                        UNITED STATES, Appellee

                                       v.

                     Robert E. BECKLEY, Sergeant
                         U.S. Army, Appellant

                                 No. 00-0134

                        Crim. App. No. 9701282

    United States Court of Appeals for the Armed Forces

                        Argued October 4, 2000

                          Decided May 18, 2001

BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and SULLIVAN, GIERKE, and EFFRON, JJ.,
joined. SULLIVAN, J., filed a concurring opinion.


                                    Counsel


For Appellant: Major Jonathan F. Potter (argued); Colonel
Adele H. Odegard(on brief); Lieutenant Colonel David A.
Mayfield and Major Scott R. Morris.

For Appellee: Captain Karen J. Borgerding (argued);
Lieutenant Colonel Edith M. Rob and Major Anthony P.
Nicastro (on brief) ; Major Patricia A. Ham.


Military Judges:       Larry S. Merck, Richard J. Hough, and
Keith H. Hodges


     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Beckley, No. 00-0134/AR


      Judge BAKER delivered the opinion of the Court.

      On December 19, 1996, and February 4, March 5-6, July

16, and August 4-5, 1997, appellant was tried at Fort Bliss,

Texas, by a general court-martial composed of officer and

enlisted members.     Appellant was convicted, pursuant to his

pleas, of attempted escape from custody, attempted

disobedience of a lawful command, false official statement,

and assault with a dangerous weapon, in violation of

Articles 80, 107, and 128, Uniform Code of Military Justice

(UCMJ), 10 USC §§ 880, 907, and 928, respectively.      The

members sentenced appellant to a bad-conduct discharge,

confinement for 3 years, total forfeitures, and reduction to

Private E-1.    The convening authority approved the sentence

and awarded appellant 343 days of pretrial confinement

credit towards his sentence to confinement.    The Court of

Criminal Appeals affirmed in an unpublished opinion.

      We granted review of the following issue:

            WHETHER THE STAFF JUDGE ADVOCATE’S OFFICE VIOLATED
            THE SIXTH AMENDMENT OF THE CONSTITUTION AND
            ARTICLE 38 OF THE UNIFORM CODE OF MILITARY JUSTICE
            BY INFRINGING ON APPELLANT’S CHOICE OF COUNSEL.

      At issue is appellant’s right to civilian counsel

retained by appellant at his own expense, when that attorney

is determined by the military judge to be disqualified under

ethics rules because of a conflict of interest with a

potential suspect in the charged offenses.    The matter was

litigated extensively at a pretrial motions session pursuant


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United States v. Beckley, No. 00-0134/AR


to Article 39(a), UCMJ, 10 USC § 839(a), but was not raised

in appellant's posttrial submission to the convening

authority pursuant to RCM 1105, Manual for Courts-Martial,

United States (1995 ed.).                      We granted the issue because it

touches on the Sixth Amendment guarantee that "[i]n all

criminal prosecutions, the accused shall enjoy the right . .

. to have the Assistance of Counsel for his defense."

Because this issue is raised on appeal for the first time to

this Court,1 and because the issue is fact specific, a

thorough review of the facts of record is warranted.

                                               FACTS

          As noted by the court below, the genesis of the initial

charges against appellant, both those ultimately dismissed

and those to which appellant pled guilty, is as follows:

                        The rancorous dissolution of appellant’s
                   marriage was the catalyst of all of his
                   misconduct. On 26 August 1996, Mrs. Beckley
                   informed appellant of her desire for a divorce.
                   Although appellant suspected his spouse of having
                   an affair, he pleaded with her to stay with him,
                   but she refused. Pursuant to Mrs. Beckley’s
                   request, appellant’s first sergeant ordered
                   appellant to move out of his quarters and reside
                   with another noncommissioned officer in his unit
                   until further notice.

                        The following evening, 28 August 1996,
                   appellant returned to his quarters to check up on
1
    The issue raised at the lower court was:

                   WHETHER THE STAFF JUDGE ADVOCATE WAS DISQUALIFIED FROM
                   MAKING RECOMMENDATIONS TO THE CONVENING AUTHORITY BECAUSE
                   HE BECAME A WITNESS CONCERNING HIS OWN ACTIONS IN THE COURT-
                   MARTIAL PROCESS, AND IF SO DISQUALIFIED, WHETHER THE DEPUTY
                   STAFF JUDGE ADVOCATE, ACTING AS THE STAFF JUDGE ADVOCATE, WAS
                   ALSO DISQUALIFIED FROM MAKING SUCH RECOMMENDATIONS.


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United States v. Beckley, No. 00-0134/AR


            his wife. During this time period, a fire of
            suspicious origin caused substantial damage to the
            quarters. Both appellant and Mrs. Beckley were
            questioned as suspects by a Criminal Investigation
            Command [CID] agent. Mrs. Beckley claimed to have
            been in a hotel room with a male friend at the
            time of the fire. Initially, appellant falsely
            claimed not to have been at the quarters at all on
            the evening of the fire. He later admitted that
            he had been there, but denied causing the fire.
            This change of story caused appellant to become
            the prime suspect for the arson.

                 On 29 August 1996, appellant was ordered by
            his company commander not to contact Mrs. Beckley.
            On the early morning of 30 August 1996, appellant
            attempted to see his wife, but she refused to come
            to the door and instead called the military police
            (MP). Appellant was apprehended and transported
            to the MP station. While there, appellant
            attempted to escape and in a struggle with an MP,
            appellant managed to unholster the MP’s pistol,
            causing a round to be chambered. Other MPs
            assisted in subduing appellant and placing him in
            the detention cell.


Unpub. op. at 2.

      On December 19, 1996, at trial, and during the first

Article 39(a) session, appellant was represented by Captain

(CPT) Joel Novak, detailed military defense counsel, and Mr.

Frank Hart, civilian defense counsel.       The detailed military

judge was Colonel (COL) Larry Merck.       At the next Article

39(a) session, on February 4, 1997, Mr. Joseph Lucas

replaced Mr. Frank Hart as civilian defense counsel.       Mr.

Lucas stated on the record that he was licensed by the State

of Texas.    At the Article 39(a) session on March 5, 1997,

the detailed military judge was COL Keith Hodges.       At trial,

appellant was represented by CPT Joel Novak, detailed


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United States v. Beckley, No. 00-0134/AR


military defense counsel, and Mr. Jim Darnell and Mr. Jim

Maus, civilian defense counsel.

            February 4, 1997, Article 39(a) Session

       On January 31, 1997, the prosecution moved the court to

order Mr. Lucas to show cause why he should not withdraw

from representing appellant because the Lucas firm

previously represented Mrs. Beckley.        Specifically, in

November of 1996, Mrs. Beckley, appellant’s then-wife,

retained Ms. Herron, an attorney and a salaried employee of

Mr. Lucas in Mr. Lucas’ law firm, to represent her in a

divorce proceeding against her husband.        Later, probably

January 16, 1997, appellant retained Mr. Lucas to represent

him.    Upon learning that the firm represented both Mrs.

Beckley and appellant, and in spite of the fact that Mrs.

Beckley hired the Lucas firm first, the firm returned part

of Mrs. Beckley’s money to her and informed her that they

could no longer represent her.         Ms. Herron and Mrs. Beckley

testified to these facts during an Article 39 (a) on

February 4, 1997.     Additionally, Mrs. Beckley testified that

she did not wish to waive the conflict of interest she had

with the Lucas firm.

       In response to the Government’s motion, the military

judge made the following findings:

       (1) On the 27th of August 1996, the [appellant’s]
       quarters. . . were damaged by burning;




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United States v. Beckley, No. 00-0134/AR


      (2) Property contained in those quarters belonging to
      Mrs. Beckley were [sic] burned. The quarters were the
      Beckley quarters.

      MJ: Several of the charges also involved offenses
      alleging that Sergeant Beckley refused to obey orders
      to stay away from his wife, Mrs. Beckley. Mrs. Beckley
      will be a witness in this case and she is an interested
      person in this case. On the 25th of November, Mrs.
      Beckley paid $300.00 to the Lucas Law Firm. She went
      in to hire an attorney to represent her in a divorce
      proceeding against her husband. At that time she
      talked to Ms. Herron, who was an associate or a
      salaried employee of Mr. Lucas’. Ms. Herron talked
      with her about what Mrs. Beckley wanted to have done.
      They discussed confidential matters, to include the
      marital status and the marital situation for Mrs.
      Beckley, the fire, and other matters concerning the
      divorce proceeding and maintenance and also child
      custody. This is confidential material. On the 13th
      of December, Ms. Herron, or a member of the Lucas Law
      Firm filed a divorce petition with the 383rd Judicial
      Circuit. On approximately the 28th of December, or
      thereafter, Sergeant Beckley’s family contacted Mr.
      Lucas or Mr. Lucas’ firm, seeking to have him represent
      their son, Sergeant Beckley, the accused soldier in
      this case. Sometime, approximately after the 7th of
      January, after Mr. Hart had been contacted, Mr. Hart
      being the former attorney, and advised that he was no
      longer needed on the case, Mr. Lucas began talking with
      Sergeant Beckley concerning his case. Sometime around
      the 15th or 16th of January, Mr. Lucas was actually
      retained by Sergeant Beckley. On the 7th of January,
      Ms. Herron discovered that there apparently was a
      conflict brewing in the situation in that she was
      representing Mrs. Beckley and apparently Mr. Lucas was
      representing Sergeant Beckley. On that date Ms. Herron
      talked to Mr. Lucas and advised him of her concerns.
      Mr. Lucas said, “Don’t talk to me about anything. Have
      Mrs. Beckley come to see you, you cannot represent her,
      and have her come in and explain that to her.”
      Sometime around the 17th of January, Mrs. Beckley was
      advised by the law firm of the conflict and that they
      could no longer represent her; that she should come and
      sign a waiver. Mrs. Beckley did not consent to this
      withdrawal, and did not agree to any waiver, and she
      has not agreed to any waiver to this point.

      MJ: Now, the court finds that this situation was
      innocently entered into. That there was nothing


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United States v. Beckley, No. 00-0134/AR


      intentional by either party, Ms. Herron or Mr. Lucas
      with regard to this apparent conflict.

      MJ:   The court makes the following additional findings:

            Ms. Herron, there is no waiver of her
            responsibility in this case in terms of her
            responsibility to her former client, or to her
            client. Since there is no waiver, Ms. Herron has
            a continuing obligation to preserve information
            that might have been imparted to her in confidence
            during that representation. This is true during
            the course of her representation and even after
            the representation. Moreover, she also has the
            obligation not to oppose a former client in any
            matter in which the confidential information would
            be relevant unless the former client consents to
            do that. And as I indicated previously in my
            finding, Mrs. Beckley has not agreed to do that.
            Moreover, when Ms. Herron has received
            confidential information from Mrs. Beckley, she
            may not thereafter use the confidential
            information to Mrs. Beckley’s disadvantage unless
            Mrs. Beckley agrees to do that. Additionally, Ms.
            Herron may not oppose her client in a matter that
            is substantially related to matters in which the
            lawyer represented the former client. Now,
            although the issue in this case is a criminal
            trial, the issues in the divorce proceeding, at
            least in part, resulted from matters that led to
            this criminal trial and they are substantially
            related. Finally, if Ms. Herron were to be
            representing Sergeant Beckley, it would be very
            clear that there’s a conflict of interest in this
            case. Ms. Herron is not representing Sergeant
            Beckley, Mr. Lucas is. However, generally if one
            lawyer in a law firm has a conflict of interest
            and cannot take on a matter that also is imputed
            to the other member of the law firm. Now, I note
            that this case involves a fairly small law firm,
            and I find that there is a conflict of interest in
            this case, or at the very least, a serious
            possibility of a conflict of interest.

(Emphasis added.)

      At this point, the military judge stated:   “The

government asked me to take Mr. Lucas off the case.      I’m not



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United States v. Beckley, No. 00-0134/AR


going to do that.”      He then explained to appellant the

possible implications of this decision.         He explained that

Mr. Lucas may not be able to cross-examine appellant’s wife

if she was called to testify, to conduct voir dire on

anything dealing with his wife’s testimony, to present

evidence that would discredit appellant’s wife or impeach

her testimony, and to argue in opening and closing

statements    “any matters that have been presented

concerning” appellant’s wife.

               March 5, 1997 Article 39(a) Session

      On February 22, 1997, Mr. Lucas submitted a Motion for

Withdrawal.    In the motion, Mr. Lucas stated that at the

time of the February 4, 1997, Article 39(a) session, there

was “no conflict between counsel and government’s witnesses

in this case.”     He also stated that “[a]fter a thorough

investigation of this case, a conflict appears to exist and

requires counsel to withdraw.”         As support for the motion,

Mr. Lucas attached the State of Texas Bar Rule 1.06.         Mr.

Lucas also referenced Army Regulation (AR) 27-26, Rules 1.6

through 1.9.    These rules provide guidance to a lawyer or

the lawyer’s firm concerning conflicts of interest that

arise in representing clients that are opposing parties to

the same litigation.

      The motion was considered by COL Keith H. Hodges, who

was the new military judge detailed to the court-martial.



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United States v. Beckley, No. 00-0134/AR


Mr. Lucas stated, on the record, his reasons for

withdrawing.

            First, On February 4, 1997, at the conclusion of

      the first Article 39(a) session, Mr. Lucas and

      appellant were in the deliberation room talking.    Major

      (MAJ) Meredith, the head of the military justice

      section, told Mr. Lucas that if Mr. Lucas continued on

      this case, he would file a grievance against Mr. Lucas

      with the Judge Advocate General of the Army and through

      the State Bar.      MAJ Meredith stated that he had talked

      to COL Holland (the Staff Judge Advocate) and "we will

      do that."

            Second, that caused Mr. Lucas “great concern.”     As

      a result, the next day he spoke with a State Bar

      representative and explained the problem to him.    At

      that time, the representative said, "I don’t see any

      problem unless something comes up that, in the future,

      that would cause something adverse to Mrs. Beckley."

            Third, approximately 10 days later, after

      obtaining the CID file and further investigating the

      case, information was obtained that Mrs. Beckley’s car

      may have been seen in the area at the time of the fire.

      Mr. Lucas thought the information was adverse to Mrs.

      Beckley.




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United States v. Beckley, No. 00-0134/AR


            Fourth, even though Mr. Lucas never spoke to Ms.

      Herron about her representation of Mrs. Beckley, after

      discovering the adverse information, Mr. Lucas again

      contacted the State Bar representative.   He was advised

      that adverse information would bar him from

      representing appellant.

            Fifth, based on this advice, Mr. Lucas concluded

      that he had a conflict or an appearance of conflict

      under Texas Rule 1.6.

            Sixth, after stating his reasons for withdrawing

      from his representation of appellant, Mr. Lucas also

      stated that the “prosecution and command” have “done

      everything in the world to discredit me.”   He referred

      to an ethics class given by the command on February 28,

      1997, in which Ms. Herron, Mr. Lucas, appellant, and

      Mrs. Beckley were mentioned by name in a handout.    The

      handout discussed the ethical implications of Mr. Lucas

      and his firm representing appellant and Mrs. Beckley.

      These facts, as well as his confrontation with MAJ

Meredith were also set out in Mr. Lucas’ Brief in Support of

Motion to Withdraw, including a copy of the handout.      In the

concluding paragraph of the brief, he stated:

           No attorney with an ounce of sense would continue
      with the vindictiveness of the prosecution team at Fort
      Bliss. They have consistently threatened and
      humiliated me and left me no choice but to withdraw
      from this case. Only they can tell you their real
      reason for their action.


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United States v. Beckley, No. 00-0134/AR




(Emphasis added.)     As recounted above, Mr. Lucas' assertion

was based on two events:       his conversation with MAJ Meredith

in the hallway after the February 4, 1997, Article 39(a)

session, and the ethics class given by the command on

February 28, 1997.

      Although Mr. Lucas stated on the record that he was

withdrawing because of a conflict discovered after the first

Article 39(a) session, the military judge continued to

question Mr. Lucas about what impact MAJ Meredith’s threat

to report him to his bar association and the ethics class

had on his decision to withdraw from representing appellant.

The following exchange took place:

            MJ: Okay. Now, but back so I make sure that I,
            you know, what is done with regard to what Major
            Meredith did or didn’t do, or Colonel Holland did
            or didn’t do, I want to know what I’m dealing
            with. I want you to presume that Major Meredith
            and Colonel Holland never had a discussion; . . .
            that you never had a discussion or a threat or
            intimidation or anything from Major Meredith or
            Colonel Holland, but simply, simply, based upon
            the new information you received, do you believe
            you’re required to withdraw?

            CDC: Yes, sir.

            MJ: Do you believe that what Colonel Holland or
            Major Meredith purportedly did is relevant to my
            determination of whether or not you should
            withdraw:

            CDC: I would like to answer that like it is
            relevant to my thinking of everything that has
            happened in this case, but to your decision, no.

            MJ:   I don’t understand the distinction.



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United States v. Beckley, No. 00-0134/AR


            CDC: Well, Your Honor, - - - -.

            MJ: See, what you’re saying is, it’s not
            relevant, but on the other hand you left the door
            open which says, “I feel, I, Mr. Lucas, feel
            intimidated and threatened and I’m afraid to
            continue to represent Sergeant Beckley because I
            don’t know what they will do to me,” and therefore
            depriving Sergeant Beckley of his choice of
            lawyers.

            CDC: I understand the predicament you’re in, Your
            Honor. No matter what happens, because of the
            information that was received by me, after a
            careful investigation of this case, I have to get
            out, period. I think I’ve said that three or four
            times. And that’s not even a question. But I
            also think, and as I understand, after rehashing
            all of the ethical rules, I think that when
            something happens that should not happen, I have a
            duty to report it to the court.

            MJ:   You got it.

            CDC: And that’s why I did not.

            MJ: What I’m saying is, do you waive, as much as
            you can waive, given your current situation, ---
            you fulfilled your duty to report it to the court
            and I’ll see that further action is taken in terms
            of the ethics rules. My question to you is, is
            the fact that you were threatened and what they
            might to [sic] do to you or your reputation or
            cause you expense or time or effort, is that a
            factor in your withdrawing?

            CDC: No, Your Honor, it can’t be because I would
            have to withdraw any way [sic]. It cannot be,
            because no matter what would happen, and I
            explained that to Sergeant Beckley, not [sic]
            matter what happens, because of the information
            that we gathered I had no choice.

(Emphasis added.)

      After this exchange took place, the military judge

reviewed the final paragraph of Mr. Lucas’ Brief in Support

of Motion to Withdraw, and called it an “appellate hand


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United States v. Beckley, No. 00-0134/AR


grenade.”    Because of this concern, the military judge

revisited Mr. Lucas’ reasons for withdrawing, as follows:

            MJ: And I’m reading the last two sentences of
            Appellate XXX, "They, the government, have
            consistently threatened and humiliated me and left
            no choice but to withdraw from this case.”

            CDC: That is correct.

            MJ: That tells me, that because they have
            consistently threatened and humiliated you, they
            left you no choice but to withdraw from the case.

            CDC: I have no choice but to withdraw from the
            case, and maybe that’s a bit strong.

            MJ: Because of the threats or because of the
            conflict?

            CDC: Because of the conflict. Your Honor, had
            they told us what the conflict was the day that
            they said I had a conflict, which they did [sic],
            we wouldn’t be here today.

      Later that same day, the question was revisited for a

third and final time:

            MJ: This Article 39(a) Session is called to
            order. All are present as before. Mr. Lucas,
            anything you wish to add or detract from what
            we’ve gone over so far?

            CDC: Yes, Your Honor. When you were questioning
            me, you asked me about, you know, the final
            decision. The final decision was this conflict
            that came into being. But I don’t want to mislead
            the court. The day after the threat I told
            Sergeant Beckley and Captain Novak that I might
            have to get off, and I do want to represent to
            this court that that did worry me and it was a lot
            of my concern, but the crowning blow was the
            conflict, and I don’t want to minimize the effect
            that the threats and the rest of the thing
            affected me.

            MJ: Well, we’re back to where we were. You’ve
            described the subsequent information to be the


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United States v. Beckley, No. 00-0134/AR


            crowning blow as in the straw that breaks the
            camel’s back.

            CDC: Yes, sir.

            MJ: Okay. And that’s different than- - -it’s a
            different position than without the threats you
            still would have had [sic] removed yourself?

            CDC: No, it is not, Your Honor. It is not. I’m
            not trying to say that at all. What I’m saying
            is, is that this final thing I probably would have
            had to go off any way.

            MJ: Well, that’s different too. Probably would
            have had [sic] gone off. See, here’s my dilemma.
            My dilemma is, do I need to have a fact finding
            situation concerning the threats that were made.
            If the threats that were made is [sic]
            contributing factor to your getting off the case,
            then I have to do something different than what I
            plan on doing. If, however, the threats are
            immaterial to your having to get off the case, if
            you would have to get off the case any way [sic],
            then I don’t need to go into the threats.

            CDC: Your Honor, I believe that I would have to
            get off the case any way [sic] and I don’t have a
            problem with that.

            MJ:   How sure are you?

            CDC: Very sure.

            MJ:   Well, would you say no doubt?

            CDC: There may have been a way around it, but I
            don’t know if that would have materialized or not.

            MJ: So then, I have no choice but to conclude
            then that you might still be staying on the case
            if the threats weren’t made?

            CDC: The chance of that is very remote. There
            could be a possibility of that. There’s always a
            possibility of things.

            MJ:   So what do I do?

            CDC: Pardon me?


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United States v. Beckley, No. 00-0134/AR




             MJ: So what do I do? So if I got Major Meredith
             relieved and I got Colonel Holland relieved and
             shipped away from Fort Bliss would you stay on
             this case?

             CDC: No.

             MJ:   Because?

             CDC: Because I’ve determined that there’s a
             conflict that is adverse to Mrs. Beckley.

(Emphasis added.)

               March 6, 1997, Article 39(a) Session

      Notwithstanding this exchange, after recessing for the

evening, the next morning the military judge expressed his

intention to hold an evidentiary hearing into the

allegations expressed in the concluding paragraph of Mr.

Lucas’ Brief in Support of Motion to Withdraw.        Col

Holland, MAJ Meredith, CPT Novak, and Mr. Lucas all

testified.    At the conclusion of the testimony, the military

judge adopted the findings of fact made by the first

military judge at the first Article 39(a) session and made

the following additional findings of fact:

             MJ: Mrs. Beckley was the first to establish a
             relationship with the Lucas firm in seeking a
             divorce from her husband. Once it was discovered
             that an attorney/client relationship had been
             inadvertently entered into with her husband, the
             only logical and real choice was to discontinue
             the representation with both. Assuming a
             relationship could be continued with one of the
             clients but not both, it is Mrs. Beckley who
             should have been permitted to be represented. And
             to this day, Mrs. Beckley has not given permission
             for the defense team to represent Sergeant
             Beckley. There was no reason to simply inform


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United States v. Beckley, No. 00-0134/AR


            Mrs. Beckley that she was no longer going to be
            represented by the Lucas firm. That the firm
            believes that the matter involving Sergeant
            Beckley is more important is not a factor and
            certainly, not the firm’s call to make. Mrs.
            Beckley should have been fully informed long ago
            and given a choice. While we wonder what
            conflicts might exist or possibly exist, the one
            conflict that has long existed is this: This was
            a divorce action by Mrs. Beckley. That spells
            conflict. And further, what should or shouldn't
            be done in a criminal case and the outcome of the
            criminal case, has a direct impact on the divorce
            action, the wording of the final decree and what
            the parties expect to get.

            I find that Colonel Holland was the prime mover,
            that is, the one pushing on the motion to have Mr.
            Lucas withdraw. I find that his reasoning for
            doing so was motivated by legitimate ethical
            concerns and Colonel Holland was correct, a
            conflict existed. It still exists with respect to
            Mrs. Beckley – no matter Mr. Lucas’ choice in
            whether to stay on the case. I find that but for
            Colonel Holland’s legitimate concern, the
            government, that is the prosecutors, would not
            have sought to have Mr. Lucas removed on the
            conflict issue. Further, I find that the
            government generally, and Major Meredith
            specifically, had no reason or desire to have Mr.
            Lucas leave the case, but for the conflict issue.
            The theories offered on that point is [sic]
            utterly without merit.

            Colonel Holland did send Major Meredith with the
            mission of informing Mr. Lucas that no matter what
            Mr. Lucas’ involvement on the Beckley case, that
            Colonel Holland or someone else under his name was
            going to file a grievance against Mr. Lucas. That
            position is fully supported by the facts; not only
            before Colonel Hough, but even more so [sic]
            clearly before this court during these last two
            sessions. Whatever words that Major Meredith
            used, I can’t say what he said, because he doesn’t
            recall, but it’s certainly a reasonable
            interpretation by Mr. Lucas that Mr. Lucas
            believed that he was being told that if he
            remained on the case, a grievance would be filed.
            Why Mr. Lucas did not bring this to the attention
            of the court right then and there, instead of


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United States v. Beckley, No. 00-0134/AR


            waiting a month, tells me that Mr. Lucas didn’t
            believe him – in the sense that he wasn’t
            intimidated. He “blew off” Major Meredith and
            this threat was not a concern to him.

            I find that the ethics class was planned in
            advance of the prior motions session and was to be
            an ethics class. I find that the class would have
            been given whether the conflict matter had been
            litigated or not. Unbeknownst to Colonel Holland
            in advance, the matters in Appellate Exhibit XXXI-
            A were used for the instruction. The only things
            in that class that had anything to do with the
            conflicts motions were motions filed by both
            parties and a recitation of the facts. Curiously
            though, the defense complains about these
            documents being provided to the students. There
            is nothing meaningful or substantial in these
            documents that are [sic] untrue. In other words,
            while the defense didn’t like being the subject of
            the class, there is no evidence that the handouts
            or the discussion was [sic] derogatory,
            inflammatory or humiliating. It was a real-life
            discussion of a real-life situation. That no one
            thought to pursue this matter until Colonel
            Holland got involved is a good reason that this
            was a topic that needed to be taught. Captain
            Novak, who is co-counsel in this case, was present
            and did not object to the class and, in fact,
            remained. Wisely, he did not participate in the
            discussion on that matter. Looking back, I think
            it would have been wiser to wait teaching that
            instruction until after the Beckley trial was had,
            however, it was not unlawful or improper to do so.
            It was a legitimate topic for a class. It was
            needed and there was no evil intent of [sic]
            having discussed it.

            A question has been asked, “Why were names omitted
            from one scenario but included in another?” I
            adopt Colonel Holland’s explanation. I find as a
            fact that one was a matter still under litigation,
            that is the Love Notes, whereas the other matter
            was something that had been litigated publicly and
            in a public trial. I find that the motive, reason
            and intent of conveying the information to Mr.
            Lucas by Major Meredith was to appraise [sic] him
            of something that he did not appreciate then, but
            admits to appreciating now and that is that he
            should not be on this case, because of the


                                   17
United States v. Beckley, No. 00-0134/AR


            conflict between Sergeant and Mrs. Beckley.   He
            also should not be Mrs. Beckley’s lawyer.

            Colonel Holland’s concern was a legitimate one and
            one that was kind and fair to tell Mr. Lucas about
            in advance that Colonel Holland believed Mr. Lucas
            had a serious ethical dilemma. It was also
            something that Sergeant Beckley needed to know to
            assist in his choice. As evidenced by the fact
            that we are now in the first half of the month of
            March, and that means that there’s been a delay in
            your pretrial confinement. . . .It was also the
            courteous and professional thing to do, to see
            that he was informed – to advise an attorney that
            you believe you had to make an ethical complaint.
            If the complaint were made later, a motive in
            making the complaint would also have been suspect.
            Also, the government was well within their rights
            in this case to end what they saw as a serious
            appellate issue of a Constitutional dimension.
            Much has been suggested about the professional
            disagreements between Mr. Lucas and Major
            Meredith. All that’s worth noting is that they
            disagree and do not necessarily hold each other at
            high stand [sic].

            I find that the motion to withdraw is not based
            upon a genuine fear or a genuine belief that the
            government wanted Mr. Lucas off for strategic or
            tactical trial advantage. Those are all the
            findings that I have.

(Emphasis added.)

      As noted by the military judge in his findings of fact,

questions about the prosecution’s personal and professional

animosity toward Mr. Lucas were raised by Mr. Lucas as a

motive for them to get him off the case.    During his

testimony, MAJ Meredith stated several times that he

regarded Mr. Lucas as a lawyer who “fights dirty.”

Nevertheless, when asked by the prosecution about his motive




                                   18
United States v. Beckley, No. 00-0134/AR


in telling Mr. Lucas of COL Holland’s intention to file an

ethics complaint, MAJ Meredith testified:

            Well, I wanted him to know what the colonel told
            me to tell him. And honestly, I was hoping that
            he would just withdraw then, because I thought it
            would be better for him, better for us and better
            for everybody. I was really hoping that would
            help him.

                                        * * *

            Well, why would I – Look it, Mr. Lucas, in spite
            of the fact that I’ve said he fights dirty and all
            that, in another sense, I consider him a friend.
            I’ve talked with him many times. He’s very
            vigorous. I think that he does well for his
            clients. Why would I want another guy to be
            getting in trouble over ethics stuff? I wouldn’t
            mind beating him in court, but I don’t want him to
            be getting into trouble over ethics business.

                              DISCUSSION

      As we recently discussed in United States v. Spriggs,

52 MJ 235, 237-38 (2000):

            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.

We also noted in Spriggs that

            [t]he right to counsel before general and special
            courts-martial is governed by Articles 27 and 38,
            UCMJ, 10 USC § 827 and § 838, respectively. There
            are three types of counsel under these statutes:
            (1) detailed counsel; (2) individual military
            counsel; and (3) civilian counsel retained by the
            accused at his or her own expense.




                                   19
United States v. Beckley, No. 00-0134/AR


Id. at 238.    Unlike Spriggs, which dealt with the right to a

military attorney, at issue here is the right to civilian

counsel retained by appellant at his own expense.

      In Wheat v. United States, 486 U.S. 153 (1988), a case

involving the joint representation of codefendants, the

Supreme Court held that the right to counsel is not

absolute.    It said:

                 The Sixth Amendment right to choose one’s own
            counsel is circumscribed in several important
            respects. Regardless of his persuasive powers, an
            advocate who is not a member of the bar may not
            represent clients (other than himself) in court.
            Similarly, a defendant may not insist on
            representation by an attorney he cannot afford or
            who for other reasons declines to represent the
            defendant. Nor may a defendant insist on the
            counsel of an attorney who has a previous or
            ongoing relationship with an opposing party, even
            when the opposing party is the Government.

Id. at 159 (footnote omitted) (emphasis added).

      In the military the right to counsel, likewise, is not

absolute.    RCM 506(c), which implements Articles 27 and 38,

provides that defense counsel may be excused “with the

express consent of the accused, or by the military judge

upon application for withdrawal by the defense counsel for

good cause shown.”

      This is not a case where we must labor to define the

parameters of “good cause.”       Here, “good cause” is provided

by the ethical standards of the legal profession, in

particular, Texas State Bar Rule 1.06(b), which prohibits

representing a person “if the representation of that person


                                   20
United States v. Beckley, No. 00-0134/AR


. . . involves a substantially related matter in which that

person’s interests are materially and directly adverse to

the interests of another client of the lawyer or the

lawyer’s firm.”     Rule 1.06(c) permits representation that

would otherwise be prohibited by Rule 1.06(b) if “the lawyer

reasonably believes the representation of each client will

not be materially affected; and each affected or potentially

affected client consents” after full disclosure of the facts

and circumstances.      (Emphasis added.)

      Similarly, Rule 1.7 of AR 27-26 (1 May 1992), provides

that “[a] lawyer shall not represent a client if the

representation of that client will be directly adverse to

another client, unless. . .each client consents after

consultation.”     (Emphasis added.) Rule 8.3 also requires an

Army lawyer to report an ethical violation by “another

lawyer.”

      Whether appellant’s and Mrs. Beckley’s interests were

directly adverse from the moment the Lucas firm agreed to

represent appellant or became directly adverse upon the

later discovery of information adverse to Mrs. Beckley, it

is very clear from Mrs. Beckley’s testimony at the February

4, 1997, Article 39(a) session that she refused to consent

to Mr. Lucas’ or his firm’s representation of appellant.       At

no time did Mr. Lucas indicate at any point during trial

that Mrs. Beckley had changed her mind concerning the matter



                                   21
United States v. Beckley, No. 00-0134/AR


of representation.      The only consent indicated on the record

was appellant’s.     However, both the Texas and the Army Rules

are clear that consent of both affected parties is required.

       As the Supreme Court noted in Wheat:

            Thus, while the right to select and be represented
            by one’s preferred attorney is comprehended by the
            Sixth Amendment, the essential aim of the
            Amendment is to guarantee an effective advocate
            for each criminal defendant rather than to ensure
            that a defendant will inexorably be represented by
            the lawyer whom he prefers.

486 U.S. at 159.     In Wheat, the petitioner sought

representation by an attorney who already represented three

other defendants involved in the same drug distribution

conspiracy.    Unlike this case, the three defendants and

Wheat agreed to waive any future conflict of interest

arising from such representation.          The Government objected,

inter alia, on the ground that counsel would be prevented

from cross-examining the other defendants on behalf of Wheat

in a meaningful way.      The district court agreed and overrode

Wheat’s waiver.     The Supreme Court held that “where a court

justifiably finds an actual conflict of interest, there can

be no doubt that it may decline a proffer of waiver, and

insist that defendants be separately represented.”         Id. at

162.

       The Court went on to review anew why the right to

counsel does not override the broader societal interests in

the effective administration of justice.         It stated:



                                   22
United States v. Beckley, No. 00-0134/AR


            Joint representation of conflicting interests is
            suspect because of what it tends to prevent the
            attorney from doing. . . .[A] conflict may . . .
            prevent an attorney from challenging the admission
            of evidence prejudicial to one client but perhaps
            favorable to another, or from arguing at the
            sentencing hearing the relative involvement and
            culpability of his clients in order to minimize
            the culpability of one by emphasizing that of
            another.

Id. at 160, quoting Holloway v. Arkansas, 435 U.S. 475, 489-

90 (1978).    Moreover, the Court in Wheat explained that

             [u]nfortunately for all concerned, a district
             court must pass on the issue whether or not to
             allow a waiver of a conflict of interest by a
             criminal defendant not with the wisdom of
             hindsight after the trial has taken place, but in
             the murkier pretrial context when relationships
             between parties are seen through a glass, darkly.
             The likelihood and dimensions of nascent conflicts
             of interest are notoriously hard to predict, even
             for those thoroughly familiar with criminal
             trials. It is a rare attorney who will be
             fortunate enough to learn the entire truth from
             his own client, much less be fully apprised before
             trial of what each of the Government’s witnesses
             will say on the stand. A few bits of unforeseen
             testimony or a single previously unknown or
             unnoticed document may significantly shift the
             relationship between multiple defendants. These
             imponderables are difficult enough for a lawyer to
             assess, and even more difficult to convey by way
             of explanation to a criminal defendant untutored
             in the niceties of legal ethics. Nor is it amiss
             to observe that the willingness of an attorney to
             obtain such waivers from his clients may bear an
             inverse relation to the care with which he conveys
             all the necessary information to them.

Id. at 162-63.




                                   23
United States v. Beckley, No. 00-0134/AR


         In applying Wheat to this case, where only one of the

parties waived the conflict of interest,2 we have no problem

holding that neither the Staff Judge Advocate’s office nor

the trial court violated the Sixth Amendment or Articles 27

and 38 by infringing on appellant’s choice of counsel.

         Mr. Lucas' allegations regarding the conduct of the

Staff Judge Advocate's office does not change our analysis

in this case.              The military judge concluded after extensive

litigation that the Staff Judge Advocate had a legitimate

concern about Mr. Lucas' ethical dilemma, and that it was an

exercise of professionalism to so inform Mr. Lucas before

reporting him to the bar association.                                   Further, the military

judge made repeated and commendable efforts to probe the

nature and reasons for Mr. Lucas' withdrawal and to ensure




2
  Wheat is a 5-4 decision; however, it is worth noting that two of the dissenters readily distinguish the facts
here from those in Wheat by noting that their dissent addresses “only cases in which all parties to the
potential conflict have made a fully informed waiver of their right to conflict-free representation.” Id. at
166 n.1 (Marshall, J., with whom Brennan, J., joins, dissenting).


                                                      24
United States v. Beckley, No. 00-0134/AR


that it was not the product of government overreaching.       Mr.

Lucas repeatedly stated on the record that he had to

withdraw because of a conflict of interest, not because of

what he characterized as harassment and intimidation by the

Office of the Staff Judge Advocate.        The military judge had

every right to take this officer of the court at his word.

      This is not to say that the actions of the Office of

the Staff Judge Advocate were not correctly perceived as

heavy-handed.     The actions of the Office of the Staff Judge

Advocate may have been more than circumstances required, and

rather than avoiding an appellate issue, these actions

became part and parcel of the appeal.       Nevertheless, they

were not the cause for Mr. Lucas’ withdrawal.       Mr. Lucas had

an actual conflict of interest for which he was required to

withdraw.

      The decision of the United States Army Court of

Criminal Appeals is affirmed.




                                   25
United States v. Beckley, 00-0134/AR



      SULLIVAN, Judge (concurring):

      Justice Brandeis said: “Sunlight is said to be the best of
                  *
disinfectants.”       Accordingly, I am obliged to draw attention to

certain facts in this case.     Although I join in affirming this

case, I am troubled with the Staff Judge Advocate’s conduct.

Under the Rules for Courts-Martial, only an accused or the

military judge may excuse the defense counsel after formation of

the attorney-client relationship.     See RCM 505(d)(2)(B) & 506(c),

Manual for Courts-Martial, United States (1995 ed.).     Here, trial

counsel made a motion pursuant to RCM 505(d)(2)(B)(iii) and 905

to have defense counsel show cause why he should not withdraw.

Cf. United States v. Iverson, 5 MJ 440, 442-3 (CMA 1978)(“Absent

a truly extraordinary circumstance rendering virtually impossible

the continuation of the established relationship, only the

accused may terminate the existing affiliation with his trial

defense counsel prior to the case reaching the appellate level.”)

(footnotes omitted).     The military judge, however, refused to

order defense counsel to withdraw.



      Notwithstanding the judge’s ruling, the Staff Judge Advocate

acted outside the courtroom and took actions that may have

*
    Louis D. Brandeis, Other People’s Money 92 (1932).
United States v. Beckley, No. 00-0134/AR

resulted in the defense counsel terminating his relationship with

his client.    The Staff Judge Advocate instructed MAJ M., his

Chief of Criminal Law, to inform Mr. Lucas, appellant’s civilian

defense counsel, that someone from the Office of the Staff Judge

Advocate would file an ethics complaint against him.     Record at

222.   Moreover, in the midst of appellant’s trial, the Command

gave an ethics class based on the facts of appellant’s case which

appellant’s military defense counsel attended.     Record at 223-24.

In my view, these actions are clearly not consistent with the

spirit of the above Rules for Courts-Martial, but I vote

nevertheless to affirm since such errors were clearly harmless in

this case.    Art. 59(a), UCMJ, 10 USC § 859(a).   The judge must

run the courtroom, not the Staff Judge Advocate.




                                  2
