.g. deliver it by mail, or simply leave it behind. If it is not possible to return the item to its source, place the evidence in a sealed plastic bag or container, with a completed chain of custody documents. Deliver it to your Regional Defense Counsel (RDC) for anonymous disclosure to appropriate authorities. l. How to Deal with Real Evidence Post Preferral or Where there is an Established Attorney Client Relationship. The following is provided as an analytical framework for handling real evidence. Under circumstances where a client or third party presents with real evidence, a DSO attorney must ask: (1) Do I have an attorney-client relationship with a party for the offense to which this real evidence is linked? If the answer that question is no, follow the procedures described more fully in paragraph 3.j. If the answer to that question is yes proceed. (2) Can I decline acceptance? This is generally the best choice, especially if the evidence is incriminating. If the evidence is not genuinely required for the client s defense or its evidentiary value can be preserved through photography or by other means, a DSO attorney should decline to accept the evidence and return it to its original source. Even temporary possession for purposes of photography or other testing should be appropriately documented to protect against allegations of obstruction. (3) Can I accept the evidence? But in those rare circumstances where an item is genuinely required for the client s defense, counsel may be ethically compelled to accept it. So long as the DSO attorney is capable of preserving the integrity of both the evidence and the chain of custody for the 9

146 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS evidence, and after consultation with a supervisory attorney, he or she may do so. (4) Once I accept the evidence, what do I do with it? Real evidence will generally come in two categories, that which is contraband or poses an imminent threat, and all other evidence( other real evidence.) (a) Contraband/Imminent threat: Contraband evidence, or evidence which presents an imminent threat, may not be accepted. But if you inadvertently take possession of evidence that is contraband or which poses an imminent threat (e.g controlled substances or stolen proceeds), acceptance will legally and ethically compel a DSO attorney to turn the item over to the United States in accordance with Rule 3.4 of reference (a). This presents a dilemma in that if a DSO attorney delivers evidence against his or her client, he or she likely violates the attorney-client privilege and jeopardizes the client s Fifth and Sixth Amendment rights. History shows that attorneys placed in this situation have been found ineffective (which is why acceptance is typically discouraged). Under these circumstances a DSO attorney should consider delivering the evidence to the United States anonymously through his or her RDC. This may help protect the DSO attorney and the client. However a DSO attorney may: 1. Inspect the item as may be required to photograph, preserve, forensically test, 5 or otherwise document the item. 2. Establish a chain of custody for the item. 3. Turn the item over to the United States anonymously through the DSO attorney s RDC. 4. Document your case file accordingly. 5 The Navy rules are silent on forensic testing. The ABA Criminal Justice Standards for the Defense Function have an allowance for forensic testing. Check your state bar rules and consult your RDC/SDC prior to forensically testing any evidence in which you have taken custody. Note that under JAGINST E Rule 3.4, a covered attorney shall not:... unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. While it is the DSO s position that forensically testing an item of evidentiary value is not unlawfully altering or destroying evidence, it is best practices to preserve the evidence in its original state as much as is possible. See Gregory C. Sisk, The Legal Ethics of Real Evidence: Of Child Porn on the Choirmaster s Computer and Bloody Knives Under the Stairs. 89 Wash. U. L. Rev. 819 (2014). 10

147 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS (b) Other Real Evidence: While acceptance of real evidence is discouraged, if your client s defense genuinely requires this evidence; you are capable of establishing and maintaining a chain of custody for the evidence; you are ethically bound to accept the evidence under reference (a) and your State rules; and so long as the evidence is neither contraband nor presents an imminent threat; it may be retained. When presented with a court order, or when otherwise required by law, deliver the evidence to appropriate authorities. Establish a chain of custody for all accepted evidence. (5) When a client or third party tells me of the physical location of evidence, but does not deliver it to me, what may I do? There may be occasions when a DSO attorney learns the location of evidence, but does not take possession. Even if this information relates to evidence of guilt secreted away by the client, when the information comes to a DSO attorney s attention through a communicative act of the client, the information remains covered by the attorney client privilege. Mere knowledge of the existence of evidence, including its location, does not require disclosure. Assuming that law enforcement personnel are somehow entitled to evidence they otherwise would not discover does not square with the attorney s ethical obligation to zealously represent the accused. Neither can it be squared with the client s Constitutional rights to be protected from self incrimination and to effective representation. (6) Under most circumstances a DSO attorney will decline to inspect the location of such evidence, but there may be circumstances where a DSO attorney believes he or she is ethically or legally bound to do so. Should any DSO attorney believe he or she is ethically or legally bound to inspect the evidence location, immediately consult your RDC or the Chief Defense Counsel. (7) Consistent with the procedure outlined in United States v. Rhea, in the event a DSO attorney accepts possession evidence which he/she later learns is inculpatory or is sought by the government the DSO attorney should consult with his/her RDC and seek an ex parte ruling on the requirement of disclosure from the military judge or the Chief Judge of the Judicial district if no military judge has yet been assigned. 4. Summary. There is no mandatory disclosure rule in the DSO. Such a rule would run counter to the obligation of client loyalty and enlist the client s own attorney in the Government s 11

148 Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS attempt to convict him. Generally a DSO attorney will be able to avoid taking possession of real evidence. This policy memo, however, contemplates scenarios where such contact is unavoidable it contemplates the more difficult path where the attorney client privilege and the right of the accused to effective, zealous representation are paramount. Even non testimonial evidence, itself without Fifth Amendment protection, is typically privileged when delivered to an attorney by a client. The mere act of producing an item has communicative aspects of its own, wholly aside from the nature of the item. Just as importantly, an attorney has an ethical and legal responsibility to investigate on behalf of his or her client. Properly executing this ethical obligation makes some degree of contact with real evidence a virtual certainty. The foregoing is drafted with these challenges in mind. 5. Conclusion: This CDC Policy Memo is effective immediately. STEPHEN C. NEWMAN Colonel, U.S. Marine Corps 12

149 In Reply Refer To: 5800 CDC 24 Sep 15 CDC POLICY MEMO 2.6 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: POLICY FOR PERSONNEL DETACHING FROM THE DSO UPON COMPLETION OF A DSO TOUR Encl: (1) Detaching defense counsel checklist (2) Detaching defense clerk checklist 1. Purpose. To provide policy guidance on and establish a better understanding of the ethical obligations incumbent upon Defense Services Organization (DSO) personnel, both officer and enlisted, on the occasion of their detaching from the DSO. 2. Discussion. a. The Marine Corps Defense Services Organization operates as a global law firm. Members of the DSO commonly share case related information, themes, and theories with each other through SharePoint, case consultations, and casual conversation. As a result DSO attorneys become privy to a host of confidential, if not privileged, information, documents and materials. Upon conclusion of a tour in the DSO, defense counsel and defense clerks depart with extensive knowledge of protected and privileged information related to ongoing cases. As such, when detaching from the DSO defense counsel and defense clerks alike have a continuing ethical and legal obligation to protect and maintain important, confidential, and privileged information, not only in relation to their clients and cases, but also in relation to the clients and cases of which they have become aware. b. Due to the unique nature of the Judge Advocate community departing DSO members sometimes transfer to other adversarial billets, such as Victim s Legal Counsel or Trial Counsel. These transfers sometimes occur contemporaneous with the prosecution of cases of which the former DSO member maintains personal, professional, confidential or privileged information obtained as the result of a communication with another defense counsel or supervisory attorney. For this reason such transfers are ill-

150 advised. Given the opportunity for conflicts of interest, actual or perceived, such transfers are fraught with peril. While the transfer of personnel other than Regional and Senior Defense Counsel is outside the scope of my authority as Officerin-Charge of the DSO, to the extent I can influence it, these types of billet transfers will be discouraged. c. As a final aspect of the DSO training pipeline I want to emphasize the importance of ensuring DSO members depart our organization with a thorough understanding of their responsibilities to safeguard and protect information they obtained as the result of their DSO tour. 3. Policy. Each detaching member of the DSO will complete the appropriate enclosure no later than seven (7) business days prior to assumption of a new, non-dso billet. After reviewing and completing the checklist, the departing DSO member and the cognizant supervisory DSO attorney will review the checklist together and verify that all roles and responsibilities are properly understood. The DSO branch office will maintain a copy of the completed checklist for a period of two years. The completed checklist is subject to inspection. 4. Conclusion. This CDC Policy Memo is effective immediately. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO NMCTJ Code 52, OJAG STEPHEN C. NEWMAN

151 Marine Corps Defense Services Organization Detaching Defense Counsel (4402/4401) Checklist Instructions: Print this checklist and mark the blocks as you complete each item. You may complete in any order but should completion is required no later than seven days prior to detaching from the DSO. After you complete the checklist, meet with your supervisory counsel to review each of the topics. Your supervisory attorney will initial on the line for each topic, confirming your completion and understanding. A copy of the completed checklist will remain with the DSO branch office for a period of two years. Attorney name: Date DSO tour began: Anticipated DSO tour end date: Anticipated next billet assignment: Supervisory Attorney Reviewer: JAGINST (series): Read and understand the following sections 1.6 CONFIDENTIALITY OF INFORMATION 1.7 CONFLICT OF INTEREST: GENERAL RULE 1.9 CONFLICT OF INTEREST: FORMER CLIENT 1.10 IMPUTED DISQUALIFICATION 3.8 SPECIAL RESPONSIBILITIES OF TRIAL COUNSEL AND OTHER GOVERNMENT COUNSEL MCO P (series): Read and understand the following sections Paragraph 2001(4): Attorney-Client Relationships Paragraph 2002(6): Defense Counsel Paragraph 2003(5): Tour Length Paragraph 2004: Reassignment CDC Policy Memo 1.3: Read and understand the following sections Paragraph 3(e): Case file retention Case Status List any ongoing cases or administrative separations cases pending: List any cases or administrative separations cases pending convening authority/separation authority action:

152 Marine Corps Defense Services Organization Detaching Defense Counsel (4402/4401) Checklist List any special or general courts-martial cases still pending appellate review: I have reviewed the aforementioned references and discussed my responsibilities as a departing member of the DSO with my supervisory counsel. I understand that all confidential information I was privileged to as a member of the DSO must be safeguarded and protected. I will not use any privileged information gained during my time in the DSO in any manner during any follow on billet to which I am assigned. Attorney Signature Date Supervisory Attorney Signature Date

153 Marine Corps Defense Services Organization Detaching Defense Clerk (4421) Checklist Instructions: Print this checklist and mark the blocks as you complete each item. You may complete in any order but should completion is required no later than seven days prior to detaching from the DSO. After you complete the checklist, meet with your supervisory counsel to review each of the topics. Your supervisory attorney will initial on the line for each topic, confirming your completion and understanding. A copy of the completed checklist will remain with the DSO branch office for a period of two years. Defense clerk name: Date DSO tour began: Anticipated DSO tour end date: Anticipated next billet assignment: Supervisory Attorney Reviewer: JAGINST (series): Read and understand the following sections Paragraph 4(d) 1.6 CONFIDENTIALITY OF INFORMATION 1.7 CONFLICT OF INTEREST: GENERAL RULE 1.9 CONFLICT OF INTEREST: FORMER CLIENT 1.10 IMPUTED DISQUALIFICATION 3.8 SPECIAL RESPONSIBILITIES OF TRIAL COUNSEL AND OTHER GOVERNMENT COUNSEL MCO P (series): Read and understand the following sections Paragraph 4001(4): Attorney-Client Relationships Paragraph 4002(6): Defense Counsel Paragraph 4004: Reassignment List all DSO attorneys to whom you have provided material support for any special or general courts-martial cases still pending appellate review or any Board of Inquiry or administrative separation board currently pending: I understand that although the Rules in JAGINST do not apply directly to non-attorneys, they do define the type of ethical conduct that is expected of me as a legal clerk. I have reviewed the aforementioned references and discussed my responsibilities as a departing member of the DSO with my supervisory counsel. I understand that all confidential information I was privileged to as a member of the DSO must be safeguarded and protected. I will not use any privileged information gained during my time in the DSO in any manner during any follow on billet to which I am assigned. Defense Clerk Signature Date Supervisory Attorney Signature Date

154 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 RM 1D130 ARLINGTON, VA In Reply Refer To: 5800 CDC 29 Oct 15 CDC POLICY MEMO 2.7 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION POLICY ON SOCIAL MEDIA Ref: (a) JAGINST (series)(Professional Conduct of Attorneys Practicing under the Cognizance and Supervision of the Judge Advocate General) (b) 10 U.S.C. 827 (c) Marine Corps Social Media Guidance for Unofficial Posts (d) MARADMIN 365/10 (e) MARADMIN 173/15 1. Purpose. This policy memo establishes uniform practices for all Defense Services Organization (DSO) attorneys concerning acceptable uses of social media relative to official DSO duties. 2. Discussion. a. While social media has been a part of the mainstream for almost a decade, the left and right lateral limits of permissible social media conduct for both attorneys and Marines continues to evolve. b. Attorneys practicing under the cognizance of the Judge Advocate General of the Navy are subject to the Judge Advocate General s ethics instruction (ref (a)), local circuit rules, and the ethics requirements of their state bars (ref (b)). c. Social media policies which apply to all Marines are listed in references (c)-(e). Given the nature of current operations, it is incumbent on every Marine to be aware of his or her digital presence and manage it in accordance with promulgated anti-terrorism/force protection (AT/FP) protocols.

155 Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION POLICY ON SOCIAL MEDIA d. Some civilian jurisdictions have held contempt hearings and/or initiated ethics complaints against defense attorneys using social media in the courtroom. While most military circuit rules address the use of electronic devices in the court room, the use of social media has largely been ignored. e. This policy is necessary in order to address such uncertainties, protect the legitimate privacy interests of the parties, respect AT/FP concerns and protocols, not to mention the dignity and respect concomitant to the military justice process. e. To be clear, this policy applies only when DSO attorneys are performing duties as defense counsel. Furthermore, when acting as the legal representative of a client you are compelled to do what is in your client s best interest, consistent with the law and applicable ethical cannons, and this policy memo does not foreclose any options you may have in the zealous representation of a particular client. Neither is it intended to chill speech made in a private capacity. When speaking in your personal capacity you are completely unconstrained by this guidance. This guidance is intended to ensure compliance with all applicable social media guidelines, protect DSO personnel from stepping on potential ethical landmines, and enhance the professionalism of the DSO and the practice of military justice. 3. Policy. a. With the exception of official military ceremonies, training, and appropriate unofficial unit social activities, without the express permission of a Military Judge all photography or digital video recording inside military courtrooms is prohibited. This prohibition applies regardless of whether or not court is in session. b. No member of the DSO shall photograph or digitally video record another party without that party s express consent. Under no circumstances will a member of the DSO photograph or digitally video record the members, a military judge, or any other member of a tribunal while acting in that capacity, transiting to or from the forum, or in the vicinity of the proceeding. This prohibition applies to all identifiable individuals in a photograph or digital video recording, including those who may be in the background of such photographs or digital video recordings. 2

156 Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION POLICY ON SOCIAL MEDIA c. Photographs outside of the courtroom depicting members of the DSO with clients are permitted. Photos with clients in front of an acquittal A or other DSO sanctioned emblems or symbols are also permitted. However, social media dissemination of these types of photos is strongly discouraged. d. To ensure privacy, compliance with Marine Corps guidance, and applicable bar rules, posting photos of clients on social media is strongly discouraged regardless of client consent. e. Text-based social media in which a colleague could reasonably identify the client that is the subject of the post is prohibited. f. This policy in no way prohibits or restricts DSO organizational, moral-building ceremonies intended to recognize and memorialize acquittals and other favorable results. g. All members of the DSO should regularly monitor their online social media presence to ensure conformity with this policy memo and the references. 4. Summary. Heightened security concerns, coupled with potential ethical constraints, necessitate greater consideration of our organization s social media presence. While I celebrate your successes with you, I would be derelict in the performance of my duties if I allowed you to unknowingly step into this potential minefield. Act like you ve been there before applies to more than just the playing field. We are military justice professionals and shall conduct ourselves accordingly. Respect for the dignity of the process, other parties to the process, and the courtroom is not optional in the DSO. 5. Conclusion. This policy memo is effective immediately. STEPHEN C. NEWMAN Colonel, U.S. Marine Corps Distribution List: SJA to CMC, Legal Chief of the Marine Corps, All Marine Corps SJAs, LSSS OICs, LSST OICs, All members of the DSO, NMCTJ Code 52, OJAG 3

157 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000 ARLINGTON, VA In Reply Refer To: 5813 CDC 6 Oct 14 CDC Policy Memo 3.1 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE MARINE CORPS DEFENSE SERVICES ORGANIZATION Ref: (a) MCO P (series) (b) JAGINST F (JAGMAN) (c) JAGINST D (Rules of Professional Conduct) 1. Purpose. To establish detailing and individual military counsel (IMC) determination delegation authority within the Marine Corps Defense Services Organization (DSO), and to cancel Chief Defense Counsel (CDC) Policy Memo Discussion. Reference (a) identifies the Chief Defense Counsel of the Marine Corps (CDC) as the Officer-in-Charge of the DSO and the detailing and IMC determination authority for defense counsel assigned to the DSO. Additionally, reference (a) authorizes the CDC to delegate these authorities to Regional Defense Counsel (RDC) and Senior Defense Counsel (SDC) subject to certain restrictions that are incorporated below. This policy memo supersedes and cancels all previous CDC Policy Memos related to detailing and IMC approval. 3. Policy. A defense counsel will not establish an attorneyclient relationship, as defined by section 0131b(3) of reference (b), with any individual unless detailed, assigned, or otherwise authorized to do so by his or her detailing or IMC determination authority. Once established, the attorney-client relationship may only be severed under the provisions of Rule for Courts- Martial (R.C.M.) 505 and 506 and reference (c). Unless the attorney-client relationship is properly severed, or he or she is otherwise properly relieved, a defense counsel shall continue to represent an accused through the completion of applicable post-trial matters as outlined in reference (a).

158 Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE MARINE CORPS DEFENSE SERVICES ORGANIZATION a. Detailing. Detailing authority includes the authority to detail a counsel to a court-martial case, an administrative separation board, or other due process proceeding in which the detailing of counsel is specifically authorized by Departmental or service regulations and, for the CDC and RDCs, authorization to form an attorney-client relationship and to remove a counsel from a case for good cause under the provisions of R.C.M. 505 and Rule 1.16 of reference (b). b. Detailing Authority within the DSO. Detailing authorities may detail defense counsel from the DSO to cases in accordance with the procedures set forth in reference (a), consistent with the considerations specified in paragraph 2 below. The following billet-specific delegations pertain: (1) CDC: The CDC may detail defense counsel from the DSO, and auxiliary defense counsel made available for a particular case, to cases supported by the DSO. The CDC may also remove counsel who have formed an attorney-client relationship from a case for good cause under the provisions of R.C.M. 505 and Rule 1.16 of reference (b). (a) The CDC may self-detail with the consent of the Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC). (b) The CDC may authorize a defense counsel to form an attorney-client relationship with officers and staff noncommissioned officers (SNCOs) subject to investigation under Chapter 2 of reference (b), or under investigation by an Inspector General, where the CDC reasonably believes that such an investigation may result in nonjudicial punishment (NJP) and/or a board of inquiry or administrative separation. (c) The CDC is the detailing authority for RDCs. (d) The CDC will appoint a substitute CDC for detailing purposes when the CDC is on leave or otherwise unavailable to execute detailing responsibilities. (2) RDCs: RDCs may detail defense counsel assigned to their Legal Services Support Section (LSSS) and subordinate Legal Services Support Teams (LSST), as well as Auxiliary Defense Counsel made available by the LSSS or LSST OIC, to cases arising in their Legal Services Support Area (LSSA), and may remove counsel who have formed attorney-client relationships for 2

159 Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE MARINE CORPS DEFENSE SERVICES ORGANIZATION good cause under the provisions of R.C.M. 505 and Rule 1.16 of reference (b). (a) RDCs may not self-detail. (b) RDCs may not detail cases involving an accused in the grade of O-5 and above, or cases alleging violations of Article 118(1) or (4). (c) In cases with multiple co-accused an LSSS or LSST SDC may be unable to detail due to conflicts or a lack of available counsel. When such circumstances arise, the RDC will normally detail defense counsel and auxiliary defense counsel to these cases. In exceptional circumstances the RDC may contact the CDC and request support from an adjacent LSSA. (d) While the preference is to have Marines defend Marines, RDCs may request that Navy defense counsel be detailed by a local Navy Defense Service Office in exceptional circumstances. (e) RDCs will maintain a record of all cases detailed to counsel within their region and other cases involving accused assigned to commands supported by their LSSS utilizing the Case Information System (CIS) on the DSO s SharePoint website. (f) Except for officers in the grade of O-5 and higher, RDCs may authorize defense counsel in their region to form an attorney-client relationship with officers and SNCOs pending NJP when they reasonably believe an NJP may lead to a board of inquiry or an administrative separation. (g) RDCs will appoint a substitute RDC and for detailing purposes when the RDC is on leave or otherwise unavailable to execute detailing responsibilities. (3) SDCs: SDCs may detail defense counsel assigned to their LSSS or LSST to cases supported by the SDC s LSST or an element thereof. (a) SDCs may self-detail. (b) SDCs may not detail counsel under the following circumstances: 3

160 Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE MARINE CORPS DEFENSE SERVICES ORGANIZATION 1. Cases involving a commissioned officer above the grade of O-3, a Chief Warrant Officer above the grade of CWO-2, or an enlisted accused above the grade of E Cases alleging violations of Article 118 (including attempts). 3. National security cases as defined by section 0126 of reference (a). (c) Additionally, SDCs who write fitness reports on subordinate defense counsel may not detail themselves to represent clients who have a conflict of interest with a client of a subordinate defense counsel for whom the SDC is the reporting senior. (d) Prior to detailing counsel to complex cases the SDC will consult with the RDC to ensure the right counsel is detailed to the right case. The term complex case is a term of art. Consider the following non-exclusive list of factors when deciding what is and what is not a complex case: The forum; the number and severity of charges; the severity of any possible sentence; the number of potential witnesses; the possible requirements for expert assistance or testimony; and the relative experience base of counsel assigned to that SDC. (e) In cases where the number of co-accused exceeds the capacity of the SDC s branch office, and/or where there are conflicts which interfere with the ability to detail, the SDC will forward the additional case files to the RDC for detailing. (f) SDCs will maintain a record of all cases detailed to counsel within their region and other cases involving accused assigned to commands supported by their LSST utilizing the DSO s CIS. (g) When an SDC is on leave or otherwise unavailable to execute detailing responsibilities, RDCs will appoint a temporary SDC for detailing purposes. c. Detailing Considerations. (1) Detailing authorities shall take the following into consideration when detailing a defense counsel to a particular case: 4

161 Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE MARINE CORPS DEFENSE SERVICES ORGANIZATION (a) Standard detailing criteria, including those specifically listed in reference (a). (b) The rights of the accused, including the right to zealous, effective representation by a fully qualified counsel. authority. (c) The needs of the local command and convening (d) The complexity of the case in light of the experience level and case load of the available counsel, work load (including military duties), and any other factors which may impact counsel s ethical obligations to zealously and effectively represent each individual accused. (e) Any potential conflicts, actual or apparent. (f) Timeliness. (g) The location of the accused in relation to the location of counsel, with preference given to detailing local counsel. counsel. (h) End of service and/or rotation dates of (2) Detailing shall be done in writing using the approved detailing letter in the Forms section on the DSO SharePoint page. (3) Detailing shall occur as soon as practicable. In no case shall detailing occur later than: (a) Personnel in confinement: Ten days after being notified in writing by corrections personnel, command representatives, LSSS or LSST personnel, or any other official representative of the United States, that an accused has been placed in pretrial confinement or arrest under R.C.M Written notification for purposes of this policy memo includes electronic mail, facsimile, or any other electronic means of distribution. SDCs shall ensure their branch office regularly receives brig and confinement reports, and shall review them regularly to identify newly-confined personnel. 5

162 Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE MARINE CORPS DEFENSE SERVICES ORGANIZATION (b) Personnel not in confinement: Five days after being served notice of preferred charges. (c) Personnel being processed for separation: Five days after being served an administrative separation or board of inquiry package. regulation. (d) Other: As otherwise required by law or (4) The detailing authority will provide a copy of the detailing memorandum to the responsible Staff Judge Advocate and the cognizant LSSS or LSST prosecution or administrative support section within seven days of detailing. Detailed counsel will provide the trial counsel or recorder the approved Notice of Representation from the Forms section on the DSO SharePoint within seven days of being detailed to a court-martial case, board of inquiry, or administrative separation board. (5) Supervisory defense counsel will normally not be detailed to represent a client, nor will they normally detail themselves, when there is a conflict of interest with a client of a subordinate defense counsel within their fitness reporting chain. Only the CDC may grant an exception to this general rule. If a supervisory defense counsel is detailed to a case that creates a conflict of interest with a client of a subordinate defense counsel, the supervisory defense counsel may not review or write the fitness report of that subordinate defense counsel. When this occurs the next-level supervisor will replace the supervisory counsel in the subordinate defense counsel s fitness reporting chain. (6) An accused in a non-capital case is not entitled to be represented by more than one military counsel, and normally only one defense counsel will be detailed to a particular case. As explained in reference (a), the detailing of a second defense counsel to contested and complex cases is encouraged. Detailing authorities may, at their discretion, detail a second counsel to such cases. (7) Detailing authorities shall give preference to detailing local counsel to local cases. Defense counsel are normally detailed to represent personnel assigned to an organization that is supported by that defense counsel s LSSS or LSST. Under certain circumstances, such as when an organization has no local defense counsel, in conflict cases, or when unique 6

163 Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE MARINE CORPS DEFENSE SERVICES ORGANIZATION requirements of a case arise, defense counsel may be detailed by the responsible RDC or by the CDC to represent an accused assigned to an organization that is not normally supported by that defense counsel s branch office, subject to the following: (a) Paragraph 0145 of reference (b) states that the convening authority is responsible for both the cost of travel, other than local travel as defined by the Joint Federal Travel Regulations, and per diem, for a defense counsel in the course of representing a member of his command. (b) Prior to detailing a counsel to a case that will incur non-local travel costs, the detailing authority shall obtain approval from the Convening Authority (typically through the Convening Authority s SJA), including authority to expend funds for travel and other expenses associated with representation. If the Convening Authority declines to fund non-local travel and per diem associated with representation, forwarded the matter to the CDC for resolution. If the CDC cannot resolve the issue, the CDC will forward it to the SJA to CMC for final adjudication. (8) Each defense counsel has an established rotation date. Detailing authorities shall take this established rotation date into consideration and shall not detail a defense counsel to a case which they reasonably anticipate may extend beyond this established rotation date without the consent of the LSSS or LSST OIC. If the detailing authority and the LSSS or LSST OIC cannot agree on a such a detailing decision, the matter will be forwarded to the CDC for resolution. If the CDC cannot resolve the issue, the CDC will forward it to the SJA to CMC for final adjudication. d. Inability to Form an Attorney-Client Relationship. Occasionally, despite good faith efforts, counsel are unable to locate their client and form an attorney-client relationship. This most commonly occurs in two circumstances: when counsel is detailed as substitute counsel for post-trial matters and the accused has been discharged; and in reserve administrative separation boards. Should this occur, detailed counsel shall notify the detailing authority of the inability to form an attorney-client relationship with the client and articulate the steps taken to locate the client. If the detailing authority is satisfied that all reasonable efforts have been exhausted to locate the client, the detailing authority shall notify the responsible trial counsel, recorder, Staff Judge Advocate, or 7

164 Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE MARINE CORPS DEFENSE SERVICES ORGANIZATION other appropriate and official agent of the United States, in writing, using the approved Notice of Inability to Form an Attorney-Client Relationship form found in the Forms Section on the DSO SharePoint, that the detailed counsel has been unable to form an attorney-client relationship and that the detailed counsel will not make any personal or written appearance on behalf of the servicemember. e. Individual Military Counsel (IMC) Requests for Marines Assigned to the DSO. (1) Article 38, UCMJ, provides an accused the right to be represented by military counsel of his or her own selection, provided that said counsel is reasonably available. (2) Section 0131 of reference (b) sets forth standards for determining reasonable availability of the requested IMC. (3) In accordance with reference (a), the CDC is the determination authority under section 0131b(2) of reference (b) for all IMC requests for defense counsel assigned to the DSO, other than the CDC. The CDC is authorized to delegate that authority to RDCs. Specific IMC approval authority is as follows: (a) The SJA to CMC retains IMC approval authority on IMC requests for the CDC. For IMC availability determination purposes, the CDC s organization is the DSO, not the battalion or organization to which the CDC is administratively attached. (b) The CDC retains IMC approval authority on IMC requests for RDCs, the OIC DCAP, all requests from officers of the grade O-5 and above, and all requests from servicemembers charged under Article 118 (1) and (4) (including attempts). For IMC availability purposes, an RDC s organization encompasses the LSSA of the LSSS assigned, not the battalion or military organization to which the RDC is administratively attached. The OIC, DCAP s organization is the DSO, not the battalion or military organization to which the OIC DCAP is administratively attached. (c) Except as limited in paragraph (5) infra, RDCs are delegated determination authority on IMC requests for defense counsel and Senior Defense Counsel within their region. For IMC availability purposes, counsel s organization is the LSSS or LSST to which assigned and the location of the units 8

165 Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE MARINE CORPS DEFENSE SERVICES ORGANIZATION supported therefrom, not the battalion or military organization to which the counsel is administratively assigned. (4) Considerations for reasonable availability determinations. Unless the case is one for which a sentence of death may be adjudged under R.C.M. 1004, a national security case as defined by section 0126 of reference (b), or the counsel has an existing attorney-client relationship with the accused, the requested counsel must either be located within the same judicial circuit or assigned to an organization within 500 miles where the proceedings are to be held in order to be found reasonably available. (5) Requests for associate counsel. If the requested defense counsel is made available as an IMC, the detailed defense counsel shall normally be excused from further participation in the case, unless the detailing authority approves a request from the accused that the detailed defense counsel act as associate counsel. 4. Conclusion. CDC Policy Memo 1-13 is hereby cancelled. This CDC Policy Memo is effective immediately. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO NMCTJ Code 52, OJAG STEPHEN C. NEWMAN 9

166 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000 ARLINGTON, VA In Reply Refer To: 3000 CDC 20 Oct 14 CDC POLICY MEMORANDUM 3.2 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES Ref: (a) MCO P1610.7F w/ch 1-2 (b) MCO P (series) (c) CDC PM 3.1 (series)(detailing and Individual Military Counsel Determination Authority) (d) JAGINST D (Rules of Professional Conduct) Encl: (1) DSO RO Worksheet Memorandum (2) Authorized Billet Descriptions 1. Purpose. To establish standard procedures within the Marine Corps Defense Services Organization (DSO) for writing, reviewing and submission of fitness reports for Marines assigned to the DSO. 2. Discussion. There is no greater opportunity to have impact on a Marine s career than the fitness report. Little we do as leaders has more impact and shelf-life with regard to such things as future assignments, promotions, and schools. Consequently, drafting and submitting timely, accurate, and appropriate fitness reports is fundamentally important to me. I intend for leaders in the DSO to submit meticulously drafted, honestly prepared, consistently evaluated, and timely submitted performance appraisals via the Automated Performance Evaluation System (APES). While the Reporting Senior (RS) and Reviewing Officer (RO) are most responsible for ensuring the integrity of the process, this is a team effort all Marines who write, review, and receive fitness reports must work together to ensure expectations are properly communicated and performance is properly evaluated. Such communication, however, cannot begin, and neither should it end, with the fitness report. It must begin with first contact between the RS and Marine Reported On (MRO), the point in time when they begin their professional

167 Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES relationship, and must continue until their professional relationship ends. 3. Policy. Fitness Reports will be written in strict compliance with reference (a) and will properly document observations and assessments of individual performance, personal qualities, character, and the potential to serve at a more senior level. All Fitness Reports submitted for Marines assigned to the DSO shall be submitted in a timely manner using APES through Marine Online (MOL). All reports must be completed so that they arrive at Headquarters Marine Corps, Manpower Management Support Branch (MMSB) no later than 30 days after the end of the reporting period. To assist in meeting these requirements and to address the unique issues related to serving in the DSO, the following procedures are mandated. a. Billet Descriptions: All DSO Marines will have a written billet description. DSO leaders are tasked with ensuring each Marine has a clear understanding not only of the billet description, but also the leadership s expectations based on that billet description. Use the MROW as a tool to ensure billet description clarity. (1) The RS is the first officer in the reporting chain senior to the MRO. Each RS is responsible for meeting face-toface with each MRO not less than 14 days from the initiation of their reporting relationship in order to provide a copy to each MRO of their billet description, and to discuss billet expectations. (2) Billet descriptions will be standardized to the maximum extent possible. See enclosure (2) for authorized billet descriptions. (3) There may be occasions where officers and enlisted personnel are assigned to the DSO for a limited period of time. Billet descriptions for such personnel will be the same as for others holding similar billets, but the RS will explain the limited time period in Section I of the Fitness Report. b. Submission Timelines. (1) Marine Reported On Worksheet (MROW): Not only do MRO and RS require a clear understanding of the Marine s billet description, but in order to draft an appropriate report they also need a clear understanding of the Marine s accomplishments during the reporting period. The MROW is a tool used to ensure 2

168 Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES clarity between the parties. It may also be used a tool for periodic counseling sessions. In terms of submission for purposes of fitness reports, it is used by the MRO to provide a summary of billet accomplishments to the RS, and by the RS to periodically re-validate the MROs billet description. MROs shall ensure that their MROW is with their RS seven days prior to the end of the reporting period. In addition to raw data related to performance such as number of contested trials, guilty pleas, administrative separation boards, NJP counselings, etc., include such items as significant events, awards, and professional military education (PME). Unless otherwise directed or authorized, forwarded the MROW via the Automated Performance Evaluation System (APES). (2) Non-Adverse Reports: The RS will complete and submit fitness reports which are not adverse to the Reviewing Officer (RO) not later than 14 days after the close of the reporting period. Submit the report to the RO via APES. Once submitted, notify the RO via that the report is pending action. Attach a completed copy of enclosure (1) to the . The RO will ensure he or she completes and submits Fitness Reports to Manpower Management Support Branch (MMSB) not later than 30 days after the close of the reporting period. (3) Adverse Fitness Reports: Adverse reports will be processed in accordance with Chapter 5 of reference (a). The Staff Judge Advocate to the Commandant of the Marine Corps (SJA to CMC) will be the third officer reviewer for all adverse officer reports. The CDC will be the third officer reviewer for all adverse enlisted reports unless the CDC is in the reporting chain. The Deputy SJA to CMC will be the third officer reviewer for adverse enlisted reports when the CDC is the RO. c. Reporting Senior Responsibilities. (1) Preparing, advising and counseling each Marine on his or her billet description in accordance with paragraph 3.a. infra. (2) Ensuring the timely processing of reports under his or her cognizance. While the MRO bears responsibility for preparing the MROW, this does not abrogate the leadership s responsibility to supervise the submission of an MROW via APES. As such, each RS is responsible for ensuring that an MROW is completed on each MRO and that a fitness report is ready to be generated in APES not later than seven days prior to the end of the reporting period. 3

169 Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES (3) Ensuring proper review of enlisted reports. Each RS is encouraged to designate the DSO Chief as an enlisted reviewer. Otherwise, when writing reports on enlisted Marines, the RS is encouraged to consult with the DSO Chief to ensure the particular requirements of enlisted reports are properly addressed. (4) Counseling his or her Marines on their report markings and comments. Upon submission of the report to the RO, each RS will discuss the markings and comments in a private, face-to-face counseling session with each MRO. Each RS is tasked with accomplishing this counseling in a timely fashion and answering any questions the MRO may have on markings and recommendations. The focus of such counseling should be growth or improvement of the MRO and career advice. (5) Managing his or her RS profile. Each RS is responsible for managing his or her RS profile, and carefully balancing their reports accordingly. Don t be afraid to explore the space on your profile in order to allow exceptional Marines to shine. For those exceptional Marines being reported on among a group of exceptional Marines in a large profile, use break out comments and speak directly to Board members. d. Reviewing Officer Responsibilities. (1) RO leaders in the DSO are primarily responsible for the execution of this policy letter, and are directly responsible for implementing my intent and the guidelines contained in reference (a). (2) Each RO is further responsible to provide the experienced leadership, supervision, and detached point of view necessary to ensure consistent, accurate, and unbiased evaluations. Each RO will closely scrutinize all reports prior to their submission to MMSB. (3) Each RO will be familiar with paragraph 2004 of reference (a) in detail. e. Reporting Chain Restrictions. (1) DSO members may not be the RS or RO for other DSO members who have clients with a conflict of interest with one of their clients. See paragraph 3 of reference (c). 4

170 Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES (2) With the exception of those in the grade of O-6, RS and RO same grade reports are not authorized absent specific exception granted in writing by me. f. Fitness Reports For Periods of Transition: There will be occasions when DSO personnel transition or rotate to other duties within an LSSS or LSST, yet retain some degree of defense responsibility. Under such circumstances the following applies: (1) The transitioning Marine shall receive a fitness report reflecting that the reporting period ended on the day before the Marine begins his or her new duties. (2) The reporting occasion for these Fitness Reports shall be Transfer (TR), and shall contain the following directed comment in section I: MRO is changing billets and will be assuming duties as [new duty assignment] under a different RS; however, MRO still has remaining defense counsel responsibilities and will receive a simultaneous report authorized per para. 2010, MCO P1610.7F upon completion of those responsibilities. (3) When the transitioning Marine completes all defense counsel duties, he or she shall receive a final Fitness Report as a member of the DSO with an end date of the reporting period that coincides with the date that all remaining defense counsel responsibilities are complete. The reporting occasion for these Fitness Reports shall be Change of Reporting Senior (CH). (4) Should another reporting period occur between the date the Marine transitions and the date the Marine completes his or her defense duties (e.g. promotion, annual or semiannual), the transitioning Marine shall receive a simultaneous report reflecting he or she retains defense duties. (5) Each report submitted in accordance with this paragraph will be a simultaneous report as authorized by paragraph 2010 of reference (a) and Figure 2-1 of reference (b) and will contain the following directed comment: This is a simultaneous report as authorized per para. 2010, MCO P1610.7F reporting MRO's successful completion of MRO s duties as defense counsel during the reporting period. 5

171 Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES (6) The exact date when an officer completes all defense counsel duties is situation-dependent, largely based on the number of clients retained, and the administrative, nonjudicial, and judicial corrective actions that each client faces. However, at a minimum, the following events must occur, as applicable, and each client must be counseled regarding their completion before defense counsel duties may be considered complete: (a) Results of NJP are completed and, in the case of officers, submitted to Higher Headquarters. (b) Separation Authority Action on all enlisted administrative separation proceedings is complete. (b) Submission of the Report of BOI by the Convening Authority to Higher Headquarters for all Boards of Inquiry. (c) Convening Authority Action on all special and general courts-martial cases. (d) Negotiated settlement to a forum lower than a special court-martial, including withdrawal when applicable. g. Seeking Release Prohibited: DSO attorneys shall never seek a release from DSO clients purely for the purpose of pursing deployment opportunities or facilitate transfer to other duties. Once established, the attorney-client relationship may only be severed under the provisions of Rule for Courts-Martial (R.C.M.) 505 and 506, reference (d) and relevant CDC Policy Memos. 4. Conclusion. CDC PM 3-12 is hereby cancelled. This CDC Policy Memo is effective immediately. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO STEPHEN C. NEWMAN 6

172 1611 RDC 13 Jun 2012 From: Regional Defense Counsel, XXXX Region To: Chief Defense Counsel Subj: FITNESS REPORT IN THE CASE OF MAJOR I. M. MARINE, U.S. MARINE CORPS (AN OCCASION; FROM TO ) 1. Date Submitted to APES. 13 Jun Background Information. a. Is the MRO PME complete for grade or currently enrolled? Yes, MRO completed U.S. Marine Corps Command and Staff College through the Distance Education Program. b. Is MRO in zone for promotion? Yes, MRO is in zone for the next promotion board. c. What is MRO s desired follow-on assignment? MRO seeks an operational law billet with forward deployed forces in the U.S. Central Command Area of Responsibility and to be looked for command when eligible. 3. Additional Information. a. MRO s commitment to PME is illustrated by his willingness to volunteer to teach classes for the Expeditionary Warfare School Nonresident course aboard Base. Furthermore, MRO had two articles published during the reporting period: How to PT and do PME While an SDC in the Army Lawyer; and, Leadership and Legal Service Support in the Marine Corps Gazette. b. MRO s ability to fulfill Senior Defense Counsel requirements while simultaneously being fully engaged in PME and other duties is an illustration of MRO s tireless work ethic. Moreover, MRO is able to maintain balance personally and professionally despite the demands that nine children have upon MRO and MRO s spouse. c. MRO is a team builder and thrives as a mentor. Enclosure (1)

173 Subj: FITNESS REPORT IN THE CASE OF MAJOR I. M. MARINE, U.S. MARINE CORPS (AN OCCASION; FROM TO ) 4. Reporting Senior s Profile for the Appropriate Grade. RS High for Grade till this Report 5.0 RS Low for Grade till this Report 3.0 RS Avg for Grade till this Report 4.0 MRO Avg (this report) 4.0 For all reports of this grade I rank MRO This is my 17th FitRep on a Major as an RS and MRO ranks 9 of Recommended RO Comments. MRO is an outstanding MAGTF Officer and judge advocate. MRO set the conditions for success for his Defense Team while simultaneously obtaining excellent results for all of MRO s clients. MRO did a superb job fulfilling duties as Acting Regional Defense Counsel in the RDC s absence. MRO superbly assisted my office with the planning and execution of conferences and training events. A humble but incredibly capable professional, MRO is a valued and trusted member of the Defense Services Organization. MRO cares about his Team, our clients, works hard to support the mission, and makes a positive impact throughout the DSO. Highest Recommendation for Promotion, School, and Command. 6. Recommended RO Marks in the Comparative Assessment. My recommendation is highlighted below. THE EMINENTLY QUALIFIED MARINE X of X ONE OF THE FEW X of X EXCEPTIONALLY QUALIFIED MARINES X of X ONE OF THE MANY HIGHLY QUALIFIED X of X PROFESSIONALS WHO FORM THE X of X MAJORITY OF THIS GRADE X of X A QUALIFIED MARINE X of X UNSATISFACTORY X of X 7. Respectfully submitted. /S/ I. M. REPORTINGSENIOR 2 Enclosure (1)

174 DEFENSE SERVICES ORGANIZATION BILLET DESCRIPTION EXEMPLARS 1. Regional Defense Counsel Example: -Leader of the Marine Corps Defense Services Organization for the Western United States, supervising field grade, company grade, and enlisted personnel located at six different offices. Responsible for ensuring that zealous, ethical and effective defense services are provided to servicemembers facing administrative, non-judicial, and judicial actions in order to help protect and promote the due process, statutory and constitutional rights of clients and servicemembers seeking counseling services. -Lead and mentor subordinate personnel while conducting site visits, observing court cases, observing board hearings, reviewing written motions and work products, and ensuring the fulfillment of all Defense Services Organization training requirements. -Manage resources and personnel; coordinating with SJAs, Law Center Directors, Legal Section OICs. Assign or approve the assignment of defense counsel to specific cases. -Liaison with Convening Authorities, military judges, and investigative agencies. -Fulfill reporting requirements to the Chief Defense Counsel of the Marine Corps. -Represent senior ranking servicemembers and others at courts-martial and boards. 2. Defense Services Organization Regional Noncommissioned Officer-In-Charge Example: - Serve as Administrative Assistant to the Regional Defense Counsel for the Western United States; Responsible for: office reports; reporting requirements for cases and clients; support for the preparation and execution of training events; managing office calendar; liaison with government investigators, trial counsel, staff judge advocates, and commands relative to processing of cases; and, manage all office correspondence. - Lead, supervise, train, & support all Marine Corps Defense Services Organization (DSO) enlisted personnel aboard 6 different offices serving the Western United States. - Serve as Regional Defense Counsel Office Manager; Responsible for: managing an annual budget in excess of $20,000.00; coordinating travel planning, execution, and travel claims; managing & maintaining DSO Defense Counsel SharePoint site; maintaining library, office records, information technology systems, communications equipment, and all supplies; liaison with higher headquarters; and, manage Government Vehicle. - Serve as a paralegal assisting defense counsel with witness interviews, scheduling, investigative actions, legal research, & the creation of demonstrative exhibits. 3. Senior Defense Counsel Example: -Leader of the Marine Corps Defense Services Organization (DSO) Office for MCAGCC 29 Palms, supervising subordinate judge advocates and Legal Services Specialists. -Responsible for ensuring that zealous, ethical and effective defense services are provided to servicemembers facing administrative, non-judicial, and judicial actions in order to help protect and promote the due process, statutory and constitutional rights of both clients and for servicemembers seeking to obtain counseling services. 1 Enclosure (2)

175 DEFENSE SERVICES ORGANIZATION BILLET DESCRIPTION EXEMPLARS -Provide representation and zealous advocacy for servicemembers pending courts-martial, involuntary Administrative Separation proceedings, and Boards of Inquiry. -Lead, supervise, and mentor subordinate personnel by: observing court cases and board hearings; reviewing written work products; Conduct PME and MOS training in order to fulfill all DSO training requirements; &, attend DSO Regional meetings and conferences. -Manage resources and personnel; coordinate and liaison with SJAs, Convening Authorities, military judges, investigative agencies, & other DSO Offices and members. -Assign defense counsel to specific cases; fulfill all DSO reporting requirements. 4. Defense Services Organization Office Non-Commissioned Officer-In-Charge Example: -Serve as Administrative Assistant to the Senior Defense Counsel for the [office name] responsible for: office reports; support for the preparation & execution of training events; managing office calendar; liaison with government investigators, trial counsel, staff judge advocates, & commands relative to processing of cases; &, manage all office correspondence. -Assist the Senior Defense Counsel in fulfilling Defense Services Organization training requirements. -Serve as an Office Manager: support management of annual budget; coordinate travel planning, execution, and claims; manage & maintain Defense Counsel SharePoint site; maintain library, office records, information technology systems, communications equipment; and manage and maintain all supplies. - Serve as a paralegal assisting defense counsel with witness interviews, investigation, legal research, & the creation of demonstrative exhibits. 2 Enclosure (2)

176 DEFENSE SERVICES ORGANIZATION BILLET DESCRIPTION EXEMPLARS 5. Defense Trial Team Leader Example: -Leader of the Marine Corps Defense Services Organization (DSO) Defense Trial Team XX at Camp Lejeune, supervising subordinate judge advocates and Legal Services Specialists. -Responsible for ensuring that zealous, ethical and effective defense services are provided to servicemembers facing administrative, non-judicial, and judicial actions in order to help protect and promote the due process, statutory and constitutional rights of both clients and for servicemembers seeking to obtain counseling services. -Provide representation and zealous advocacy for servicemembers pending courts-martial, involuntary Administrative Separation proceedings, and Boards of Inquiry. -Lead, supervise, and mentor subordinate personnel by: observing court cases and board hearings; reviewing written work products; Conduct PME and MOS training in order to fulfill all DSO training requirements; &, attend DSO Regional meetings and conferences. -Manage resources and personnel; coordinate and liaison with the Senior Defense Counsel, Regional Defense Counsel & other DSO Offices and members. -Assign defense counsel to specific cases; fulfill all DSO reporting requirements. 6. Defense Counsel Example: -Plan, coordinate, and conduct defense of Marine and Navy clients facing special and general courts-martial, boards of inquiry, post trial hearings, and administrative separation boards. -Provide legal counseling to personnel considered for NJP, courts-martial, pretrial confinement hearings, Competency review Boards, and situations in which Article 31b, UCMJ, rights are invoked. -Organize and maintain comprehensive client case files. -Research, draft, and argue legal pleadings in pretrial hearings, during courts-martial, post trial hearings, and during administrative discharge proceedings. -Seek clemency from convening authorities and address errors in post-trial documents. -Prioritize workload to meet all administrative obligations and court appearances. -Correspond with Convening Authorities, judges, staff judge advocates, and prosecutors. 3 Enclosure (2)

177 DEFENSE SERVICES ORGANIZATION BILLET DESCRIPTION EXEMPLARS 7. Student Defense Counsel 4401 Example: -Help Defense Counsel plan, coordinate, and conduct defense of Marine and Navy clients facing special and general courts-martial, boards of inquiry, post trial hearings, and administrative separation boards. -Help Defense Counsel provide counseling to personnel considered for NJP, courts-martial, pretrial confinement hearings, Competency review Boards, and situations in which Article 31b, UCMJ, rights are invoked. -Assist in the maintaining comprehensive client case files. -Research and draft legal pleadings in pretrial hearings, during courtsmartial, post trial hearings, and during administrative discharge proceedings. -Assist Defense Counsel with correspond with Convening Authorities, judges, staff judge advocates, and prosecutors. 8. Reserve Regional Defense Counsel Example: - Help the Regional Defense Counsel ensure that zealous, ethical and effective defense services are provided to servicemembers facing administrative, non-judicial, and judicial actions in order to help protect and promote the due process, statutory and constitutional rights of clients and servicemembers seeking counseling services. - Provide input and feedback to Chief Defense Counsel on matters related to defense services throughout the Marine Corps - Provide general guidance, training, mentoring, and assistance to all defense counsel assigned to USMC Bases and Stations located in the Eastern United States. - Provide on-call assistance to all defense counsel in the region regarding research, motion practice, conflictions of interest, and professional responsibility - Develop, review, edit, and provide training and education for all defense counsel assigned to the Marine Corps Defense Services Organization. - Provide defense services to senior officers and enlisted Marines as necessary 9. Reserve Regional Training Officer Example: -Help the Regional Defense Counsel ensure that zealous, ethical and effective defense services are provided to servicemembers facing administrative, nonjudicial, and judicial actions in order to help protect and promote the due process, statutory and constitutional rights of clients and servicemembers seeking counseling services. -Develop training program and practical training exercises, in coordination with the Active duty and Reserve RDC-, to maintain the military justice proficiency of reserve and active-duty judge advocates in the region -Prepare course materials, in conjunction with the other Defense sub-det training officers, for the USMC Defense Services Organization training events. -Prepare and draft references for publication in order to instruct the DSO on policies and procedures required by the Chief Defense Counsel. 4 Enclosure (2)

178 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000 ARLINGTON, VA In Reply Refer To: 3000 CDC 5 Nov 14 CDC POLICY MEMORANDUM 3.3 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: RELEASE OF COUNSEL WITHOUT CONFLICT OF INTEREST Ref: (a) R.C.M. 505(d)(2) (b) JAGINST D Encl: (1) Supervisory Attorney Memorandum Regarding the Right to Counsel 1. Purpose. To establish a standard procedure within the Defense Services Organization (DSO) for seeking and memorializing a client's voluntary decision to release a defense counsel from further representation without the need to demonstrate good cause. 2. Discussion. An established attorney-client relationship may only be severed under a limited set of circumstances. First, it may be severed when counsel is excused by the detailing authority for good cause shown on the record. Second, it may be severed when counsel is excused by the military judge for good cause shown. Third, it may be severed when counsel is excused upon the appointment of individual military counsel. Fourth and finally, it may be severed when counsel is excused with the express consent of the accused (voluntary severance). This memorandum is only intended to address voluntary severance of the attorney-client relationship. 3. Policy. Prior to any voluntary severance, DSO attorneys must immediately discuss the issue with their supervisory attorney, which in most cases will be their Senior Defense Counsel (SDC). The SDC shall, in turn, immediately inform his or her Regional Defense Counsel (RDC) that voluntary severance has been proposed, and the planned course of action to ensure continuity of representation. No voluntary severance shall occur without the express permission of the DSO Attorney s immediate supervisory chain, typically the SDC and the RDC. In

179 Subj: RELEASE OF COUNSEL WITHOUT CONFLICT OF INTEREST cases where an SDC seeks severance he or she must first obtain the permission of the RDC and Chief Defense Counsel of the Marine Corps. Where an RDC seeks voluntary severance, he or she must obtain the express permission of the Chief Defense Counsel of the Marine Corps. In those unusual circumstances where the Chief Defense Counsel of the Marine Corps seeks voluntary severance, he or she shall seek the advice of the Staff Judge Advocate to the Commandant of the Marine Corps before doing so. There are two basic scenarios contemplated by voluntary severance. a. Attorney-Initiated Voluntary Severance. Voluntary severance may occur when a DSO attorney seeks to withdraw from a particular case. For example, a DSO attorney pending an end of active service date may determine that voluntary severance of a preexisting attorney-client relationship is desirable. 1. As noted above, DSO attorneys must first seek permission from their supervisory attorneys before proceeding. 2. Once granted approval, DSO attorneys will next discuss voluntary severance with the client concerned. When doing so DSO attorneys are specifically tasked with fully explaining the reason voluntary severance is sought as well as any potential impact voluntary severance may have on the client s case. 3. Advice to a client regarding the merits of voluntary severance from a DSO attorney who seeks to terminate a preexisting attorney-client relationship is strictly forbidden. Doing so may create a conflict between the desire to be released and the client's interests. 4. Instead, the DSO attorney who seeks release shall ask his or her supervisory attorney to advise the client, and the DSO attorney s supervisory attorney SHALL provide the client conflict-free advice regarding this important decision. 5. All attorneys involved in any stage of these proceedings shall memorialize the advice they rendered and to whom they rendered it using enclosure (1). 6. Should the client agree to voluntary severance, provide a completed copy of enclosure (1) to the detailing authority, military judge (if any), Staff Judge Advocate, and to all replacement counsel. Severed counsel shall retain a copy for their records. 2

180 Subj: RELEASE OF COUNSEL WITHOUT CONFLICT OF INTEREST 7. Should the client decline voluntary severance the DSO attorney concerned shall maintain a copy of enclosure (1) in the client s case file. b. Client-Initiated Voluntary Severance. Second, voluntary severance may occur at the initiation of the client. For example, a client who loses confidence in his or her attorney may view severance of that preexisting attorney-client relationship as desirable. Not only does the DSO seek to provide zealous, professional representation, but we also have to ensure that our clients are satisfied with, and confident in, the quality of representation we provide. In that light, if a DSO attorney suspects a client desires the assignment of new counsel, he or she shall: 1. Without dissuading the client from the decision to voluntarily sever, immediately discuss the issue with the client. 2. If the DSO attorney still believes the client desires new counsel, he or she shall inform their supervisory counsel (typically the SDC). 3. Once notified the supervisory attorney shall, as soon as possible, provide prompt conflict-free advice to the client to ascertain whether the client seeks voluntary severance of a preexisting attorney-client relationship. 4. Rather than dissuading a client who has lost confidence in his or her DSO attorney, supervisory attorneys shall instead listen to the client s complaints and/or concerns, determine if they may be addressed as a matter of performance, and discuss remedial corrective measures. 5. Should the client persist in seeking voluntary severance, and where there is available, conflict-free replacement counsel, supervisory attorneys are specifically directed to err on the side of honoring a client s desire by severing the relationship and detailing new counsel. 6. Should the client persist in seeking voluntary severance even where there is no available, conflict-free replacement counsel, immediately contact the Regional Defense Counsel for further guidance. 7. Whether or not local replacement counsel is available, supervisory attorneys are encouraged to re-advise the 3

181 Subj: RELEASE OF COUNSEL WITHOUT CONFLICT OF INTEREST client about his or her right to request individual military counsel. 8. If the supervisory counsel harbors doubts about the client s sincerity (e.g. if it seems to be a ruse to create delay), immediately contact the Regional Defense Counsel before proceeding. 9. If the client persists in requesting voluntary severance, and such request is approved, use enclosure (1) to document the process. Provided completed copies of enclosure (1) to the detailing authority, the military judge (if any), the Staff Judge Advocate, and all replacement counsel. Severed counsel shall retain a copy for their records. 10. At any time in this process should the client decline voluntary severance the DSO attorney concerned shall maintain a copy of enclosure (1) in the client s case file. 4. Conclusion. CDC Policy Memo 2-11 is hereby cancelled. This CDC Policy Memo is effective immediately. STEPHEN C. NEWMAN Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO 4

182 UNITED STATES MARINE CORPS [BRANCH LETTERHEAD] MARINE CORPS DEFENSE SERVICES ORGANIZATION [BRANCH LETTERHEAD] MEMORANDUM IN REPLY REFER TO 5800 DSO/srs DD Mmm YY From: Supervisory Attorney To: Accused Subj: ADVICE CONCERNING RIGHT TO COUNSEL 1. Purpose of Advice. Your trial defense counsel, Captain X, has advised me that (he has sought your consent) (you have requested) to sever the attorney-client relationship (in order to allow Capt X to)(because you feel) (state with specificity why the defense counsel is seeking to sever the attorney-client relationship). Because Capt X has a personal interest in this issue, as his supervisory attorney, I am providing you with conflict-free advice concerning your right to counsel in this situation. 2. Scope of Advice. This advice is intended to help you make an informed decision about your right to counsel. This communication is protected by the same attorney-client privilege (with the same exceptions) as your communications with Capt X. This advice is provided solely for the purpose of assisting you in making an informed decision about your right to counsel. I do not represent you in your court-martial case 3. Right to Continued Representation by Capt X. Absent a good cause to sever the attorneyclient relationship, you have the absolute right to continued representation by Capt X and Capt X will continue to represent you unless you expressly (consent to his request to)(request to) sever the attorney-client relationship. If you agree to release Capt X as your defense counsel, a new military defense counsel will be assigned to represent you. Like Capt X, that defense counsel will be a licensed attorney and will represent you at no expense to you. 4. The Decision is Yours to Make. You should make your decision completely free of any pressure. The decision to release Capt X under these circumstances is yours, and yours alone. No person or circumstance can force, threaten, coerce, or pressure you to release Capt X. 5. Election of Counsel Rights. Once we have discussed your rights to counsel, I will request that you memorialize your decision regarding (Capt X's)(your) request to sever the attorney-client relationship in the subparagraphs below. a. After having discussed (Capt X's request to be released)(my request to release Capt X) as my counsel with (Supervisory Attorney), I expressly and voluntarily consent to releasing Capt X as my counsel. I understand that a new military defense counsel will be detailed to represent me instead of Capt X. I further understand that a copy of this consent form will be provided to the detailing authority and the military judge to memorialize my voluntary consent to release Capt X as my counsel.

183 Subj: ADVICE CONCERNING RIGHT TO COUNSEL b. After having discussed (Capt X's request to be released)(my request to release Capt X) as my counsel with (Supervisory Attorney), I expressly DO NOT agree to severing the attorneyclient relationship between Capt X and I. I do not agree to release Capt X as my counsel. Accused Date 6. Regardless of your election of rights, I will provide Capt X a copy of this letter and should you elect to release Capt X, a copy of this letter will be provided to your new defense counsel, the detailing authority, and the military judge. I. M. INCHARGE 6

184 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000 ARLINGTON, VA In Reply Refer To: 3000 CDC 7 Nov 14 CDC POLICY MEMORANDUM 3.4 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: RELEASE OF COUNSEL DUE TO CONFLICT OF INTEREST Ref: (a) Sixth Amendment to the U.S. Constitution (b) Discussion of R.C.M. 502(d)(6) (c) JAGINST D (d) CDC Policy Memo 3.1 (series)(updated Detailing and IMC Determination) Encl: (1) Conflict-Free Counsel Advice Form (2) Notice of Change of Counsel At Request of Client (3) Notice of Change of Counsel for Good Cause (4) Notice of Finding of No Good Cause to Sever Despite Conflict of Interest 1. Purpose. To establish standard procedures within the Marine Corps Defense Services Organization (DSO) in order to advise clients of a DSO attorney s potential conflict of interest. Where there is a potential conflict of interest on the part of a DSO attorney, to establish standard procedures to memorialize the client s preference of counsel in order to assist the detailing authority under Rule for Court-Martial (R.C.M.) 505(d)(2)(B)(iii), and the military judge under R.C.M. 901(d)(3), in determining whether good cause exists to sever the attorney-client relationship. 2. Discussion. a. Pursuant to references (a) (c), a client has the right to be represented by conflict-free counsel. There are, however, circumstances under which a client may choose to waive the right to conflict-free counsel. In order to make an informed decision about waiving this important right, the client must be adequately informed of the conflict of interest, appreciate any and all material risks related to continued representation by potentially conflicted counsel, and understand all reasonably

185 Subj: RELEASE OF COUNSEL DUE TO CONFLICT OF INTEREST available representation alternatives. In no case should a client s decision regarding this critically important matter go undocumented put another way, the client s informed consent should always be confirmed in writing. b. Conflicts may be actual, potential or perceived. Severance as a severe remedy may be required based on the circumstances. As always, the conduct of the DSO when addressing such matters should be animated by the best interest of the individual client. DSO attorneys should be on the alert so as to avoid or prevent conflicts of interest from becoming ripe. Engaged DSO leadership is critical in this regard. Senior Defense Counsel and Regional Defense Counsel are tasked with remaining engaged with their personnel in order to address conflicts as they arise. 3. Policy. When a DSO attorney discovers he or she has an actual or potential conflict of interest with a client, he or she shall immediately consult with his or her supervisory counsel. Where the detailing authority is different than the supervisory attorney, consult both the supervisory attorney and detailing authority. A conflicts of interest typically arises in one of two circumstances either pre- or post-formation of the attorney client relationship. a. Pre-Formation Conflicts. A DSO attorney may be detailed to a case, yet discover a conflict of interest before meeting with the servicemember. When a conflict of interest is discovered and there is no pre-existing or established attorneyclient relationship with the individual servicemember do not meet with the potential client. Notify your supervisory counsel and/or your detailing authority, who will re-detailed the case to conflict-free counsel under reference (d). b. Post-Formation Conflicts. Similarly a DSO attorney may identify a conflict of interest after formation of the attorneyclient relationship. If the conflict of interest establishes good cause to sever the attorney-client relationship, use enclosure (1) to: (1) Inform the client of the nature of the conflict. (2) Inform the client of the material risks of continued representation by conflicted counsel. (3) Inform the client of reasonably available alternatives to continued representation by conflicted counsel. 2

186 Subj: RELEASE OF COUNSEL DUE TO CONFLICT OF INTEREST (4) Obtain an informed decision whether or not the client wants a new counsel. (a) Client requests new counsel. If after being advised of the conflict the client desires to have new counsel, and if the detailing authority agrees, detail new counsel under R.C.M. 505(d)(2)(B)(iii) and reference (d) using enclosure (2). Provide copies of enclosures (1) and (2) to the trial counsel, military judge, and Staff Judge Advocate in order to ensure circumstances for the change are properly memorialized on the record. See, e.g. United States v. Hutchins, 69 M.J. 28 (C.A.A.F. 2011). (b) Client waives the conflict of interest. If the client desires continued representation by conflicted counsel, the detailed counsel must obtain informed consent from the client, confirmed in writing. Use enclosure (1) to memorialize this important decision. Tailor italicized portions to ensure a complete explanation of the conflict to the client. Many conflicts will be personal to the detailed defense counsel. Where that is the case, advice regarding waiving the right to conflict-free counsel must come from a disinterested attorney. Once completed provide copies of enclosure (1) to the detailing authority and the military judge to permit them opportunity to conduct their own independent assessment relative to the conflict. Notwithstanding the requested waiver, either party may determine that the conflict establishes good cause to sever the attorney-client relationship, and may choose to do so. If the detailing authority finds good cause to sever the attorneyclient relationship, the detailing authority will do so using enclosure (3) and will detail a new counsel under R.C.M. 505(d)(2)(B)(iii) and reference (d). Provide a copy of the enclosures (1) and (3) to the military judge, the trial counsel, and the Staff Judge Advocate concerned to ensure circumstances for the change of counsel are memorialized on the record. If the detailing authority does not find good cause to sever the attorney-client relationship, the detailing authority will provide the military judge with a copy of enclosures (1) and (4) to allow the military judge to make a final determination on the record under R.C.M. 901 whether the conflict of interest disqualifies the detailed counsel. See, e.g., United States v. Lee, 70 M.J. 535 (N-M.C.C.A. 2011). If the military judge disqualifies the conflicted counsel, the detailing authority will promptly detail a new counsel under reference (d). 3

187 Subj: RELEASE OF COUNSEL DUE TO CONFLICT OF INTEREST 4. Conclusion. CDC Policy Memo 2-12 is hereby cancelled. This CDC Policy Memo is effective immediately. Distribution List: SJA to CMC Legal Chief of the Marine Corps All Marine Corps SJAs LSSS OICs LSST OICs All members of the DSO STEPHEN C. NEWMAN 4

188 UNITED STATES MARINE CORPS [RDC OR SDC LETTERHEAD] MARINE CORPS DEFENSE SERVICES ORGANIZATION (JAD) [RDC OR SDC LETTERHEAD] CONFLICT-FREE COUNSEL ADVICE FORM 1. I understand that I have a constitutional right to be represented by counsel who has an undivided loyalty to me and my case. 2. I understand that a lawyer ordinarily should not represent a client when the representation involves a conflict of interest or the lawyer is representing another client regarding a matter arising out of the same incident or whose interests are adverse to each other. 3. I understand that for a lawyer to represent more than one client concerning a matter arising out of the same incident or if the lawyer has an actual or potential conflict with continued representation, I must consent to that representation 4. I understand that the following facts have created an actual or potential conflict of interest for Captain Ima X.: State with specificity the basis for the conflict of interest. 5. I understand that even if an actual conflict of interest does not presently exist, one could possibly develop given the facts and circumstances explained to me by Captain X and Major Lee Disinterested. 6. I understand that due to this conflict of interest that I am entitled to be represented by another lawyer, who does not have a conflict of interest. [If applicable] I understand that I could insist that Captain X not begin new duties that would create the conflict of interest until he has fully completed his representation in my case. 7. After discussing this matter with Major Disinterested, I have made the conscious and informed decision that I: a. do not waive my right to conflict-free counsel and request that a new conflict-free counsel be assigned to represent me instead of Captain X. b. [If applicable] do not waive my right to conflict-free counsel and demand that Captain X not begin new duties that would create the conflict of interest discussed with Major Disinterested above until he has fully completed his representation in my case. c. do waive my right to conflict-free counsel and I voluntarily consent to Captain X s continued representation in my case despite the conflict of interest that I have discussed with Major Disinterested. 8. I have had sufficient time to make this decision. 9. I understand that a copy of this form and its cover letter will be provided to Captain X, list all co-counsel individually, the detailing authority, and to the military judge. Signature of Accused Date Signature of Major Disinterested 1

189 UNITED STATES MARINE CORPS [RDC OR SDC LETTERHEAD] MARINE CORPS DEFENSE SERVICES ORGANIZATION (JAD) [RDC OR SDC LETTERHEAD] IN REPLY REFER TO 5817 Office DD Mmm YY From: DETAILING AUTHORITY To: Distribution List Subj: NOTICE OF CHANGE OF COUNSEL AT THE REQUEST OF THE CLIENT IN THE CASE OF UNITED STATES V. NAME AND RANK OF CLIENT Ref: (a) R.C.M. 505(d)(2)(B)(ii), M.C.M. (2012 edition) (b) JAGINST F (JAGMAN) (c) JAGINST D (d) MCO P A (e) CDC Policy Memo 3.1 (series) (Detailing and IMC Rules) Encl: (1) Conflict-Free Counsel Advice Form 1. In the enclosure, Client X requested a change in counsel due to Captain Old Counsel s conflict of interest. 2. Pursuant to the references, Major New Counsel is detailed to represent Client X and the attorneyclient relationship between Captain Old Counsel and Client X is hereby severed. Captain Old Counsel and Major New Counsel are directed to conduct a face-to-face case file turnover as soon as possible. Copy to: Old Detailed Counsel New Detailed Counsel Any co-counsel Client X RDC CDC SJA TC Military Judge File R. D. COUNSEL 2

190 UNITED STATES MARINE CORPS [RDC OR SDC LETTERHEAD] MARINE CORPS DEFENSE SERVICES ORGANIZATION (JAD) [RDC OR SDC LETTERHEAD] IN REPLY REFER TO 5817 Office DD Mmm YY From: DETAILING AUTHORITY To: Distribution List Subj: NOTICE OF CHANGE OF COUNSEL FOR GOOD CAUSE IN THE CASE OF UNITED STATES v. NAME AND RANK OF CLIENT Ref: (a) CDC Policy Memo 3.1 (series)(detailing and IMC Rules) (b) MCO P A (c) JAGINST D Encl: (1) Conflict-Free Counsel Advice Form (2) Other enclosures if appropriate 1. In reference (a), I was delegated the authority to detail counsel. Detailing authority includes the authority to remove a counsel from a case for good cause. Para of ref (b). This removal authority is derived from RULE FOR COURTS-MARTIAL 505(d)(2)(B)(iii) which empowers an authority competent to detail counsel the ability to remove a counsel from a case for good cause independent of a military judge s authority to remove a counsel under R.C.M. 506(c). See United States v. Hutchins, 69 M.J. 282, 289 (C.A.A.F. 2011). 2. After reviewing the enclosures and the references I find good cause, under R.C.M. 505(d)(2)(B)(iii), to sever the attorney-client relationship between Captain Old Counsel and Client X despite Client X s request to continue to be represented by Captain Old Counsel. 3. Set forth the conflict and explain in detail why the conflict, despite the waiver, still creates good cause to sever the attorney-client relationship 4. Captain New Counsel is detailed to represent Client X. Captain Old Counsel and Captain New Counsel are directed to conduct a face-to-face case file turnover as soon as possible. Copy to: Old Detailed Counsel New Detailed Counsel Any co-counsel Accused Military Judge RDC CDC R. D. COUNSEL

191 Subj: NOTICE OF CHANGE OF COUNSEL FOR GOOD CAUSE IN THE CASE OF UNITED STATES v. NAME AND RANK OF CLIENT SJA TC Military Judge File 2

192 UNITED STATES MARINE CORPS [RDC OR SDC LETTERHEAD] MARINE CORPS DEFENSE SERVICES ORGANIZATION (JAD) [RDC OR SDC LETTERHEAD] IN REPLY REFER TO 5817 Office DD Mmm YY From: DETAILING AUTHORITY To: Distribution List Subj: FINDING OF NO GOOD CAUSE TO SEVER THE ATTORNEY-CLIENT RELATIONSHIP IN THE CASE OF UNITED STATES v. RANK NAME OF CLIENT Ref: (a) CDC Policy Memo 3.1 (series) (b) MCO P A (c) JAGINST D Encl: (1) Conflict-Free Counsel Advice Form (2) Other enclosures if appropriate 1. In reference (a), I was delegated the authority to detail counsel. Detailing authority includes the authority to remove a counsel from a case for good cause. Para of ref (b). This removal authority is derived from RULE FOR COURTS-MARTIAL 505(d)(2)(B)(iii) which empowers an authority competent to detail counsel the ability to remove a counsel from a case for good cause independent of a military judge s authority to remove a counsel under R.C.M. 506(c). See United States v. Hutchins, 69 M.J. 282, 289 (C.A.A.F. 2011). 2. After reviewing the enclosures and the references I do not find good cause, under R.C.M. 505(d)(2) (B)(iii), to sever the attorney-client relationship between Captain Counsel and Client X, despite there being an apparent conflict of interest. 3. Set forth the conflict and explain in detail why, despite the conflict of interest, there is no good cause to sever the attorney-client relationship. 4. The military judge will make the final determination regarding whether or not there is good cause to sever the attorney-client relationship on the record at a subsequent session of court. Copy to: Detailed Counsel Any co-counsel Accused RDC CDC SJA TC R. D. COUNSEL

193 Subj: FINDING OF NO GOOD CAUSE TO SEVER THE ATTORNEY-CLIENT RELATIONSHIP IN THE CASE OF UNITED STATES v. RANK NAME OF CLIENT Military Judge File 2

194 UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000 ARLINGTON, VA In Reply Refer To: 3000 CDC 17 Oct 14 CDC POLICY MEMORANDUM 3.5 From: Chief Defense Counsel of the Marine Corps To: Distribution List Subj: USE OF STUDENT DEFENSE COUNSEL Ref: (a) MCO P (series) (b) CDC PM 2.2 (series) (Ethical Obligations of Defense Support Personnel) (c) CDC PM 2.1 (series)(defense Counsel and Legal Intern Orientation Checklist) Encl: (1) Statement of Understanding for Student Judge Advocates (2) Client's Statement of Understanding Regarding Use of Student Judge Advocates 1. Purpose. To establish procedures for the assignment of Student Judge Advocates to the Defense Services Organization (DSO) to serve as Student Defense Counsel in order to support the DSO mission and to broaden the experience base of our future attorneys. To publish two Statements of Understanding that must be executed before a Student Judge Advocate in the DSO can be assigned to support defense counsel for courts and administrative hearings in order to ensure all parties understand the nuances of serving as a Student Defense Counsel. To encourage detailed defense counsel to seek judicial approval for assignment of Student Defense Counsel as non-lawyer assistants under R.C.M. 506(e) in order to allow Student Defense Counsel to participate as non-lawyer assistants and sit at counsel table in appropriate cases. 2. Discussion. a. Reference (a) provides for the assignment of Student Judge Advocates (MOS 4401) to support the provision of legal services in the field. This program is important for two reasons. First, it provides our Legal Service Support and Command Advice attorneys in the field with additional manpower, most critically