Client Advice: Initial

We are licensed attorney in the Commonwealth of Virginia, the District of Columbia, New York, and Ohio. Therefore, anything you tell us is covered by the attorney-client confidential communications privilege. This privilege applies from the minute you call us, even if you decide not to have us work on your case. Military defense lawyers frequently get this question when they first contact us, "Is this privileged." It's always wise to ask any military defense counsel this question.

YES

Under the law and rules of professional responsibility, your discussion in an initial contact or consult are privileged.

This is important for you to know, and for us to keep our Bar licenses.

The privilege means that we cannot and will not disclose anything you tell us to anyone else. We can only do so if you give permission to do that. This privilege applies even if you were to confess a crime. We could not be required to disclose that information to anyone and would not voluntarily disclose that information to anyone. We represent you as a civilian military defense lawyer.

Other than, perhaps, a chaplain, or similar type clergy, NO ONE ELSE has any similar confidential communication privilege with you. REMEMBER, anything you say to any of the following individuals could be used against you if the prosecutions finds out about the statement.

• Parents.
• Spouses in certain circumstances. There is an exception where the spouse is an alleged victim or the parent of an alleged victim. There is no spousal privilege if your wife or her children are alleged victims of your alleged misconduct. Also, be aware that if you are accused of adultery, your spouse is considered a victim under the spousal privilege rule.
• Doctors, nurses, or other health-care workers. There is a limited privilege at court-martial. Commanders often gain information about physical or mental health conditions.
• Congressional representative! You are protected from retaliation under 10 U. S. Code §1034, in contacting your members of Congress. HOWEVER, any false statements you make to them may be used as evidence against you in a court-martial. See United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003), where that's what happened to Gogas. The prosecution took some statements he made in a letter to the congress person and turned them into a a conviction at court-martial under the UCMJ for making false official statements.
• SACO, ATF, or anyone in the substance abuse treatment field.
• Anyone in the Family Advocacy Office.
• Anyone at a military confinement facility like the JRCF, the USBD, the Charleston, Miramar, or Chesapeake Brigs, and anywhere you are temporarily confined.
• Any other civilians or military personnel. This includes your friends, roommates, co-workers, supervisors, your first sergeant, etc. Anything you say to them can be used against you, and may well be--we have seen this happen!

Your right to remain silent is an ABSOLUTE right. If you choose to exercise your right, no one can in any way hold that against you. It cannot be commented on in a court-martial, nor can you be given any punishment because you exercise your rights.

Remaining silent is NOT an admission of guilt. Even if you are or believe you are not guilty, we still advise you to remain silent. As with any rule, there are exceptions. We have several times engaged with NCIS, CGIS, OSI, CID and recommended an interview with one of us present. So far, we have been successful in these very few situations. We made the recommendation only after we had thoroughly evaluated the situation and decided that there was value added in your defense. In each case no charges were preferred. 

Do not be lulled into talking if an investigator says something like "if you are innocent why do you need to be silent?" This is a trick question intended to get you to reconsider asking for a lawyer and to speak with investigators. They want you to change your mind so they can interrogate you. Later they will say that you changed your mind and nothing they said or did caused that--and the courts will believe them.  

        You have the right to have an attorney present DURING ANY QUESTIONING. This is not an admission of guilt. Even if you have already made some oral or written statements, you can still claim your right to remain silent from then on. In other words you can revoke any prior waiver for future interrogations or interviews. We usually put this in our notice of representation of you.

You have the right to refuse to consent to a search--make them get a warrant or search authorization--this includes them asking for you digital device passwords. Current case law prevents them ordering you to give passwords to your smartphone or computers. Please note that the law is fast changing regarding access to digital media passwords.

Investigators are allowed to lie to you, typically about evidence they have. They may lie and say they have your DNA. If they say this within up to six months after an allegation, it likely is a lie--that is because it takes about six months to get DNA results back from the testing laboratory.

BE AWARE - DANGER! Do not accept or engage in any phone calls or meetings with any alleged victim, co-actor, or others. Investigators frequently try "pretext phone-calls." These are traps. What is happening is that the investigators are listening in on the phone call -- or, a new trick--texting.

You can be required, and ordered, to go to an appointment at CID, CGIS, NCIS, OSI, mental health, substance abuse counseling, or the Family Advocacy Office. If you are so ordered, then you MUST go to such an appointment. If you don't go you can get in trouble for failure to obey a lawful order.

However, you CANNOT be required, or ordered, by any commander, supervisor, doctor, counselor, etc., to say ANYTHING to ANYONE once you are at any of these appointments. The one exception is for what is called a "706 Board." Such Boards are privileged. An R.C.M. 706 mental health evaluation is a formal process that can only happen if charges will be or have been preferred. The purpose of the examination is to inquire into a possible "insanity" (to use an old term) defense.

Call us as civilian military defense lawyers or your military defense counsel immediately if you are told to go to any appointment.

We have seen people get in trouble for this at court-martial. Competent military defense lawyers should always give you this advice.

If you accidentally come into contact with someone on an MPO (at the Exchange for example), leave immediately. Also, immediately let your senior supervisor know. If we are your lawyers at that time, tell us as well.

Be careful, some people on the MPO may deliberately try to get you to violate the order so they can later claim you violated it. They will call you, text you, or try to meet you. Even though they may be the ones to initiate the contact, you can still get in trouble for responding. The UCMJ have various charges that would apply here.

The possible maximum punishment you could be exposed to depends on whether you are at a Special or General Court-Martial, and the offense(s) of which convicted. The types of punishment are as follows.

• Punitive discharge; either Dishonorable or Bad Conduct. A court-martial cannot adjudge an administrative discharge. Note:; Because of recent changes some offenses involving sex crimes carry a mandatory dishonorable discharge (DD) as part of the sentence.
• Confinement.
• Forfeitures of pay and allowances.
• Restriction.
• Hard Labor Without Confinement.
• Fine.
• Letter of Reprimand.
• No punishment.

You have the right to a detailed defense counsel at no expense to you.You may ask for another military attorney by name and if that attorney is reasonably available, he/she will be detailed to represent you, at no cost to you. But if you do request specific military attorney and your request is granted, you do not have the right to have the first attorney remain on the case. You must specifically ask this of the administrative command.

As your civilian attorney we are lead counsel. As lead counsel we make the decisions, except whether you plead guilty or not guilty; what type of trial; and whether or not you testify. This will be explained in more detail as we prepare our case. You should make sure that your military defense lawyer is told to cooperate with a civilian military defense lawyer and become a part of the team in your defense. 

You will have questions or concerns. Do not wait to ask or voice your concern. It is far better to ask a question now than after trial. We make every effort to keep you informed and consult with you on the decisions we have to make. But don't assume that either we or your military counsel have thought of everything. I have always found that military counsel and clients can help by asking questions, offering ideas, and making suggestions. It is your case - take an interest in the case; stay in touch, do your homework; be attentive. As a general rule I ask you to use email to avoid playing phone-tag, and it helps us both keep notes. We can set times to talk in person.

We will give you Rules of Engagement; study them and follow them.

We will give you an outline of how your trial will proceed and a script that is used for what is called the arraignment. Study both.

 You will be asked by the judge if you want to be tried by military judge alone (without a jury), or whether you want a trial by a Members (jury of officers only or if you want at least one-third of the jury to be enlisted persons senior to you and from a different unit. If you are convicted by a jury there is a new procedure where you can elect to have the judge decide the sentence. We will advise you on all of these options.

You can plead not guilty to all charges, guilty to all charges, or guilty to some and not guilty to other charges. We will advise you on this.

In making our recommendations we use our years of practical experience as military defense counsel. The advice is based on the likely admissible evidence, your potential testimony, the witnesses who will testify, and on who will be the fact-finder.

Every day we read all the new appeal cases from the Court of Appeals for the Armed Forces (CAAF), Air Force Court of Criminal Appeals (AFCCA), Army Court of Criminal Appeals (ACCA), Coast Guard Court of Criminal Appeals (CGCCA), and the Navy-Marine Corps Court of Criminal Appeals (NMCCA). We have a lot of experience litigating in these courts and reading their opinions every day helps us keep current on issues and concerns affecting your case. Our goal is to get the best result possible for you.

As your military defense lawyer we are constantly looking for creative solutions to your problem. A competent military defense counsel should always be creative and not get forced into checking-the-block.