To: Wayne J. Positan, Chair, Commission on Multijurisdictional Practice
From: Brigadier General David C. Hague, USMC (Ret.) Chair, Standing Committee on Legal Assistance For Military Personnel
Date: February 7, 2001
Re: Testimony before the Commission
The Standing Committee on Legal Assistance for Military Personnel appreciates the opportunity to provide comments to the Commission on issues relating to multijurisdictional practice of military lawyers.
We recommend that the Commission encourage states to expressly recognize that work completed by attorneys employed by the military does not constitute the unauthorized practice of law. Military attorneys provide civil legal assistance to service personnel at hundreds of locations worldwide pursuant to 10 United States Code 1044 and military regulations. The majority of clients served are in lower pay grades, many falling within the poverty guidelines set by the Legal Services Corporation for free legal services.
Service members and their immediate families are provided with wills before deployment, powers of attorney, advance medical directives, and legal assistance relating to separation agreements and custody issues. Many of these clients cannot afford to retain a civilian attorney and often are overseas where civilian attorneys are not available.
Military attorneys providing civil legal assistance within the military are often licensed to practice in one state, stationed in a second state, helping a client who may be a resident of a third state. The majority of states have pro hac vice regulations available to foreign counsel, but these cannot be exercised until the case is filed. Military legal assistance concentrates primarily on the preliminary work done prior to the case being filed. The Army, Navy, and Air Force each have their own "law schools" that provide initial training and continuous ABA accredited CLE to military attorneys.
Clearly, if a military attorney, not licensed in a state, provides legal assistance or advice to a client in that state, the attorney is technically engaging in the unauthorized practice of law. This happens every day as military attorneys struggle to ensure that every service member and his/her family is legally protected in case of deployments or other military actions.
The Commission has listed 12 possible solutions to multijurisdictional concerns, but none of these solutions address the circumstances of military practice. While the military has lived with the status quo and can continue to do so, we recommend that the states expressly recognize that work completed by military attorneys as part of their assigned duties while in the employ of the federal government not be considered the unauthorized practice of law. This would remove the threat of unauthorized practice of law charges being leveled at a military attorney. Furthermore, with such state recognition military attorneys, when applying for licensure from another state, would not have to explain that he/she practiced law in a state in which he/she was not licensed.
We thank you for the opportunity to comment.