United States v. Hardy

44 M.J. 507, 1996 CCA LEXIS 125, 1996 WL 195454
CourtUnited States Air Force Court of Criminal Appeals
DecidedApril 17, 1996
DocketACM 30759 (f rev)
StatusPublished
Cited by5 cases

This text of 44 M.J. 507 (United States v. Hardy) is published on Counsel Stack Legal Research, covering United States Air Force Court of Criminal Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hardy, 44 M.J. 507, 1996 CCA LEXIS 125, 1996 WL 195454 (afcca 1996).

Opinion

OPINION OF THE COURT UPON FURTHER REVIEW

HEIMBURG, Senior Judge:

TMs case raises the question: When may an attorney who was appointed post-trial due to an “irreconcilable conflict” between the client and Ms trial defense lawyer, sever his own relationsMp with the client? We hold that the appointed lawyer may sever the relationsMp unilaterally for good cause. Moreover, we find good cause here for the counsel’s severance, and affirm.

Background of the Case

The appellant pled guilty before a military judge, sitting as a general court-martial, to making a false claim against the United States. Article 132, UCMJ, 10 U.S.C. § 932 (1988). He was sentenced on June 24, 1993, to a bad-conduct discharge, confinement for 18 months and reduction to airman basic (E-1). The convening authority reduced the term of confinement to 15 months pursuant to a pretrial plea agreement, and approved the sentence as thus modified.

The appellant first expressed dissatisfaction with Ms trial defense counsel, Captain S, in a six-page letter to the convening authority submitted as part of Ms clemency matters. R.C.M. 1105. Assertmg his innocence, the appellant complained that Captain S pressured him into agreeing to a pretrial plea agreement and pleading guilty. He also alleged that investigative agents lied about what he told them during interviews, making Ms actions appear crimmal.

Captain S contmued to represent the appellant m post-trial processing of the case. TMs was error. See United States v. Cornelious, 41 M.J. 397 (1995). On May 30, 1995, we returned the case to the convenmg authority for a new staff judge advocate’s recommendation; we also ordered that appellant be provided substitute post-trial counsel. Finally, we determined that, based on the record of trial, appellant’s claim of meffective assistance of counsel was without merit.

The appellant’s case came back to this Court on September 20, 1995. The convening authority’s staff judge advocate had prepared a new staff judge advocate’s recommendation on June 22, 1995. In response, the appellant, assisted by a military defense counsel, Captain B, submitted a “Request for Clemency” and a “Petition for Clemency,” both dated August 21, 1995. See R.C.M. 1105(b). The petition, signed by Captain B, a military defense counsel, averred that Major W was assigned to represent the appellant for post-trial matters on June 22, 1995, but “had to withdraw as Sgt Hardy’s defense counsel due to a conflict of interest.” Captain B stated she was appointed to represent the appellant on August 2, 1995, and asked the convening authority to consider in mitiga[509]*509tion the impact on the appellant’s life of the prolonged delay in post-trial processing of the appellant’s case. Neither of the defense-submitted matters complained that Major W had acted improperly in withdrawing from representation. The convening authority took a new action on August 24, 1995, and forwarded the case to this Court.

On October 25, 1995, the appellant filed a supplemental assignment of error in which he alleged that the counsel appointed to represent him in post-trial matters, Major W, withdrew unilaterally and without good cause. In support of this claim the appellant submitted an affidavit which stated that “I was under the impression that I didn’t have any say” in whether Major W was “forced off my case.” The appellant complained that Major W unilaterally withdrew from representing him against his wishes, even though he would have been willing to waive any conflict, if he had been given the opportunity.

The Court was unable to resolve the issue on the record available, having no evidence of the nature of the supposed conflict of interest. Based on the appellant’s allegations, we ordered Major W to file an affidavit with the Court. See United States v. Lewis, 42 M.J. 1 (1995). We directed Major W to address the attorney-client relationship, the nature of the conflict of interest he perceived, what he communicated to the appellant about the conflict, and whether he asked the appellant to consent to continued representation. If he did not ask the appellant to consent to continued representation, we asked Major W to explain the reason.

The Court received Major Ws affidavit on February 8,1996. In the affidavit, Major W stated he was detañed to represent the appeñant in presenting new post-trial matters to the convening authority on or about July 7, 1995. Major W said he entered into an attorney-client relationship in which he discussed the appeüant’s claim that his trial defense counsel was ineffective. See R.C.M. 1106(f). In light of this Court’s opinion that the record of trial did not support the appellant’s initial claim, Major W decided that further pursuit of the issue would require him to interview Lieutenant Colonel B, the chief circuit defense counsel, who supervised both Captain S and Major W. Major W stated that Colonel B had a policy that aU defense counsel under her supervision must discuss with her the terms of any offer for a pretrial plea agreement. Befieving that Captain S must have discussed with Colonel B how to proceed with the appeñant’s case, Major W telephoned her to talk about that conversation. When he explained to Colonel B the reason for his telephone eañ, Colonel B declined to be interviewed about the appellant’s case.

After this telephone cab, Major W talked with the appeñant. He advised the appeüant that there was a serious conflict between the appeUant’s interests — which included investigating and pursuing the claim of ineffective assistance of counsel against Captain S — and Major Ws own interest in not attacking his boss. Major W stated the appeñant was willing to waive the conflict, expressing his desire to keep Major W as his counsel. Nevertheless, Major W determined that the conflict would materiaüy affect the quality of his representation of the appeñant, and withdrew from the case after only a week or two of representation. Captain B, a defense counsel from outside the circuit who was not supervised by Colonel B, was appointed to assist appeñant.

Arguments of Appellate Counsel

Appellant urges this Court to set aside the convening authority’s action yet again. He argues that Major W was not justified in withdrawing from his case, since Major Ws perceptions of a conflict did not rise to the level of a “truly extraordinary circumstance rendering virtuaüy impossible the continuation” of the attorney-client relationship. United States v. Iverson, 5 M.J. 440, 442 (C.M.A.1978). The appeñant argues that Major W did not know whether a real conflict existed. He did not know that his supervisor, Colonel B, had concurred in Captain S’s advice, much less that Colonel B was imphcated in ineffective assistance to the appeñant. Therefore, the appeüant argues, any conflict was “speculative” and not sufficient good cause to sever the attorney-dient relationship against his wishes.

[510]*510Appellate government counsel, on the other hand, point to Air Force Rules of Professional Conduct, Rule 1.7, which states, in pertinent part:

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and

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Bluebook (online)
44 M.J. 507, 1996 CCA LEXIS 125, 1996 WL 195454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hardy-afcca-1996.