Brigadier General David C. Hague RE: Commission on Multijurisdictional Practice - Center for Professional Responsibility

January 29, 2002

Mr. John A. Holtaway
ABA Center for Professional Responsibility
541 North Fairbanks Court, 14 th Floor
Chicago, Illinois 60611

RE: Commission on Multijurisdictional Practice

Dear Sir:

On behalf of the American Bar Association’s ("ABA") Standing Committee on Legal Assistance for Military Personnel ("LAMP"), I would like to thank you for the opportunity to comment on the Commission’s Interim Report on Multijurisdictional Practice.

Having completed a careful review of the report, the LAMP Committee wishes to communicate its sincere appreciation for the Commission’s overall outstanding efforts, but is nevertheless compelled to voice its disagreement with the proposed language of note forty-four (44) to Comment 3.8 (page 45). As developed in detail infra, the LAMP Committee respectfully requests that the language stating that the commission "is uncertain whether military lawyers are in fact legally authorized to represent individuals outside the jurisdictions in which they are licensed" be deleted. The LAMP Committee submits that a reading of Title 10 United States Code § 1044 et seq., directly contradicts that particular statement thereby justifying its removal.

The provision of legal assistance (i.e., the drafting of wills, legal documents, advising service members regarding a variety of legal issues, etc.), to active and retired service members, as well as their dependents, has enjoyed a successful history dating well over sixty (60) years. The ABA has played a major role in that success. As you may know, the ABA created the Committee on National Defense in 1940. That Committee’s primary mission was to cooperate with governmental agencies in the preparation for the national defense by offering any necessary legal assistance support. Although the name of the Committee changed twice, once in 1953 and to its current title in 1976, the mission has remained the same over the past sixty (60) years – to promote the delivery of free, quality civil legal services to military personnel and their families.

The Armed Forces Secretaries ability to provide legal assistance was formally codified in a federal statute in 1984. Pursuant to Title 10 United States Code § 1044 et seq., the Armed Forces have provided legal assistance to literally millions of active duty and retired personnel. Section 1044 expressly provides in part that:

(a) Subject to the availability of legal staff resources, the Secretary concerned may provide legal assistance in connection with their personal civil legal affairs to the following persons:

(1) Members of the armed forces who are on active duty.

(2) Members and former members entitled to retired or retainer pay or equivalent pay.

(3) Officers of the commissioned corps of the Public Health Service who are on active duty or entitled to retired or equivalent pay.

(4) Dependents of members and former members described in paragraphs (1), (2), and (3).

(b) Under such regulations as may be prescribed by the Secretary concerned, the Judge Advocate General . . . is responsible for the establishment and supervision of legal assistance programs under this section . . . .

Title 10 U.S.C. § 1044 (2001) (emphasis added).

It is also important to note that from the initial enactment of § 1044, Congress understood that the Secretaries would provide legal assistance to military members via military and civilian government legal assistance attorneys, even though those legal assistance attorneys might not be licensed within the particular jurisdiction in which they were assigned. Furthermore, Congress was cognizant of the fact that a service member might require legal assistance in the form of a will, or legal advice on a multitude of legal issues, from the State in which he maintained his or her citizenship, despite being currently assigned to a base in another State.

Support for the premise that legal assistance is to be provided unfettered by State requirements is obvious in the various amendments and extensions of § 1044 enacted in 1990, 1993, 1996 and 2000. All of those amendments were supported by LAMP and two were formally endorsed by the ABA House of Delegates. Furthermore, each of those pieces of legislation have served to substantially expand the Secretaries’ ability to provide legal assistance to military members.

Specifically, § 1044a provides in part that all judge advocates and civilian attorneys serving as legal assistance attorneys have the general powers of a notary public. Section 1044b requires that military powers of attorney are to be given legal effect without regard to State law. Section 1044c directs that military advance medical directives are also to be given legal effect without regard to State law. The most recent expansion is found in § 1044d, which states in part that a military testamentary instrument has the same legal effect as a testamentary instrument prepared and executed in accordance with the laws of the State in which it is presented for probate. Obviously, Congress enacted § 1044 and its progeny, with the intent of both removing State law barriers while enhancing the delivery of legal assistance to service members.

Lastly, as you are aware, the various services are uniform in their belief that § 1044 permits the provision of legal assistance to service members by military and civilian attorneys not licensed within the jurisdiction in which they are stationed. 1 It is the preference of LAMP, as well as the various branches of the Armed Forces, that an expressed safe harbor be created in Model Rule 5.5(d) (see page 74) that states words to the effect:

(3) if the lawyer is an Armed Forces legal assistance attorney providing legal services pursuant to Title 10 U.S.C. § 1044 et seq.

Should the Commission decide not to create an expressed safe harbor, LAMP believes the legal assistance attorney falls within the safe harbor created by 5.5(d)(2), but that note forty-four (44) in its current form, casts unnecessary doubt on that presumption. As a consequence the note needlessly jeopardizes lawyers that have been directed by their superiors to provide legal assistance in jurisdictions in which they are not licensed.

Thank you again for the opportunity to provide written comment. The LAMP Committee also intends to have Rear Admiral John S. Jenkins, JAGC, USN(Ret.) testify at the Commission hearings on Friday, February 1, 2002, in Philadelphia. Should you have any questions please do not hesitate to contact either myself or the ABA Staff Counsel, Jane Nosbisch.

Sincerely,

 

Brigadier General David C. Hague, USMC(Ret.)
Chair LAMP Committee

Encls.

1The Commission’s report identifies letters from the United States Army and United States Navy. The United States Air Force and United States Marine Corps also forwarded letters to the Commission. I have enclosed copies of all four letters for the Commission’s consideration.