Client Advice: Initial

Confidentiality

We are licensed attorneys in the Commonwealth of Virginia, the District of Columbia, New York, and Ohio. Therefore, the attorney-client confidential communications privilege covers anything you tell us. This privilege applies when you call us, even if you decide not to have us work on your case. Military defense lawyers frequently get this question when they first contact us, “Is this privileged.” It’s always wise to ask any military defense counsel this question.

YES

Under the law and rules of professional responsibility, your discussion in an initial contact or consult is privileged.

This privilege is essential for you to know and for us to keep our Bar licenses.

The privilege means that we cannot and will not disclose anything you tell us to anyone else. We can only do so if you permit us to do that. This privilege applies even if you were to confess a crime. We could not be required to disclose that information to anyone and would not voluntarily disclose that information to anyone. We represent you as a civilian military defense lawyer.

Other than, perhaps, a chaplain or similar clergy, NO ONE ELSE has any similar confidential communication privilege with you. Remember, anything you say to any of the following individuals could be used against you if the prosecution finds out about the statement.

• Parents.
• Spouses in certain circumstances. There is an exception where the spouse is an alleged victim or the parent of an alleged victim. There is no spousal privilege if your wife or her children are alleged victims of your alleged misconduct. Also, be aware that if you are accused of adultery, your spouse is considered a victim under the spousal privilege rule.
• Doctors, nurses, or other health-care workers. There is a limited privilege at court-martial. Commanders often gain information about physical or mental health conditions.
• Congressional representative! You are protected from retaliation under 10 U. S. Code §1034 in contacting your members of Congress. HOWEVER, any false statements you make to them may be used as evidence against you in a court-martial. See United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003), where that happened to Gogas. The prosecution took some statements he made in a letter to the congressperson and turned them into a conviction at court-martial under the UCMJ for making false official statements.
• S.A.C.O., A.T.F., or anyone in the substance abuse treatment field.
• Anyone in the Family Advocacy Office.
• Anyone at a military confinement facility like the J.R.C.F., the U.S.B.D., the Charleston, Miramar, or Chesapeake Brigs, and anywhere you are temporarily confined.
• Any other civilians or military personnel. This advice includes friends, roommates, co-workers, supervisors, first sergeant, etc. Anything you say to them can be used against you and may well be–we have seen this happen!

Right to Remain Silent

Your right to remain silent is an ABSOLUTE right. If you choose to exercise your right, no one can hold that against you. Your exercising your rights cannot be commented on in a court-martial, nor can you be punished because you exercise your rights.

Remaining silent does NOT mean you are admitting guilt. Even if you are or believe you are not guilty, we still advise you to remain silent. As with any rule, there are exceptions. We have often engaged with N.C.I.S., C.G.I.S., O.S.I., C.I.D. and recommended an interview with one of us present. So far, we have been successful in these very few situations. We made the recommendation only after we had thoroughly evaluated the situation and decided that there was value added in your defense. In each case, no charges were preferred.

Do not be lulled into talking if an investigator says, “If you are innocent, why do you need to be silent?” This trick question is intended to get you to reconsider asking for a lawyer and speak with investigators. They want you to change your mind so they can interrogate you. Later, they will say that you changed your mind and nothing they said or did caused that–and the courts will believe them.

You have the right to have an attorney present DURING ANY QUESTIONING. This is not an admission of guilt. Even if you have already made some oral or written statements, you can still claim your right to remain silent from then on. In other words, you can revoke any prior waiver for future interrogations or interviews. We usually put this in our notice of representation of you.

You have the right to refuse to consent to a search–make them get a warrant or search authorization, including asking for digital device passwords. Current case law prevents them from ordering you to give passwords to your smartphone or computers. Please note that the law regarding access to digital media passwords is changing fast.

Investigators are allowed to lie to you, typically about the evidence they have. They may lie and say they have your D.N.A. If they say this within up to six months after an allegation, it likely is a lie because it takes about six months to get D.N.A. results back from the testing laboratory.

BE AWARE – DANGER! Do not accept or engage in any phone calls or meetings with any alleged victim, co-actor, or others. Investigators frequently try “pretext phone-calls.” These are traps. What is happening is that the investigators are listening in on the phone call — or, a new trick–texting.

You can be required and ordered to go to an appointment at C.I.D., C.G.I.S., N.C.I.S., O.S.I., mental health, substance abuse counseling, or the Family Advocacy Office. If you are so ordered, then you MUST go to such an appointment. If you don’t go, you can get in trouble for failing to obey a lawful order.

However, you CANNOT be required, or ordered, by any commander, supervisor, doctor, counselor, etc., to say ANYTHING to ANYONE once you are at any of these appointments. The one exception is for what is called a “706 Board.” Such Boards are privileged. An R.C.M. 706 mental health evaluation is a formal process that can only happen if charges will be or have been preferred. The examination aims to inquire into a possible “insanity” (to use an old term) defense.

Call us as civilian military defense lawyers or your military defense counsel

immediately if you are told to attend any appointment.

Obey any No Contact Orders.

We have seen people get in trouble for this at court-martial. Competent military defense lawyers should always give you this advice.

If you accidentally come into contact with someone on an M.P.O. (at the Exchange, for example), leave immediately. Also, immediately let your senior supervisor know. If we are your lawyers at that time, let us know as well.

Be careful. Some people on the M.P.O. may deliberately try to get you to violate the order so they can later claim you violated it. They will call you, text you, or try to meet you. Even though they may be the ones to initiate the contact, you can still get in trouble for responding. The UCMJ has various charges that would apply here.

Maximum Sentence Possible

The possible maximum punishment you could be exposed to depends on whether you are at a Special or General Court-Martial and the offense(s) you were convicted of. The types of punishment are as follows.

• Punitive discharge; either Dishonorable or Bad Conduct. A court-martial cannot adjudge an administrative discharge. Note: Because of recent changes, some offenses involving sex crimes carry a mandatory dishonorable discharge (D.D.) as part of the sentence.
• Confinement.
• Forfeitures of pay and allowances.
• Restriction.
• Hard Labor Without Confinement.
• Fine.
• Letter of Reprimand.
• No punishment.

Counsel Rights

You have the right to a detailed defense counsel at no expense. You may ask for another military attorney by name, and if that attorney is reasonably available, they will be detailed to represent you at no cost to you. But if you request a specific military attorney and your request is granted, you do not have the right to have the first attorney remain on the case. You must specifically ask this of the administrative command.

As your civilian attorney, we are lead counsel. As lead counsel, we make the decisions, except whether you plead guilty or not guilty, what type of trial, and whether or not you testify. This will be explained in more detail as we prepare our case. You should ensure that your military defense lawyer is told to cooperate with a civilian military defense lawyer and become a part of the team in your defense.

Questions

You will have questions or concerns. Do not wait to ask or voice your concerns. It is far better to ask a question now than after a trial. We make every effort to keep you informed and consult with you on the decisions we have to make. But don’t assume that either we or your military counsel have thought of everything. I have always found that military counsel and clients can help by asking questions, offering ideas, and making suggestions. It is your case – take an interest in it; stay in touch, do your homework, and be attentive. Generally, please use email to avoid playing phone tag, as it helps us both keep notes. We can set times to talk in person.

Rules of Engagement

We will give you Rules of Engagement; study them and follow them.

Course of Trial

We will give you an outline of how your trial will proceed and a script for the arrangement. Study both.

The judge will ask you if you want to be tried by a military judge alone (without a jury), whether you want a trial by a Members (jury of officers only or if you want at least one-third of the jury to be enlisted persons senior to you and from a different unit. If a jury convicts you, there is a new procedure where you can elect to have the judge decide the sentence. We will advise you on all of these options.

You can plead not guilty to all charges, guilty to all charges, or guilty to some and not to others. We will advise you on this.

We use our years of practical experience as military defense counsel in making our recommendations. The advice is based on the likely admissible evidence, your potential testimony, the witnesses who will testify, and who will be the fact-finder.

Every day, we read all the new appeal cases from the Court of Appeals for the Armed Forces (C.A.A.F.), Air Force Court of Criminal Appeals (A.F.C.C.A.), Army Court of Criminal Appeals (A.C.C.A.), Coast Guard Court of Criminal Appeals (C.G.C.C.A.), and the Navy-Marine Corps Court of Criminal Appeals (N.M.C.C.A.). We have much experience litigating in these courts, and reading their opinions daily helps us stay current on issues and concerns affecting your case. Our goal is to get the best result possible for you.

As your military defense lawyer, we constantly seek creative solutions to your problem. A competent military defense counsel should always be creative and not be forced into checking the block.