Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General

DEPARTMENT OF DEFENSE <SUBAGY>Department of the Navy</SUBAGY> <CFR>32 CFR Part 776</CFR> <DEPDOC>[Docket ID: USN-2024-HQ-0002]</DEPDOC> <RIN>RIN 0703-AB19</RIN> <SUBJECT>Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of the Navy, Department of Defense (DoD). <HD SOURCE="HED">ACTION:</HD> Proposed rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> This rule proposes to remove existing general information about the professional responsibility requirements of attorneys practicing under the cognizance and supervision of the Judge Advocate General (JAG) and includes a new requirement for all non-U.S. Government attorneys to file a notice of appearance before appearing in any matter for which the JAG is charged with supervising the provision of legal services. It also proposes to remove existing content relating to the Rules of Professional Conduct and replaces it with complaint processing procedures. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments will be accepted until July 2, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by docket number and/or Regulation Identifier Number (RIN) number and title, by any of the following methods: <E T="03">Federal Rulemaking Portal: http://www.regulations.gov.</E> Follow the instructions for submitting comments. <E T="03">Mail:</E> Department of Defense, Office of the Assistant to the Secretary of Defense for Privacy, Civil Liberties, and Transparency, Regulatory Directorate, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700. <E T="03">Instructions:</E> All submissions received must include the agency name and docket number or RIN for this document. The general policy is for submissions to be made available for public viewing at <E T="03">http://www.regulations.gov</E> without change, including any personal identifiers or contact information. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> CDR Matthew Bailey, Office of the Judge Advocate General (Administrative Law), Department of the Navy, 1322 Patterson Ave. SE, Suite 3000, Washington Navy Yard, DC 20374-5066, telephone: 703-614-4386. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Background</HD> This rule was promulgated on September 1, 1994; amended on March 21, 2000; and further amended on November 4, 2015. <HD SOURCE="HD1">Changes Proposed in This Rule</HD> DoD/Navy is proposing to remove three of the current part's five subparts which do not affect the public and update two others to bring them into compliance with the current Judge Advocate General (JAG) Instruction pertaining to this subject matter, JAG Instruction 5803.1 (Series), “Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General (JAG)” (available at <E T="03">www.jag.navy.mil</E> ). The three subparts that are proposed to be removed (Subparts C, D, and E) concern internal Navy processes that are currently memorialized in JAG Instruction 5803.1 (series) ( <E T="03">https://www.jag.navy.mil/library/instructions/JAGINST_5803-1E.pdf</E> ). The proposed revision of Subpart A (General) removes existing general information about the professional responsibility requirements of attorneys practicing under the cognizance and supervision of the JAG and includes a new requirement for all non-U.S. Government attorneys to file a notice of appearance before appearing in any matter for which the JAG is charged with supervising the provision of legal services. The proposed revision of Subpart B (Rules of Professional Conduct) removes existing content relating to the Rules of Professional Conduct and replaces it with a revised version of current Subpart C (Complaint Processing Procedures). The proposed revision of Subpart B (Rules) includes new content relating to processing professional responsibility complaints, interim suspensions of attorneys, ethics investigations, effect of separate proceedings, public notice, and requests for reinstatement. <HD SOURCE="HD1">Legal Authority for This Regulatory Action</HD> Title 10 U.S.C. 806 grants the JAG the authority to assign judge advocates for duty and requires the JAG to make frequent inspections in the field in supervision of the administration of military justice. Title 10 U.S.C. 806a provides that the President shall prescribe procedures for the investigation and disposition of charges, allegations, or information pertaining to the fitness of military judges. Title 10 U.S.C. 826 prescribes the qualifications for military judges in the armed forces. Title 10 U.S.C. 827 sets forth the requirements for the detail of trial counsel and defense counsel in the armed forces. Title 10 U.S.C. 1044 authorizes the Secretaries of the military departments to provide legal assistance to servicemembers and their dependents. The Manual for Courts-Martial, United States, 2019, is the official guide to the conduct of courts-martial in the U.S. armed forces (available at <E T="03">https://jsc.defense.gov/Portals/99/Documents/2019%20MCM%20(Final)%20(20190108).pdf?ver=2019-01-11-115724-610</E> ). The U.S. Navy Regulations, 1990 is the principal regulatory document of the Department of the Navy, endowed with the sanction of law, as to duty, responsibility, authority, distinctions and relationships of various officials, organizations and individuals (available at <E T="03">https://www.secnav.navy.mil/doni/navyregs.aspx</E> ). Department of Defense Instruction 1442.02 (series), “Personnel Actions Involving Civilian Attorneys” (available at <E T="03">https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/144202p.pdf</E> ), prescribes Department of Defense policy for personnel actions involving civilian attorneys and outside assignments of attorneys from the Department of Defense Office of the General Counsel and Defense Legal Services Agency. Secretary of the Navy Instruction 5430.27 (series), “Responsibility Of The Judge Advocate General Of The Navy And The Staff Judge Advocate To The Commandant Of The Marine Corps For Supervision And Provision Of Certain <FP> Legal Services” (available at <E T="03">https://www.secnav.navy.mil/doni/Directives/05000%20General%20Management%20Security%20and%20Safety%20Services/05400%20Organization%20and%20Functional%20Support%20Services/5430.27E.pdf</E> ), prescribes the responsibilities of the Judge Advocate General of the Navy and the Staff Judge Advocate to the Commandant of the Marine Corps for the supervision and provision of certain legal services. JAG Instruction 5803.1 (series) establishes rules of professional conduct for attorneys practicing under the cognizance of the Judge Advocate General of the Navy, establishes procedures for filing complaints of professional misconduct, and prescribes procedures for engaging the outside practice of law. </FP> <HD SOURCE="HD1">Expected Impact of the Proposed Rule</HD> This rule impacts non-U.S. Government attorneys representing clients in matters under the cognizance of the Judge Advocate General of the Navy. Clients who obtain non-USG attorneys to represent them in matters for which the JAG is charged with supervising the provision of legal services will incur costs relating to the amount of time required for their counsel to prepare and file a notice of appearance. The cost will vary widely depending on the charged rate of the attorney in question and the time required to prepare the notice. For purposes of estimating the costs involved, it is reasonable to use the mean hourly wage for lawyers as informed by the Bureau of Labor and Statistics, $78.74. Because the Navy does not keep a log of the numbers of civilian attorneys privately hired to represent individual clients in litigation that would be subject to the new notice of appearance requirement, the net cost to the public cannot readily be quantified. Generally, the time required for an attorney to prepare and file a notice of appearance in a case should not exceed one hour. Thus, a reasonable quantifiable cost to attorneys to file such notice should be the cost of one billable hour. Additionally, the proposed revision will affect members of the public who would benefit from being aware of the professional responsibility complaint procedures that cover attorneys who practice under the cognizance of the Judge Advocate General of the Navy. It is standard practice of most tribunals to require a filing of a notice of appearance for attorneys who are not otherwise certified to practice before such tribunals. Navy believes the removal of Subparts C, D, and E offsets the costs of preparing and filing a notice of appearance by reducing the amount of time required for lawyers to read and understand the requirements. <HD SOURCE="HD1">Regulatory Reviews</HD> <HD SOURCE="HD1">Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review”</HD> Executive Orders 12866, as amended by 14094 (88 FR 21879, April 11, 2023), and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action” under Executive Order 12866. <HD SOURCE="HD1">Congressional Review Act</HD> This rule is not a “major rule” as defined by 5 U.S.C. 804(2). <HD SOURCE="HD1">Paperwork Reduction Act</HD> This rule does not contain a collection of infor ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 47k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━