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Over the past several years MJA has provided hundreds of free consultations to servicemembers who are under investigation or pending court-martial, and a common question that is discussed is whether hiring a civilian defense attorney is the prudent thing to do. Below are some factors that are common to nearly all military members facing court-martial or other adverse actions:
When is a Judge Advocate assigned or detailed to your case?
In the military justice system, an active duty servicemember will get assigned or detailed a Judge Advocate from the Trial Defense Services (Army), Area Defense Counsel (Air Force), or Defense Services Organization (Navy and Marines) to defend against allegations of misconduct free of charge, but only under one of three triggering events: the active duty member has been served a preferred charge sheet; the active duty member has been provided administrative separation paperwork; or, the active duty member has been placed in pre-trial confinement. Thus, a servicemember who is under investigation but has not been served a charged sheet receives no ongoing legal advice or consultation. However, there is nothing that would prevent the same active duty member to hire a civilian defense attorney who practices military law while a charge sheet is pending.
What value does a civilian defense attorney provide a servicemember during his investigation?
As with many things in life, one has to always look at the value proposition before making a serious decision. Here it is no different. A servicemember under investigation by his command or law enforcement has to ask himself what do I get out of having an attorney now, or should I wait to see what happens later. If one were to hire a civilian defense attorney while under investigation that person would have access to a military law expert during the entire investigation who would be able to instruct and advice his client on the most prudent steps to make (or not make). Furthermore, once a servicemember hires a civilian defense attorney, and that attorney provides a notice of representation to the command, then neither the command nor law enforcement can interview or interrogate the servicemember, unless the civilian defense attorney consents to such an interview.
What is the experience level of the Judge Advocate?
During a normal consultation with a servicemember facing a court-martial, MJA will generally instruct the servicemember to meet with a Judge Advocate at the Defense Service Organization to get a free consultation from them as to their legal matter. We will tell the servicemember to “interview” the Judge Advocate to see whether this is the person you want defending you against the Federal government. Common questions to ask may include: How many courts-martial have they defended against? Were they contested jury trials? Were they General Courts-Martial? Were they the lead counsel? What were the results? Have they ever defended against the charges I am up against? The answers to these questions have a lot to do with whether a servicemember can feel confident about his Judge Advocate defense attorney. The simple truth is a large majority of Judge Advocates in a defense counsel billet have little, if any, experience in the court room.
What impact, if any, does hiring a civilian defense attorney have on the servicemember getting assigned or detailed a defense Judge Advocate?
In practice, all Service Branches will continue to assign or detail a defense Judge Advocate along with a civilian defense attorney. Thus, a servicemember will have two defense attorneys acting on his behalf, with the civilian defense attorney being the lead counsel.
Can I afford a civilian defense attorney?
Obviously, this question can only be answered by the servicemember, but the servicemember should consider that many civilian defense attorneys charge an initial retainer amount that may be applied to later attorney fees once the command makes a charging decision. Also, many civilian defense attorneys – and, certainly MJA – are open to providing a payment plan to help spread out the cost to the servicemember. Moreover, many civilian defense attorneys accept credit card payments, which help defray the cost of attorney fees over time. Lastly, when a servicemember is trying to decide whether they can or want to hire a civilian defense attorney, one should prioritize their finances, and consider the risk they are taking on by not hiring an experienced, and proven civilian defense attorney.