United States v. Henson

20 M.J. 620, 1985 CMR LEXIS 3737
CourtU.S. Army Court of Military Review
DecidedApril 29, 1985
DocketCM 444782
StatusPublished
Cited by3 cases

This text of 20 M.J. 620 (United States v. Henson) is published on Counsel Stack Legal Research, covering U.S. Army Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Henson, 20 M.J. 620, 1985 CMR LEXIS 3737 (usarmymilrev 1985).

Opinion

OPINION OF THE COURT

WERNER, Judge.

Pursuant to the provisions of Article 69, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 869, The Judge Advocate General has referred this case to us for review in accordance with Article 66, UCMJ, 10 U.S.C. § 866. In consonance with his [621]*621pleas, the appellant was convicted of eighteen specifications of violating a lawful general regulation1 in violation of Article 92, UCMJ, 10 U.S.C. § 892. Specifically, the appellant, a first sergeant, admitted to misusing his grade by operating an automobile sales business during regular duty hours while employing Army personnel, property and facilities subject to his control and supervision. A court-martial composed of members sentenced him to be reduced to the grade of E-6 and to forfeit $200.00 per month for twelve months. After disapproving one of the findings of guilty, the convening authority approved the remainder, the two grade reduction and only nine months of the forfeitures.

There are two issues in this case: whether the military judge’s failure to suppress the testimony of an Army judge advocate concerning certain telephonic discussions between the appellant and that officer violated appellant’s attorney-client privilege; and, if so, whether the evidence contained in that testimony was prejudicial to appellant. We hold that appellant's attorney-client privilege was violated and that appellant suffered prejudice as a result.

During the summer of 1982, the appellant began selling used automobiles to military personnel for personal profit. Using his contacts within the surrounding military and civilian communities, he obtained used automobiles he intended to sell from local automobile rental companies and arranged financing for prospective purchasers from the Schofield Barracks Credit Union. Additionally, he employed military personnel subject to his military supervision in the operation of the business.

In mid-September 1982, appellant telephoned a judge advocate, Captain (CPT) B, who was assigned to the Administrative Law Division of the Office of the Division Staff Judge Advocate and inquired about the legality of his business. Under AR 600-50, each Army agency, command or installation must designate a “Deputy Standards of Conduct Counselor” whose responsibilities include the rendition of “[ajdvice and assistance to the entity concerned and personnel thereof.” AR 600-50, para. 2-9 (20 Oct. 1977). However, there was no evidence to indicate that CPT B was such a standards of conduct counsel- or. To the contrary, in a sworn statement admitted first at the Article 32, UCMJ, investigation and then at trial, CPT B stated he was not familiar with the contents of the standards of conduct regulation. In response to appellant’s inquiry, CPT B was compelled to research the question. Thereafter he called appellant, told him that his business venture was proscribed by the regulation, and advised him to cease conducting it. Apparently, appellant did not immediately comply with CPT B’s advice since at least six of the offenses of which he was convicted occurred after his conversation with that officer. Over defense objection, CPT B testified in aggravation to his conversations with appellant. Subsequently, appellant testified in extenuation and mitigation that CPT B did not advise him to completely terminate his business activity; but rather that CPT B merely advised appellant not to pursue his business during duty hours or to sell automobiles to subordinates. In his argument on sentencing, trial counsel, relying heavily on CPT B’s testimony, argued that appellant’s activities were not as innocent as appellant would have them appear.

The Supreme Court of the United States has held that the purpose of the attorney-client ^privilege “is to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981). Consistent with this policy, Military Rule of Evidence (M.R.E.) 502(a) pro-[622]*622vides that “[a] client has a privilege to ... prevent any ... person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client,____” This includes confidential telephonic communications between client and lawyer. M.R.E. 511(b). See “generally M.R.E. 502(a). “A client is a person, public officer ..., either public or private, who receives professional legal services from a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.” M.R.E. 502(b)(1). “A lawyer is a person authorized, or reasonably believed by the client to be authorized to practice law; ____” M.R.E. 502(b)(2). Finally, a confidential communication is one “not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the condition of professional legal services to the client____” M.R.E. 502(b)(4). The facts of this case demonstrate that the discussions between appellant and CPT B were privileged since they establish: (1) appellant reasonably believed he was consulting with a lawyer with a view towards obtaining legal services; and, (2) he communicated confidential information to that lawyer while under that belief.

We recognize that, by virtue of his assignment to the Administrative Law Division, CPT B may not have been authorized to give legal assistance to individual service members. Individual legal assistance is normally performed by judge advocates performing duties as legal assistance officers 2 or as defense counsel.3 On the other hand, administrative law officers principally render staff legal advice to Army officials and agencies in the performance of their official functions. See generally, Army Regulation 27-1, Legal Services: Judge Advocate Legal Services, para. 10 (101 3 Feb. 1982).4 Furthermore, although CPT B stated he did not believe he had established an attorney-client relationship with the appellant, the manner in which he dealt with the appellant, researched his question and rendered the advice undermines that belief. However, neither CPT B’s belief nor the fact that he may not have been authorized to render individual legal assistance because of the nature of his duties are dispositive. The privilege applies because it is the reasonableness of appellant’s belief that governs. See United States v. Turley, 24 C.M.R. 72 (C.M.A. 1957); United States v. McCluskey, 20 C.M.R. 261 (C.M.A.1955).5 The record sup[623]*623ports the conclusion that CPT B was giving personal legal assistance to a soldier who expected their communications to be confidential rather than rendering official legal guidance to a first sergeant who had no such expectation. Accordingly, CPT B’s testimony should not have been admitted.

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Bluebook (online)
20 M.J. 620, 1985 CMR LEXIS 3737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-henson-usarmymilrev-1985.