Posted: April 28, 2004
Code of Judicial Administration
CJA 3-403. Judicial branch education. Amend. Eliminates mandatory attendance at annual judicial conference.
CJA 9-103. Certification of education requirements. Amend. Amend to conform to statutes.
CJA 11-303. Special admission exception for military lawyers. New. Permits qualified military lawyers on active duty who reside, but are not licensed in Utah, to provide uncompensated limited legal services to military personnel and their dependents who suffer substantial financial hardship. Effective May 4, 2004 under Rule 11-101(6)(F). Subject to further change after comment period.
I don’t know why anyone would NOT want to go. I just attended my first one and found it invaluable. Not only the conference content, but the interaction with other judges was tremendous. So why change?
Re: Rule 11-303
As a retired colonel in the Air Force JAG reserve and a member of the admissions committee I had special interest in this rule when I saw it. I communicated with the staff judge advocate’s office at Hill AFB about their thoughts on the rule and also spoke with the staff judge advocate at Dugway Proving Grounds.
The Air Force legal assistance regulation does not allow Air Force lawyers to represent military member in nonmilitary courts. The senior civilian lawyer at Hill AFB said he had spoken with senior lawyers up the chain of command and the Air Force will not use the rule nor allow its lawyers to appear in state courts.
The Army legal assistance regulation does contemplate providing this type of assistance to Army members. The person who would provide that assistance at Dugway is a civil service lawyer, not a commissioner JAG officer. The Army regulation allows representation in state courts if the law of the state allows it.
There are reservists assigned to military basis in the capacity of individual mobilization augmentees (IMA). These reservists are attached to a centralized unit which merely monitors their paperwork. They actually perform their reserve duty in active duty law offices on the same basis as the regular JAG officers. They perform the same type of legal work as the full time lawyers. The only difference is they are reservists. IMAs are usually attached to the bases where they serve for extended periods of time. I was attached to Hill AFB from 1980 to 1997.
With this background, it would appear to me that this rule would be more effective in meeting the needs of the military services and their members if it were slightly altered. The language at lines 11 and 12 which makes the rule applicable only to “a full-time active duty military officer” excludes the very person who would be performing these services at Dugway, a civil service lawyer. It also excludes IMAs. Many IMAs are engaged in the regular practice of the types of law the rule is designed to cover and would logically be the lawyers a staff judge advocate would want to consider first for this type of duty because of the IMA’s experience. In short, it seems to me the rule should be altered to read as follows.
A lawyer admitted to the practice of law in a state or territory of the United States or of the District of Columbia, who is serving in the office of a staff judge advocate of the United States Army, Air Force, Navy, Marines, or Coast Guard, a naval legal service office or a trial service office, located in the State of Utah, whether on active duty, reserve duty or a member of the civil service, may, upon application to the Utah State Bar and Supreme Court certification, appear as a lawyer and practice law before the courts of this state in any civil matter or civil litigation, or in a civil administrative proceeding, subject to the following conditions and limitations set forth in this Rule.
Finally, it may well be that the staff judge advocate or the commander believes that a military member other than E-1 to E-4 is in need of legal assistance. It would seem to me that is a choice the SJA or the commander should be able to make. I would exclude the limitations in paragraph five.
Re: Rule 11-303
As background for my comments, I have chosen to maintain my membership in the Utah State Bar while working for the past 12 years as a civilian legal assistance attorney for the U.S. Army, first in San Francisco, California, then in San Antonio, Texas. An equivalent rule, if adopted in Texas, would directly affect my ability to do my job.
As a general rule, active duty attorneys rotate through a legal assistance assigment for six months to a year, while civilian attorneys remain in their positions for many years.
At least in the Army, a legal assistance assigment is generally the first position for military attorneys after graduation from military legal training – their first opportunity after law school to actually practice law. They spend their legal assistance rotation learning the practice of law through a combination of mentoring and on-the-job training from the civilian attorneys and their supervisors in the office. Limiting special admissions to active duty attorneys only would have the unintended, but very real, consequence of making this status available only to the least experienced attorneys in the office.
Our office regularly utilizes Individual Mobilization Augmentees (IMAs) and Reserve soldiers as legal assistance attorneys during their two week annual training periods. These individuals often bring with them extensive experience from their civilian legal practice. The proposed rule would also exclude them from being utilized for special admission cases.
I recommend that the rule be revised to authorize special admission to any active or reserve military attorney, and any civilian attorney working in a military legal office, so long as they are designated as, or detailed to perform duties as, a legal assistance attorney.