Soriano v. Hosken

9 M.J. 221, 1980 CMA LEXIS 10708

• Court: United States Court of Military Appeals
• Decided: September 22, 1980
• Docket: No. 80-24
• Status: Published

Opinions

Opinion

FLETCHER, Judge:

This is a petition for extraordinary relief filed by an accused facing special court-martial at the United States Naval Station, Subic Bay, Republic of the Philippines. See Rules 3(b)(1), 25 and 26, Rules of Practice and Procedure, United States Court of Military Appeals. The petitioner requests this Court to issue an order directing the respondent military judge to reverse his pretrial ruling that Attorney Dominador L. Soriano was not qualified to act as civilian counsel for the petitioner at this court-martial. See Article 38(b), Uniform Code of Military Justice, 10 U.S.C. § 838(b). This petition for extraordinary relief is denied for the reasons stated below.

Under Article 38(b) a military accused has the important right to be represented at his special or general court-martial by civilian counsel provided at his own expense. See United States v. Kinard, 21 U.S.C.M.A. 300, 303, 45 C.M.R. 74, 77 (1972); United States v. Nichols, 8 U.S.C.M.A. 119, 23 C.M.R. 343 (1957). In order for this right to be meaningful as intended by the Code, this civilian counsel must be a qualified lawyer. See United States v. Kraskouskas, 9 U.S.C.M.A. 607, 609, 26 C.M.R. 387, 389 (1958); see also para. 48a, Manual for Courts-Martial, United States, 1969 (Revised edition). Such a “qualified” attorney additionally must be “authorized by some recognized licensing authority to engage in the practice of law.” United States v. Kraskouskas, supra at 609, 26 C.M.R. at 389. This Court has also indicated that “the Code imposes no [other] special qualifications upon a civilian attorney’s right to practice before a court-martial.” Id.

The terms “qualified” and “some recognized licensing authority,” however, are words of limitation. In the context of the prohibition against any other “special qualifications,” however, they were obviously intended by this Court to encompass only minimal restrictions on the military accused’s right to counsel under Article 38(b). These requirements, nevertheless, have a particular codal underpinning. They were designed to fulfill the constitutional and codal vision that “[a] fair standard of professional competence . . . be a necessary condition precedent with the professional undertaking of the defense of a person” at a court-martial. Id. at 610, 26 C.M.R. at 390.¹

In a decision prior to Kraskouskas, this Court noted that as a matter of practice a military accused had been free to choose his civilian counsel from members of the bar of every state in the United States and from the bar of the Federal courts without additional qualifications. United States v. Nichols, supra. This was an early and proper recognition by this Court that such lawyers are presumed competent for the professional undertaking of the defense of a military accused at a court-martial. See Article 27(b), UCMJ, 10 U.S.C. § 827(b). The Court in the above case also noted, but without comment, that “[i]n foreign countries he has even been represented by members of the local bar. See United States v. Sears, 6 U.S.C.M.A. 661, 20 C.M.R. 377;” United States v. Nichols, supra at 125, 23 C.M.R. at 349. We believe this was an acknowledgment that a member of a local bar in a foreign country may be qualified to represent a military accused at a court-martial. His qualification, however, will depend on his ability to demonstrate “[a] fair standard of professional competence.” See United States v. Kraskouskas, supra; cf. Quinn, The United States Court of Military Appeals and Military Due Process, 35 St. Johns L.Rev. 225, 235-36 n. 36 (1961).

Such an attorney who has not been admitted to practice before the highest court of a state of the United States, or is not a member of the bar of a Federal court must demonstrate that he possesses a requisite degree of appropriate training or familiarity with the general principles of law in operation at courts-martial in order to undertake the defense of a military accused on trial for a crime.² It is the military judge assigned³ to the court-martial who must make the determination whether such a lawyer is minimally qualified to act as civilian counsel. Article 39(a), UCMJ, 10 U.S.C. § 839(a); see Leis v. Flynt, 439 U.S. 438, 442-44, 99 S.Ct. 698, 701-702, 58 L.Ed.2d 717 (1979). We do not anticipate that the military judge will establish any per se disqualification with respect to any recognized foreign bar or act on an individual basis in a niggardly fashion.

In light of the above, we find that the military judge had the authority to bar Attorney Soriano from acting as civilian counsel at petitioner’s court-martial. Accordingly, the petition for extraordinary relief must be denied.⁴ See Dettinger v. United States, 7 M.J. 216 (C.M.A.1979). We note that the partial record of trial and other exhibits have been attached to this petition for the purpose of our review of the propriety of the trial judge’s decision under the particular facts of this case. Whether the military judge abused his discretion in this particular instance, is a matter for examination during the normal course of direct review of petitioner’s case, if any.

1 . United States v. Kraskouskas, 9 U.S.C.M.A. 607, 26 C.M.R. 387 (1958), specifically held that individually requested military counsel under Article 38(b), Uniform Code of Military Justice, 10 U.S.C. § 838(b), must be a qualified lawyer. The rationale however, is equally applicable to the accused’s right to individually secured civilian counsel provided in the same codal provision.

2 . United States v. Kraskouskas, supra at 610, 26 C.M.R. at 390. See In Re Griffiths, 413 U.S. 717, 725-27, 93 S.Ct. 2851, 2856-57, 37 L.Ed.2d 910 (1973); Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 239, 77 S.Ct. 752, 756, 1 L.Ed.2d 796 (1957); see also Douglas v. Noble, 261 U.S. 165, 169-70, 43 S.Ct. 303, 305, 67 L.Ed. 590 (1923).

3 . See A.B.A. Standards, The Function of the Trial Judge, § 3.5 Commentary p. 46.

4 . This holding does not preclude Attorney Soriano from presenting further matters to establish or demonstrate his particular qualifications so as to act as counsel in the present case.