

   
   
   
   U.S. v. Steele



IN THE CASE OF
UNITED STATES, Appellee
v.
Milton D. STEELE, Lance Corporal
U.S. Marine Corps, Appellant
 
No. 99-0314
Crim. App. No. 97-1236
 
United States Court of Appeals
for the Armed Forces
Argued April 4, 2000
Decided August 16, 2000
 

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


Counsel
For Appellant: George A Gallenthin
(argued); Lieutenant Dale O. Harris (on brief).
For Appellee: Captain William
J. Collins, Jr. (argued); Commander Eugene E. Irvin, Colonel
Kevin M. Sandkuhler and Captain Michael D. Carsten (on brief).
Military Judges: J. A. Bukauskas
and R. E. Nunley
 


THIS OPINION IS SUBJECT
TO EDITORIAL CORRECTION BEFORE PUBLICATION.
 

Judge EFFRON delivered the opinion of the Court.
A general court-martial composed of a military
judge sitting alone convicted appellant, pursuant to mixed pleas, of conspiracy
to distribute cocaine and wrongful distribution of cocaine, in violation
of Articles 81 and 112a, Uniform Code of Military Justice, 10 USC §§
881 and 912a, respectively. He was sentenced to a dishonorable discharge,
confinement for 8 years, total forfeitures, and reduction to the lowest
enlisted grade. The convening authority approved the sentence, and the
Court of Criminal Appeals affirmed in an unpublished opinion.
On appellants petition, we granted review
of the following issue:

WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT
RIGHT TO COUNSEL WHERE HIS CIVILIAN DEFENSE COUNSEL WAS UNAUTHORIZED TO
PRACTICE LAW IN ALL JURISDICTIONS WHERE HE HAD BEEN ADMITTED TO PRACTICE
LAW.

We also specified the following issue:

WHETHER A CIVILIAN COUNSEL WHO IS IN INACTIVE
OR RETIRED STATUS IN HIS BAR MEMBERSHIP(S) REMAINS AUTHORIZED TO PRACTICE
BEFORE A GENERAL COURT-MARTIAL IN TERMS OF UCMJ, ARTICLES 27 AND 38(b)(2)
AND RCM 502.

For the reasons set forth below, we affirm the
decision of the Court of Criminal Appeals.

I. BACKGROUND
Appellant was represented at trial by detailed
military counsel, Captain T, and by a civilian defense counsel, Mr. C.
Detailed defense counsel announced that he was "qualified and certified
in accordance with Article 27(b) and sworn in accordance with Article 42(a)
of the Uniform Code of Military Justice." Similarly, civilian defense counsel
announced, "I am licensed to practice law by the highest courts of the
States of Iowa, Hawaii, and Texas; and I am previously qualified and certified
and sworn in accordance with Articles 27(b) and 42(a) of the Uniform Code
of Military Justice." The military judge then advised appellant of his
rights to counsel, and appellant stated that he wished to be represented
by Captain T and Mr. C.
Throughout trial and post-trial proceedings,
and before the Court of Criminal Appeals, appellant made no claim challenging
the qualifications, bar status, or effectiveness of either his detailed
or civilian counsel. However, in his Supplement to Petition for Grant of
Review filed in this Court, appellant asserted the foregoing Issue and
moved to attach documents relating to Mr. Cs professional status as a
member of the Iowa, Hawaii, and Texas bar associations. We granted appellants
motion to attach those documents on March 2, 2000. Because the facts in
those documents are not contested, we accept them as true for purposes
of this appeal.
These documents reveal that Mr. C was a member
of the bar in three states, Iowa, Hawaii, and Texas, as he had stated on
the record. He was admitted to the bar of Iowa in 1982, but his status
was later changed to "retired and inactive." According to a letter from
the Board of Professional Ethics and Conduct of the Iowa Supreme Court,
"[a] person who has been admitted to practice law in Iowa and has had their
license to practice law suspended or is on inactive status, cannot practice
law under the authority of the Iowa license outside of Iowa." Mr. C was
admitted to bar membership in Hawaii in 1989, but he later entered inactive
status. According to Hawaii Supreme Court Rule 17(d)(7), an attorney may
"desire to assume inactive status and discontinue the practice of law in
Hawaii." The rule notes that an attorney on inactive status "shall no longer
be eligible to practice law." Mr. C became a member of the bar of the State
of Texas in 1992. Shortly thereafter, at his request, he was placed on
inactive status. The result of that action was that civilian counsel was
"not authorized to practice as an attorney and counselor at law in the
STATE of TEXAS."

II. QUALIFICATIONS OF COUNSEL
Article 27, UCMJ, 10 USC § 827, entitles
an accused before a general or special court-martial to representation
by detailed military defense counsel without regard to his ability to pay.
Under Article 27(b):


(b) Trial counsel or defense counsel detailed
for a general court-martial 
 
(1) must be a judge advocate who is a graduate
of an accredited law school or is a member of the bar of a Federal court
or of the highest court of a State; or must be a member of the bar of a
Federal court or of the highest court of a State; and
(2) must be certified as competent to perform
such duties by the Judge Advocate General of the armed force of which he
is a member.



Article 27 is silent with respect to the right
to be represented by civilian counsel and with respect to any qualifications
imposed upon civilian defense counsel.
Article 38(b), UCMJ, 10 USC § 838(b),
sets forth the full penumbra of an accuseds options with respect to representation
before general and special courts-martial: detailed military counsel, individually
requested military counsel, or civilian counsel. Under Article 38(b)(2),
"The accused may be represented by civilian counsel if provided by him."
Neither Article 38 nor any other provision of the Code establishes any
qualifications or requisites -- other than the oath -- for a civilian counsel
to practice before a court-martial. See Art. 42, UCMJ, 10 USC §
842; see also Soriano v. Hosken, 9 MJ 221 (CMA 1980),
and United States v. Kraskouskas, 9 USCMA 607, 26 CMR 387 (1958).
The President has established basic qualifications
for civilian counsel in RCM 502, Manual for Courts-Martial, United States
(1995 ed.). Civilian counsel representing an accused before a court-martial
must be "[a] member of the bar of a Federal court or of the bar of the
highest court of a State." RCM 502(d)(3)(A). If that civilian lawyer is
"not a member of such a bar," then he or she must be "a lawyer who is authorized
by a recognized licensing authority to practice law and is found by the
military judge to be qualified to represent the accused upon a showing
to the satisfaction of the military judge that the counsel has appropriate
training and familiarity with the general principles of criminal law which
apply in a court-martial." RCM 502(d)(3)(B). Neither the Code nor the Manual
expressly disqualifies a civilian attorney on the grounds that his or her
bar status is designated as "inactive."
Federal courts in the civilian sector have
dealt with the question of an attorneys bar status vis-a-vis an accuseds
Sixth Amendment right to counsel. In general, they hold that once an attorney
is found competent and admitted to practice law in a licensing jurisdiction,
subsequent changes to his or her bar membership status do not render that
counsel incompetent or disqualified. "Though admission to practice before
a federal court is derivative from membership in a state bar, disbarment
by the State does not result in automatic disbarment by the federal court.
Though that state action is entitled to respect, it is not conclusively
binding on the federal courts." In re Ruffalo, 390 U.S. 544, 547
(1968), citing Theard v. United States, 354 U.S. 278, 281-82 (1957).
In Reese v. Peters, 926 F.2d 668 (1991),
Reese contended that representation at trial by a lawyer who had been suspended
for failure to pay his state bar dues was an automatic violation of the
Sixth Amendment. The Seventh Circuit rejected such a per se
rule. The court agreed with Beto v. Barfield, 391 F.2d 275 (5th
Cir. 1968), which held "that a lawyer whose license had been suspended
for failure to pay dues still may" serve as "counsel" within the meaning
of the Sixth Amendment. "What matters for constitutional purposes is that
the legal representative was enrolled after the court concluded that he
was fit to render legal assistance." Reese, 926 F.2d at 670.
In Solina v. United States, 709 F.2d
160 (1983), the accused was unaware that his defense attorney had not passed
the bar exam and had not been admitted to practice as a member of any state
bar. While the Second Circuit did find this defect to be fatal in terms
of the Sixth Amendment right to counsel, the court was careful to distinguish
its holding from situations in which competence was not in issue:

[W]e do not intimate that any technical defect
in the licensed status of a defendants representative would amount to
a violation of the Sixth Amendment. We limit our decision in this case
to situations where, unbeknown to the defendant, his representative was
not authorized to practice law in any state, and the lack of such authorization
stemmed from failure to seek it or from its denial for a reason going to
legal ability, such as failure to pass a bar examination, or want of moral
character. . . .

Id. at 167 (footnote omitted).
An argument that disbarment by the Court of
Appeals made "counsels continued services . . . ineffective under the
Sixth Amendment" was rejected in United States v. Mouzin, 785 F.2d
682 (9th Cir.), cert. denied sub nom.,
Carvajal v. United States, 479 U.S. 985 (1986). The court held that
subsequent services by that disbarred attorney would not be deemed inadequate
without considering the "intrinsic quality" of those services. The court
noted that in United States v. Hoffman, 733 F. 2d 596 (9th
Cir.), cert. denied, 469 U.S. 1039 (1984), it had rejected
any "per se rule" to the effect "that in the federal court,
representation by a lawyer suspended from practice by a state bar automatically
results in the denial of the Sixth Amendment right to counsel." It noted:
"[T]he fact that an attorney is suspended or disbarred does not, without
more, rise to the constitutional significance of ineffective counsel under
the Sixth Amendment. Rather, a defendant must ordinarily point to specific
conduct which prejudiced him in order to raise the constitutional claim"
of ineffective assistance of counsel. Mouzin, 785 F.2d at 696-97;
see also United States v. Maria-Martinez, 143 F.3d
914, 916-19 (5th Cir. 1998), cert. denied, 525
U.S. 1107 (1999); and United States v. McKinney, 53 F.3d 664, 675
(5th Cir.), cert. denied sub nom.,
Wade v. United States, 516 U.S. 901 (1995).
Our Court has addressed the significance of
a licensing authoritys decision to admit a person to the bar. In Soriano
v. Hosken, supra, we noted that a civilian counsel must be "qualified"
in order to make the right to civilian counsel "meaningful as intended
by the Code." 9 MJ at 221. Civilian counsel must also be "authorized by
some recognized licensing authority to engage in the practice of law."
Kraskouskas, 9 USCMA at 609, 26 CMR at 389. There are no other restrictions
on an accuseds right to counsel under Article 38(b). Once licensed, "such
lawyers are presumed competent for the professional undertaking of the
defense of a military accused at a court-martial." Soriano, 9 MJ
at 222.
The decisions of our Court and other federal
courts reflect that admission to practice is the necessary indicia that
a level of competence has been achieved and reviewed by a competent licensing
authority. This determination of competence is not necessarily eviscerated
when sanctions are imposed by a state bar or by changes in counsels status
where those matters do not demonstrate a negative determination of counsels
competence. As the Ninth Circuit concluded in Mouzin:

Neither suspension nor disbarment invites
a per se rule that continued representation in an ongoing trial is constitutionally
ineffective. Admission to the bar allows us to assume that counsel has
the training, knowledge, and ability to represent a client who has chosen
him. Continued licensure normally gives a reliable signal to the public
that the licensee is what he purports to be  an attorney qualified to
advise and represent a client. But it is an undeniable fact of experience
that lawyers unhappily incur sanctions ranging from censure to disbarment;
that sometimes that discipline flows from revealed incompetence or untrustworthiness
or turpitude such as to deserve no clients confidence. All we need hold
here is that a lawyers services were ineffective on a case, not a per
se, basis.

785 F.2d at 698; see United States v.
Mitchell, No. 99-3035, __ F.3d __, __ (D.C. Cir. June 30, 2000).

III. DISCUSSION
In light of the foregoing considerations, we
hold that Mr. C was not disqualified by virtue of his status as an "inactive"
member of the bars of Iowa, Hawaii, and Texas. Contrary to appellants
assertions in his brief, there is no evidence that Mr. C was suspended
from practicing in any of the states in which he held bar membership. Rather,
Mr. C merely assumed an inactive status in each of those jurisdictions.
This status does not reflect adversely upon his competence; nor does it
reflect any change in the determination of his competence to practice law
by any of these state bar associations. It follows that the mere fact that
appellants counsel did not maintain an active status in his licensing
states is not a per se disqualifying factor.
We also note that Rule 8-6e, Comment, Department
of the Navy JAGINST 5803.1A (Ch. 3, 30 May 1996), states that "an individual
may be considered 'inactive' as to the practice of law within a particular
jurisdiction and still be considered 'in good standing[.]'" Under this
rule, therefore, inactive status does not bar military counsel from being
certified as competent under Article 27(b)(2) to practice before Navy and
Marine Corps courts-martial. We decline to adopt a more stringent rule
for civilian counsel practicing before courts-martial. Unless an accused
can demonstrate that civilian counsel had never attained any bar membership
and could not be certified, we shall not deny or limit a military accuseds
right under Article 38 to elect civilian representation and pick his own
civilian counsel. Once counsel is licensed to practice law by a state or
competent licensing authority, we shall presume that civilian counsel are
competent to appear as defense counsel at courts-martial.*
We agree with the federal cases cited above
that once a state licensing authority has reviewed the qualifications and
admitted an attorney to practice, a subsequent change in bar status alone
does not necessarily result in a determination that there has been a denial
of the Sixth Amendment right to counsel. We conclude that appellants civilian
counsel was not disqualified to practice before courts-martial by virtue
of the fact that he was "inactive" in the three states within which he
was licensed.
In any case, in at least one state, Texas,
Mr. Cs inactive status prohibited practice of law only within the state.
Texas bar membership was adequate, therefore, to support counsels appearance
before a court-martial regardless of any limitations imposed by Hawaii
or Iowa.
Because appellant has presented no issue of
competence arising from civilian counsels bar status and because appellant
has not shown that civilian counsels performance was otherwise deficient,
appellant has failed to meet his heavy burden of showing that he was denied
the effective assistance of counsel. Strickland v. Washington, 466
U.S. 668, 687 (1984); United States v. Brownfield, 52 MJ 40, 42
(1999); United States v. Scott, 24 MJ 186, 188 (CMA 1987).

IV. CONCLUSION
The decision of the United States Navy-Marine
Corps Court of Criminal Appeals is affirmed.
FOOTNOTE:
* The record before
us does not indicate whether there is a generally recognized practice in
the trial of criminal cases before federal district courts that limits
representation by counsel who are not in an active status in a state or
federal bar. To the extent that there is a generally recognized practice
providing for such limitations, it may be appropriate for the President
to consider whether similar limitations should apply under the rules governing
trials by courts-martial. See Art. 36, UCMJ, 10 USC § 836.


COX, Senior Judge (concurring):
I agree with the resolution of the granted
and specified issues. However, I am disquieted by the idea that it is acceptable
to allow counsel, military or civilian, to practice before courts-martial
when they could not represent civilians in civilian courts. Intuitively,
it is my belief that military defendants, as well as their family and friends,
operate under the assumption that "JAGS" are lawyers who are duly authorized
to practice law in one or more of the sovereign States of this country.
Furthermore, notwithstanding the cases relied
upon in the majority opinion which have let convictions stand even though
the lawyer was disqualified from active practice, I know of no federal
or state judge who would willingly let a disbarred, suspended, or inactive
lawyer practice in his or her court. We should accept no less for our military
accused.
If I were writing the rules, I would require
that counsel (military or civilian) be in an "officially" recognized status
which makes clear that they may be appointed to represent parties in a
criminal trial or that they may, for a fee from a client, go into a courtroom
and represent that client. That status carries with it the simple recognition
that the attorney is "legally competent" to represent clients. I would
accept nothing less in order to meet the requirements of Article 27, United
States Code of Military Justice, 10 USC § 827. To permit less seems
to me to demean the noble profession of the law and to perpetrate a fraud
upon the servicemembers, their families, and the public at large.


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