In general, defense attorneys, either civilian or military, serve as an advisor to service members. Their role is to provide legal guidance and help a service member see the options available in a particular case, pointing out the pros and cons and generally recommending a course of action that presents the least risk of legal harm to the client.
All lawyers are bound by professional ethics in helping their clients. Lawyers cannot assist clients in committing crimes. Lawyers are under NO duty to assist a client in committing fraud, for example, assisting a service member to make a false statement about sexual orientation in order to be discharged.
Article 31 of the UCMJ documents the rights that service members have to protect themselves from compulsory self-incrimination. Article 31 is similar to the civilian Miranda rights, however, Article 31 is broader. The bottom line is, if being investigated by the military, say nothing, sign nothing and ask to speak with a defense attorney. Defense attorneys can either be military attorneys or civilian attorneys.
a. Military Attorneys
Each Service has military lawyers, officers in the Judge Advocate General Corps, detailed to assist
members with legal defense. These attorneys have ethical obligations to be zealous advocates for their clients. Command attorneys, legal officers who advise commanders, may not keep information told to them confidential. Therefore, in discussing his or her case with a military attorney, a service member should not speak to any military attorney without asking two key questions: "Are you a defense attorney?" and "Is our conversation confidential?" If the answer to both questions is "YES" then it is OK to talk to that lawyer. If the answer to either question is “NO” then do NOT speak to them about a case.
|"Service members should ask any attorney they speak with whether their conversation is confidential before they tell the attorney anything."|
Service members have the right to consult with a military attorney if they are questioned by a military investigator. In all cases where confidentiality is important, service members should ask to consult with an attorney before answering any questions. If a service member requests to consult with a defense attorney, investigators are supposed to stop the questioning and allow the service member to speak with one. Some services or bases allow service members to consult with a military attorney at any time, even if they are not being questioned, but it is often difficult to see military defense counsel until there is an interrogation or a formal case.
Typically, a service member may not be represented by a military attorney until after an investigation has been conducted and either criminal charges have been filed or the command has started discharge proceedings. In the military, an attorney represents a service member when the attorney has been assigned to take the service member's case.
In nearly all circumstances, an attorney who represents a service member must keep conversations with that service member confidential, unless the service member gives them permission to do otherwise. When a service member consults with an attorney, the attorney is also supposed to keep this conversation confidential even if the attorney does not yet represent the service member and the attorney's only role is to advise him or her.
There are limited circumstances in which a service member's conversation with an attorney may not be confidential. For example, attorneys are not supposed to keep threats by their client to kill or maim another person confidential. Under certain circumstances, the presence of a third person during an interview may keep it from being confidential.
Service members should be warned that command staff judge advocates, command legal officers, prosecutors and "recorders" (attorneys or other officers who represent the government in administrative discharge boards) have no obligation to keep conversations with service members confidential. Anything service members say to these officials can and will be used against them.
Service members may ask for a different attorney, called "individual military counsel," instead of the attorney assigned to represent them. Service members are required to ask for a new attorney by name. The attorney must be in an assignment that allows representation of individual service members; his or her command must agree that the attorney is "reasonably available;" and, normally, he or she must be nearby. Service members who do not have the name of another attorney can ask their assigned attorney for help in getting another lawyer. Service members should consider requesting different military counsel if they feel their assigned attorney is uncomfortable handling their case.
b. Civilian Attorneys
Service members also have the right to a civilian attorney or legal worker (a non-attorney, such as a paralegal or military counselor, who is experienced with the military's administrative system), but must arrange for one on their own. Civilian attorneys and legal workers can assist service members during an investigation, before charges or discharge paperwork are filed and before military attorneys are usually allowed to represent service members. Having a civilian attorney or legal worker does not prevent service members from requesting a military attorney.
Civilian attorneys and legal workers can do other things that military attorneys may not, such as help service members contact Congress or utilize the media if service members wish to do so. A civilian attorney or legal worker can work with the military attorney as soon as the military attorney is allowed to come to the service member's defense.
Civilian attorneys also have a duty of confidentiality. When a service member consults with a civilian attorney or is represented by an attorney, the attorney must keep his or her conversations with the service member confidential, unless the service member gives him or her permission to do otherwise.