The Attorney-Client Privilege:

Practical Military Applications of a

Professional Core Value

[Lieutenant Colonel Norman K. Thompson, USAF]{.smallcaps}[^1]

[Captain Joshua E. Kastenberg, USAF]{.smallcaps}[^2]**^\*^**

I. INTRODUCTION

"This \[attorney-client\] privilege---one of the oldest and soundest
known to the common law---exists for the purpose of providing a client
with assurances that he may disclose all relevant facts to his attorney
safe from fear that his confidences will return to haunt him."[^3]

A squadron commander wants to know if a member of her unit visited the
Area Defense Counsel (ADC) for advice. A doctor suspected of malpractice
thinks the base claims officer is "his lawyer" and should keep his
confidences. A legal assistance client comes to the base law center to
consult about a divorce and makes criminal admissions to his attorney
about abusing his wife. A Marine sees a defense counsel for advice on
nonjudicial punishment offered under Article 15[^4] of the Uniform Code
of Military Justice (UCMJ) for being absent without leave[^5]
(AWOL)---during the consultation, he tells the attorney he is being
sought in connection with an ATM card theft. He is later prosecuted by
the *same* counsel for that theft. The Air Force Office of Special
Investigations (AFOSI) seizes an Air Force officer's home computer---he
demands it back, claiming it contains privileged documents prepared at
the request of his attorney. A wing commander wants to pursue a clearly
illegal course of action and tells his staff judge advocate (SJA) he is
"going around these stupid regulations to make the 'right thing'
happen." A trial counsel wants to compel an ADC to testify about an AWOL
client's whereabouts. An accused marks his incriminating financial files
"attorney-client privilege" and hides them in his automobile. AFOSI
finds and seizes the files anyway. And the list goes on. . . .

These examples are drawn from case law and the personal experiences of
the authors. In each scenario, the attorney-client privilege, one of the
legal profession's core values, comes squarely into play. This article
grapples with these and other examples of the purpose, limits, and uses
of the privilege. We examine these issues with an eye toward the
practical application of the privilege to daily military legal practice
generally and to Air Force practice in particular. As these examples
illustrate, the attorney-client privilege touches every aspect of our
profession. The axiom that a lawyer must keep client confidences
inviolate is so fundamental to the effective practice of law that it
enjoys nearly universal apprehension and acceptance among lawyers and
laymen alike.

This article examines the historical development of the attorney-client
privilege and then explores the privilege generally before tackling some
specific areas where the privilege commonly arises in military practice.
We explore important aspects of the privilege from three different
perspectives: (1) a prosecution perspective---saving court-martial cases
involving alleged compromise of attorney-client privileged material by
trial counsel and/or investigators, (2) a defense perspective---using
the privilege to protect information about the whereabouts of a client
and the contents of a defense counsel's appointment schedule, and, (3) a
general military practice perspective---the potential conflicts of
interest which may arise when the privilege is factored into a diverse
military practice involving advice to command, claims litigation,
military legal assistance, and the plethora of other issues handled by
installation-level judge advocates daily.

# II. THE ATTORNEY-CLIENT PRIVILEGE GENERALLY

# A. Common Law Development

"The first duty of an attorney is to keep the secrets of his
clients."[^6]

A review of the common law roots and scope of the attorney-client
privilege will be helpful before proceeding further. The exact origins
of the attorney-client privilege are somewhat foggy. It may have origins
reaching back to the Roman Empire.[^7] Fragments of the privilege date
back to sixteenth century Elizabethan England, when evidentiary
privileges arose as the testimony of witnesses became the principal
basis of jury verdicts and compulsory process was introduced.[^8] The
noted scholar Dean John Wigmore wrote: "The history of this privilege
goes back to the reign of Elizabeth I, where the privilege appears as
unquestioned. It is therefore the oldest of the privileges for
confidential communications."[^9] The English privilege did not arise to
protect the interests of the client, but from a desire to uphold "*the
oath and the honor* of the attorney" to abide by his implied "solemn
pledge of secrecy."[^10] Cases upholding the attorney-client privilege
appear as early as 1577.[^11]

Two seventeenth century English decisions allowed a "counselor at law"
to refuse to testify against "their cause."[^12] In each case, the
"cause" involved an attorney's testimony against a client. In 1743, an
English court in *Annelsey v. Anglesea*,[^13] narrowed the privilege to
exclude protection in instances where an attorney engages in criminal
activity,[^14] where information was not gained as a result of the
particular pending action,[^15] or where information was not essential
to the matter for which the attorney was consulted.[^16] By the latter
part of the 1700s, ownership of the privilege had shifted to the client,
and the law recognized that "\[i\]n order to promote freedom of
consultation of legal advisers by clients, the apprehension of compelled
disclosure by the legal advisers must be removed; hence the law must
prohibit such disclosure except on the client's consent."[^17]

In the early 1800's the scope of the English privilege became ever more
expansive. In one case, an attorney was prohibited from testifying to
facts learned of his own observation in a criminal trial, including
instances where he observed a criminal fraud.[^18] In another instance,
an attorney was precluded from being examined about a message he
delivered to the opposite party in a transaction.[^19] The Court of
Chancery went so far as to hold that an attorney could not be questioned
as to whether he had received a discovery notice served by an opposing
party.[^20]

By the early 1800's, English courts had developed a nascent common law
of evidentiary privileges and American judges tentatively looked to this
emerging law to help them decide privilege questions. The first American
treatise on the subject---Judge Zephaniah Swift\'s *Digest of the Law of
Evidence---*was published in 1810.[^21] The author reiterated the
attorney-client and spousal privileges, but dismissed, as unsupported by
the law, physicians' and clergymen's claims to similar privileges.
Neither the United States Congress nor state legislatures added anything
of substance to the evidentiary privileges from the 1790's to the early
1800's.[^22]

American cases dealing with the attorney-client privilege did not appear
until the 1820's, but several post-Revolutionary War courts found the
privilege rooted in both the law of evidence (protecting
disclosures)[^23] and the law of agency (where a fiduciary relationship
between a lawyer and client exists).[^24] Early American criminal courts
and legal scholars viewed the privilege as an outgrowth of the Fifth
Amendment privilege against self-incrimination.[^25] Later, the Sixth
Amendment right to effective assistance of counsel began to appear as an
additional rationale. These rights-based rationales are known as the
"non-utilitarian" justifications.[^26] Some post-World War II decisions
gave greater weight to this school of thought and continued to see the
privilege as an extension of the right against self-incrimination.[^27]
However, many courts and scholars also believed the privilege should be
extended beyond the bounds of Fifth Amendment in order to facilitate
frank communications between attorney and client on all matters,
criminal and civil.[^28] This "utilitarian" view is the prevailing
majority view today.[^29]

Many of the common law rules of attorney-client privilege familiar to us
today were recognized by the Supreme Court during the nineteenth
century. For example, in a case decided in 1888, *Hunt v.
Blackburn*,[^30] the Court recognized the principle that an attack on
the competence of the attorney waives the privilege to the extent
necessary to allow the attorney to defend on the charge.[^31] Nine years
later in *Golver v. Patten*, the Court held that, "in a suit between
devisees under a will, statements made by the deceased to counsel
respecting the execution of the will . . . are not privileged."[^32]

American courts also initially entrusted the privilege to the attorney
and not the client,[^33] following in the English tradition.[^34] It was
not until the mid-1800's that American courts fashioned the prevailing
rule that the client is the holder of the privilege and the attorney is
obligated to claim it on his behalf, unless it is waived.[^35] For
nearly a century, between the mid-1800's and the end of the Roosevelt
era, little changed in the extent to which the courts recognized the
privilege. Following World War II, there was a largely unsuccessful
codification movement, as we shall examine below, which ultimately
provided the source of our modern military rule as well as insight into
the Supreme Court's view of how the privileges should be applied.[^36]

The Supreme Court of the United States has long recognized that the
scope of the privilege is "governed by common law principles as
interpreted and applied by the federal courts in the light of reason and
experience."[^37] The Court used similar language in 1981 in *Upjohn Co.
v. United States*,[^38] and again, less than two years ago, in *Swidler
and Berlin v. United States*.[^39] As we see below, this language is
echoed, nearly verbatim, in Federal Rule of Evidence (FRE) 501, which
states the general rule of privilege in modern federal practice.[^40]
Thus, the privileges applied in the federal courts today still derive
from common law rules.

*1. The Modern Common Law Rule*

Stated in contemporary terms, the modern privilege is designed to
encourage full and open communication between client and attorney to
allow the client to make disclosures without fear that the attorney will
be forced to reveal the information confided to her.[^41] Dean Wigmore
explained the common law elements of the attorney-client privilege as
follows:

> \(1\) Where legal advice of any kind is sought (2) from a professional
> legal adviser in his capacity as such, (3) the communications relating
> to that purpose, (4) made in confidence (5) by the client, (6) are at
> his instance permanently protected (7) from disclosure by himself or
> by the legal adviser, (8) except the protection be waived.[^42]

Many jurists have remarked that the attorney-client privilege must be
confined to its narrowest limits, however. They argue---as in the case
of other exclusionary rules which operate to deprive the trier of fact
of material evidence---that the exclusion of relevant evidence must not
exceed in scope the policy it is designed to serve.[^43] As the Court of
Military Appeals stated in an early opinion dealing with the rule:

> Indeed, the concept that the privilege should be applied strictly in
> terms of its underlying policy, serves to explain the rule that an
> attorney may be compelled to testify concerning a client confidence
> received in connection with a *projected* crime. The social interest
> favoring full disclosure by clients to attorneys is inoperative to
> shield with secrecy confidences made for the purpose of seeking legal
> advice as to how best to commit a contemplated offense. Similarly the
> privilege has no application to a communication made before persons
> whose presence was in no wise essential to a proper performance of the
> attorney's function.[^44]

*2. Statutory Developments*

Before the Federal Rules of Evidence were enacted in 1975, the question
of what evidentiary law the federal courts were to apply in deciding
privilege issues was far from settled. Federal courts decided privilege
questions sporadically and inconsistently in both the criminal and civil
arenas. In 1851, the Supreme Court held that, in criminal cases, federal
courts were to apply the common law rules of evidence in effect at the
time the federal courts in a given state were created.[^45] In *Wolfle
v. United States* and *Funk v. United States*, the Court overruled this
standard and held that federal courts were henceforth free to apply
"common law principles as interpreted . . . in light of reason and
experience."[^46]

By 1948, the Supreme Court admitted that its "infrequent sallies" into
the field of evidence were incapable of transforming the "grotesques
structure" of existing evidence law into a "rational edifice."[^47] The
confusion surrounding evidentiary law in the federal courts eventually
prompted a movement to enact uniform federal rules of evidence. At the
urging of the American Bar Association (ABA), the Supreme Court's
advisory committee worked for six years to codify the common law
privileges. On 20 November 1972, the Court, acting pursuant to the Rules
Enabling Acts,[^48] promulgated the Federal Rules of Evidence. Chief
Justice Warren E. Burger transmitted them to Congress on 5 February 1973
recommending they be allowed to automatically become law after the
mandatory ninety-day waiting period specified in the Rules Enabling
Acts.[^49]

FREs 501-513 sought to codify the federal law of privilege and to that
end, the proposed rules recognized nine discrete privileges, including
communications between attorney and client, under proposed Rule 503. The
proposed privilege rules were the single most controversial part of the
proposed FREs and were virulently attacked by members of Congress and
many other critics. Opponents claimed, among other things, that the
privilege rules were incomplete, inconsistent, and incoherent. Of
particular note, many critics commented that the advisory committee,
which consisted entirely of attorneys, had enacted a comprehensive
attorney-client privilege rule while limiting or removing privileges for
other professions. Fearing a long battle over the enumerated privilege
rules, Congress ultimately deleted them and substituted a single,
general rule of privilege---Rule 501:

> Except as otherwise required by the Constitution of the United States
> or provided by Act of Congress or in rules prescribed by the Supreme
> Court pursuant to statutory authority, the privilege of a witness,
> person, government, State, or political subdivision thereof shall be
> governed by the principles of the common law as they may be
> interpreted by the courts of the United States in the light of reason
> and experience. However, in civil actions and proceedings with respect
> to an element of a claim or defense as to which State law supplies the
> rule of decision, the privilege of a witness, person, government,
> State, or political subdivision thereof shall be determined in
> accordance with State law.[^50]

The drafters of Rule 501 intended that state privilege law would apply
in diversity cases and that federal question cases would use three
general sources of privilege law: the Constitution, acts of Congress,
and federal common law developed "in the light of reason and
experience."[^51] In practice, federal courts in federal question cases
often look to state law for guidance in the area of privilege and
commentators have argued that in the absence of strong federal policies
to the contrary, federal courts should adopt state privilege law where
it favors admissibility. Rule 501, however, does not mandate such a
practice and thus leaves privilege law open to continuing common law
development by the federal courts.[^52]

Thus, the United States does not have a single "law of privileged
communications" but rather two distinct and often divergent bodies of
law: (1) In state courts and in federal cases applying state law, the
law of evidentiary privilege is a diverse collection of rules, developed
mostly by statute, sometimes by common law, and, (2) In federal cases in
which state law is not binding, federal courts have begun to develop a
federal common law of evidentiary privileges "in the light of reason and
experience."[^53] This discussion of the common law is particularly
important, because the federal law of privilege, including its frequent
resort to state law, is applicable and useful in military practice.
Particularly in areas where our military rules and case law are not yet
well developed. Thus, as noted below, while the military has a number of
explicit rules regarding privileges, Military Rule of Evidence 501(a)(4)
also recognizes privileges provided for in:

> The principles of common law generally recognized in the trial of
> criminal cases in the United States district courts pursuant to Rule
> 501 of the Federal Rules of Evidence insofar as the application of
> such principles in trials by courts-martial is practicable and not
> contrary to or inconsistent with the code, these rules, or this
> Manual.

As noted below, military courts have often turned to these common law
authorities to support their holdings on privilege issues.

B. Modern Military Law

The modern military attorney-client privilege takes two related but
distinctly different forms: (1) An *evidentiary* privilege defined by
Military Rule of Evidence 502 and military case law, which prevents an
opponent from discovering and using privileged communications in
preparing for litigation or compelling their disclosure at trial, and
(2) an *ethical* duty, allowing a claim of privilege which is generally
broader in scope than its evidentiary cousin, and is defined by various
state and military rules of professional conduct. These latter sources
vary slightly among the several states and the military services, and
are primarily based on the ABA Model Rules of Professional Conduct and
the ABA Standards for Criminal Justice.[^54]

*1. The Evidentiary Privilege*

In pertinent part, Military Rule of Evidence 502 states:

***(a)* *General rule of privilege.*** A client has a privilege to
refuse to disclose and to prevent any other person from disclosing
confidential communications made for the purpose of facilitating the
rendition of professional legal services to the client, (1) between the
client or the client's representative and the lawyer and the lawyer's
representative, (2) between the lawyer and the lawyer's representative,
(3) by the client or the client's lawyer to a lawyer representing
another in a matter of common interest, (4) between representatives of
the client or between the client and a representative of the client, or
(5) between lawyers representing the client.

***(b) Definitions.*** As used in the rule:

\(1\) A "client" is a person, public officer, corporation, association,
organization, or other entity, either public or private, who receives
professional legal services from the lawyer. . .

\(2\) A "lawyer" is a person authorized . . . to practice law. . .

\(3\) A "representative" . . . is a person . . . assigned to assist a
lawyer. . .

> \(4\) A communication is "confidential" if not intended to be
> disclosed to third persons other than those to whom disclosure is in
> furtherance of the rendition of professional legal services to the
> client or those reasonably necessary for the transmission of the
> communication.[^55]

Under section (c) of the Rule, the privilege may be claimed by the
client, guardian or conservator of the client, personal representative
of a deceased client, or the successor, trustee, or similar
representative of a corporation, association, or other organization,
whether or not in existence. The lawyer may also claim the privilege on
behalf of the client.[^56]

Rule 502(d) enumerates several well-known common law exceptions to the
privilege. For example, communications clearly contemplating the future
commission of a crime or fraud are not protected. Rule 502(d)(3) notes
that "communications relevant to an issue of breach of duty by the
lawyer to the client or by the client to the lawyer" may be revealed to
the extent necessary to pursue or defend such claims. Other, more rarely
used, exceptions are also included.[^57]

As noted, Military Rule of Evidence 502 was adapted from proposed FRE
503. The Military Rules of Evidence were promulgated by Executive Order
as Part III of the MCM in 1980.[^58] However, the attorney-client
privilege was already well established in military law before the
Military Rules of Evidence or even the UCMJ[^59] were adopted.[^60]
Prior to 1980, the privilege was explicitly recognized by the MCM and
thoroughly grounded in military case law, which generally recognized the
privilege to at least the same extent established by the federal common
law. The United States Court of Appeals for the Armed Forces recently
recognized this in *United States v. Romano*, as the court reaffirmed
that communications made in confidence to an attorney for the purposes
of obtaining legal advice are privileged, unless the privilege is waived
by the client.[^61]

The Military Rules of Evidence also contain separate rules codifying the
doctrine of waiver by voluntary disclosure,[^62] suppression of
privileged matter which the holder is erroneously compelled to disclose
or which is disclosed without opportunity to claim the privilege,[^63]
and forbidding comment by either side upon a claim of privilege by an
accused or any other person at trial.[^64]

As noted above, the FREs do not contain a codified rule of
attorney-client privilege, relying instead on the general rule of
privilege stated in FRE 501 and federal case law. In 1980, the Supreme
Court held, in *Trammel v. United States,*[^65] that the Federal Rules
of Evidence "acknowledge the authority of the federal courts to continue
the evolutionary development of testimonial privileges in federal
criminal trials."[^66] The Court once again reiterated that "these
privileges are governed by the principles of common law as they may be
interpreted . . . in the light of reason and experience."[^67] Although
*Trammel* chiefly involved an examination of the spousal privilege, the
Court defined the purpose of the attorney-client privilege as,
"rest\[ing\] on the need for the advocate and counselor to know all that
relates to the client's reasons for seeking representation if the
professional mission is to be carried out.\"[^68]

Military case law continues to make relevant contributions to the
development and interpretation of the privileges as well. In *United
States v. Ankeny*[^69] the Court of Military Appeals reemphasized that
"it is black letter law that a military accused has a privilege to
prevent unauthorized disclosure of his confidential communications to
his attorney."[^70] In *Ankeny*, civilian defense counsel for Navy
Lieutenant Ankeny inadvertently revealed information (to an Assistant
Staff Judge Advocate to the General Court-Martial Convening Authority)
about a previously unknown offense. The accused was charged with and
convicted of the newly discovered offense. The Navy-Marine Corps Court
of Military Review reversed Lieutenant Ankeny's conviction[^71] and the
Court of Military Appeals affirmed that decision based a violation of
the attorney-client privilege by civilian defense counsel.[^72]

*2. The Ethical Privilege*

Neither federal nor state courts are generally bound by state rules of
professional responsibility or by the ABA Model Rules, Codes, or
Standards. However, these rules provide important guidance for courts in
determining whether a case is, or may become, tainted by ethics
violations.[^73] Ethics rules are also professionally binding on
attorneys when adopted by state licensing authorities or military
departments. In Air Force practice, the Air Force Rules of Professional
Conduct (Air Force Rules) and Air Force Standards for Criminal
Justice[^74] (Air Force Standards) *are* binding on *all* Air Force
attorneys and paralegals---military, civilian, and
foreign-national.[^75] The Air Force Rules make clear that, when there
is a conflict between state licensing rules and the Air Force Rules, the
Air Force Rules will govern.[^76] The theory being that, since our
practice is purely federal, our rules control under the Supremacy Clause
of Constitution.[^77] The Air Force Rules and Standards are not
punitive, but violations may by addressed administratively, or through
action to withdraw certification under Article 27(b), UCMJ, or to
withdraw designation as a judge advocate.[^78]

The Air Force Judge Advocate General\'s (TJAG) authority to prescribe
the Air Force Rules and Standards comes from a number of sources,
including: (1) his statutory duty to supervise the administration of
military justice under Article 6(a), UCMJ;[^79] (2) authority granted by
the President in Rule for Courts-Martial (RCM) 109;[^80] and, (3) his
general statutory authority to "perform such other legal duties as may
be directed by the Secretary of the Air Force."[^81] Additionally, the
Air Force Court of Military Review has concluded that military judges
have "the inherent power to resolve issues of ethical obligations of
counsel."[^82]

The Air Force Rules and Standards codify many of an Air Force attorney's
ethical duties to his client. With regard to the attorney-client
privilege, the Air Force Rule states, in pertinent part:

## Rule 1.6. Confidentiality of Information

> \(a\) A lawyer shall not reveal information relating to representation
> of a client unless the client consents after consultation, except for
> disclosures that are impliedly authorized to carry out the
> representation, and except as stated in paragraph (b).
>
> \(b\) A lawyer may reveal such information to the extent the lawyer
> reasonably believes necessary:
>
> \(1\) to prevent the client from committing a criminal act that the
> lawyer believes is likely to result in imminent death or substantial
> bodily harm, or substantial impairment of national security or the
> readiness or capability of a military unit, vessel, aircraft, or
> weapons system; or
>
> \(2\) to establish a claim or defense on behalf of the lawyer in a
> controversy between the lawyer and client, to establish a defense to a
> criminal charge or civil claim against the lawyer based upon conduct
> in which the client was involved, or to respond to allegations in any
> proceeding concerning a lawyer's representation of the client.[^83]

The Air Force Standards provide further guidance for military justice
practitioners:

> **Standard 4-3.7. Advice and Service on Anticipated Unlawful Conduct**
>
> d\. A defense counsel shall not reveal information relating to
> representation of a client unless the client consents after
> consultation, except for disclosures that are impliedly authorized in
> order to carry out the representation, and except as stated in
> paragraph (e).
>
> e\. A defense counsel may reveal such information to the extent the
> lawyer reasonably believes necessary:
>
> \(i\) To prevent the client from committing a criminal act that the
> defense counsel believes is likely to result in imminent death or
> substantial bodily harm, child sexual and/or physical abuse, or
> substantial impairment of national security or the readiness or
> capability of a military unit, vessel, aircraft or weapons system; or
>
> \(ii\) To establish a claim or defense on behalf of the defense
> counsel in a controversy between counsel and client, to establish a
> defense to a criminal charge or civil claim against counsel based upon
> conduct in which the client was involved, or to respond to allegations
> in any proceeding concerning a defense counsel\'s representation of
> the client.
>
> \(iii\) To prevent the client from attempting suicide or causing
> serious bodily harm to herself or himself; or
>
> \(iv\) To assist Air Force authorities in locating the client when
> those authorities believe the client may attempt suicide or cause
> serious bodily harm to herself or himself.

These *ethical* rules create much broader duties for Air Force attorneys
to protect client confidences, as well as *any* information relating to
representation of a client. This point is critical to resolving many of
the issues discussed in this article, but particularly those discussed
in Part IV, below, regarding the sanctity of a military defense
counsel\'s schedule and revealing information about the whereabouts of a
client.

**III. HANDLING ALLEGED AND ACTUAL CASES OF**

**ATTORNEY-CLIENT PRIVILEGE COMPROMISE**

> "Lawyers enjoy a little mystery, you know. Why, if everybody came
> forward and told the truth, the whole truth, and nothing but the truth
> straight out, we should all retire to the workhouse."[^84]

Cases involving alleged prosecution interference with the
attorney-client relationship by inadvertent compromise of
attorney-client privileged information are increasingly common. In a
world where laptop and even hand-held computers may contain vast stores
of records, a routine search and seizure can readily lead to such a
claim. Other, low-tech methods of compromise still persist as well. In
this section we outline three scenarios, adapted from actual Air Force
cases, in which the compromise issue reared its head. Next we analyze
the extant rules and case law for possible solutions to these cases.
Finally, we offer practical guidance on handling such cases when they
arise.

# A. How it Happens---Three Scenarios

\(1\) At the request of his attorney, an accused prepares a chronology
of events leading up to his apprehension on fraud charges. The
chronology contains potentially incriminating admissions, and an
electronic copy resides on his home computer, which he also uses to run
the business at the heart of the charges against him. The computer also
contains several pieces of attorney-client privileged correspondence.
The computer is seized by AFOSI investigators as evidence in the fraud
case against the accused. Corporate counsel for the accused\'s company
demands that all privileged material be returned. When a special master
is appointed to review the documents, he finds several documents
appearing to qualify as attorney-client privileged correspondence on the
computer's hard drive and seals them with instructions that trial
counsel should not examine them. The chronology is not among those
papers and the accused never specifically requests its return. Paper
copies of the chronology are printed from the computer's hard drive by
AFOSI computer investigators, but the documents are misplaced and never
used to advance the investigation.

Later, on the eve of trial, the chronology is delivered directly to
defense counsel by an AFOSI agent. Defense counsel shows the documents
to trial counsel (who has not seen them before), claims the entire case
is tainted by a violation of the attorney-client privilege, and moves to
dismiss all charges, or in the alternative, to suppress all evidence
gathered after the date the computer was seized, and to disqualify the
prosecution team.[^85]

\(2\) An accused is tried and acquitted of assault, but convicted of
other minor charges at a general court-martial (GCM). He remains on
active duty. Later, the victim reports to police that the accused forced
her to write perjured statements and give perjured testimony at his
trial. Investigators of the Naval Criminal Investigative Service (NCIS)
search the accused's apartment, and seize all of his personal papers,
looking for drafts of the perjured statements written in the accused's
hand. Among the papers seized are notes made by the accused before,
during, and after his trial; drafts of his clemency matters; and other
correspondence to and from his defense counsel in that case. This
potentially privileged evidence remains in the hands of investigators
for nearly a year. They use some of the documents as handwriting
exemplars, but do not otherwise use them to advance their case, and do
not provide them to trial counsel. The accused never asks the government
to return the allegedly privileged matters.

In preparation for the accused's second GCM (for subornation of
perjury), circuit trial counsel visits NCIS offices and inspects their
files. She finds some items seized from the accused that appear to be
draft clemency matters from his first trial. She reports this
immediately to defense counsel, who further examines the evidence in the
possession of NCIS and discovers other potentially privileged documents
(mixed with other documents and evidence), which have been languishing
in the NCIS evidence locker for over a year. Defense counsel recognizes
some of it as incriminating and some of it as potentially privileged.
Trial counsel does not examine these materials. At trial, the defense
moves to dismiss all charges, or in the alternative, to suppress all
evidence seized from the accused and disqualify the prosecution
team.[^86]

\(3\) The subject of a fraud investigation gets wind that his office is
about to be searched. He calls his attorney, who tells him (he later
claims) to mark all the files involved in the investigation (files which
he created in the course of his government duties) as "attorney-client
privilege, \[ADC's name\]," and to remove them from his office.
Investigators, armed with a search authorization, find the files in the
trunk of the subject\'s car and seize them. A special master is
appointed to examine the materials and finds that none of them appears
to be privileged.[^87]

**B. The Developing Law**

As yet, there are no published military precedents precisely on point
with scenarios (1) and (2) above. Nevertheless, the military judge in
each case was able to fashion sufficient remedies using Military Rules
of Evidence 501-502 along with relevant federal and military case law.

*1. Establishing the Privileged Nature of the Compromised Material*

As mentioned above, Military Rule of Evidence 502 creates an
*evidentiary* privilege, which protects confidential attorney-client
communications from compelled production and prevents their use in
courts-martial or other proceedings.[^88] If the privileged
communication is improperly disclosed[^89] it continues to retain its
privileged character. In military cases involving the alleged compromise
of attorney-client privileged communications, the accused must show, as
a predicate matter, that the communication in question falls within the
protections of Military Rule of Evidence 502. In cases involving
documents created by the accused, she must also show that they were
prepared at the request of her attorney, and were actually, or intended
to be, communicated to the attorney.[^90]

If the communication in question does not meet these qualifications, it
receives no special protection, and is treated like any other admission
of a party-opponent. Additionally, evidence not otherwise privileged
does not become privileged merely by marking it as such, or even by
transferring it to the possession of an attorney.[^91] Suspects may not
shield themselves from the fruits of valid, authorized searches by the
naked claim that the items to be seized are privileged. Thus, we may
easily dispose of scenario (3), above. The files in question were simply
not attorney-client privileged materials. In fact, they did not even
belong to the accused, as they were government property.[^92]

*2. Finding a Workable Standard*

Military Rule of Evidence 501, the general rule of military privilege,
defines a claim of privilege to include: refusal to be a witness or
disclose any matter; refusal to produce any object or writing; and, the
right to prevent another from being a witness or disclosing any matter
or producing any object or writing which is privileged. Thus, if an
adverse party improperly comes into possession of privileged
information, the party holding the privilege may prevent its
introduction into evidence at trial. The key, as with all inadmissible
evidence, is that court-martial members must be shielded from knowledge
of the evidence, and military judges must disregard it in judge-alone
trials. In other words, much like other suppressed or inadmissible
evidence, neither it, nor its "fruits" can be used against the
accused.[^93]

Defense counsel in attorney-client privilege compromise cases may be
tempted to urge the military judge to analogize the case to an immunity
situation under *Kastigar v. United States*.[^94] Under *Kastigar* and
the provisions of RCM 704(a)(2), a prosecutor who is aware of the
substance of testimony or other information given by an accused under a
grant of testimonial immunity, is barred from prosecuting the accused,
and another prosecutor must prepare and try the case without any
knowledge of, or access to, the evidence gathered under the grant of
immunity.[^95] This is difficult, at best.

If the judge were to apply a *Kastigar*-type standard in attorney-client
privilege compromise cases, the government would presumably have the
burden to show, by clear and convincing evidence, that its case was not
tainted by use of the compromised attorney-client privileged material by
its use in the investigation, preparation, or trial of the case, and
that the evidence to be used at trial was derived from a legitimate
source wholly independent of the "compelled" evidence (the compromised
communications). As most litigators know, this has proven to be an
enormous, if not impossible, task in many immunity cases and would
likely be so in a compromise case as well.

The defense in scenarios (1) and (2), above, might argue that, as there
is no military precedent on point, the *Kastigar* immunity standard is
as good as any. However, this is not the case. There is, in fact,
substantial precedent available in Supreme Court precedents and other
federal case law. There are also some helpful military cases, but none
are exactly on point with our facts. Despite diligent research, no trace
can be found of any court, civilian or military, trial or appellate,
applying the *Kastigar* standard to an attorney-client privilege
compromise situation. Rather, as the cases below illustrate, the accused
has the burden of raising a reasonable inference of prejudice from any
compromise after which, the government must convince the judge of the
appropriateness of their actions by a preponderance of the evidence.

*United States v. Mansfield*[^96] is an instructive military case. At
his retrial for murder, Staff Sergeant (SSgt) Mansfield argued that,
since he had to attack his ineffective defense team on appeal, he was
"compelled" to waive his attorney-client privilege, and was thus placed
in an unfair position at his second trial. He asserted that the
prosecution team obtained an unfair advantage when they became aware of
many attorney-client confidences during the appeal from the accused\'s
first conviction. Much of the previously privileged information related
to a mental responsibility defense the accused wanted to assert. The
information allowed prosecutors at the second trial to cross-examine the
defense expert more effectively and the accused was once again convicted
and sentenced to life imprisonment.[^97]

While the cases are factually dissimilar, Staff Sergeant Mansfield found
himself in substantially the same place as the accused in both scenarios
(1) and (2), above: Possible attorney-client privileged material was in
the hands of the government, and the accused had not "willingly" given
it to them (because he believed the waiver rules unfairly forced him to
sacrifice one right to protect another). Significantly, the defense in
*Mansfield* analogized the situation to an immunity case and argued for
application of the *Kastigar* standard. The Air Force Court of Military
Review flatly refused to apply that standard to the attorney-client
privilege issues in the case.[^98] While the issue was ultimately
resolved under a theory of waiver, the case is relevant to our inquiry
because there are elements of constructive waiver in the scenarios
above. For example, in both scenarios (1) and (2), significantly long
periods of time passed during which the defense team failed to ensure
that the government was aware it possessed privileged materials.
Additionally, in each case the privileged materials were not well
protected by the accused and were commingled with unprivileged
materials.

The Supreme Court dealt with the issue of prosecutorial intrusion into
the attorney-client relationship in *Weatherford v. Bursey*.[^99] This
federal civil rights case arose from a criminal prosecution, but is
still valid guidance for military practitioners. In *Weatherford*¸ an
undercover agent, who was arrested with the accused after they had
ransacked a Selective Service office together, maintained his "cover"
and pretended to be a co-accused. In this capacity, he attended meetings
with the accused's attorney, but never passed any of the information
gained in those meetings to prosecutors. He was later called as a
witness against the accused, but did not testify regarding any matters
learned at the attorney-client meetings. The accused was convicted, but
later sued for civil rights violations. The Court held that, since the
intrusion was unintentional, related to legitimate law enforcement work,
and not a *deliberate* attempt by the prosecution to learn about defense
plans or trial strategies, the accused's Sixth Amendment rights were not
violated, absent a showing of prejudice.[^100] In dicta, the Court
indicated that perhaps if *intentional* misconduct had been involved,
then a showing of prejudice would not be necessary.[^101]

*Shillinger v. Haworth* is another federal case which provides
enlightening discussion of the standard for establishing a Sixth
Amendment violation when the prosecution possesses attorney-client
privileged information.[^102] After a very thorough analysis of
*Weatherford* and the leading cases in virtually every federal circuit,
the opinion articulates a rule whereby *intentional* prosecution
misconduct is firmly distinguished from those intrusions that occur as
an unintended consequence of otherwise legitimate law enforcement
activity.[^103] The court found that the accused's rights had been
intentionally violated when the prosecutor gathered information from a
guard who was assigned to watch the accused while he met with his
counsel.[^104] The trial court then allowed the prosecution to make use
of this evidence to cross-examine the accused about being "coached" by
his lawyer. The decision of the court was to remand for fact-finding as
to the "extent of the intrusion and the proper remedy" should the
illegally obtained evidence and any "fruits" of it be suppressed.[^105]

The *Shillinger* court relied heavily upon *United States v.
Morrison*[^106] where the Supreme Court articulated the following
standard: "Cases involving Sixth Amendment deprivations are subject to
the general rule that remedies should be tailored to the injury suffered
from the constitutional violation and should not unnecessarily infringe
on competing interests."[^107] The Court made clear that evidence
obtained through *intentional and improper* intrusion into a defendant's
relationship with his attorney, as well as any "fruits of \[the
prosecution's\] transgression," must be suppressed in proceedings
against him.[^108] If the taint is pervasive enough, then prosecution by
a new prosecutor might be necessary.[^109] Dismissal of the case is
reserved for only the most serious, extreme cases, as when the
prosecution loses potentially exculpatory evidence.[^110] As we
mentioned earlier, before the court reaches any of this analysis, the
accused bears the burden of showing that the material in question is in
fact privileged.[^111]

Not surprisingly, neither the Military Rules of Evidence nor case law
suggests dismissal of charges or disqualification of trial counsel as an
appropriate remedy for inadvertent exposure to attorney-client
privileged evidence. Prosecutors are often aware of inadmissible,
incriminating evidence and are nevertheless allowed to prosecute such
cases when the evidence is found to be inadmissible. Disputes about
illegally obtained confessions or illegally seized evidence often arise
in criminal cases. If the evidence or its "fruits" are suppressed, that
does not prevent further trial of the case by the prosecuting attorney
who argued for its admission. Furthermore, when an accused makes an
offer for a pretrial agreement,[^112] the prosecution knows by
implication that the accused believes he is guilty of the charge(s) to
which he has offered to plead guilty. While this evidence of pretrial
negotiations cannot be used against the accused at trial,[^113] trial
counsel is not disqualified from acting in the case merely because she
is aware of the pretrial agreement offer.

*3. Waiver*

When privileged material does fall into the hands of the government,
trial counsel should carefully consider whether the accused waived the
privilege with respect to any or all of the evidence by his actions or
inaction. Clearly, any material voluntarily made public by the accused
(*e.g*., in letters to Congressman or clemency matters delivered to a
convening authority[^114]) would lose their privileged nature by
operation of Military Rule of Evidence 510.[^115] Additionally, there
may be issues of constructive waiver based upon the way the material was
stored and what actions the accused took to put the government on notice
that it was in possession of privileged material after the search.[^116]
Factors such as the reasonableness of the precautions taken to prevent
disclosure and the promptness of the measures taken to rectify the
disclosure are clearly relevant under the facts of scenarios (1) and
(2).

In both scenarios, even if the information is found to be
attorney-client privileged, the accused may well have waived his right
to claim the privilege by failing to raising the issue at the time the
evidence was seized or for over twelve months after its seizure. Another
important fact in scenario (2) was that only one page of the material
was marked "attorney-client privilege." The evidence was also found
mixed in with an equal amount of clearly nonprivileged material, some of
which did not even appear to belong to the accused. Thus, the accused
did not take active steps necessary to protect the documents or put
others on notice as to their nature. These facts all weigh in favor of
waiver, and against a finding that there was any intentional or
malicious intrusion into the attorney-client relationship.

*4. Appropriate Remedies*

Relying on *Weatherford*, the Navy-Marine Corps Court of Criminal
Appeals in *United States v. Tanksley* established a four-part test to
use in cases of government intrusion into the attorney-client
relationship in violation of the Sixth Amendment.[^117] The *Tanksley*
Court announced the prongs of that test as follows:

> \(1\) Was evidence used at trial by the Government produced directly
> or indirectly by the intrusion? (2) Was the Government intrusion
> intentional? (3) Did the prosecution receive otherwise confidential
> information about trial preparations or defense strategy as a result
> of the intrusion? and (4) Was the information used in any other way to
> the substantial detriment of the accused?[^118]

In scenarios (1) and (2) there is no evidence that the government
*intended* to interfere with the attorney-client relationship. In fact,
in the underlying cases there was substantial evidence that as soon as
the issue was made known to the government, they took extraordinary
steps to prevent potential interference with the attorney-client
relationship. For, example in both cases, a special assistant trial
counsel was appointed specifically to examine the questioned evidence
and argue against the defense motions relating to it. After the motions
were decided, that counsel had no further role in the case.

The prosecution also made a very strong case that none of the privileged
information was ever used in any way to advance the investigation or
trial preparation of these cases. This was not difficult as the
testimony at trial in both cases confirmed that the evidence had been
kept by investigators for nearly a year, where it lay unnoticed by
either side in the case. Neither the investigators nor the trial counsel
used the substance of the confidential communications in the documents
to advance the investigation or preparation of the case.

In the cases upon which scenarios (1) and (2) are based, the trial judge
applied the *Weatherford* standard of unintentional intrusion to decide
the issue. Under that test, the defense had to show actual prejudice or
at least a reasonable inference of prejudice, before the prosecution had
any burden to disprove taint. The defense was not able to show prejudice
in either case, and in each the court found no prejudicial Sixth
Amendment intrusion. However, in scenario (1), the chronology in
question was incriminating and created some concern for the court. Trial
counsel testified that they had never seen the document. The AFOSI agent
involved testified that he may have looked at it, but that he had not
used it to advance his investigation. Nevertheless, the court ruled
that, to remove any perception of taint, the agent would not be able to
testify about any evidence he personally developed in the case after the
date upon which he first possessed the document. The government also had
to show an independent source for any such evidence, if they desired to
admit it in some other fashion. The agent was also barred from further
assistance to the trial team during their trial preparation.

Ultimately, in scenario (2), only four out of more than one hundred
documents were held to be privileged and even those privileged items
were of virtually no value to the prosecution. They were not
incriminating, and they were only seen by prosecutors for a very brief
time before they were delivered to defense counsel. Any intrusion on the
rights of the accused was very slight, unintentional, and easily
remedied. In each of our scenarios the trial court found the appropriate
remedy to be suppression. Neither disqualification of counsel, other
than the special assistant trial counsel, nor dismissal were held to be
appropriate remedies under these facts and the law.

**C. Practical Guidance for Handling Compromise Cases**

When confronted with a situation where alleged attorney-client
privileged matter may have been compromised---typically by inadvertently
falling into government hands---the following practical guidance may
assist staff judge advocates, trial counsel, and investigators in
containing the damage to the case or investigation and resolving the
issue expeditiously. This section offers advice on methods to avoid
compromise altogether and to effectively handle these situations if they
occur.

*1. Preventive Measures---Initial Considerations*

Many attorney-client privilege compromises may be prevented by educating
investigators and attorneys to be sensitive to the issue. This helps in
three ways: (1) total avoidance of possession of privileged information
initially; (2) early recognition of seized privileged matter, thereby
avoiding tainting the case in any significant way; and, (3) accurate
recognition of what steps to take to resolve the situation without
compromising the case, when a suspect declares that matter being seized
is privileged.

The key to prevention is recognizing the many ways compromises may
occur. A number of examples in the foregoing scenarios and cited cases
are illustrative. A major area of concern is obviously the execution of
searches and seizures. These can take the form or searching a person,
place, or thing, but they may also involve various forms of electronic
surveillance (including telephone taps,[^119] interception of email, and
interception of Internet traffic). Situations, as illustrated in the
*Weatherford* case,[^120] where an informant may be present during a
confidential attorney-client meeting, should always raise a red flag for
prosecutors. It is also possible that a malicious third party may come
into possession of privileged matter, and send it to investigators or
prosecutors. Finally, as shown in *Ankeny*,[^121] a defense counsel may
inadvertently reveal privileged matter without the client's permission
or without realizing it is happening.

*2. Preventive Measures---Searches and Seizures*

The most common scenario where compromise arises in military criminal
practice is in search and seizure situations. The first consideration
ought to be the place or thing to be searched. For as noted, some
locations or objects are much more likely than others to contain
privileged information. In the military context, if the offices of an
attorney, clergyman, or psychotherapist[^122] are to be searched
(hopefully, a rare occurrence), many of the files and electronic media
in the office may be privileged. This is especially true in the search
of an attorney's office, because most of the files will contain either
client confidences or attorney work-product (discussed fully in Part IV,
*infra*). Thus, great care should be used in these situations. In the
civilian sector, the gravity and implications of such searches have been
the subject of both congressional and executive concern. In fact, the
Attorney General of the United States has published guidelines for
federal officers who want to obtain documentary evidence from
disinterested third parties (persons who are not themselves the subject
of the investigation) who may also be the holders of confidential
information.[^123]

Caution is required when searching businesses, home offices, or storage
areas (including rented lockers) which appear to contain personal or
business records. Particular objects warranting caution include business
or corporate files and computers, private personal computers, personal
digital assistants (like the hand-held PalmPilot™-type computer
organizers, cellular telephone memories, magnetic media (disks, tapes,
memory cards, etc.), and paper documents which are marked as privileged
or which appear to relate to litigation or the legal affairs of the
suspect.

If investigators know or suspect, as in the case of an attorney's
office, that they are likely to come in contact with privileged matter,
they must develop a plan to handle these materials properly. There are
several approaches discussed below in the subsection on handling
compromises. A solid first step is to devise a plan for screening the
materials and removing any privileged documents after the search.
Ideally, this plan should be described in the documents used to obtain
the search authorization. This makes clear that the investigators are
acting in good faith, and that the government recognizes the need to
protect any privileged material which is discovered.

*3. When Privileged Matter Has Been Seized: "What Do We Do Now?"*

If the issue has been raised, either through the assertions of the
accused or defense counsel, or simply because there is reason to believe
that seized material may be privileged, then quick action is imperative.
If no compromise has occurred (no investigator or member of the
prosecution has seen, or improperly gained knowledge of, any privileged
matter), the job ahead is easier, but the procedures are very similar.
When there has been a compromise, or the government is in possession of
suspected privileged matter, but no one has seen it yet, the most
immediate objective is to control any damage the privileged matter might
do to the investigation or the case (if it is already at the trial
stage). As in basic first aid, the first thing to do is stop the
bleeding.

If some material has been compromised, be sure to handle it separately,
so later reviewers will know precisely what was seen and by whom. Anyone
who has seen the suspected privileged material should immediately write
a statement detailing what they saw and under what circumstances, but
should not give the statement to anyone at that point. No person who has
seen such material should do further work on the case (including
discussion of what they saw) until a determination as to the privileged
nature of the material can be made.

If appropriate, defense counsel should be notified as soon as possible
to begin an assessment of the material's privileged nature and
materiality. While this is not a practical choice if an investigation is
still ongoing, as notifying defense counsel will probably compromise the
investigation, it should be considered in all other cases. When the
problem arises at the trial stage, however, as in the *Pinson*
case,[^124] it is critical to notify defense counsel of the problem at
once, as trial counsel did in that case. This shows good faith on trial
counsel's part and gets the defense counsel started on the path of
deciding how to react and what may or may not be privileged. This gets
the issue focused and helps move it toward resolution.

Have a neutral third party (who will be available to testify at trial,
but who is not part of the investigation or trial team) take possession
of the material and make a copy of it. This step is very important,
because the integrity and chain of custody of the original documents or
electronic media must be maintained. In the case of electronic media, be
sure to work with properly trained personnel (preferably an AFOSI
computer crimes investigator) to make sure the original evidence is not
damaged or altered. With paper documents, any neutral person may make
the copies and seal the documents. A paralegal not currently assigned to
military justice duties is an excellent choice.

*4. Using Special Masters and Special Assistant Trial Counsel*

As the next step, have the Special Court-Martial Convening Authority
(SpCM) appoint an independent reviewing officer (usually called a
"special master") to review the material. This person should be an
attorney, preferably with experience or training in privileges under
military law. The more neutral and detached this officer is the better.
Using criteria similar to that for selecting an Article 32, UCMJ[^125]
investigating officer is an excellent approach. However, this is not
required, as long as it is understood that the attorney selected will
not be able to prosecute the case later (other than to argue motions
involving the alleged privileged material, as in the scenarios above). A
civilian attorney may act as special master, but this may result in
duplication of effort if a military attorney must later be appointed to
argue the motions as just mentioned.

Store the sealed original documents in an evidence locker, clearly
marked: "Potential Attorney-Client Privileged Material---Do Not Open
Without Authorization of the \[SpCM\] Staff Judge Advocate." The sealed
copies should be placed in another envelope with the special master\'s
appointment letter. Attachments to the letter should include: (1)
statements from anyone who has seen the documents; (2) information
regarding the circumstances under which they were obtained (including
copies of any search authorizations used); and, (3) any statements or
information regarding an assertion of privilege by the accused
concerning the documents.

Deliver the envelope with the copies and other information to the
special master with a list of duties and instructions contained in the
appointment letter, along with a due date by which to complete his
review or by which to request an extension. Be sure to instruct him that
his final report should *not* reveal the contents of any privileged
communication, and that any documents he believes are privileged should
be sealed, clearly marked, and attached to his report, along with those
that he believes are clearly not privileged, which should be sealed and
separately attached. If there are defense counsel involved in the case,
the special master may wish to contact them and attempt to have them
identify any document believed to be privileged. Such actions can go a
long way toward locating and narrowing the list of documents truly
falling under a claim of privilege.

If the special master is highly confident that none of the material is
privileged, then trial counsel may use it, and litigate its confidential
nature at trial if raised by the accused. Of course, if the special
master's determination is later found to be incorrect by the military
judge, then trial counsel may be disqualified, and the case may even be
too tainted to proceed to trial, if irreparable prejudice has occurred
(very unlikely). However, if the special master finds that there is some
presumptively privileged material, neither investigators nor trial
counsel should be allowed access to this material.

If motions regarding the government's use or possession of this material
are raised by the defense at trial, then a special assistant trial
counsel (SATC) should be appointed to litigate these issues.[^126] The
SATC, and any other attorneys, investigators, or support personnel
assigned to assist him and given access to the privileged material, will
then become part of the "taint team," which will likely be disqualified
from further participation in the case, once the privilege issues have
been litigated. This assumes, of course, that the materials in question
are found to be privileged. As mentioned, there is no prohibition on
using the special master as the SATC, but if there is any possibility
that the special master may need to testify about interactions he had
with counsel and others during his review of the evidence, then a
different attorney should be appointed as the SATC.

If the government knows from the start that issues of privilege will be
involved in the case (as when a defense counsel's office is searched)
then forming a taint team from the start may be advisable. This team
would be composed of investigators, attorneys, and paralegals assigned
to conduct the search and work the privilege issues exclusively from
day-one. The taint team can then pass non-privileged information to the
investigators and prosecutors in the case. If this procedure is followed
there is no need to appoint a special master, as the taint team fulfills
this function. This more aggressive day-one taint team approach is
favored by United States Attorneys, but has drawn some criticism from
federal courts in civilian cases.[^127]

*5. Computer Seizures---"Handle With Care"*

As mentioned at the beginning of the article, in our technology-rich
society, investigators searching for incriminating documents or
photographs are as likely to seize a personal computer and its storage
media as they were to seize the "papers and effects" of yore. These
electronic records are typically *not* examined until after they are
seized. Thus, privileged matters may not be readily evident upon
seizure. Cases involving computer seizures require special handling. A
single computer's hard drive may hold literally millions of files so
review of such evidence can be excruciating and very time consuming. It
is also extremely easy to alter or damage such evidence. A trained
computer crime investigator, working in tandem with a special master or
taint team is critical in cases where the seized media may contain
privileged information.

The use of special masters in such cases has been approved in a number
of federal cases. For example, in *United States v. Abbell*,[^128] a
case involving the search of the accused's law office, the court
approved the appointment of a special master to decide privilege claims
related to the electronic documents seized. The court required that the
computer-generated and stored data retrieved in the search be searched
using information retrieval software and a list of search terms, and
that the search program be implemented "without resort to reviewing each
computer stored document in order to cull those documents deemed
responsive to the search."[^129] Copies of the documents retrieved by
this additional electronic search were then provided to the special
master and defense counsel to allow disposition of privilege issues
prior to their examination by the prosecution team.[^130]

*6. Litigating Issues of Privilege*

As mentioned above, unless trial counsel is very confident that the
materials in question are not privileged or that the privilege has been
waived, then the prudent course is to appoint a SATC to litigate the
privilege issues. While the SATC is preparing the case, she should not
share offices with trial counsel and must scrupulously protect all
alleged privileged material from disclosure to the trial team, the SJA,
or anyone else not entitled to know of their contents. As a matter of
appearances, and to avoid inadvertent disclosures, the SATC should also
avoid most, if not all, social contact with trial counsel until the
conclusion of the trial.

Preparation and argument of a successful privilege motion requires a
detailed knowledge of privilege law, careful examination of the evidence
(to determine whether it really is privileged), and an exhaustive search
for witnesses who may provide the basis for arguments that, for example:
(1) there has been a waiver of the privilege (such as when the accused
reveals the same information to others in a non-privileged setting); (2)
the information was never privileged to begin with (*e.g.*, no
attorney-client relationship or information intended for communication
to a third party, etc.); or, (3) a lack of prejudice or taint to the
government\'s case (such as when the information was not seen or used in
the investigation or trial of the case). Privilege motions therefore
often involve one side or the other calling a host a host of
non-traditional witnesses to the stand.

Witnesses on the motion may include, for example, the trial counsel (to
testify as to use and taint); trial defense counsel, former defense
counsel, civilian counsel, and the accused (to establish the privileged
nature of the information, and to counter waiver arguments); Article 32
investigating officers (to testify as to whether they were exposed to
privileged information); investigators, paralegals, and other supporting
witnesses; and the SJA and special master (to explain how the compromise
case was handled, and who may have seen the privileged materials
involved). As with all good trial preparation, detailed interviews are
critical, but the SATC must be cautious (especially with trial counsel
or investigators) not to reveal any privileged material to which trial
counsel or agents may not have been exposed previously. Thus, use of
non-leading questions regarding what was seen and how it has been used
(if at all) in case preparation is the best approach.

Since waiver of the privilege is always a potential issue in these
cases, the SATC should search hard for friends and associates of the
accused, and find out whether he revealed any of the privileged
information (as is often the case) in a non-privileged setting. As we
have seen, if there has been an actual compromise, then a major issue
will be disproving the existence of taint. Depending upon the approach
the court takes, this may involve showing an independent source for each
piece of evidence in the case. The SATC should prepare for this
eventuality as best she can by becoming intimately familiar with all
aspects of the investigation and preparation of the case prior to and
after the compromise of the privileged material.

Finally, after the privilege motions are litigated and ruled upon, if
any evidence is found to be privileged, the SATC should ask the court
for detailed findings and instructions regarding what may be given to
the trial counsel, what should be destroyed, and what is to be sealed
and attached to the record of trial. In these cases where the SATC is
disqualified from further participation, she should also cut off further
interaction with the trial team until after the conclusion of the trial.
Applying these hints, and some common sense, cases of inadvertent
attorney-client compromise may be successfully salvaged in most
instances.

**IV. PROTECTING A CLIENT\'S IDENTITY, WHEREABOUTS,**

**AND THE FACT OF CONSULTATION---ETHICAL,**

**EVIDENTIARY, AND POLICY GROUNDS**

"One of our real successes has been the Area Defense Counsel program,
now in existence for more than five years. No one told the Air Force to
do it---the Chief of Staff decided the defense function should be
independent in fact and in appearance."[^131]

# General Considerations

Consider the following scenarios: (1) The prosecution in a court-martial
creates a conflict of interest between an ADC and his client by naming
the ADC as a prosecution witness and additionally asserting that the ADC
is not a "defense counsel" under the Sixth Amendment. Trial counsel
wants to use the ADC's testimony regarding the whereabouts of the
accused on a given date to help establish the elements of an AWOL
offense; and, (2) A wing SJA considers an ADC's appointment schedule
open to command review and advises commanders and first sergeants that
the ADC is required to tell them if one of their squadron personnel has
visited the ADC office, including the date and time of the client's
visit.

These scenarios go to the heart of the policy issue of the independence
of the ADC function in the Air Force, and raise legal and ethical
questions about the extent to which the attorney-client privilege
encompasses information regarding a client's identity, dates of
consultations with counsel, and whereabouts at given times. Of course,
there comes a point in most representations when the defense counsel
will *need* to seek his client\'s approval to reveal the fact of the
representation. This can be critical to protecting many of the client\'s
rights. For example, defense counsel will usually want to place the
government on notice that an accused is a "represented person," and that
counsel must be notified before any interrogation of his client is
attempted.[^132]

However, when such disclosures are compelled before the defense counsel
or his client are prepared to make them in the interests of the client,
issues of effective assistance of counsel and conflict of interest come
into play. We believe that, absent a court order compelling counsel to
testify against his client,[^133] he has ethical, evidentiary, and
policy grounds to resist disclosing this information. The following
discussion explores each of these grounds in detail.

**B. The Ethical Duty to Protect Information Relating to
Representation**

The purpose of a court martial is truth-finding within the bounds of the
law. The military courts recognize a hierarchical scheme of rights,
duties, and obligations in our criminal practice. The highest source of
these is the Constitution, followed by the UCMJ, MCM, Department of
Defense regulations, service regulations and policies, ethical rules,
and the common law.[^134] Implicit in this scheme is that while a lower
source in the hierarchy may grant additional or greater rights than a
higher source, those additional rights may not conflict with the higher
source.[^135] In the daily practice of a military defense counsel, this
scheme must be extended to non-criminal cases such as nonjudicial
punishment under Article 15, UCMJ,[^136] and adverse administrative
actions.[^137] The Air Force Rules of Professional Conduct are an
excellent example of an agency-level policy which creates a greater duty
to maintain confidentiality than that available under the Military Rules
of Evidence or case law.

Thus, information held by a defense counsel regarding a client's
identity, whereabouts, and the fact that they have consulted an attorney
must be kept confidential under Air Force Rule 1.6's attorney-client
*ethical* privilege, which is very broad in scope---covering not just
confidential communications, but *any* "information *relating* to the
representation."[^138] While there are exceptions to Air Force Rule 1.6,
enumerated above, informing a commander about an ADC office visit by a
member of her unit is not among these exceptions. By the 1970's most
state ethics committees agreed that a client's identity was protected
confidential information under ethical rules.[^139]

Additionally, if the ADC\'s calendar is not kept confidential---through
testimony, revealed attorney work-product, or unwitting investigative
assistance---he may well act contrary to the interests of his client,
and even be called as a witness against him. In the military context,
where a point of pride is maintaining both the perception and the
reality of an ADC\'s independence, the case for protecting an accused's
whereabouts and identity (at least initially) is even stronger. The Air
Force Rules and Standards are largely silent on the question of when a
defense counsel may reveal the whereabouts of his client. However, an
exception was recently added which emphasizes that a defense counsel
*may* reveal information to assist authorities in locating her client in
order to prevent the client's suicide.[^140] Significantly, other than
in this Air Force Standard, the rules do not otherwise require an
attorney to report the whereabouts of her client. By this silence, one
presumes the drafters left such language out intentionally, as it could
easily have been included, if the intent was to allow or require defense
counsel to assist the government in locating and apprehending an accused
who was merely AWOL.

Significantly, in *United States v. Rogers*, the Air Force Court of
Criminal Appeals recently acknowledged a defense counsel\'s ethical
obligations, under Air Force Rule 1.6, not to reveal information to
commanders about the visits of clients to the ADC office.[^141] Senior
Airman Rogers was a client who "did not return promptly from his
appointments with the defense counsel." Defense counsel and his staff
refused to confirm for command the presence of Senior Airman Rogers at
his appointments. The court stated: "We understand that normally '\[a\]
lawyer shall not reveal information relating to representation of a
client unless the client consents after consultation . . . .' *Air Force
Rules of Professional Conduct* Rules 1.6(a) (10 Feb. 98). Thus, the
defense counsel may have believed he had a duty not to answer the
commander\'s query." The court then proceeds to specify the practical
consequence of this refusal, but makes no express or implied judgment
that defense counsel\'s belief in this regard was incorrect.[^142]

**C. The Evidentiary Privilege**

While there is no military precedent under Military Rule of Evidence 502
on the issue of disclosing a client's whereabouts or identity, a number
of federal and state cases have held that the evidentiary privilege
protects communications regarding the identity or whereabouts of a
client, when this information is the last link in the chain of evidence
leading to the conclusion that the client has committed the crime at
issue or when revelation of the client\'s identity would simultaneously
reveal confidential communications between lawyer and client.[^143] The
ABA's position is that in certain cases, the client's identity is the
most critical part of the attorney's representation of a client,[^144]
but has also expressed the view that the issue of privilege with respect
to a client's whereabouts remains unsettled.[^145] Likewise, many state
and federal cases have held that this information is *not* privileged in
many cases.[^146] However, there is a clear distinction between what a
defense counsel must keep confidential under ethical rules, and
information that may be compelled in court, in the interest of justice.

Nevertheless, the matter of whether a client's identity is privileged
remains far from settled.[^147] Although an accused's whereabouts may
not, in and of itself, be a communication, information relating to the
client's whereabouts usually comes in the form of a communication
between the accused and attorney, and it is certainly information
relating to the representation. Whether the courts afford protection to
this information ultimately depends upon the facts of each case. The
courts must weigh a number of constitutional considerations in deciding
whether such information is protected by the evidentiary privilege. For
example, in *United States v. Schell*,[^148] the United States Court of
Appeals for the Fourth Circuit held that both due process and the
attorney-client privilege are violated when an attorney represents a
client and then participates in the prosecution of that client.[^149]
Additionally, the Sixth Amendment guarantee to conflict-free counsel
comes into question any time a defense counsel is asked to divulge a
client's whereabouts.

# *1. Sixth Amendment Issues---Generally*

Any notion that ADCs are not defense counsel for the purposes of the
Sixth Amendment should be dispelled by the holding of the United States
Court of Appeals for the Armed Forces in *United States v.
Russell*.[^150] Several state courts note while the attorney-client
privilege is not per se of constitutional origin, the privilege
nonetheless has important constitutional implications.[^151] That such
non-enumerated rights enjoy equal standing with enumerated rights is a
common feature in the American legal landscape.

In *Richmond Newspapers, Inc. v. Virginia*,[^152] the Supreme Court held
certain unarticulated rights implicit in the enumerated
guarantees.[^153] Clearly, where the prosecution denies an accused the
fullest scope of the attorney-client privilege, the accused's Sixth
Amendment rights are violated because he or she is deprived of an active
advocate.[^154]

The Sixth Amendment provides in relevant part: "In all criminal
prosecutions, the accused shall enjoy the right . . . to have the
assistance of counsel for his defence."[^155] The Sixth Amendment does
not, however, directly address the question of conflicted counsel nor
does it address whether the United States is responsible for supplying a
counsel to an indigent accused. The latter point was solved in the
litany of cases beginning with *Gideon v. Wainright*.[^156] But what of
the question of conflict-free counsel?

Even before *Gideon*, the Supreme Court had held that "\[t\]he
'Assistance of Counsel' guaranteed by the Sixth Amendment contemplates
that such assistance be untrammeled and unimpaired,"[^157] In 1978, as
well, the Supreme Court examined issues as to whether and to what extent
every defendant may waive their "constitutional right to the assistance
of an attorney unhindered by a conflict of interests" in *United States
v. Holloway*.[^158] A long-standing doctrine holds that the right of
conflict-free counsel is a fundamental procedural right of any accused.
In *Penson v. Ohio*, the Court held that "of all the rights an accused
person has, the right to be represented by counsel is by far the most
pervasive, for it affects his ability to assert any other right he may
have."[^159] Further guidance is found in the United States Court of
Appeals for the Ninth Circuit's decision in *United States v. Patricia
Hearst*.[^160]

*2. Sixth Amendment Issues---The Right to Conflict-Free Counsel*

In *Hearst*, noted criminal defense attorney, F. Lee Bailey, signed a
book contract with G.P. Putnam & Co.[^161] In an effort to shield
himself from ethics charges, Bailey's contract was contingent upon
Hearst's approval.[^162] Hearst eventually gave approval to Bailey as
part of a fee arrangement for an appeal if one became necessary.[^163]
However, Hearst later declared she was forced into signing Bailey's book
rights as part of the fee arrangement for Bailey's trial work.[^164]

Hearst alleged Bailey failed to seek a continuance because public
interest would eventually cool to her trial, and other would-be authors
would get a "head start" on the increasingly media-famous
attorney.[^165] She further charged Bailey's trial tactics, including
encouraging Hearst to testify created a public record unconstrained by
the attorney-client confidentiality rules.[^166] Hearst finally accused
Bailey of refusing to seek a change of venue outside of San Francisco
because that city afforded optimum media exposure.[^167] Both the United
States and Bailey denied his book interest played any role in his
tactical decisions and the federal district court denied Hearst a
hearing on the issue.[^168] The United States Court of Appeals for the
Ninth Circuit remanded on the basis that Bailey might have breached the
attorney-client relationship in becoming a conflicted counsel.[^169] It
is noteworthy that the court did *not* definitively find that Bailey had
become conflicted, merely that his actions raised the specter of a
conflicted counsel.

Shortly after the district court trial in *Hearst*, but before the case
came to the Ninth Circuit, the Supreme Court decided *Cuyler v.
Sullivan*.[^170] In *Cuyler*, the Court held that where a defense
counsel is in a conflict of interest with his client, the conflicted
defense counsel is not a counsel within the Sixth Amendment. The Ninth
Circuit in *Hearst*, (with the benefit of *Cuyler*) held that
differentiating conflicts are immaterial to an individual's right to a
conflict-free counsel. That is, whether a defense counsel breaches ABA
Rules by signing a book contract, represents multiple adverse clients,
or is forced to testify against the client, the salient point is that
the counsel falls outside the Sixth Amendment's requirements for
effective assistance of counsel.

Both *Hearst* and *Cuyler* stand for the proposition that the potential
for conflicted counsel gives rise to a Sixth Amendment violation. If, as
a matter of policy, ADCs are forced to open their schedules for command
review, answer questions as to whether and when certain clients visited
the office and what assistance they received; then, claims of conflict
of interest and of interference with the attorney-client relationship
will be rife.

The unarticulated constitutional right to conflict-free counsel has long
been recognized by military law. The Court of Military Appeals has
steadfastly held that, under both the Sixth Amendment and Article 27,
UCMJ,[^171] a military accused is guaranteed effective assistance of
counsel at the pretrial stage, during the trial, and post-trial.[^172]

*3. Fifth Amendment Issues---Generally*

As noted above, in addition to its Sixth Amendment implications, the
attorney-client privilege also helps preserve the right against
self-incrimination enumerated in the Fifth Amendment. The Fifth
Amendment provides, in pertinent part: "No person . . . shall be
compelled in any criminal case to be a witness against himself." If a
defense counsel is forced to divulge information regarding his
appointments with clients, it is not difficult to envision a situation
where the government may be able to use that information to identify
suspects in unsolved crimes, show consciousness of guilt, or even
generate new charges against the accused for AWOL or false official
statements[^173] (such as when a client says he was at the ADC office,
when in fact he was not). If the defense counsel is then called to be a
witness against his client on these charges, he would be providing
testimony to incriminate his own client. Such action also creates a
conflict situation, forcing defense counsel to withdraw from the case.

*4. Fifth Amendment Issues---The Work-Product Doctrine*

The work-product doctrine---through the attorney-client privilege--- has
been held to bar prosecution discovery of notes, statements, or
documents relating to defense counsel's case preparation.[^174] The
practice of prosecutors delving into a defense counsel's investigation
and preparation of a case, interviews of witnesses, and defense
strategic decisions has been found intolerable in state and federal
courts. For example, New York's Court of Appeals in *People v.
Belge*,[^175] held that the work-product privilege is essential if the
accused is to maintain his Fifth Amendment protections against
self-incrimination. Interestingly, in *Belge*, the court looked to the
attorney-client privilege as well as examining the applicability of the
work-product doctrine to the right against self-incrimination. In
*United States v. Nobles*[^176] the Supreme Court of the United States
noted that, "although the work-product doctrine most frequently is
asserted as a bar to discovery in civil litigation, its role in assuring
the proper functioning of the criminal justice system is even more
vital."[^177] The court further found the privilege extended beyond the
attorney's work-product to "those who work with him to prepare the
defense."[^178] In a military setting, this would include the defense
paralegal, any defense investigators, and civilian counsel and their
staff.

For example, in *People v. Sanders*[^179] and *People v. Collie*,[^180]
the California Court of Appeals held that the prosecution was not
entitled to discover information gleaned from defense investigator
interviews and notes obtained from defense witnesses. California courts,
in both *McMullen v. Superior Court of Los Angeles County*[^181] and in
*Jones v. Superior Court of Nevada County*[^182] also held that the
work-product privilege barred prosecutorial discovery of the names and
opinions of persons contacted or employed by the accused in violation of
the right against self-incrimination. The *McMullen* Court reasoned
that, inter alia, the defense was not required to supply the prosecution
with names and opinions of persons who could testify against the
accused's affirmative defenses.[^183] Finally, in *Ruiz v. Superior
Court of San Francisco*, the court held the work-product doctrine
prohibited the prosecution from discovering statements, locations, and
identities of defense witnesses interviewed, but who would not be
testifying.[^184] Reasoning that the accused's defense counsel could
also fit into this non-testifying witness construct, the California
court arguably would protect that relationship, as well. A review of
case law in this area indicates that military courts frequently avail
themselves of federal and state decisions regarding attorney-client
privilege issues to perhaps a greater degree than in any other subject
matter.

*5. The Work-Product Doctrine in Military Law*

As noted earlier, the seminal case which recognizes the attorney
work-product doctrine under military law is *United States v. Romano*,
which held that attorney work-product is a privileged communication, but
did not expressly define the parameters of the privilege.[^185] *United
States v. Rhea*[^186] and *United States v. Province*[^187] further
define the parameters of the military work-product privilege.

The facts of *Rhea* indicate that Master Sergeant (MSgt) Robert Rhea,
while stationed in Germany, pressured his teenage step-daughter to
engage in sexual intercourse on numerous occasions.[^188] This occurred
over a two-year period and ended only when the step-daughter became
engaged to wed another.[^189] MSgt Rhea was tried for sexual abuse of
his step-daughter and was convicted at a general court-martial.[^190]
The crucial evidence against him was his step-daughter's calendar, which
dated their numerous sexual episodes. The calendar was not originally in
the possession of the prosecution. It was found by MSgt Rhea in his
daughter\'s room and given, along with other materials, to his defense
counsel, who did not recognize its incriminating nature.[^191] Once the
significance of the calendar became clear, and defense counsel
discovered that they were in possession of it, they became concerned
that they had evidence of a crime. They consulted their respective state
licensing agencies.[^192] They also requested an ex parte hearing with
the military judge.[^193] The military judge ordered the two defense
counsel to turn the calendar over to the prosecution.[^194] After the
defense counsel complied with the judge's ruling MSgt Rhea dismissed his
counsel and was assigned new defense counsel.[^195] MSgt Rhea then filed
an Extraordinary Writ with the Air Force Court of Military Review,
seeking to suppress the prosecution's introduction of the calendar into
evidence---the writ was denied.[^196] On appeal, MSgt Rhea argued he was
denied effective assistance of counsel when his original defense counsel
sought an ex parte hearing with the judge and complied with his order to
turn the calendar over to the prosecution.[^197]

On appeal, the Air Force Court of Military Review found that the
calendar was not attorney work-product within the meaning of the Fifth
Amendment.[^198] The notations on the calendar were made by a
prospective witness, not the defense counsel or the accused.[^199]
Moreover, the court held that defense counsel has an obligation to the
court to divulge the existence of a criminal instrument.[^200] Indeed,
the court commended the conduct of defense counsel in doing so.[^201]

The Court of Military Appeals affirmed the lower court's decision[^202]
and cautioned defense counsel in future similar situations to adhere to
such an ethical course of representation.[^203] The court favorably
noted that while MSgt Rhea\'s defense counsel complied with the military
judge's order, they properly protected the interests of their client by
not communicating to the prosecution the origins of the calendar.[^204]
Thus, the defense counsel did not authenticate the calendar or in any
way advance the prosecution's case beyond complying with the ethical
mandates imposed by their state bars and the orders of the military
judge.

Three fundamental rules emerged from *Rhea*: (1) Instrumentalities of a
crime are generally not protected by the privilege, (2) attorney
work-product must originate from the attorney or the client, at the
attorney\'s direction, and (3) where a defense counsel believes he or
she is in possession of a criminal instrument, the defense counsel
should do nothing more than notify the military judge via ex parte
hearing and not assist the prosecution in any way with their case
preparation. There is nothing in the facts or holding of *Rhea* which
addresses records kept by the defense counsel, such as his appointment
calendar. If the defense counsel\'s calendar contains information
regarding representation and case preparation (such as the dates and
times of witness interviews and client meetings), there is no reason to
believe the holding in *Rhea* would exclude those records from the
protections of the work-product privilege.

The second work-product case, *United States v. Province*,[^205] is a
Navy-Marine Corps Court of Criminal Appeals case. Marine Private First
Class (PFC) Richard D. Province II was convicted on 9 April 1992 of two
unauthorized absences pursuant to his pleas before a military judge
sitting alone.[^206] Three years later, PFC Province asserted that his
trial defense counsel was ineffective by making an "unauthorized
disclosure" of information to the prosecution. Specifically, trial
defense counsel discovered a copy of PFC Province's "straggler's orders"
(which he had received from his client) and provided them to the
prosecution.[^207] The "straggler's orders" had been issued by the
Department of the Navy pursuant to a lawful instruction and not created
by the defense counsel or his client.[^208] The accused was originally
charged with one specification of AWOL. Upon receipt of the "straggler's
orders," the prosecution added an additional specification, and the
accused pled guilty to both specifications. Ironically, the original
specification was dismissed by the service court on other grounds, and
only the additional charge remained to support the sentence.[^209]

Applying the test articulated by the Supreme Court in *Strickland v.
Washington*[^210] the court rejected the ineffective assistance of
counsel claim.[^211] Discussing whether the "straggler's orders"
constituted a confidential communication, the court noted that
confidential disclosures, while generally privileged, are not
absolute.[^212] Significantly, the court also opined that "it is
unlikely that documentary materials created by a Government agency are
ever protected by the privilege."[^213] The court held that the
documents were therefore discoverable.[^214]

The court then applied the ethics rules governing confidential
communications between lawyer and client. Applying Navy Rule 1.6 of
Judge Advocate General Instruction 5803.1 (26 October 1987),[^215] the
court recognized the long-standing rule of confidentiality for both
communications and derivative work-product.[^216] The court also noted
the rules governing candor toward the tribunal. They held that: (1) the
"straggler's orders" were discoverable, (2) the orders were not a
work-product, and (3) hiding the existence of the orders from the
tribunal would itself be unethical. The court also noted that if PFC
Province prevailed on his claim, it would encourage defense counsel to
"race the police to seize critical evidence."[^217]

The United States Court of Appeals for the Armed Forces reviewed
*Province* approximately two years later[^218] and noted that the
government should have already had the "straggler's orders" in their
possession and implied a lack of due diligence on the part of trial
counsel.[^219] The court further held that the "straggler's orders"
would only have been discoverable, if the prosecution had asked for them
under RCM 701(b)(3).[^220] Because the prosecution did not do this, the
defense had no affirmative duty to disclose them. The court said the
case "presented a close call," and that each case depended on its unique
circumstances.[^221] While affirming the findings and sentence, the
court urged defense counsel to use caution in these situations and
continue to seek guidance from state bar licensing authorities and
through ex parte communications with the detailed military judge.

Some commentators have argued that physical evidence in the defense
counsel's possession should be protected under the privilege in order to
avoid a tension between the accused\'s constitutional rights.[^222]
However, in light of *Rhea* and *Province*, this is clearly *not* the
law in military practice. Nonetheless, while physical evidence of a
crime is generally not covered by the attorney-client privilege or the
work-product doctrine, information relating to representation clearly is
protected absent a court order to the contrary. Thus, even when counsel
must make discovery of physical evidence, they should do so in a way
calculated to least harm their client\'s interests.

*6. Fifth Amendment Issues---Reporting a Missing Client*

An instructive federal case regarding the duty to report the whereabouts
of a missing client is *United States v. Del Carpio-Contrina*,[^223] in
which the district court held that, under certain circumstances, a
lawyer is not obligated to tell the court that his client has "jumped
bail." Mr. Del Carpio-Contrina was indicted by a grand jury on charges
of conspiracy to possess cocaine, with intent to distribute. After his
indictment, he bonded out. During this period, Mr. Del Carpio-Contrina
was represented by an appointed counsel. He moved to substitute his
appointed counsel for Mr. Joel DeFabio. The substitution was granted on
26 July 1989. Shortly after the substitution was granted, Mr. DeFabio,
on several occasions, attempted to contact Mr. Del Carpio-Contrina. Mrs.
Del Carpio-Contrina notified Mr. DeFabio that her husband had packed a
suitcase and left the general area of their residence. On 1 September
1989, the court held a "calendar call." At no time prior to the calendar
call did Mr. DeFabio relay information regarding his client's
whereabouts to either the court or the prosecution. In fact, it was Mr.
DeFabio's associate counsel---appearing on Mr. DeFabio's behalf---who
notified the court of Mr. Del Carpio-Contrina's disappearance. The
district court then ordered Mr. DeFabio to show cause why he failed to
notify the court of his client's disappearance.[^224] On 6 September
1989, Mr. DeFabio complied with the show cause order, stating he "was
never certain of his client's failure to appear," and, "under both the
attorney-client privilege and ethical rules governing attorneys, he had
no duty to notify the court of his client's disappearance."[^225]

The district court analyzed Florida attorney ethics rules to discern
whether Mr. DeFabio had violated any standard of conduct. The court
found that he had "in effect, walked a very fine line."[^226] The
district court noted, "it is admittedly difficult for a lawyer to know
when the criminal intent will actually be carried out, for the client
may have a change of mind."[^227] The court also noted that a mere
suspicion of criminal wrongdoing does not trump the ethics rules
governing confidentiality.[^228]

Finally, although the court held that Mr. DeFabio had an affirmative
duty to notify the court of his client's status once it became clear his
client had no intention of coming to trial, it declined to impose
sanctions on Mr. DeFabio.[^229] The court went on to stress that it is
essential to the adversary system that a client's ability to communicate
freely and in confidence be maintained inviolate.[^230] It further
emphasized when an attorney unnecessarily discloses the confidences of a
client, the attorney creates a chilling effect which inhibits the mutual
trust and independence necessary to effective representation.[^231] *Del
Carpio-Contrina* thus appears to indicate that a defense counsel's
information regarding the general whereabouts of his or her client is
normally a matter of privileged information.

*7. Choose Your Poison! An Impermissible*

*Fifth and Sixth Amendment Tension?*

In the trial of *United States v. Branker*,[^232] the prosecution
introduced defendant's statement in an earlier proceeding that his
financial condition required appointment of counsel.[^233] The United
States Court of Appeals for the Second Circuit held that, because the
defendant's testimony used to secure his right to counsel was later used
to convict him, an impermissible constitutional tension had been
created.[^234] Work-product doctrine aside, abrogating the
attorney-client privilege by forcing a defense counsel to give
incriminating evidence against his client, may likewise improperly force
the accused to choose between his Sixth Amendment right to counsel and
his Fifth Amendment right against involuntary self-incrimination.
Compelling an ADC to open her calendar to command scrutiny has much the
same effect in certain cases, and makes the ADC less effective than her
civilian counterparts.

We should be mindful that in the military environment the potential for
this "impermissible tension" is even higher. The Supreme Court has
called the military "a society apart."[^235] We have higher standards
and we live and work in an environment where obedience to orders is
required and essential to our mission. Military defense counsel,
attorneys as well as officers, are usually junior in grade to most
commanders and the base SJA. It may be tempting for a senior officer to
"order" an ADC to reveal details about his calendar. SJAs should
discourage such temptations and encourage commanders to understand the
reasons why such conduct is inimical to our system of military justice.

The clients of civilian defense counsel, by contrast, receive legal
advice without fear that the fact of their visit to the attorney will be
made public knowledge without their consent. No one will attempt to tell
the civilian defense counsel that he "must" reveal details of his
representation in violation of ethics rules and perhaps to the detriment
of his client\'s interests. This leads to a discussion of important
policy considerations for defense counsel, SJAs, and commanders in
dealing with these issues.

# D. Policy Considerations

For over twenty-five years, the Air Force Judge Advocate General's
Department has stressed the importance of its Area Defense Counsel
program, including the perception and reality that our defense services
system is fair, free from command influence, and completely independent
of the prosecution function. Indeed in 1994, on the 20^th^ Anniversary
of the Air Force Area Defense Counsel program, Major General Nolan
Sklute, then-Air Force TJAG, emphasized the "critical role a truly
independent defense program plays in the fair administration of military
justice" and stressed that ADC's "must be able to ensure our system is
fair and that it proves its fairness at every turn."[^236] General
Merrill A. McPeak, then-Air Force Chief of Staff also stated on that
occasion that he "knew from first-hand experience that the Air Force
provides superb legal defense services."[^237] Of course, like all judge
advocates, military defense counsel are Air Force officers first,
subject to the Uniform Code of Military Justice, and responsible to live
the Air Force Core Values of integrity, service, and excellence.
Moreover, military defense counsel are uniquely able to serve their
clients precisely because they are officers trained in military
missions, customs, courtesies, and traditions.

The independence of the Air Force Area Defense Counsel function is
recognized in a number of Air Force policy and regulatory documents. For
example, TJAG Policy Number 24[^238] requires coordination with the
commander of Air Force Legal Services Agency (AFLSA/CC) whenever any
government search of an ADC's office or a subpoena of a military defense
counsel is being contemplated.[^239] This policy makes it abundantly
clear that the offices and records of the ADC are rightly viewed as
having special status. It states, in pertinent part:

> In 1990, the ABA House of Delegates adopted an amendment to Rule 3.8
> of the Model Rules of Professional Conduct. Rule 3.8(f) prohibits a
> prosecutor from seeking or issuing a subpoena to another lawyer to
> present evidence about a past or present client, unless the subpoena
> is "essential," and there is no other feasible alternative to obtain
> the information. Further, the rule requires the prosecutor to obtain
> prior judicial approval for the subpoena, after an opportunity for an
> adversarial proceeding.
>
> 2\. In adopting the amendment to Rule 3.8, the ABA struck a chord
> familiar to those of us who are concerned about the administration of
> military justice. The Area Defense Counsel Program was established
> primarily to correct the perception (or misperception) among Air Force
> members that their detailed counsel could not zealously defend them,
> because "beating the prosecutor" would ruin the defense counsel's
> career. As we know, the Area Defense Counsel Program has been largely
> successful in putting to rest any fears about defense counsel
> independence. Because of this, and in light of the ABA's concerns, we
> must vigorously resist any unnecessary actions which could create a
> perception among service members that the attorney-client relationship
> can be breached, and confidences disclosed whenever "the legal office"
> wants them to be. [^240]

TJAG Policy Number 28 further reinforces the independence of the
military defense counsel by noting that the ADC Program

> is one of the great strengths of the Air Force military justice system
> and will continue to be so long as the defense function is, and is
> perceived to be, independent. The military justice system is only as
> good as the independence and capability of the defense. The message of
> the importance of the defense must be stated frequently and
> sincerely.[^241]

Air Force JAG Department training materials have also dealt with these
issues. Advocacy Continuing Education (ACE) materials, published by the
Air Force Legal Services Agency's Government Trial and Appellate Counsel
Division in January 1995, point out that "prosecutors have been
previously admonished to refrain from actively undermining the defense
counsel attorney-client privilege and from coercing or cajoling a
defense counsel into revealing confidences which are not
authorized."[^242] The policy also warns defense counsel not to reveal
privileged confidences which may lead to prosecution or additional
charges against a client: "If more charges are brought against an
accused because of unauthorized disclosures by the defense counsel, the
defense counsel may face an ethics violation claim, and the government
may face an issue of ineffective assistance of counsel or incompetent
evidence, both of which can reverse a conviction on appeal."[^243]
Finally, the materials state that, "trial counsel should not
intentionally attempt to get a defense counsel to reveal confidential
information. If more charges are brought against an accused because of
unauthorized disclosures by the defense counsel, the defense counsel may
very likely face an ineffective assistance of counsel complaint . . . no
good end comes to the use of unauthorized disclosures of confidential
information. It is better to recognize the issue up front and try to
avoid it."[^244]

As discussed above, if a defense counsel is called to be a witness
against his client on charges stemming from a client\'s failure to go
to, or promptly return from, the ADC office, he assists in incriminating
his own client. This also creates a conflict of interest situation,
where defense counsel will likely be forced to withdraw from the case.
Even if this result is legally sound, an undesirable perception is
created: "Johnny had a military lawyer. He missed an appointment at his
lawyer\'s office. The lawyer quit and turned evidence against him for
AWOL. You can\'t trust a military lawyer." This begs the questions: Is
it really worth pursuing an "open calendar" policy for the ADC? Do such
negative perceptions really balance the positive interests?

Ethical and evidentiary considerations aside, from a policy standpoint,
if an ADC follows a base-wide "open skies" policy with respect to his
appointment schedule, he may harm perceptions regarding his independence
and give credence to the myth that the ADC is merely an extension of the
SJA's staff, who cannot be trusted with a client's confidences or to
pursue his client's best interests. It is a fundamental tenet of our
profession that many clients, especially criminal suspects, wish the
fact that they have consulted with defense attorneys to be kept
confidential. This is particularly true of those clients making initial
visits to a defense counsel for advice about an undiscovered offense or
who are worried that they may be about to commit an offense and want
professional legal advice and counsel.

By contrast, Air Force Rule 1.13 demands that confidences received by
SJAs from commanders must be treated as privileged to the greatest
extent allowed by law. An SJA would quickly lose the confidence of his
wing commander, if he was found to have "loose lips." There are, of
course, exceptions to the rule, when the commander wants to pursue a
course which is contrary to the interests of the SJA\'s "real client,"
the Air Force. By contrast, the ADC has an even greater duty of
confidentiality, as his is a traditional client, whom he is bound to
represent "with courage and devotion, to the utmost of his learning and
ability, and according to the law"[^245] and who qualifies, without
reservation for the full protections of the attorney-client privilege,
in both its ethical and evidentiary forms.

This analysis is certainly not intended to imply that an ADC should
permit his office to be used as a convenient excuse for clients to skip
duty. ADC's should actively *discourage* this practice to assist clients
in avoiding additional legal entanglements, such as those discussed
above, and to maintain credibility with command. Likewise, the ADC
should obviously never lie about whether a client visited his office. A
bright line policy of refusing to give any information regarding
representation without client consent or court order is both prudent and
required by the Air Force Rules and Standards. Of course, as the Air
Force Court of Criminal Appeals pointed out in *Rogers*,

> defense counsel must understand that actions have consequences. We are
> still a military organization, and a commander has a right, even a
> duty, to know where his troops are. Counsel should not be surprised,
> therefore, that a commander who cannot confirm the whereabouts of a
> subordinate with a penchant for disappearing, feels compelled to take
> sterner measures to insure that the subordinate returns to duty in a
> timely fashion, or that a commander requires defense counsel to meet
> with a client inside the confinement facility instead of at the
> attorney\'s office.[^246]

Defense counsel would be well advised to explain the significance of
this ruling to Houdini-like clients with "a penchant for
disappearing."[^247]

# E. Summary

Information relating to representation of a military client and the
confidences of that client, including his whereabouts, are matters which
are broadly protected by the Air Force Rules and state rules of
professional conduct, and to a lesser extent, by Military Rule of
Evidence 502 and case law. When the attorney-client privilege is
abrogated, it raises constitutional issues under both the Fifth and
Sixth Amendments. An accused's whereabouts is, absent the fraud
exception, covered by the attorney-client privilege. Violation of the
privilege forces an accused to chose between his Fifth and Sixth
Amendment rights, creating an impermissible constitutional tension, and
contravening long-standing common law norms.

The Air Force Area Defense Counsel Program is a model of independence,
integrity, and outstanding service to clients. Proper respect for the
attorney-client privilege will help keep it that way. All of those
engaged in the practice of military criminal justice would do well to
heed the Supreme Court's hoary, but venerable admonition against
trammeling the rights of an accused:

> The \[prosecutor\] is the representative not of an ordinary party to a
> controversy, but of a sovereignty whose obligation to govern
> impartially is as compelling as its obligation to govern at all; and
> whose interest, therefore, in a criminal prosecution is not that it
> shall win a case, but that justice shall be done. As such, he is in a
> peculiar and very definite sense the servant of the law, the twofold
> aim of which is that guilt shall not escape or innocence suffer. He
> may prosecute with earnestness and vigor -- indeed he should do so.
> But while he may strike hard blows, he is not at liberty to strike
> foul ones. It is as much his duty to refrain from improper methods
> calculated to produce a wrongful conviction as it is to use every
> legitimate means to bring about a just one.[^248]

As noted at the beginning of this article, the attorney-client privilege
is at the very core of our profession---it is a fundamental tenet of our
profession that a client's confidences and information relating to a
client's representation are safe with his attorney and will be shielded
by law from the prying eyes of the prosecution and others hostile to a
client's interests. This privilege is central to maintaining the public
trust in our profession. The privilege is perhaps even more important in
military criminal practice. As good as our system of military justice
is, it still suffers from some largely false perceptions about unlawful
command influence, confusion about the area defense counsel's chain of
command, and a tendency to view the SJA as chief prosecutor on the
installation, rather than as the officer entrusted with administering
justice fairly and efficiently across the installation. If a military
member's decision to seek the advice of defense counsel is routinely
revealed to representatives of command, and if defense counsel are
called upon to testify against their current and former clients in any
but the most extraordinary cases, then perceptions, and perhaps reality,
will be heading in the wrong direction. Part of our mission must be to
strive to assure that representation by military defense counsel carries
the same benefits incident to attorney-client privilege available from
the civilian defense bar.

Air Force defense counsel have worked hard for over twenty-five years to
maintain the independence of their offices. SJAs should support their
ADCs in this effort and discourage subordinate judge advocates and
others on base from routinely taking actions which may cause the
independence of the ADC to come into question. There are few military
cases that address the issue, but the discussion in this article will
undoubtedly add substance to the debate.

V. GENERAL MILITARY PRACTICE: RECOGNIZING AND HANDLING ATTORNEY-CLIENT
PRIVILEGE

CONFLICTS OF INTEREST

"Whenever you wish to do anything against the law, Cicely, always
consult a good solicitor first."[^249]

This section deals with the attorney-client privilege in the general
practice of military law. Its focus is primarily on dealing with
conflicts of interest which may arise from the many "hats" a military
attorney wears as legal adviser to command, claims officer, legal
assistance attorney, government ethics counselor, and trial and defense
counsel, among others. Our manifold practice is unique in the law and
presents many conflict of interest situations unknown to civilian
practitioners. For example, a county or state district attorney does not
normally see clients regarding private, civil law matters, and thus
rarely has to consider whether his office might prosecute one of his
clients at some future point.

Also, while legal assistance is a free service for military members,
dependents, and retirees (some of whom are also civilian government
employees), rules of professional conduct and representation standards
still apply to these consultations. They are "real" attorney-client
relationships. Some of these same clients may later file grievances,
complaints, or lawsuits against the Air Force, or themselves be the
subjects of investigation or disciplinary proceedings. The same legal
office which advised these clients in the first instance may then be
assigned to defend the interests of the Air Force or prosecute criminal
charges against them for alleged criminal acts. Next, this article will
explore some of the more common conflict of interest situations in
military practice; examine the interplay of these situations and the
attorney-client privilege; and, examine solutions available under
various policy-level rules, statutes, and case law.

# A. The Air Force as Client

In daily practice, most Air Force attorneys are assigned to represent
the Air Force through its authorized officials.[^250] Providing personal
legal assistance or acting as detailed or individual military defense
counsel (where the attorney has a traditional "human" client with full
attorney-client privilege) is the exception, rather than the rule.[^251]
Sometimes confusion arises when government officials and individual
military members seek advice from "the JAG" on a variety of official
matters. These "clients" may view the judge advocate as their personal
legal adviser for all matters, personal and professional, and believe
that all communications made to the attorney are always covered by the
attorney-client privilege, and will thus be kept confidential.

While many statements made between or among government officials and
government attorneys do qualify as privileged communications,[^252]
government attorneys are assigned to provide legal advice to government
officials only on official matters, and are more analogous to corporate
attorneys who represent the corporation as opposed to any one of its
officers.[^253] Government officials lose the protection of the
attorney-client privilege when the communication in question clearly
contemplates "the future commission of a fraud or crime."[^254]
Additionally, when an official "is acting, intends to act or refuses to
act in an official matter in a way that is either a violation of the
person's legal obligations to the Air Force or a violation of law which
might reasonably be imputed to the Air Force," the lawyer must act in
the best interest of the Air Force.[^255]

In these situations, the attorney must initially make clear to the
official that the Air Force is his true client and that his first duty
is to the organization, not the individual official.[^256] Once that is
made clear to the official, however, the attorney must "take measures to
minimize disruption of the organization and the risk of revealing
information relating to the representation to persons outside the
organization."[^257] However, in no event may the attorney participate
or assist in illegal activity, even if ordered to do so by a superior
officer.[^258] Of course, most commanders and other government officials
readily accept the advice of their military attorneys, and are content
to accomplish the mission within the bounds of the law. In these more
common situations, military attorneys must guard the confidences of
their government-official "clients" to the largest extent allowed by
law, in order to maintain the confidence of these officials and the
interests of the Air Force.[^259]

#### B. The Role of the Legal Assistance Attorney

*1. Background and Policies*

Legal assistance entails providing legal advice to service members,
their dependents, and other entitled persons on limited civil law
matters, such as wills, powers of attorney, domestic relations, debtor
and creditor problems, landlord-tenant issues, etc. The scope of Air
Force legal assistance is limited by regulation.[^260] In most cases,
the advice and representation is limited to matters which do not require
representation in civilian court, and which do not qualify as matters
within the charter of the ADC. Legal assistance services, while broad,
do not extend to making claims against the United States, adverse
administrative actions against the client, or criminal matters of any
kind.[^261] The limited scope of these representations, however, does
not limit the scope of the attorney-client privilege. The program
provides clients an invaluable service they may not otherwise be able to
afford. For the Air Force, legal assistance serves as both a preventive
law program and a means for ensuring combat readiness. It is a critical
morale and readiness program. As the cases below show, the
attorney-client privilege applies fully to confidences given to legal
assistance attorneys, including confidences taken *in violation of*
policies limiting the scope of legal assistance. This is important to
maintaining client confidence in the program.

Legal assistance attorneys should direct clients to an area defense
counsel when they realize the servicemember is making an inculpatory
statement likely to end up in some type of disciplinary action against
the individual. Air Force policy regarding the scope of legal assistance
and its relationship to the attorney-client privilege is regulated by
Air Force Instruction 51-504 and TJAG Policy Number 18. The latter
specifies:

> The legal assistance officer is prohibited from receiving confidences
> in any case in which the person requesting assistance is, or probably
> will be, the subject of military or civilian criminal action or other
> military disciplinary action. In such cases, the judge advocate is
> limited to assisting the individual to obtain civilian or proper
> military counsel. In cases where the person seeking legal assistance
> is or may be the subject of court-martial charges, other disciplinary
> action, or adverse personnel action (discharge, promotion delay,
> etc.), such person should be referred to the staff judge advocate or
> area defense counsel. Referral to the staff judge advocate is not
> required if the judge advocate being consulted is a circuit defense or
> area defense counsel.[^262]

AFI 51-504 further defines the scope of permissible legal assistance:

> **1.2. Scope.** Legal assistance consists of providing advice on
> personal, civil legal problems to eligible beneficiaries. For any
> other legal concern, the Air Force remains the client. On such
> matters, do not provide advice to or enter into an attorney-client
> relationship with individuals.
>
> 1.2.1 Limits.
>
> Do not enter into an attorney-client relationship on these issues:
>
> • Issues involving personal commercial enterprises (unless such advice
> is related to the Soldiers\' and Sailors\' Civil Relief Act
> \[SSCRA\]).
>
> • Criminal issues under the Uniform Code of Military Justice (UCMJ) or
> any state or federal criminal law.
>
> • Standards of conduct issues.
>
> • Law of armed conflict issues.
>
> • Official matters in which the Air Force has an interest or is
> involved in the final resolution.
>
> • Legal issues or concerns raised on behalf of another person, even if
> the other person is eligible for legal assistance.
>
> • Drafting or reviewing real estate sales or closing documents,
> separation agreements or divorce decrees, and inter vivos trusts. If
> the SJA determines that an attorney in the office, whether active duty
> or reservist, has the expertise to draft or review these documents,
> then the SJA may authorize that attorney to do so.
>
> • Representation of the client in a court or administrative
> proceeding.[^263]

These policies and regulatory rules cover situations where an accused,
or potential accused, is known and identified by the legal assistance
attorney or screening personnel prior to formation of the
attorney-client relationship. Despite these policies, legal assistance
and screening personnel do not always immediately recognize potentially
conflicted clients or problems which exceed the scope of legal
assistance. Many clients are understandably reluctant to say *anything*
of substance about their legal problems until the door to the attorney's
office is closed and the consultation has started. Thus, proper referral
to the ADC or other agencies does not always occur before the point at
which a client might reasonably believe an attorney-client relationship
has been formed. Additionally, situations arise where a sudden,
unexpected criminal admission is made during an otherwise permitted
attorney-client consultation. There are also cases where the legal
assistance attorney later learns that her client has become an accused,
and discovers that the criminal matter is substantially related to the
civil matter about which the member previously consulted the attorney.

These situations present issues of attorney-client privilege and
conflicts of interest. Can the legal assistance attorney be called to
testify against an accused client? What about acting as trial counsel at
the accused's court-martial? These questions are explored below.

It is clear that attorneys providing legal assistance are bound by the
Air Force Rules of Professional Conduct and that the attorney-client
privilege applies to these consultations. AFI 51-504 explicitly
acknowledges this:

> **1.6. Ethical Responsibilities and Rules.** SJAs administer the legal
> assistance program in strict compliance with the *Air Force Rules of
> Professional Responsibility*.
>
> 1.6.1. Only attorneys give legal advice.
>
> 1.6.2. Information received from a client during legal assistance,
> attorney work-products, and documents relating to the client are
> legally confidential. Release them only with the client's express
> permission, pursuant to a court order, or as otherwise permitted by
> the *Air Force Rules of Professional Responsibility*.
>
> 1.6.3. Judge advocates and civilian attorneys who perform legal
> assistance must have private offices.
>
> 1.6.4. Legal assistance attorneys must avoid creating the impression
> that they represent the Air Force's interests in resolving the
> client\'s concerns or that the Air Force has an interest in the
> outcome of the matter. When writing letters on a client's behalf, do
> not use Air Force letterhead. Include a statement in the letter making
> it clear the Air Force does not represent the client in resolving the
> matter.
>
> 1.6.5. Legal assistance attorneys may not interfere with an existing
> attorney-client relationship.[^264]

*2. Conflicts Generally--Representation Adverse to Former Client*

In *Kevlik v. Goldstein*,[^265] a case which has been favorably cited by
a number of military courts, the United States Court of Appeals for the
First Circuit held that trial judges have a duty to supervise the
conduct of attorneys appearing before them in matters affecting the
preservation of client confidences.[^266] The Kevliks were plaintiffs in
a civil suit against the Town of Derry, New Hampshire. The case arose
out of allegations of police brutality. In November 1980, James Kevlik
was stopped for drunk driving while traveling through Derry. He was not
ultimately charged with drunk driving, but he and his passengers, Jan
Kevlik and John Southmayd, were arrested, allegedly beaten by the Derry
police, and allegedly denied proper medical care. The Kevliks and
Southmayd were charged with assault and resisting arrest, and all were
acquitted.[^267]

Southmayd had consulted an attorney named Robert McNamara about his
criminal case, who took his confidences, made one court appearance, and
then withdrew from the case, informing Southmayd that he had a conflict
of interest, since he also represented the Derry Police Department's
insurer. At the conclusion of his criminal case, Southmayd obtained
other counsel and successfully and independently of the Kevliks
subsequently settled his civil claim against the Town of Derry without
filing suit. The Kevliks filed suit against the Town of Derry, and
McNamara\'s firm represented the defendant town. The Kevliks moved to
disqualify McNamara\'s firm, because they were privy to privileged
attorney-client information from Southmayd, a key plaintiff's
witness.[^268]

The court held that, despite its withdrawal from Southmayd's case, an
attorney-client privilege still existed between Southmayd and
McNamara\'s law firm. It found that these conflicting representations
were a violation of the Model Code of Professional Responsibility, and
upheld the district court\'s decision to disqualify McNamara\'s firm.
The court reminds us of the basic rule that, "an attorney should be
disqualified from opposing a former client if, during his representation
of that client, he obtained information relevant to the controversy at
hand."[^269]

While the primary issue in *Kevlik* was compromise of the
attorney-client privilege, the case also raised the issue of the
"one-firm" rule, applicable in most civilian jurisdictions, which
imputes knowledge of attorney-client privilege information to every
member of a law firm, and thus prevents *any* member of a law firm from
representing a client with interests adverse to those of any other
client represented by the firm.[^270] The rule is *not* applied in Air
Force practice. Air Force Rule 1.10, *Imputed Disqualification*, states:
"Air Force attorneys who work in the same military law office are *not
automatically disqualified* from representing a client even if other Air
Force attorneys in that office would be prohibited from doing so by
Rules 1.7, 1.8(c), 1.9 or 2.2."[^271] However, as in *Kevlik*, all
attorneys, including military counsel are prohibited from representing
clients with interests adverse to those of a former client in the same
or a substantially related matter.[^272] In the following case, we see a
Marine defense counsel push the conflicts envelope to its outermost
edges as he *prosecutes* a former client on the same matter for which he
earlier delivered "counseling" to the accused. While not strictly a
legal assistance situation, it is closely analogous.

*3. The Legal Assistance Attorney as Prosecutor*

In *United States v. Hustwit*,[^273] Marine Private (PVT) Glenn Hustwit
was both advised by and later prosecuted by, the same counsel on the
same matters. Private Hustwit sought advice from Captain Foreman, a
Marine Corps defense counsel, regarding a pending nonjudicial punishment
action for a number of AWOL offenses under Article 86, UCMJ.[^274] Both
PVT Hustwit and Captain Foreman provided affidavits to the Navy-Marine
Court of Military Review indicating that no substantive discussions took
place regarding the nonjudicial punishment. PVT Hustwit claimed,
however, and the court found as fact, that PVT Hustwit additionally told
Captain Foreman that the Naval Criminal Investigative Service (NCIS) was
looking for him in connection with an ATM card theft.[^275]

Ultimately, PVT Hustwit was taken to a special court-martial on charges
of AWOL and larceny,[^276] and Captain Foreman turned up not to
*defend*, but to *prosecute* him. When PVT Hustwit informed his defense
counsel about the prior consultation with Captain Foreman, he told PVT
Hustwit "not to worry about it" and his defense counsel did not raise
the issue at trial.[^277] The court held that the issue was waived
during trial, and that no substantial relationship existed between
Captain Foreman and PVT Hustwit. While many might disagree with the
court\'s decision in the case, at least on grounds of perception, the
opinion includes a thorough discussion of the rules applicable to such
cases.[^278]

As the opinion correctly points out, "an attorney-client relationship is
formed when a service member obtains legal advice of any kind from an
individual representing himself as a legal advisor."[^279] This
attorney-client relationship and the ethical duty to maintain client
confidences remains intact *even if the attorney has violated the orders
of superiors to limit the scope of the representation*, and thereby
subjects himself to discipline.[^280] The court also points out that
once a confidential relationship exists, the attorney may not act in any
manner inconsistent with the client\'s interests.[^281] The court then
cites precedent for resolving such cases:

> The critical inquiry. . . centers normally . . . on the possibility
> that the accused may be prejudiced by the presence of a personal
> interest in the outcome of the case on the part of the prosecutor, or
> the latter\'s possession of privileged information or an intimate
> knowledge of the facts by reason of a professional relationship with
> the accused. If---after a consideration of all the
> circumstances---possibility of prejudice may be said to exist, the
> prosecutor must be disqualified.[^282]

The *Hustwit* Court ultimately held that "the practicalities inherent in
normal military lawyer assignment rotation without a showing of specific
prejudice (particularly when the appearance of conflict is recognized
and then waived), militate against a per se rule of disqualification
when it is not required in the interests of military justice."[^283] The
court found that the accused was not prejudiced, because Captain Foreman
"did not acquire any confidential information."[^284] The record was
void of any evidence that PVT Hustwit's prior consultation with Captain
Foreman adversely affected his interests or provided an advantage to the
government. The court also found that, even under a per se
disqualification standard, the accused had waived the issue by bringing
it to the attention of his defense counsel and later stating on the
record that he was satisfied with his defense counsel. The court
presumed that he would have expressed dissatisfaction had he been
concerned with his counsel\'s instructions "not to worry about" his
perceived conflict of interest with Captain Foreman.

While *Hustwit* involved only military justice matters, it is still
instructive for legal assistance attorneys who need to be constantly
vigilant to warn clients up-front as to the scope of legal assistance
and to avoid accepting confidences relating to criminal matters.

*4. The Legal Assistance Attorney as Witness*

There are no reported military cases of a legal assistance attorney
being called as a witness against a former client. *Hustwit* is closely
analogous, as is *United States v. Rust*[^285] discussed below, which
involves a claims officer's investigation, rather then a traditional
legal assistance consultation. The simple rule is that legal assistance
visits are attorney-client consultations, and consistent with rules
cited throughout this article, the confidences of those clients must be
kept confidential. As the article has noted, these confidences are
protected even if the attorney takes them in violation of the
established scope of legal assistance.[^286] The attorney must keep them
confidential even if it means he will be disciplined for taking them in
the first place.[^287] As the analysis and examples showed earlier in
Part III of the article, if a legal assistance attorney improperly
divulges confidential information to the prosecution, he could severely
damage the government's case or even preclude prosecution of the
accused.[^288] At the very least, such disclosures greatly complicate
the case, and the attorney may subject himself to discipline, perhaps
even disbarment, for this most serious of ethics violations.

In *United States v. Gandy*,[^289] the Air Force Court of Military
Review stated the basic premise that "lawyers representing litigants
should not be called as witnesses in trials involving those litigants if
such testimony 'can be avoided consonant with the end of obtaining
justice.'"[^290] The court also noted, "this does not mean that one who
formerly represented one of the parties to the litigation is thereafter
disqualified as a witness."[^291]

This makes the point that not every consultation conflicts the attorney
from ever testifying against a former client. Aside from the usual
exceptions (fraud, future crime, etc.) to the attorney-client privilege
rule discussed throughout this article, if the matter is unrelated to
the previous representation, the attorney may be called as a witness or
may even prosecute the accused. However, this situation should be
avoided wherever possible because of the appearance of conflict it
creates: "Last week he did my will; this week he's going to bury me!"

# C. The Role of Ethics Counselor

Judge advocates are regularly assigned to function as ethics counselors
under various provisions of the Joint Ethics Regulation (JER), which is
the "single source of standards of ethical conduct and ethics guidance,
including direction in the areas of financial and employment disclosure
systems, post-employment rules, enforcement, and training."[^292] This
function is *not* a traditional legal assistance function. Ethics
counselors represent the government, not the member or employee, and
they may *not* form attorney-client relationships during these
counseling sessions. Many ethics counseling "clients" do not understand
this distinction, however, as *United States v. Schaltenbrand*,[^293] a
federal criminal case, demonstrates.

Eugene Schaltenbrand, a Colonel in the Air Force Reserve, was convicted
in federal district court of violating 18 U.S.C. Section 208(a),[^294]
which prohibits federal employees from working on projects in which they
have a financial interest,[^295] and of violating 18 U.S.C. Section
207(b), which prohibits former federal employees from representing
private parties before the government on matters they previously worked
on for the government.[^296]

Between February and May 1987, Colonel Schaltenbrand was brought on
active duty nine times for "short periods of duty."[^297] During this
period and while on active duty status, he traveled to Peru and Mexico
to conduct site surveys for C-130 aircraft.[^298] He also sought
retirement employment with a private contractor, Teledyne Brown
Engineering (TBE).[^299] TBE officials expressed interest in hiring him
but cautioned him to discuss with the Air Force any potential conflicts
of interest "which might arise."[^300] On 21 September 1987, TBE offered
Colonel Schaltenbrand a job.[^301]

On 24 September 1987, Colonel Schaltenbrand went to an Air Force legal
office for "legal assistance."[^302] He filled out a standard legal
assistance questionnaire which indicated his discussions during legal
assistance were protected by the attorney-client privilege. He then met
with two "legal assistance attorneys" from the base office and they
engaged in an hour-long discussion. However, the attorneys indicated to
Colonel Schaltenbrand they could not answer questions regarding conflict
of interest issues because they were representatives of the government
and instead handed him printed materials on conflicts of interest
issues. One day later, Colonel Schaltenbrand accepted TBE's employment
offer. He continued to participate in active duty recalls during the
time of his employment with TBE.[^303]

Ultimately, his employment activities led to a criminal investigation in
which the two attorneys who had counseled him explained to investigators
the nature and specifics of their meeting with Colonel Schaltenbrand. No
consent was ever given to have the two attorneys disclose any
information from their meeting. During an evidentiary hearing, Colonel
Schaltenbrand\'s defense attorneys attempted to suppress any evidence
derived from the unauthorized disclosures. Their motion was denied and
he was convicted, in part, based on the testimony of the two ethics
counselors *cum* "legal assistance" attorneys.[^304]

On appeal, the circuit court applied the black letter law of
attorney-client privilege. The opinion noted that the party invoking the
privilege has the burden of proving that: (1) an attorney-client
relationship existed, (2) the particular communications were intended to
be confidential,[^305] (3) the communications were made for the purpose
of obtaining legal advice or assistance,[^306] and, (4) "the key
question in determining the existence of a privileged communication is
whether the client reasonably understood the conference to be
confidential."[^307]

Applying this test, the court found that he intended to make his
communications to the two "legal assistance" attorneys confidential and
for the purpose of securing legal advice.[^308] The government argued
that because the defendant was informed that the two legal assistance
attorneys were *also* ethics counselors for the Air Force, he should
have been aware his disclosures were not confidential.[^309] Rejecting
the government\'s argument, the court reasoned that non-lawyers are
generally unable to delineate when a legal assistance attorney is no
longer acting in the capacity of a legal assistance attorney.[^310] More
importantly, the court recognized that the type of "hair splitting"
envisaged by the government would "inhibit \[service members\] from
seeking the advice of JAG attorneys in order to avoid conflicts of
interest."[^311] In light of this holding, wise SJAs will make sure
ethics counseling customers are taken in separately from legal
assistance clients, and that very clear explanations are given regarding
the purpose of the counseling, that the counselor is not acting as a
legal assistance attorney, and that the conversation is not privileged.

**D. The Role of Claims Officer**

As in the *Schaltenbrand* case, the court\'s analysis in *Kevlik*
(regarding when an attorney-client relationship is formed) was
ultimately adopted by the United States Court of Appeals for the Armed
Forces in *United States v. Rust.*[^312] An examination of the *Rust*
decisions is particularly useful to those wrestling with issues of
privilege as it combines elements of military justice, claims, and legal
assistance---showing how the lines may quickly become blurred in the
eyes of the "client," and modeling, through the professional actions of
the claims officer in the case, the correct way to handle such
situations. The case also makes the point that a claims officer
represents the government and not any individual claimant, witness, and
tortfeasor when investigating and settling claims. As long as he makes
this clear, then the attorney-client privilege does not come into play.

While several cases discuss the duration and scope of the
attorney-client relationship, few actually delineate how the
relationship is formed. As noted throughout this article, some
authorities hold that the relationship comes into being when confidences
are accepted, and when the client honestly (but not necessarily
reasonably) believes and that he has formed an attorney-client
relationship and that his confidences will be kept. This subjective
standard has not received wide acceptance, and most military and federal
courts apply an objective, "reasonable belief" test, as the court did in
*Rust*.

The pertinent facts of *Rust* are as follows: Major (Dr.) Rust worked at
the Castle Air Force Base hospital as the base obstetrician.[^313] When
a pregnant hospital patient visiting another doctor complained of
vaginal bleeding, the other doctor sought advice from Dr. Rust. Dr. Rust
advised his colleague to prescribe bed rest and that the patient should
return to the hospital if she had any further complaints. The patient
returned to the hospital the following evening and spoke over the
telephone to Dr. Rust. In a written statement, Dr. Rust said that he
advised the patient to remain at the hospital but she refused.
Ultimately, the patient left the hospital, went into premature labor,
and lost the baby. To complicate matters further, within a few days, the
patient was killed by her boyfriend (the baby's father) who then
committed suicide himself, apparently in a joint suicide plan.[^314]

During the ensuing claims investigation, Dr. Rust was contacted by the
Castle Air Force Base claims officer. He advised Dr. Rust that, "he was
the hospital\'s lawyer," and not Dr. Rust's lawyer. Significantly, he
also informed Dr. Rust that his report would be sent to a number of
other reviewing authorities.[^315] Prior to their meeting, Dr. Rust made
a handwritten statement detailing his involvement with the patient in
question and subsequently gave the statement to the claims officer
during their meeting. Later, the accused was tried for dereliction of
duty[^316] and false official statement,[^317] and found guilty of both
charges. The note given to the claims officer was the basis for Dr.
Rust's false official statement conviction. It was also useful to the
prosecution because it contradicted other testimony given by the
accused. The statement\'s admission was contested on appeal as protected
under the attorney-client privilege.[^318]

The Air Force Court of Military Review, in a brief analysis, concluded
that Dr. Rust's written statement given to the claims officer was not
protected by the attorney-client privilege.[^319] The court cited
*United States v. Henson* for the proposition that, while the test to
determine the existence of the relationship is examined from the
would-be client's point of view, the belief must be reasonable.[^320]
The court found that Dr. Rust's belief that he had an attorney-client
relationship with the base claims officer was unreasonable.[^321]

The United States Court of Appeals for the Armed Forces affirmed the Air
Force Court's decision but provided a more detailed analysis. Relying on
both *Schaltenbrand* and *Kevlik,* the court acknowledged that the party
invoking the attorney-client privilege has the "burden of proving that a
relationship existed and that the communications \[in question\] were
confidential"[^322] The court also held that the pivotal question is
whether the client reasonably understood the communication to be
confidential. Noting that any questions of doubt as to the existence of
the privilege should be resolved in favor of the accused, the court held
that there was no attorney-client relationship. Dr. Rust should
reasonably have understood that the claims officer was *not* providing
him with personal legal assistance, but rather, investigating on behalf
of the United States. It was also clear that these communications were
not intended to be kept confidential, because the accused knew that any
information he gave would be passed on to other military authorities via
the claims officer's report.[^323] Thus, the court had little trouble
holding that no attorney-client privilege existed.

### E. Summary

The case law, regulatory, and policy guidance cited within this article
is applicable to all Air Force attorneys, military and civilian, in all
of their various roles as advocates, advisers, and counselors. However,
general practitioners, primarily at installation-level legal offices
must be particularly vigilant about avoiding conflicts of interest with
their duties under the attorney-client privilege. The very service
members they advise today, may face adverse action or court-martial
tomorrow. It is the best practice, where possible, to avoid prosecuting
or assisting in the prosecution of service members to whom we have
provided legal assistance. However, it is not Air Force practice to
designate permanent legal assistance attorneys. Thus, the need to
preserve the attorney-client privilege takes on added importance. When
the privilege is abrogated, the administration of military justice may
suffer and the attorney risks disciplinary action.

Legal office personnel should diligently and regularly check their
records to ensure that conflicts of interest do not exist before
referring a client to a particular attorney. Likewise, SJAs should ask
legal assistance personnel to check their records for conflicts, prior
to detailing trial counsel to cases. This will help to avoid
pre-existing attorney-client relationship conflicts between trial
counsel and the accused. The best practice, where possible, is to remove
the attorney from any involvement in the case, when such a conflict is
discovered.

# VI. CONCLUSION

The attorney-client privilege is the oldest and most universally
respected of the testimonial privileges. It remains a professional core
value and all military and civilian attorneys owe their best efforts to
keep the privilege and client confidences inviolate. An attorney who
cannot or will not keep his client's confidences has no place in our
profession. Violation of this sacred trust eviscerates fundamental
constitutional, codal, MCM, regulatory, ethical, and common law
principles and brings our profession into disrepute.

This article has grappled with and presented many examples of the
purpose, limits, and uses of the privilege. These issues have been
analyzed with an eye toward practical applications of the privilege to
daily military legal practice generally and to Air Force practice in
particular. The historical development of the attorney-client privilege
and some specific areas where the privilege commonly arises in military
practice have been explored. As these examples, rules, and cases have
shown, the attorney-client privilege touches every aspect of the legal
profession. Important aspects of the privilege have been examined and
described from three different perspectives: (1) a prosecution
perspective---saving court-martial cases involving alleged compromise of
attorney-client privileged material by trial counsel and/or
investigators, (2) a defense perspective---using the privilege to
protect information about the whereabouts of a client and the contents
of a defense counsel's appointment calendar, and, (3) a general military
practice perspective---the potential conflicts of interest which may
arise when the privilege is factored into a diverse military practice
involving advice to command, claims litigation, military legal
assistance, and the many other issues handled by installation-level
judge advocates daily.

Hopefully, this article provides a greater appreciation of the central
role of the attorney-client privilege in the daily practice of military
law and provides a number of practical tools and references for
researching privilege questions as they arise. Despite the complex,
often tangled set of facts that inevitably appear in these cases, it is
hoped all will keep in mind our shared professional core value: an
attorney's first duty is to keep the secrets of his clients.

[^1]: ^\*^ *Lieutenant Colonel Thompson (B.A., San Francisco State
    University, J.D., University of California, Hastings College of the
    Law) is the Chief, Military Justice Division, Air Force Judge
    Advocate General School, Maxwell Air Force Base, Alabama. He is a
    member of the bar in the State of California. Lieutenant Colonel
    Thompson thanks his co-author for getting the project off the
    ground; his editor, Major Del Grissom, for invaluable assistance and
    patience; Major T.J. McGrath, Major Bryan Wheeler, Captain Martin
    Heli, and Captain Adam Oler, who acted as his co-counsel in the
    Sprague and Pinson cases cited in Part III; Colonel (Ret.) J.
    Jeremiah Mahoney and Colonel Patrick Rosenow, for encouraging him to
    write Part III of the article; and his family for their unflinching
    support and sacrifices throughout the process.*

[^2]: ^\**\**^ *Captain Kastenberg (B.A., University of California-Los
    Angeles, M.A., Purdue University, J.D., Marquette University) is a
    Circuit Trial Counsel, USAF Trial Judiciary, Central Circuit,
    Randolph Air Force Base, Texas. He is a member of the bar in the
    State of Wisconsin. Captain Kastenberg wishes to express his
    appreciation for their support and encouragement to write this
    article to Colonel (Ret.) J. Jeremiah Mahoney, Lieutenant Colonel
    Larry T. McRell, and Major James K. Floyd.*

[^3]: United States v. Marrelli, 15 C.M.R. 276, 281 (C.M.A. 1954).

[^4]: 10 U.S.C. § 815 (2000).

[^5]: Made criminal by Article 86, UCMJ, 10 U.S.C. § 886 (2000).

[^6]: Taylor v. Blacklow, 132 Eng. Rep. 401, 406 (C.P. 1836).

[^7]: *See* Geoffrey C. Hazard Jr., *A Historical Perspective on the
    Attorney-Client Privilege*, 66 [Cal. L. Rev]{.smallcaps}. 1061, 1070
    (1978) (Professor Hazard dates the privilege to the Roman Civil
    Code, but does not cite any authority). *See also* Comment, *Legal
    Ethics: Confidentiality and the Case of Robert Garrow\'s Lawyers,*
    25 [Buff. L. Rev.]{.smallcaps} 211, 213-14 (1975).

[^8]: 8 J. [Wigmore,]{.smallcaps} [Evidence in Trials at Common
    Law]{.smallcaps} § 2290, at 542 (McNaughton rev. 1961) (hereinafter
    [Wigmore).]{.smallcaps} *See also*, Act for Punishment of Such as
    Shall Procure or Commit Any Wilful Perjury, 1562, 5 Eliz. 1, ch. 9,
    § 12 (cited in *Development in the Law--- Privileged Communication:
    Part I. Introduction: The Development of Evidentiary Privileges in
    American Law*, (Part 1 of 8), 98 [Harv. L. Rev.]{.smallcaps} 1450
    (May 1985)) (noting the penalty and possible civil actions imposed
    on those who refused to attend after service of process and tender
    of expenses). Although only available to the Crown at first,
    compulsory process was later extended to civil parties and criminal
    defendants. *See, e.g.,* Act for Regulating of Trials in Cases of
    Treason and Misprision of Treason, 1695, 7 Will. 3, ch. 3, § 7
    (extending right to have compulsory process to defendants accused of
    treason) (*cited*, *supra* in 98 [Harv. L. Rev.]{.smallcaps} 1455).

[^9]: *Id*., [Wigmore]{.smallcaps} at 542.

[^10]: *Id.* at 543 (emphasis in original).

[^11]: *See* Berd v. Lovelace, 21 Eng. Rep. 33 (1577); Dennis v.
    Codrington, 21 Eng. Rep. 53 (1580).

[^12]: Hazard, *supra* note 5, *citing* Walfron v. Ward, Style 449 (K.B.
    1654) ("\[A\] 'counselor at law' is not bound to 'make answer for
    things which may disclose the secrets of his Client's cause") and
    *see* *Bulstrod v. Letchmere*, [Freemen 5 22 Eng. Rep.
    1019]{.smallcaps} (Ch. 1676). ("\[C\]ounselor at law shall not be
    bound to answer concerning any writings which he hath seen, nor for
    any thing which he knoweth in the cause as counsellor.").

[^13]: 17 [How. St. Trials]{.smallcaps} 1139 (1743) (Also styled as
    Craig v. Anglesea).

[^14]: *Id.* at 1229.

[^15]: *Id.* at 1230.

[^16]: *Id.*

[^17]: [Wigmore]{.smallcaps}, *supra* note 6, § 2291.

[^18]: *Robson v. Kemp*, 170 Eng. Rep. 499 (K.B. 1798).

[^19]: *Gainsford v. Grammar*, 107 Eng. Rep. 516 (K.B. 1803).

[^20]: *Spencley v. Schullenburgh*, 103 Eng. Rep. 138 (1806).

[^21]: [Z. Swift, A Digest of the Law of Evidence]{.smallcaps} (Hartford
    1810 & photo. reprint 1972) (cited in *Development of Evidentiary
    Privileges*, 98 [Harv. L. Rev.]{.smallcaps} 1450, *supra* note 6, at
    1457). (Judge Swift sat on the Supreme Court of Errors of
    Connecticut).

[^22]: *See generally, Development of Evidentiary Privileges*, *supra*
    note 6, at 1457.

[^23]: Hazard, *supra* note 5, at 1070.

[^24]: *See* [Restatement (Second) of Agency]{.smallcaps} §§ 395-396
    (1958). An agent is prohibited from disclosing information revealed
    in confidence by the principal or acquired by the agent in the
    course of the agency relating to matters in which the agent has been
    employed.

[^25]: *See, e.g.,* Rochester City Bank v. Suydam Sage & Co., 5 How. Pr.
    254, 258-59 (N.Y. Sup. Ct. 1851) and 9 William S. Holdsworth, [A
    History of English Law]{.smallcaps} 201-03 (1926).

[^26]: *See* Deborah S. Bartel, *Drawing Negative Inferences Upon a
    Claim of the Attorney-Client Privilege*¸ [60 Brook. L. Rev. 1355,
    1362-1363 (1995).]{.smallcaps}

[^27]: *See e.g.*, Coplon v. United States, 191 F.2d 749 (D.C. Cir.
    1951) and James A. Gardner, *A Re-Evaluation of the Attorney-Client
    Privilege*, 8 [Vill. L. Rev.]{.smallcaps} 279, 316-338 (1963).

[^28]: *See* Bartel, *supra* note 24, at 1362-1363 and *see* Hatton v.
    Robinson, 31 Mass. (14 Pick) 416, 422 (1833).

[^29]: *See* Bartel, *supra* note 24, at 1364.

[^30]: 128 U.S. 464 (1888).

[^31]: *Id.* at 470.

[^32]: 165 U.S. 394, 406 (1897) (The Court noted that the privilege
    would survive the testator in a claim by a third party, but not
    between devisees, where none could rightfully claim a privilege to
    the exclusion of the others).

[^33]: *See* Bartel, *supra* note 24, at 1362.

[^34]: In re Grand Jury Proceedings, 87 F.3d 377 (9^th^ Cir. 1996).
    *See* *also*, Max Radin, *The Privilege of Confidential
    Communications Between Lawyer and Client*[, 16 Cal. L. Rev.
    487]{.smallcaps}, 488 (1928).

[^35]: *See*, *e.g.*, King v. Barrett, 11 Ohio St. 261, 263 (1860).

[^36]: *See infra*, Part II.A.2.

[^37]: *See* Wolfle v. United States, 291 U.S. 7 (1934) (*citing* Funk
    v. United States, 290 U.S. 371 (1933)).

[^38]: 449 U.S. 383, 389 (1981).

[^39]: 524 U.S. 399 (1998) (holding that the attorney-client privilege
    succeeded the death of White House Counsel Vince Foster, when the
    Office of Independent Counsel sought discovery of statements made by
    him to his attorney while investigating the "Travelgate" scandal of
    the Clinton Presidency).

[^40]: [Fed. Rules Evid.]{.smallcaps} 501, 28 U.S.C. (2000) and *see* 2
    [Saltzburg et al., Federal Rules of Evidence Manual]{.smallcaps}
    391-396 (7^th^ ed. 1998).

[^41]: *See*, *e.g.*, Upjohn Co. v. United States, 449 U.S. 383, 389
    (1981).

[^42]: [Wigmore]{.smallcaps}, *supra* note 6, § 2292 (emphasis in
    original). *See also* Prichard v. United States, 181 F.2d 326 (6th
    Cir. 1950), *aff'd*, 339 U.S. 974 (1950) (In *Prichard*, the Court
    was forced to utilize 28 U.S.C. 2109's provisions (four Justices
    recused themselves)---the Court lacked a quorum and believed itself
    unable to hear the case by the next term, so the case was affirmed
    as if by an equally divided Court); and Palatini v. Sarian, 83 A.2d
    24 (N.J. Super. Ct. App. Div. 1951). The privilege has also been
    held to exist irrespective of whether litigation has commenced or is
    contemplated. *See*, *e.g.*, Phillips v. Delaware, 194 A.2d 690
    (Del. Super. 1963).

[^43]: *Marrelli*, *supra*, note 1, at 281.

[^44]: *Id*. at 281-82 (citations omitted).

[^45]: *See* United States v. Reid, 53 U.S. (12 How.) 361, 363 (1851).
    (For states admitted to he Union after 1789, the relevant law was
    that in effect at the time of admission. *See* Logan v. United
    States, 144 U.S. 263, 302-303 (1892)).

[^46]: *See Wolfle*, s*upra* note 35.

[^47]: Michelson v. United States, 335 U.S. 469, 486 (1948).

[^48]: The provisions of the Rules Enabling Acts then in force are
    codified with only minor amendment at 18 U.S.C. §§ 3402, 3771, 3772
    (1982) and 28 U.S.C. §§ 2072, 2075 (1982).

[^49]: *See Rules of Evidence: Hearings Before the Senate Comm. on the
    Judiciary on the Federal Rules of Evidence*, H.R. 5463, 93^rd^
    Cong., 2d Sess. 3, 5 (1974).

[^50]: [Fed. Rules Evid.]{.smallcaps} Rule 501, 28 U.S.C. (2000).

[^51]: *Id.*

[^52]: *See Development of Evidentiary Privileges*, *supra* note 6, at
    1463-1471.

[^53]: *Id.*

[^54]: [1 Francis A. Gilligan & Fredric I. Lederer, Court-Martial
    Procedure]{.smallcaps} § 5-42.00, at 188 and § 5-52.00 at 190-94
    (2^nd^ ed. 1999) (hereinafter [Gilligan & Lederer)]{.smallcaps}.

[^55]: [Manual for Courts-Martial (2000]{.smallcaps} ed.[)]{.smallcaps},
    Pt. III, Sec. V, Rule 502 (hereinafter MCM).

[^56]: *Id.* at MIL. R. EVID. 502(c).

[^57]: *Id.* at [Mil. R. Evid.]{.smallcaps} 502(d)

[^58]: [Manual for Courts-Martial, United States,]{.smallcaps} 1969,
    Chap. XXVII, *Military Rules of Evidence* (1969 ed.), Change 3 (1
    September 1980).

[^59]: 10 U.S.C. § 801, *et. seq.* (2000).

[^60]: *See*, *e.g.*, [Manual for Courts-Martial, United States
    Army,]{.smallcaps} 1921, Chap. XI, ¶ 227 at 191 (1921 ed.) and
    [Manual for Courts-Martial, United States,]{.smallcaps} 1951, ¶ 151
    at 285 (1951 ed.) (The UCMJ became effective on 31 May 1951).

[^61]: United States v. Romano, 46 M.J. 269 (1997), *citing*
    [Wigmore,]{.smallcaps} *supra* note 6, § 2293.

[^62]: [Mil. R. Evid.]{.smallcaps} 510.

[^63]: [Mil. R. Evid.]{.smallcaps} 511.

[^64]: [Mil. R. Evid.]{.smallcaps} 512.

[^65]: 445 U.S. 40 (1980).

[^66]: *Id.* at 45.

[^67]: *Id.* (The Court further noted that Congress manifested an
    affirmative intention not to freeze the law of privilege; rather,
    its purpose was to "provide the Courts with the flexibility to
    develop rules of privilege on a case-by-case basis." *Id.* at 47,
    *citing* 120 Cong. Rec. 40891 (1974) (Remarks of Representative
    Hungate)).

[^68]: *Id.*

[^69]: 30 M.J. 10 (C.M.A. 1990).

[^70]: *Id.* at 15-16.

[^71]: 28 M.J. 780 (N.M.C.M.R. 1989).

[^72]: *Ankeny*, 30 M.J. at 17 (noting that the court "seriously
    doubt\[ed\] that Congress and the President intended the military
    justice system to simply stand by when a military accused's ship is
    accidentally scuttled by its captain in the lull before battle."
    (internal quotes and footnote omitted)). *Id.*

[^73]: *See,* *e.g.*, United States v. Castellano, 610 F.Supp. 1137
    (S.D.N.Y. 1985) and United States v. Kerlegon, 690 F.Supp. 541 (W.D.
    La. 1988).

[^74]: TJAG Policy Number 26, *Air Force Rules of Professional Conduct*
    & *Air Force Standards for Criminal Justice*, Attachments 1 and 2,
    respectively (1998) (*Air Force Standards* amended Nov. 1999)
    (hereinafter *Air Force Rules* and *Air Force Standards*).

[^75]: *Id.* at *Air Force Rule* 8.5. *See also* AFI 51-201,
    *Administration of Military Justice*, ¶ 1.3

    (3 October 1997) (making the *Air Force Rules* and *Standards*
    applicable to all Air Force attorneys).

[^76]: *Id.*

[^77]: *See* [1 Gilligan & Lederer,]{.smallcaps} *supra* note 52, at §
    5-52.00.

[^78]: *See* *Air Force Rules*, Preamble at 1.

[^79]: 10 U.S.C. § 806(a) (2000).

[^80]: R.C.M. 109, MCM (2000 ed.), reads, in pertinent part:

    > Rule 109. Professional supervision of military judges and counsel
    >
    > \(a\) *In general.* Each Judge Advocate General is responsible for
    > the professional supervision and discipline of military trial and
    > appellate military judges, judge advocates, and other lawyers who
    > practice in proceedings governed by the code and this Manual. To
    > discharge this responsibility each Judge Advocate General may
    > prescribe rules of professional conduct not inconsistent with this
    > rule or this Manual. Rules of professional conduct promulgated
    > pursuant to this rule may include sanctions for violations of such
    > rules. Sanctions may include but are not limited to indefinite
    > suspension from practice in courts-martial and in the Courts of
    > Criminal Appeals. Such suspensions may only be imposed by the
    > Judge Advocate General of the armed service of such courts. Prior
    > to imposing any discipline under this rule, the subject of the
    > proposed action must be provided notice and an opportunity to be
    > heard. The Judge Advocate General concerned may upon good cause
    > shown modify or revoke suspension. Procedures to investigate
    > complaints against military trial judges and appellate military
    > judges are contained in subsection (c) of this rule.
    >
    > \(b\) *Action after suspension or disbarment.* When a Judge
    > Advocate General suspends a person from practice or the Court of
    > Appeals for the Armed Forces disbars a person, any Judge Advocate
    > General may suspend that person from practice upon written notice
    > and opportunity to be heard in writing.

[^81]: 10 U.S.C. § 8037(c)(2) (2000). The duties relative to the
    professional conduct of Air Force attorneys are found in a number of
    regulatory sources, including, but not limited to: (1) AFI 51-102,
    *The Judge Advocate General\'s Department* (19 July 1994) (Paragraph
    2.4 gives TJAG the power to designate qualified judge advocates
    under 10 U.S.C. § 8067(g); to certify military judges and trial and
    defense counsel under 10 U.S.C. §§ 826-827; and to enforce "ethical
    standards in Air Force military legal practice, including receiving,
    investigating and disposing of allegations involving breaches of
    ethical or professional standards applicable to Air Force
    attorneys"), and, (2) AFI 51-103, *Designation and Certification of
    Judge Advocates* (1 March 1996) (spelling out the procedures and
    standards for designating and certifying judge advocates, including
    members of the Air Reserve Component (both guard and reserve), and
    clarifying that TJAG may withdraw designation or certification for a
    number of reasons, including failure to maintain professional and
    ethical standards.).

[^82]: *See*, *e.g*., United States v. Rhea, 29 M.J. 991, 995-996
    (A.F.C.M.R. 1990), *set aside and remanded on other grounds*, 33
    M..J. 413 (C.M.A. 1991) (remanding for further inquiry on
    "constructive force"), *aff'd on remand*, ACM 27563(*f*.*rev*.) 1992
    CMR LEXIS 470 (A.F.C.M.R. 1992), *aff'd mem.* 37 M.J. 213 (C.M.A.
    1993) and United States v. Herod, 21 M.J. 762, 763 n.1 (A.F.C.M.R.
    1986). *See also* *Air Force Standard* 6-3.5. *Deterring and
    Correcting Misconduct of Attorneys*, which states, in part, that
    "\[t\]he military judge should require attorneys to respect their
    obligations as officers of the court . . . \[and\] if necessary,
    discipline the attorney by . . . censure or reprimand . . . contempt
    \[proceedings\], removal from the courtroom, \[r\]ecommending
    suspension from \[military practice\], and informing appropriate
    disciplinary bodies."

[^83]: *Air Force Rules*, ¶ 1.6, *supra* note 72.

[^84]: [Dorothy L. Sayers]{.smallcaps}, Sir Impey Biggs, in *Clouds of
    Witness,* ch. 3 (1926), [The Columbia Dictionary of
    Quotations]{.smallcaps}, (Microsoft Bookshelf, 1996-97 Edition
    1995).

[^85]: Based on United States v. Captain Michael P. Sprague, ACM 32791,
    *aff\'d mem.* (A.F.C.C.A. 1998), *pet. denied*, 50 M.J. 202 (1998).

[^86]: Based on United States v. Senior Airman Robert W. Pinson III, ACM
    32963 (currently pending decision before A.F.C.C.A.).

[^87]: Based on United States v. Master Sergeant Michael W. Hawkins, ACM
    33087 (A.F.C.C.A 6 November 2000).

[^88]: *See* [1 Gilligan & Lederer,]{.smallcaps} *supra* note 52, §
    5-42.00.

[^89]: For example, without the client's actual or implied consent or
    under circumstances other than those covered by the exceptions
    enumerated in [Mil. R. Evid.]{.smallcaps} 502(d).

[^90]: *See* Weil v. Investment/Indicators, 647 F.2d 18 (9^th^ Cir.
    1981).

[^91]: *See* United States v. Rhea, *supra* note 80. In *Rhea,* defense
    counsel were in possession of an incriminating calendar, prepared by
    the alleged victim, detailing sexual exploits with the accused. The
    calendar was among the items that the accused had taken from his
    step-daughter\'s room after she moved out, which he subsequently
    gave to his defense counsel. No part of the calendar had been
    prepared by the accused or defense counsel for trial---the calendar
    was simply evidence of the accused\'s crimes. After consulting with
    their respective state bar ethics committees, and holding an ex
    parte meeting with the military judge, defense counsel gave the
    calendar to the prosecution. The incriminating calendar was held not
    to be attorney work-product, and was thus not covered by the
    attorney-client privilege. This comported with the general rule that
    the instrumentalities of a crime are subject to disclosure to the
    prosecution. Stolen items and weapons are most often the subject of
    such cases and nearly always fall outside of the protections of the
    privilege. *See also* 1 [Gilligan and Lederer,]{.smallcaps} *supra*
    note 52, § 5-53.00.

[^92]: *See Hawkins*, *supra* note 85. The issue was not even raised by
    the defense at trial. Presumably, due to the obviously nonprivileged
    nature of the documents. Author Lieutenant Colonel Thompson was the
    special master appointed to review the materials in this case.

[^93]: Wong Sun v. United States, 371 U.S. 471, 487-488 (1963) (*citing*
    [Maguire, Evidence of Guilt]{.smallcaps} 221 (1959)).

[^94]: 406 U.S. 441 (1972).

[^95]: *See* RCM 704, *Discussion*.

[^96]: 33 M.J. 972 (A.F.C.M.R. 1991), *aff'd*, 38 M.J. 415 (C.M.A.
    1993).

[^97]: *Id.*

[^98]: *Id.* at 984.

[^99]: 429 U.S. 545 (1977).

[^100]: *Id.* at 556-561.

[^101]: *Id.* at 560-561 n.6.

[^102]: 70 F.3d 1132 (10^th^ Cir. 1995).

[^103]: *Id.* at 1142.

[^104]: *Id.* at 1142.

[^105]: *Id.* at 1143.

[^106]: 449 U.S. 361 (1980).

[^107]: *Id*. at 366.

[^108]: *Id*.

[^109]: *Citing* United States v. Horn, 811 F.Supp. 739 (D.N.H. 1992).

[^110]: California v. Trombetta, 467 U.S. 479 (1984), notes this
    possibility.

[^111]: Weil v. Investment/Indicators, *supra* note 88.

[^112]: The military equivalent of "plea bargaining." (Procedures for
    pretrial agreements in the Air Force are set out in AFI 51-201,
    *supra* note 73, at ¶ 6.A.).

[^113]: [Mil. R. Evid.]{.smallcaps} 410 (*Inadmissibility of pleas, plea
    discussions, and related statements*).

[^114]: *See generally*, RCM 1105, MCM, Part II, at II-147-148 (*Matters
    submitted by the accused*).

[^115]: MCM, Part V, at III-32 (2000 ed.) (*Waiver of privilege by
    voluntary disclosure*).

[^116]: *See* Gray v. Bicknell, 86 F.3d 1472 (8^th^ Cir 1996), United
    States v. Pelullo, 14 F.3d 881 (3^rd^ Cir. 1994), and *Mansfield*,
    *supra* note 94.

[^117]: 50 M.J. 609 (N.M.C.C.A. 1999), *aff'd*, 54 M.J. 169 (2000),
    *recon. of partial denial of review granted*, (27 September 2000)
    http://www.armfor.uscourts.gov/journal/2000Jrnl/ 2000Sep.htm,
    *mandate issued* (13 October 2000)
    http://www.armfor.uscourts.gov/journal/ 2000Jrnl /2000Oct.htm).

[^118]: *Id.* at 621 (*also citing* United States v. Walker, 38 M.J. 678
    (A.F.C.M.R. 1993)), United States v. Kelly, 790 F.2d 130, 137 (D.C.
    Cir. 1986), and United States v. Brugman, 655 F.2d 540, 546 (4^th^
    Cir. 1981)).

[^119]: *See Coplon*, *supra* note 25.

[^120]: *Supra* note 97.

[^121]: *Supra* note 67.

[^122]: *See* [Mil. R. Evid.]{.smallcaps} 513.

[^123]: *See* 28 C.F.R. § 59.4(b). These guidelines indicate that search
    warrants should not be used to obtain or review documentary
    materials which contain confidential information on patients, legal
    clients, or parishioners, unless other, less intrusive means would
    substantially jeopardize the investigation and then, only if the
    application for the warrant has been recommended by the local United
    States Attorney and approved by the appropriate Deputy Assistant
    Attorney General. *See also*, 42 U.S.C. §§ 2000aa-11(a) (2000). As
    discussed in Part IV, *infra*, an Air Force analog to this rule may
    be found in TJAG Policy Letter 24, which indicates that an ADC's
    office may only be searched after coordination with their commander,
    the Commander of the Air Force Legal Services Agency.

[^124]: *Supra* note 84.

[^125]: 10 U.S.C. § 832 (2000).

[^126]: Author Lieutenant Colonel Thompson was the special assistant
    trial counsel in both *Sprague*, *supra* note 83 and *Pinson*,
    *supra* note 84. A civilian special master was also appointed during
    *Sprague*. In *Pinson*, the issue developed too quickly and
    unexpectedly to use a special master, as the privileged documents
    were discovered on the eve of trial.

[^127]: *See* United States v. Neill, 952 F. Supp. 834, 841 (D.D.C.
    1997) and United States v. Hunter, 13 F. Supp. 2d 574, 583 n.2 (D.
    Vt. 1998) (review by a magistrate judge or special master "may be
    preferable" to using a taint team) (*citing* In re Search Warrant,
    153 F.R.D. 55, 59 (S.D.N.Y. 1994)). Although no clear standard has
    emerged, the federal courts have typically held that evidence
    screened by a taint team will be admissible only if the government
    shows that its procedures adequately protected the accused\'s right
    and no prejudice occurred. *See*, *e.g.*, *Neill* at 840-42 and
    *Hunter* at 583.

[^128]: 914 F. Supp. 519 (S.D. Fla. 1995).

[^129]: *Id.* at 521.

[^130]: This technique was used by the civilian special master in
    *Sprague*, *supra* note 83, and did locate several pieces of
    privileged correspondence, but the search terms used *failed* to
    locate the privileged materials which later surfaced and were the
    subject of litigation in the case because it was not readily
    apparent that those documents had been created at an attorney's
    request. *See also* *Hunter*, *supra* note 125, *but cf.* Black v.
    United States, 172 F.R.D. 511, 514 (S.D. Fla. 1997) (ordering an
    alternative protocol for judicial resolution of privilege issues
    after recognizing that the special master procedure established in
    *Abbell* contributed to a thirty-month delay in the case). There are
    also a number of useful government publications available to
    prosecutors for handling cases involving computer crime. *See
    generally*, [Computer Crime Investigator\'s Handbook]{.smallcaps},
    [Headquarters, Air Force Office of Special Investigations, Office of
    the Staff Judge Advocate]{.smallcaps} (2000) and [Searching and
    Seizing Computers]{.smallcaps}, [United States Department of
    Justice, Criminal Division, Computer Crime Intellectual Property
    Section]{.smallcaps}, http://www.cybercrime.gov/

    searching.html#CrmCode.

[^131]: Letter from HQ USAF/JA (5 March 1980) (copy on file with author
    (Captain Kastenberg)).

[^132]: *See*, *e.g.*, MIL. R. EVID. 305(e).

[^133]: *See*, *e.g.*, United States v. Lewis, 38 M.J. 501 (A.C.M.R.
    1993), *aff'd*, 42 M.J. 1 (1995) (Trial defense counsel could not
    invoke attorney-client privilege to refuse to give information
    regarding allegations of ineffective representation, because the
    Army Rules of Professional Conduct permit disclosure when compelled
    by law, as in this case where the appellate court ordered defense
    counsel to provide affidavits in response to the accused\'s
    allegations).

[^134]: *See*, *e.g.*, United States v. Romano, 46 M.J. 269, 274 (1997).
    *See* *also*, S.Rep. No 486, 81^st^ Cong., 1^st^ Sess. 32 (1949) and
    United States v. Lopez*,* 35 M.J. 35, 39 (C.M.A. 1992).

[^135]: *Romano*, 46 M.J. at 274.

[^136]: 10 U.S.C. § 815 (2000).

[^137]: Examples include: administrative discharge actions,
    administrative grade reductions, selective reenlistment actions,
    boards of inquiry, medical evaluation boards, flying evaluation
    boards, de-credentialing actions, etc.

[^138]: *Air Force Rules*, ¶ 1.6, *supra* note 72 (emphasis added).

[^139]: *See* ABA Informal Opinion 1287 (1974) (*citing* ABA Informal
    Opinion (1971)).

[^140]: *See* *Air Force Standard* 4-3.7(e)(iii) and (iv).

[^141]: 50 M.J. 815 (A.F.C.C.A. 1999), *pet. denied*, 52 M.J. 490
    (1999).

[^142]: *Id.* at 818.

[^143]: *See*, *e.g.*, In re Grand Jury Proceedings, 946 F.2d 746
    (11^th^ Cir. 1991) and Brett v. Berkowitz, 706 A.2d 509 (Del. 1998).

[^144]: *See* ABA/BNA [Lawyers Manual on Professional
    Conduct]{.smallcaps} § 55:307-308 (1998).

[^145]: *Id*. at § 55:309-312 and *see generally*, ABA Informal Opinion
    1453, *Lawyer's Duty to Client and Court* (10 April 1980) (noting
    advising client to surrender is commendable, but no further action
    compelled by Model Code) and [ABA/BNA Lawyers' Manual on
    Professional Conduct, Ethics Opinions 1986-1990]{.smallcaps} §
    901:3012, *quoting* Committee on Professional Ethics of the Illinois
    State Bar Association, *Missing Client: Confidentiality*, Opinion
    89-13 (4/9/90) (noting that a "lawyer whose client has disappeared
    may reveal this fact when requesting a continuance at a status call
    only if required by court order or the law to do so.").

[^146]: *See*, *e.g.*, Annotation: *Disclosure Of Name, Identity,
    Address, Occupation, Or Business Of Client As Violation Of
    Attorney-Client Privilege*, 16 A.L.R.3d 1047 (1967) and Diane M.
    Allen, J.D., Annotation: *Attorney\'s Disclosure, In Federal
    Proceedings, Of Identity Of Client As Violating Attorney-Client
    Privilege*, 84 A.L.R. Fed. 852 (1991).

[^147]: *See*, *e.g.*, ABA/BNA [Lawyers Manual on Professional
    Conduct,]{.smallcaps} § 55:307-308 (1998). The manual reads:

    > Such cases have stirred up great public debate about the morality
    > of this application in the confidentiality principle where
    > criminal investigations or families of victims urge disclosure. At
    > the heart of the matter is whether the client's name qualifies as
    > a confidence. . . . For the lawyer, these situations raise a
    > difficult conflict between the duty to reveal information
    > requested by a court and the duty to protect the client's identity
    > as a confidence. . . . Whether the attorney is right or wrong, the
    > chances are he will be cited for contempt.

    *Id.* at § 308 (internal citations and quotations omitted).

[^148]: 775 F.2d 559 (4^th^ Cir. 1985).

[^149]: *Id.* at 565-566.

[^150]: 48 M.J. 139, 140 (1998) (noting that the Sixth Amendment
    guarantees for pretrial assistance of counsel apply to all military
    accused) and United States v. Fluellen, 40 M.J. 96, 98 (1994)
    (noting that the Sixth Amendment guarantees for trial and post trial
    effective assistance of counsel apply to all military accused).

[^151]: *See*, *e.g.*, People v. Collie, 634 P.2d 534, 540-41 (Cal.
    1981) and Vitauts M. Gulbis, Annotation, *Right of Prosecution to
    Discovery of Case-Related Notes, Statements, and Reports---State
    Cases*[, 23 A.L.R. 4^th\ ^]{.smallcaps}799 (1981) (compilation of
    cases).

[^152]: 448 U.S. 581, 580 (1980).

[^153]: *Id.* The court noted:

    > The rights of association and privacy, the right to be presumed
    > innocent, and the right to be judged by a standard of proof beyond
    > a reasonable doubt in a criminal trial, as well as the right to
    > travel appear nowhere in the Bill of Rights. Yet these important
    > but unarticulated rights have nonetheless been found to share
    > constitutional protection in common with explicit guarantees.

    *Id.*

[^154]: *See*, *e.g.*, Anders v. California, 386 U.S. 738, 744 (1967).

[^155]: [U.S. Const. Amend VI]{.smallcaps}.

[^156]: 372 U.S. 335 (1963).

[^157]: Glasser v. United States, 315 U.S. 60 (1942).

[^158]: 435 U.S. 475, 483 n.5 (1978).

[^159]: 488 U.S. 75, 84 (1988). *See* *also* Gideon v. Wainright, 372
    U.S. 335, 344 (1963) where the Court noted:

    > The right of one charged with a crime may not be deemed
    > fundamental and essential to fair trials in some countries, but it
    > is in ours. From the very beginning, our state and national
    > constitutions and laws have laid great emphasis on procedural and
    > substantive safeguards designed to assure fair trials before
    > impartial tribunals in which every defendant stands equal before
    > the law.

    *Id.*

[^160]: 638 F.2d 1190 (9^th^ Cir. 1980).

[^161]: *Id.* at 1191. (G.P. Putnam & Co. is a New York based publishing
    firm.).

[^162]: *Id.*

[^163]: *Id.*

[^164]: *Id.* at 1192.

[^165]: *Id.* at 1193.

[^166]: *Id.*

[^167]: *Id.*

[^168]: *Id.*

[^169]: *Id.*

[^170]: 446 U.S. 335, 343-344 (1980).

[^171]: 10 U.S.C. § 827 (2000).

[^172]: *See generally*, United States v. Fluellen, 40 M.J. 96, 98
    (C.M.A. 1994) and United States v. Carter, 40 M.J. 102 (C.M.A.
    1994).

[^173]: 10 U.S.C. § 907 (2000), art. 107, UCMJ.

[^174]: *See*, *e.g.*, Spears v. State, 401 N.E.2d 331 (Ind. 1980),
    *reh'g*, 403 N.E.2d 828 (Ind. 1981), and Hergenrother v. State, 425
    N.E.2d 225 (Ind. App. 1981). Note that in all three of these
    decisions, the courts found harmless error in the trial court's
    erroneous requirement that the defense produce witness statements.
    *See also*, *e.g.*, Richardson v. District Court of Eighth Judicial
    Dist., 632 P.2d 595 (Colo. 1981) and State v. Sandstrom, 595 P.2d
    324 (Kan. 1979).

[^175]: 83 Misc. 2d 186 (Onondaga County Court 1975), *aff'd mem*., 376
    N.Y.S.2d 771 (N.Y. App. Div. 1975), *aff'd per curiam*, 359 N.E.2d
    377 (N.Y. 1976).

[^176]: 422 U.S. 225 (1975).

[^177]: *Id.* at 238.

[^178]: *Id.* at 240.

[^179]: 905 P.2d 420, 443 (Cal. Ct. App. 1995).

[^180]: 634 P.2d 534 (Cal. Ct. App. 1981).

[^181]: 85 Cal Rptr. 729 (Cal. Ct. App. 1970).

[^182]: 372 P.2d 919 (Cal. 1962).

[^183]: *See Jones*, 372 P.2d at 922.

[^184]: 80 Cal. Rptr. 523 (Cal. Ct. App. 1969).

[^185]: *Romano*, 46 M.J. 269, *supra* note 59. The court's opinion
    contains an excellent account of the history and purposes of the
    work-product privilege:

    > Since the seminal case on work-product privilege, Hickman v.
    > Taylor**,** 329 U.S. 495 (1947), a civil case, the work-product
    > rules have been applied to criminal cases. *See*, *e.g.*, Goldberg
    > v. United States, 425 U.S. 94 (1976) (application of the work-
    > product privilege to the statement of witnesses) and United States
    > v. Nobles, 422 U.S. 225 (1975). The theory behind the work-
    > product rule is that, after an attorney has spent time preparing
    > the case, assembling and sorting the facts, deriving a theory and
    > theme for the case, and planning the strategy to be employed, the
    > opponent, without some overriding interests, may not needlessly
    > interfere with the thought processes used in creating the
    > documents. Nobles, 422 U.S. at 238. As the Court noted in Nobles:
    > "At its core, the work-product doctrine shelters the mental
    > processes of the attorney . . ." *Id.*
    >
    > Whatever the outer boundaries of the rule, it certainly applies to
    > memoranda which set forth the attorney\'s theory and theme of the
    > case. National Labor Relations Board v. Sears, Roebuck & Co., 421
    > U.S. 132 (1975). Because of the broad disclosure rules in the
    > military, many of the privilege issues presented to other courts
    > have been answered. For example, RCM 701(a)(1)(A) and (C), Manual,
    > *supra*, require that trial counsel reveal witness statements. In
    > any event, it is questionable whether witness statements reveal
    > the attorney's thought processes in such detail as to require
    > protection. Foremost, open discovery avoids unnecessary trials and
    > enables an accused to make informed decisions as to his or her
    > options. Absent a disclosure requirement, documents specifically
    > compiled and prepared with a reasonable anticipation of trial will
    > be encompassed within the privilege if they encapsulate the
    > attorney\'s thought processes.

    *Id.* at 274-275 (internal citations omitted).

[^186]: *Rhea*, *supra* note 80.

[^187]: 42 M.J. 821 (N.M.Ct.Crim.App. 1995), *aff'd*, 45 M.J. 359
    (1996).

[^188]: *Rhea*, *supra* note 80, at 993. His step-daughter was
    approximately seventeen years old when the intercourse began.

[^189]: *Id.*

[^190]: *Id.* at 991. MSgt Rhea's adjudged and approved sentence was
    sentenced to a bad conduct discharge, five years in confinement,
    total forfeitures, and reduction to airman basic.

[^191]: *Id.* at 994. The calendar came into the defense counsel's
    possession after the defense counsel instructed MSgt Rhea to gather
    any "books, letters, papers, or other sorts of things," the
    step-daughter had left behind for establishing a motive to fabricate
    allegations against MSgt Rhea. *Id.*

[^192]: *Id.*

[^193]: *Id.* The ex parte hearing was held at the suggestion of the
    state bars in question.

[^194]: *Id.*

[^195]: *Id.* Additionally, the original military judge recused himself
    from the case and a new judge was appointed.

[^196]: *Id.* (Writ denied *sub nom.* Rhea v. Starr, 26 M.J. 683
    (A.F.C.M.R. 1988)).

[^197]: *Id.*

[^198]: *Id.* at 996. The court held that "\[t\]he attorney-client
    privilege prevents a lawyer from being compelled to produce a
    client's document which pre-dates the attorney-client relationship
    only if the client himself would be privileged from producing the
    document. *Id.* The court relied on State ex rel. Hyder v. Superior
    Court of Maricopa County, 625 P.2d 316 (Ariz. 1981), [McCormick's
    Handbook on the Law of Evidence]{.smallcaps}, ch. 10 § 89, at 184-85
    (2^nd^ ed. 1972); and [Wigmore, Evidence]{.smallcaps} (McNaughton
    Rev. 1961) § 2307.

[^199]: The court further noted not all papers in an attorney's
    possession are immune under the privilege and writings not otherwise
    privileged do not become so by merely giving them to an attorney.
    *See*, *e.g.*, Fisher v. United States, 425 U.S. 391, 396 (1976) and
    In re Ryder, 381 F.2d 713 (4^th^ Cir. 1967).

[^200]: *Rhea*, *supra* note 80, at 996.

[^201]: *Id.* at 995.

[^202]: 33 M.J. 413 (C.M.A. 1991).

[^203]: *Id.* at 419. The court held, "defense counsel \[are\] not free
    to tell the prosecution how the calendar came into their possession,
    for to do so would violate \[an accused's\] privilege that his
    lawyer reveal the "communication" implicit in the act of bringing
    the calendar to the lawyer's office." *Id*.

[^204]: *Id.*

[^205]: *Province*, 42 M.J. 821, *supra* note 185.

[^206]: *Id.* at 823. The accused had been AWOL for five years,
    including the periods of Operations DESERT SHIELD and DESERT STORM;
    he was sentenced to a bad conduct discharge, confinement for ninety
    days, forfeiture of \$100.00 pay per month for four months, and
    reduction to the lowest enlisted grade. *Id.*

[^207]: *Id.* Defense counsel explained, via affidavit, that his purpose
    in giving the trial counsel copies of the "straggler's orders" was
    two-fold: First, after consulting his state ethics rules, he
    believed he had a duty to release these documents in discovery.
    Second, he believed PFC Province's guilty plea providence inquiry
    would be confusing without the straggler's orders. The straggler's
    orders were produced by the accused\'s command. In the normal course
    of things, trial counsel would have provided them to the defense,
    but for some reason trial counsel did not have a copy of the orders
    in his records.

[^208]: *Id.* at 825. *See*, *e.g.*, Article 1127, United States Navy
    Regulations (14 September 1990).

[^209]: *Province*, *supra* note 185, at 825*.* Dismissal of the
    original charge was not an issue raised or granted during PFC
    Province's appeal to United States Court of Appeals for the Armed
    Forces. Nevertheless, the court, in dicta, expressed doubt about the
    lower court\'s rationale. 45 M.J. at 362 n.2.

[^210]: 466 U.S. 668, 687 (1984). To prevail on a claim of ineffective
    assistance of counsel, the claimant must demonstrate his counsel's
    performance was deficient and that this deficiency deprived him of
    his right to a fair trial. Specifically, appellant must demonstrate
    "that there is a reasonable probability that, but for counsel\'s
    unprofessional errors, the result of the proceeding would have been
    different. A reasonable probability is a probability sufficient to
    undermine confidence in the outcome." *Id.* at 694.

[^211]: *Province*, *supra* note 185, at 825.

[^212]: *Id.*, *citing* Fisher, *supra* note 197.

[^213]: *Province*, 42 M.J. at 826, *citing* People v. Swearingen, 649
    P.2d 1102, 1105 (Colo. 1982).

[^214]: *Province*, 42 M.J. at 826-27.

[^215]: Comparable to *Air Force Rule* 1.6.

[^216]: *Province*, *supra* note 185, at 826-27.

[^217]: *Id.* The court did not approve of the defense counsel's
    methods, however. It would have been preferable, in their view, to
    give the documents to the military judge, so the prosecution would
    not know their origins. PFC Province's defense counsel not only
    delivered the "straggler's orders" to the prosecution, but in doing
    so also revealed portions of his conversations with PFC Province to
    the prosecution. *Id.* at n.6.

[^218]: 45 M.J. 359 (1997).

[^219]: *Id.* at 363.

[^220]: *Id.*

[^221]: *Id.* As guidance, the court recommended the following cases:
    Cluchette v. Rushen, 770 F.2d 1469 (9^th^ Cir. 1985) (defense
    investigator required to turn over receipts that led to
    incriminating evidence because the agent removed the receipts from
    their resting place and thus could not claim attorney-client
    privilege); People v. Meredith, 631 P.2d 46 (Cal. 1981), (defense
    investigator required to turn over robbery/murder victim's wallet to
    police discovered as a result of client's confidential communication
    because investigator took possession of it rather than leaving it
    undisturbed); People v. Lee, 83 Cal. Rptr. 715 (Cal. Ct. App. 1970)
    (lawyer must turn over physical evidence of a crime to the
    prosecutors, the evidence itself is not privileged); and *see Rhea*,
    discussed *supra* note 80.

[^222]: *See* Michael B. Dashijian, Note, *Criminal Law: People v.
    Meredith: The Attorney-Client Privilege and the Criminal Defendant's
    Constitutional Rights* [70 Cal. L. Rev. 1048]{.smallcaps}, 1057-59
    (1982) and Comment, *Ethics, Law, and Loyalty: The Attorney's Duty
    to Turn Over Incriminating Physical Evidence*, 32 [Stan L.
    Rev.]{.smallcaps} 977, 993 (1980).

[^223]: 733 F.Supp. 95 (S.D. Fla. 1990).

[^224]: *Id.* at 97. The court noted that in determining whether an
    ethical violation has occurred, one looks to the controlling ethical
    principles of the forum state for guidance. *Id.* Obviously, under
    Air Force practice, the *Air Force Rules* are the primary guidance,
    followed by the individual attorney's state rules. *See*, *e.g.*,
    TJAG Policy Number 26, ¶ 3, *supra* note 72. Federal courts have
    clear statutory authority to review the conduct of attorneys who
    practice before them. *See*, *e.g.*, Greer's Refuse Serv., Inc. v.
    Browning-Ferris Indus., 834 F.2d 443, 446 (11^th^ Cir. 1988).

[^225]: *Id*. Of important note, Mr. DeFabio was represented by the
    National Association of Criminal Defense Lawyers and their official
    position was that defense counsel had no duty to notify a court of
    their client's whereabouts.

[^226]: *Id.* at 99. The court noted that the professional ethics
    committee opinion issued in this case found that a Florida attorney
    *did* have an affirmative duty to inform a court when his client
    jumps bail. However, Florida's professional ethics committee
    withdrew this opinion in 1989 upon receiving advice from the ABA.
    *Id.*

[^227]: *Id.* *citing* Fla. Rule 4-1.6, Comment.

[^228]: *Id.* *citing* Sanborn v. State, 474 So.2d 309, 313 n.2 (Fla.
    Dist. Ct. App. 1985). Moreover, the district court noted, federal
    and state courts have agreed that actual knowledge means at least a
    firm factual basis. *See, e.g.*, United States ex rel. Wilcox v.
    Johnson, 555 F.2d 115, 122 (3^rd^ Cir. 1977) (hereinafter Wilcox),
    State v James, 739 P.2d 1161, 1169 (Wash. Dist. Ct. App. 1987), and
    Shockley v. State, 565 A.2d 1373, 1379 (Del. 1989).

[^229]: *Del Carpio-Contrina*, *supra* note 221, at 99.

[^230]: *Id.*

[^231]: *Id*., *quoting* Wilcox, *supra* note 226, at 122.

[^232]: 418 F.2d 378 (2^nd^ Cir. 1969) (*citing* Simmons v. United
    States, 390 U.S. 377 (1968) in which the Supreme Court stated that
    situations like this create "an undesirable tension" and that it
    found "intolerable that one constitutional right should have to be
    surrendered in order to assert another." *Simmons*, 390 U.S. at
    394).

[^233]: *Id.* at 380-81.

[^234]: *Id.* *See* *also*, United States v. Anderson, 567 F.2d 839,
    841-42 (8^th^ Cir. 1977).

[^235]: Goldman v. Weinberger, 475 U.S. 503 (1986).

[^236]: Remarks delivered on occasion of 20^th^ Anniversary of the Air
    Force Area Defense Counsel Program (1994) (videotape copy on file
    with [The Air Force Law Review]{.smallcaps}).

[^237]: *Id.*

[^238]: *Compelling Defense Counsel to Produce Evidence* (4 Feb. 1998),
    ¶¶ 1-2.

[^239]: AFLSA/CC is the commander of all Air Force defense counsel.
    *Id*. at ¶ 3.

[^240]: *Id.* An example of this coordination is found in United States
    v. Calhoun, 47 M.J. 520 (A.F.C.C.A. 1997) (reversing general
    court-martial's findings and sentence), *set aside and remanded*, 49
    M.J. 485 (1998), *aff'd on f. rev.*, 1999 CCA LEXIS 166, ACM 32314
    (A.F.C.C.A. 1999), *aff'd mem.*, 53 M.J. 48 (2000).

[^241]: *The Area Defense Counsel Function* (4 Feb 1998), ¶ 1.

[^242]: Advocacy Continuing Education Program ACE Newsletter #7, Jan
    1995, AFLSA/JAJG,
    https://aflsa.jag.af.mil/GROUPS/AIR_FORCE/JUSTICE/ACE/newsletters/NEWS9501.HTM
    (copy on file with [The Air Force Law Review).]{.smallcaps}

[^243]: *Id.*

[^244]: *Id.*

[^245]: *See* *supra* note 72, *Air Force Standard* 4-1.1 (*Role of
    Defense Counsel*)*.*

[^246]: *Rogers*, *supra* note 139, at 818.

[^247]: *Id.* at 819 (The court held that there was no Article 13, UCMJ
    (10 U.S.C. § 813 (2000) violation of unlawful pretrial punishment
    where a commander imposed additional restrictions, including
    escorts, whenever the accused left his place of duty.).

[^248]: Berger v. United States, 295 U.S. 78, 88 (1935).

[^249]: [George Bernard Shaw]{.smallcaps}, Sir Howard, in *Captain
    Brassbound's Conversion,* act 1[. The Columbia Dictionary of
    Quotations]{.smallcaps}, *supra* note 82.

[^250]: *See generally*, *supra* note 72, *Air Force Rule* 1.13 (*The
    Air Force as Client*) (4 Feb 1998).

[^251]: *Id.* at *Air Force Rule* 1.13(f).

[^252]: For example, in the military justice context, [Mil. R.
    Evid.]{.smallcaps} 502(a) protects these exchanges as long as the
    communication is both confidential and "made for purpose of
    facilitating the rendition of professional legal services to the
    client."

[^253]: *See* 1 [Gilligan and Lederer]{.smallcaps}, *supra* note 52, §
    5-53.00.

[^254]: [Mil. R. Evid]{.smallcaps}. 502(d)(1).

[^255]: *See* *Air Force Rule* 1.13, *supra* note 72 and discussion.

[^256]: *Id.* at *Air Force Rule* 1.13(d).

[^257]: *Id.* at *Air Force Rule* 1.13(b). The rule provides
    extraordinary and progressive measures to be taken before an
    official's confidences may be revealed, including, but not limited
    to: (1) advising the client that the action, planned action or
    refusal to act is contrary to law or regulation, (2) advising the
    person of Air Force policy on the matter, (3) advising the person
    that his or her personal legal and professional interests are at
    risk, (4) asking the person to reconsider, (5) suggesting a separate
    legal opinion, (6) advising the person that the lawyer is ethically
    obligated to preserve the interests of the Air Force, (7) consulting
    with senior Air Force lawyers, (8) seeking the assistance of lawyers
    at the same or a higher level of command to discuss available
    options to avoid violation of the law by the Air Force.

[^258]: *Id.* at *Air Force Rule* 1.13(c).

[^259]: *Id.*

[^260]: *See* AFI 51-504, *Legal Assistance, Notary, and Preventive Law
    Programs* (1 May 1996), ¶ 1.2.1.

[^261]: *Id.*

[^262]: TJAG Policy Number 18, ¶ 2(b) (4 Feb 1998).

[^263]: AFI 51-504, *supra* note 258.

[^264]: *Id.* at ¶ 1.6.

[^265]: 724 F.2d 844 (1^st^ Cir. 1984).

[^266]: *Id*. at 847. Military judges have the same duty regarding the
    conduct of attorneys appearing in courts-martial. *See*, *e.g*.,
    *Rhea*, *supra* note 80, at 994-995; *see generally*, United States
    v. Ramos, 42 M.J. 392, 396 (C.M.A. 1995) and United States v.
    Greaves, 46 M.J. 133, 139 (1997) (addressing the inherent authority
    of the military judge to control the conduct of a court-martial).

[^267]: 724 F.2d at 845-846.

[^268]: *Id.*

[^269]: *Id.* at 850.

[^270]: *See*, *e.g.*, American Can Company v. Citrus Feed Company, 436
    F.2d 1125, 1128-29 (5^th^ Cir. 1971).

[^271]: *Air Force Rule* 1.10. The other rules cited deal with various
    forms of conflict of interest.

[^272]: *Id.* at *Air Force Rule* 1.7.

[^273]: 33 M.J. 608 (N.M.C.M.R. 1991).

[^274]: 10 U.S.C. § 886 (2000).

[^275]: *Id*. at 610. According to PVT Hustwit, Captain Foreman advised
    him not to speak with any NCIS agents, and told him they would meet
    again later. This second meeting never occurred. *Id.*

[^276]: 10 U.S.C. § 921 (2000), art. 121, UCMJ.

[^277]: *Hustwit*, *supra*, note 270, at 610-611.

[^278]: *Id*. at 612-16. These rules essentially form a three pronged
    test: The accused must prove: (1) a former relationship; (2) a
    substantial relationship between the subject matter of the former
    representation and the issues of the subsequent case; and, (3)
    prejudice to the accused in the form of later adverse employment
    against the accused.

[^279]: *Id.* at 612.

[^280]: *Id.* at 612-13.

[^281]: *Id.* at 613.

[^282]: *Id.* at 615, *citing* United States v. Stringer, 16 C.M.R. 68
    (C.M.A. 1954).

[^283]: *Hustwit*, 33 M.J. at 615.

[^284]: *Id*. at 613. The court apparently did not find the accused\'s
    revelation that he knew NCIS was looking for him amounted to a
    "confidence," even though it was arguably related to his
    unauthorized absences.

[^285]: 38 M.J. 726 (A.F.C.M.R. 1993) (Dr. Rust was originally sentenced
    to a dismissal, a \$5000.00 fine, and a reprimand), *aff'd on other
    grounds and reh'g granted*, 41 M.J. 472 (1995)) (The United States
    Court of Appeals for the Armed Forces affirmed the lower court's
    finding of prejudicial error by the military judge during the
    original sentencing hearing and upheld their order for a rehearing),
    *aff'd on f.rev*, 1996 CCA LEXIS 275 (ACM 29629) (1996) (at the
    rehearing on sentence, Dr. Rust received a fine of \$5000.00 and a
    reprimand), *aff'd mem.* 48 M.J. 5 (1997)*.*

[^286]: *See*, *e.g.*, *Hustwit*, *supra* note 270.

[^287]: *Id*.

[^288]: *See* Part III*, supra*.

[^289]: 26 C.M.R. 135 (C.M.A. 1958).

[^290]: *Id.* at 357, *citing* United States v. Alu, 246 F.2d 29 (2d
    Cir. 1957).

[^291]: *Id.*, *citing* United States v. Steiner, 134 F.2d 931 (5^th^
    Cir. 1943) and [Wharton, Criminal Evidence]{.smallcaps} § 809 (2d
    ed.). Wharton noted:

    > An attorney may be examined like any other witness concerning a
    > fact that he knew before he was employed in his professional
    > character, as when he was a party to a particular transaction, or
    > as to any other collateral fact which he might have known without
    > being engaged professionally. . . . The privilege does not extend
    > to knowledge possessed by the attorney which he obtained relative
    > to matters as to which he had not been consulted professionally by
    > his client, or to information that the attorney has received from
    > other sources, although his client may have given him the same
    > information.

    *Id.*

[^292]: [Joint Ethics Regulation, Department of Defense]{.smallcaps}
    5500.7-R, through Change 4, August 6, 1998, at ¶¶ 1-100 *et seq.*
    (Before the JER came into existence, Air Force Regulation 30-30,
    *Standards of Conduct,* covered this area.).

[^293]: 930 F.2d 1554 (11^th^ Cir. 1991).

[^294]: *Id*. at 1556.

[^295]: *Id.*

[^296]: *Id.*

[^297]: *Id.*

[^298]: *Id.*

[^299]: *Id.* at 1557.

[^300]: *Id.* (Sometime before May 1987, Colonel Schaltenbrand sent his
    resume to TBE.).

[^301]: *Id.*

[^302]: *Id.*

[^303]: *Id.*

[^304]: *Id.* The district court ruled that the communications between
    the defendant and the legal assistance attorneys were not
    confidential because one of the legal assistance attorneys testified
    he noted to the defendant the attorney\'s status as a Deputy
    Counselor rather than as a legal assistance attorney for matters of
    conflict of interest.

[^305]: *Id.* at 1562, *citing* In re Grand Jury Proceedings in Matter
    of Freeman, 708 F.2d 1571, 1575 (1lth Cir. 1983).

[^306]: 930 F.2d. at 1562, *citing* United States v. Ponder, 475 F.2d
    37, 39 (5^th^ Cir. 1973).

[^307]: 930 F.2d. at 1562, *citing* Kevlik v. Goldstein, 724 F.2d 844,
    849 (1^st^ Cir. 1984).

[^308]: 930 F.2d. at 1563.

[^309]: *Id.*

[^310]: *Id.*

[^311]: *Id.*

[^312]: *Rust*, *supra* note 283, 41 M.J. 472.

[^313]: *Id.* at 472-473.

[^314]: *Id.*

[^315]: *Id.* The claims officer had indicated to Dr. Rust that he was
    "basically the hospital's attorney" and that he represented the Air
    Force. The claims officer also indicated to Dr. Rust that if a
    medical malpractice suit were to arise, the United States Attorney
    would move to replace the United States as the defendant vice Dr.
    Rust.

[^316]: 10 U.S.C. § 892 (2000), art. 92, UCMJ.

[^317]: 10 U.S.C. § 907 (2000), art. 107, UCMJ.

[^318]: *Id.*

[^319]: 38 M.J. 726, 730 (1993).

[^320]: *Id.*, *citing* Henson, 20 M.J. 620, 622 (A.C.M.R. 1985).

[^321]: 38 M.J. at 730.

[^322]: 41 M.J. at 475.

[^323]: *Id.*