UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION

701 SOUTH COURTHOUSE ROAD, BUILDING 2, SUITE 1D130 ARLINGTON, VA. 22204-2482

In Reply Refer To: 5801

CDC/scn

30 Mar 2016

From: Chief Defense Counsel of the Marine Corps

To: Chair, Ad Hoc Committee to Review the Criminal Justice Act Program

Subj: WRITTEN COMMENTARY REGARDING STRUCTURE AND FUNCTION OF THE DSO

Ref: (a) Judicial Conference Correspondence of March 11, 2016

Encl: (1) Written Commentary from CDC, USMC

(2) MCO P5800.14A (Legal Administration Manual), Chapter 2 (The Marine

Corps Defense Services Organization)

(3) Draft, Legal Services Administration Manual, Volume I, Chapter 4

(Marine Corps Defense Services Organization)

(4) USMC DSO CDC Policy Memos

1. Thank you for the opportunity to provide you with written commentary in

advance of my testimony. I look forward to providing testimony and answering

any questions starting at 2:45 on Tuesday, April 12, 2016 at the James A.

Byrne United States Courthouse, 601 Market Street, Philadelphia, PA, in the

Ceremonial Courtroom.

2. Should there be any questions or concerns about the foregoing, please

feel free to contact me at (703) 604-0573, or via email at

stephen.newman@usmc.mil.

Very Respectfully,

STEPHEN C. NEWMAN

Colonel, U.S. Marine Corps

1

Colonel Newman Remarks

My name is Colonel Stephen C. Newman. I am currently the Chief Defense Counsel of

the Marine Corps, and the Officer-in-Charge of the Marine Corps Defense Services

Organization (DSO). On behalf of the Marines of the DSO, I would like to thank this panel for

the opportunity to provide you with insights into our history, our organizational structure, our

organizational strengths, and organizational weaknesses. Rather than recite to you my military

background, I have attached a short, one-page biography (enclosure 1).

I do believe it is important for you to know one thing about me—over the past twenty-

six years I have held virtually every billet a Marine Defense Counsel can hold in our Corps. I

have been a line defense counsel in southern California; a Senior Defense Counsel in charge of

the largest and most active defense section in the Marine Corps in eastern North Carolina; a

Regional Defense Counsel in what was at that time the largest region in the Marine Corps,

covering the entire east coast, New Orleans, and Iraq—where I was personally called upon to

defend a Marine at Camp Fallujah in 2004; and now as Chief Defense Counsel of the Marine

Corps, leading an organization of over 70 attorneys, more than 20 legal services specialists, and

two Highly Qualified Experts (former public defenders with extensive defense trial experience).

As a result of my experience in what we now call the DSO over these past 26 years I feel that I

am qualified to tell you about our history as an organization—where we came from and how we

got here; how we are structured—and more importantly, why we are structured the way we are;

and finally the strengths of such an organization—but no analysis of strengths would be

complete without an understanding of our weaknesses, which will also be honestly and openly

addressed.

My hope is that, in the end, a review of our organizational history and structure will

inform you on three important points. First, that strategic change requires tactical patience. In

the military we view plans and operations from three lenses. Those closest to the actual

operation, with the most limited range of knowledge about larger priorities and overarching

goals, are at the tactical level; above them are commanders and leaders at the operational level

who have a slightly broader understanding of the mission. The senior leadership, those with the

Enclosure 1

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greatest responsibilities, work at the strategic level. Strategic leadership means having a vision

for where the organization has been, where it is, and where you want it to go. But

communicating and realizing a vision to power brokers takes time. This delay is something not

commonly understood by those on the ground working at the tactical level. Second, strategic

change is hard, and requires commitment. These are complex and difficult problems which

require complex and difficult solutions. If you can address these challenges within your existing

structural authorities, do so. But if statutory or regulatory change is required, do not shy away

from it just because it is hard. Piecemeal solutions only lead to piecemeal problems and years of

delay. Finally, and perhaps most importantly, given that strategic change takes time; given that

strategic change is hard; those of us doing the work have to build the record. We have to write

memos, submit articles, participate in panels, and even provide written comments to

committees. An established record is what will, over time, demonstrate the need for strategic

change.

Marine Corps Cultural Background:

There is one more matter which I hope the Committee will appreciate as a part of the

framework for my commentary. If speaking to a military audience, it would go without saying

that the Marine Corps considers itself unique among the services. A common admonition heard

on the training fields of Quantico, where we make our future leaders, is that our nation does not

need a Marine Corps. The Army is quite proficient at ground operations; and the Air Force

equally so in the air. Working together they make a potent team. Viewed in that light, the

Marine Corps, which at its core is light infantry organizationally based around the Marine Air-

Ground Task Force, may to the uninitiated appear redundant. But while it may be that our

Nation doesn’t need a Marine Corps, it is true that our Nation wants a Marine Corps. This

animates the daily activity of all Marines everywhere—everything we do centers around

excellence, doing more with less, and taking nothing for granted.

Marines exist in a warrior culture. Everyone who takes the title Marine is expected to be

prepared to fight. We are instilled with our lore and legacy, and are trained to live up to it. We

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take the title not just as a name, but as a solemn trust with those who went before us—and as a

solemn bond with our brothers and sisters who proudly display the Eagle, Globe and Anchor on

their chest. These cultural influences, which cannot be fully explained in this brief paragraph,

are foundational to the community of Judge Advocates where I serve.

Note the use of the term “Judge Advocate.” Those organizational and cultural

characteristics which make Marine Corps, writ large, distinct from our sister services bleed over

into our legal services organizational structure. The unique construct of defense services within

the Marine Corps cannot be understood without an understanding of the Marine Corps’ culture.

Just as there are differences between the military and civilian justice systems, so there are

cultural and structural differences within the Marine Corps that necessitate a different defense

bar than the sister services—despite the “Uniform” in Uniform Code of Military Justice.

First, consider that a Corps is a main subdivision of an armed force. The Army, Navy,

and Air Force have a Judge Advocate General’s Corps, each of which is headed by a Judge

Advocate General—the top lawyer in that service. Lawyers in these services refer to themselves

as JAGs. Generally speaking, an attorney in the sister services will serve as an attorney

throughout his or her career.

The Marine Corps, however, is already a Corps—a main subdivision naval infantry

working under the cognizance of the Secretary of the Navy. Therefore as a Corps, the Marine

Corps does not have any further subdivisions or “special corps” within our service. It is, in fact,

an anathema to our culture. We reject most distinctions between Marines absent that of rank. As

such, the most senior lawyer in the Marine Corps is not a Judge Advocate General, but the Staff

Judge Advocate to the Commandant of the Marine Corps, functionally independent of the Navy

JAG, and independently responsible to the Commandant of the Marine Corps and the Service

Secretary for the provision of Legal Services. Partially because there is no Judge Advocate

General’s Corps, Marine attorneys do not refer to themselves as JAGs. We are instead Marine

Officers with law degrees—we are Judge Advocates, not “JAGs.”

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In fact, every Marine considers himself a rifleman and every Marine officer a provisional

rifle platoon commander. This distinction is unique to the Marine Corps and it is vitally

important to understanding our culture. Every Marine officer—infantryman, logistician, aviator,

or judge advocate—attends the same Officer Candidate School. This is followed by an extensive

six and a half month officer “finishing course” called The Basic School. As the name implies,

this school imparts the basic skills required of a Marine rifle platoon commander (land

navigation, weapons handling and employment, leadership, tactics, etc.). Only then do we ship

off to Naval Justice School for training specific to our field. The added cost of this training

pipeline underscores the value the institution places on this cultural nuance. Every judge

advocate has the same baseline training as every other Marine Corps officer. This training

renders all Marine officers “line officers”— qualified to serve in any capacity needed.

Neither does this distinction find its terminus at the conclusion of entry level training.

Mid and senior-level career Marine officers take courses in leadership and common skills of

increasing complexity. All Marines, regardless of specialty, compete against each other for

promotions, assignment, and schools. A judge advocate is measured against and competes with

logisticians, infantrymen, aviators, and combat engineers for promotion. This is not so in our

sister service JAG communities, where they compete only among other JAGs. Whereas sister-

service JAGs are attorneys that happen to be in the Army, Navy, or Air Force; Marine judge

advocates are Marines that happen to be attorneys.

Second, the separate Corps model utilized by our sister services permits a level of

independence and control over personnel assignments, resources, and career paths within their

Corps structure that is difficult to mirror for Marine judge advocates. The service JAGs operate

with significantly more administrative and personnel control over their lawyers than does the

SJA to the Commandant of the Marine Corps. The unique Marine Corps construct for the

provision of legal services worked very well for years, particularly in relation to the provision of

operational law, command advice, and prosecution services. But in the mid—1980’s it became

apparent that there were flaws in the application of this model to defense services. While the

very fabric of the Marine Corps is resistant to a “special corps,” a hybrid model would need to

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evolve if the Marine Corps wanted to retain a criminal defense capacity—an evolution that

continues to this day.

Finally, it is important for you to have an idea of how charges are brought in our system.

Ours is a command driven justice system. The Commander plays a quasi-judicial role, being

responsible (through his representatives) for the entire judicial process. The commander has the

authority to order a court into existence, exercise prosecutorial discretion, decide forum, select

court-martial members, approve a sentence, and grant clemency. To assist in these legal

determinations, the commander will have a staff judge advocate—a military attorney assigned to

the local General Officer in command as his or her staff officer responsible for command legal

advice.

There are three basic phases to every military case. First there is the evidence gathering

phase. Felony type offenses are generally investigated by Naval Criminal Investigation Services,

or NCIS. Misdemeanor type offenses may be investigated by Marine Corps Criminal

Investigation Division, or CID. Of course such investigations may also be initiated by, or

conducted in conjunction with local, state or Federal authorities. Evidence of criminal

misconduct may also result from administrative investigations conducted by persons who have

little to no legal training. For example, an administrative command investigation into lost or

missing gear may result in a finding of financial malfeasance, or theft.

Once the evidence is developed, it is typically presented to the Commander. With the

advice of his or her Staff Judge Advocate, the Commander makes one of two key decisions: If in

the Commander’s mind the matter is minor misconduct easily addressed through non-judicial

means, she has a range of tools at her disposal to do so; if, however, the evidence presents a more

serious criminal matter, she will direct the development of a Request for Legal Services, or RLS.

That RLS is delivered, with the evidence, to the local Legal Services Support Section (LSSS),

one of four in the Marine Corps. They develop the evidence into charges, prepare a charge sheet,

and swear it out in what we call “preferral.” Once preferred, the charges are assigned to a Trial

Counsel. Both the charge sheet and all discovery associated therewith is similarly delivered to a

local DSO Branch Office which is embedded within, and administratively assigned, to the LSSS.

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If the charged matter is of the nature of a misdemeanor, it is typically sent to a Special

Court Martial. The Special Court-Martial Convening Authority, or SPCMA, a Lieutenant

Colonel or Colonel in command, then signs the “referral” block on the charge sheet, directing the

convening of a Court-Martial. This is important. While we have standing military judges

assigned to an independent judiciary, we have no standing courts. Each case is individually

“referred” to a specific court convened for the sole purpose of presiding over that one trial. An

order signed by a commander directing a court is called a convening order.

If the matter is more serious, akin to a felony, the charges are sent to a Preliminary

Hearing under Article 32 of the Uniform Code of Military Justice. This is best thought of as a

probable cause hearing, not a grand jury proceeding. This is a necessary first step before going

forward to the most serious forum available in our system, the General Court-Martial—which

may only be convened by a General Officer or General-Court Martial Convening Authority

(GCMCA). At this hearing, a Judge Advocate will consider the evidence presented by the Trial

Counsel, and any evidence presented by the defendant who is represented by counsel.

Practically speaking however, the rights of the accused are extremely limited in this forum.

The Preliminary Hearing Officer, or PHO, is tasked with deciding if there is probable

cause to believe there is evidence of each element of each offense. If so, the PHO then makes a

recommendation as to forum—he may recommend administrative resolution, a special court, or a

general court. He may also recommend the addition or subtraction of charges. The

recommendation of the PHO is reduced to writing and delivered, along with the evidence, to the

SPCMA. The SPCMA forwards his recommendation as to disposition with the evidence and

PHO’s recommendation to the GCMCA. The GCMCA SJA then takes that package, creates his

own letter with regard to disposition recommendation, and delivers it to the GCMCA. The

GCMCA is not bound by the recommendation of the PHO, the SPCMA or the SJA. He may

refer any charges he deems necessary. If in his estimation the matter requires a GCM, he signs

the referral block and the court is ordered. It is also at this juncture that the GCMCA may, in the

extremely unusual circumstance, refer certain matters capital.

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Evolution of Military Justice in the Marine Corps

The structure, organization, and duties of judge advocates and legal communities within

the Department of Defense have been the subject of intermittent scrutiny for decades. The past

forty years have witnessed a slow, evolutionary process which leads us to where we stand today.

In the Marine Corps, we trace it back to what we know as the 1969 study. What follows should

serve the Committee well as a cautionary tale about how piecemeal solutions, a failure of

accountability, and a lack of true institutional resolve for change can frustrate justice, lead to a

crisis in the courtroom, and justify intense media scrutiny.

Prior to the enactment of the Uniform Code of Military Justice in 1950, there was no

significant role for Marine judge advocates. Good order and discipline was the exclusive

purview of the commander. When the UCMJ was enacted in 1950, the assumption was that the

Marine Corps would source its attorneys in the same manner that we source other professionals

(corpsman, nurses, doctors (Medical Corps), dentists (Dental Corps) and chaplains (Chaplain’s

Corps))—through the Navy.

That assumption was incorrect. World War II, Korea, and Vietnam bore witness to a

number of attorneys serving as line officers in the Marine Corps in a variety of non-legal

capacities. Because of their training and education, such officers were commonly assigned

collateral duties related to military justice—demonstrating not only a preference, but also an

easily articulable value for Marine legal services to be provided by Marines.

Further Congressional changes in the Military Justice Act of 1968 and the 1969 Manual

for Courts-Martial prompted the Commandant of the Marine Corps to order a study evaluating

the “most practicable procedures” for the provision of legal services in the Marine Corps. The

landmark 1969 Study considered several models for the provision of Marine Corps legal

services, including establishment of a separate, Marine “JAG” community and the use of Navy

lawyers. The option the Commandant selected was the model in place in 1969, and is the model

largely intact today: using Marine line officers who are also judge advocates to provide legal

services to our Corps.

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At the time the Commandant remarked, “Marine Commanders will be better able to

accomplish this function so vital to the Marine Corps by advice from Marine lawyers who think,

are trained, and have experienced field hardships throughout their careers, the same as their

Commanders.” This statement reflects an understanding that Marine Commanders are likely to

be more receptive to legal advice from a fellow Marine officer who has an understanding, not

only of the specific legal issue, but also of the overall context of the challenges facing the

Commander—not to mention those cultural aspects of Marine life previously addressed.

Further, the Commandant noted that the selected model, “minimizes the appearance of a

‘special corps’ within the Corps. It supports the Marine Corps family concept of taking care of

its own. It ensures that the person who is providing this most essential and vital service,

considers himself and is actually committed to complete involvement in the military community

for whom he serves.” To this day, the only military occupational specialty in the Marine Corps

that requires a graduate degree is a judge advocate.

As such the Marine Corps was the only service without a fully independent legal services

“corps.” There are ample historical and Marine Corps-specific reasons for choosing not to create

a fully independent organization. Yet as a military defender community, we continually struggle

with the very same cultural aspects of our practice which make us special as Marines, balanced

against our duty to Marines and Sailors to create a defense organization with sufficient authority

to provide the zealous, high-quality representation they deserve. One lesson learned from our

history is that the hallmark of an independent defense organization is the role of supervisory

defense counsel in the determination of which defense counsel represents a particular accused.

As previously noted, for many years departmental and service regulations assigned that authority

to prosecutorial actors such as officers-in-charge of legal services support sections, directors of

law centers, and to convening authorities. But that model creates an inherent conflict of interest

with the provision of military defense counsel services, an issue which eventually led to

substantial change in our structure.

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Evolution of Defense Services in the Marine Corps

Prior to and following 1969, the litigation capacity in the Marine Corps was resident in a

hodgepodge grouping of Law Centers, and SJA offices. The SJA typically exercised broad

powers on behalf of the convening authority over all aspects of military justice. He or she

assigned cases, decided who would serve as prosecutor, and who would serve as defense

counsel. This is important, because not only did the SJA assign subordinates their duties, he also

wrote their performance evaluations. As such, the person whose job it was to advise the

Commander (the one who brings the charges in our system) also assigned the person prosecuting

the accused, the person representing the accused, and wrote performance evaluations for both.

Later some of these authorities were consolidated into a Legal Services Support Section

(LSSS) construct at some of our larger military installations (Camp Pendleton California, Camp

Lejeune, North Carolina, and overseas at Okinawa, Japan). Under the LSSS construct, legal

services were viewed as a combat service support function. As such the LSSS was a subordinate

element of what is now known as the Marine Logistics Group (MLG). The LSSS Officer-in-

Charge (OIC) was a Lieutenant Colonel who exercised authority over all attorneys attached to

the LSSS, including trial and defense counsel. All misconduct across every unit aboard major

these Marine Corps installations was sent to one of these three LSSSs for adjudication. The

LSSS OIC would assign both the prosecutor and defense counsel to every case. The LSSS OIC

became responsible for assignments of new counsel and resource allocation (see enclosure 2).

But at several installations the authority of law center directors, who typically served side-by-

side with, or were dual-hatted as, the local SJA, remained largely intact.

The next major event in our organizational evolution took place in 1973 when Secretary

of Defense Melvin R. Laird, issued a memorandum in response to a Department of Defense

report on racial discrimination in the military justice system. Most notably to the subject at hand,

it went on to identify specific concerns that clients continued to view defense counsel as

susceptible to unlawful pressures and influence by commanders and senior military lawyers.1 In

his memorandum, Secretary Laird directed the military departments to devise plans to place

defense counsel under the auspices of the Judge Advocates General, and, in the case of Marines,

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the Director of the Judge Advocate Division, HQMC (SJA to the Commandant). However,

despite the development of plans to address the concerns by each of the Service Secretaries,

budgetary and personnel constraints led to delays in implementation. Ultimately, only the Navy

implemented minor reforms as a result of this memo.. The Navy started to assign both

prosecutors and defense counsel to shore-based commands under the purview of the Judge

Advocate General, but fell short of establishing an independent defense organization at that time.

Shortly thereafter, the Marine Corps submitted a plan to place defense counsel under the

Director, Judge Advocate Division, but this plan also failed to receive the necessary additional

personnel and financial resources necessary for execution. Only the Air Force had the foresight

to establish an independent defense counsel organization, initiated in 1974.

But at least having made some effort to remove the role of the commander in the

assignment of counsel, in November 1976 the Judge Advocate General of the Navy, in a letter to

Director, Judge Advocate Division, suggested that the Marine Corps had done little in response

to the Laird directive except to state that it was studying the matter. In his letter, the JAG wrote:

Pursuant to my responsibility under [Article 6(a) UCMJ] to

supervise the administration of military justice within the

Department of the Navy, I suggest that the Director, Judge

Advocate Division, Headquarters, U.S. Marine Corps, might wish

to consider a reevaluation of the structure of Marine Corps trial

defense counsel in light of field experience obtained over the past

two years. Since [1974], Navy defense counsel have been

supervised and graded by officers in charge of the respective Naval

Legal Services Offices. This organizational structure implemented

the directions of the Secretary of Defense to submit plans to revise

the structure of the judge advocate organization to place defense

counsel under the authority of the Judge Advocate General. It

successfully carried out the recommendation of the Department of

Defense Task Force Report on the Administration of Military

Justice in the Armed Forces that all judge advocate defense

counsel be placed under the direction of the appropriate service

Judge Advocate General.

Yet in the Marine Corps little changed. Defense Counsel remained under the cognizance of both

the local SJA, LSSS OICs, and by extension, the Convening Authority.

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Perhaps as the result of a lack of institutional change in the Services, 1976 bore witness

to yet another study. From 1976-1977 the Government Accountability Office (GAO) scrutinized

the military justice system, including visits, interviews, and surveys throughout Department of

Defense. In October 1978, the Comptroller General issued a 56-page report entitled

"Fundamental Changes Needed to Improve the Independence and Efficiency of the Military

Justice System." Perhaps highlighting institutional resistance to change, the report expressed

continued concern relative to the absence of a truly independent defense organization among the

services (with the exception of the Air Force). The report assessed, among other things, the best

means for promoting the independence and effectiveness of counsel as well as being more

fiscally efficient. The report concluded that:

Differences in mission requirements and the physical diversity of

installations and activities within and among the services do not, without

fundamental changes, allow the services to adopt uniform defense or trial

counsel organizational modes. However, we believe that more can be done

within existing constraints to achieve greater counsel independence and

ensure the impartial delivery of justice. [Although the] Marine Corps is

testing an independent defense counsel organization, the Marine Corps has

no plans for establishing a separate defense organization service-wide.

(Emphasis added).

The GAO went on to specifically recommended that "the Marine Corps complete development

and implement such a plan [and] [t]he Secretary of Defense, in implementing [GAO's]

recommendations, should consider directing the Army and the Marine Corps to authorize the

staff and other resources necessary to establish independent defense counsel organizations

without additional delay." (Emphasis added).

On June 2, 1978, the Director, Judge Advocate Division commented on the GAO report

in a letter to the Commandant of the Marine Corps by saying "[R]egrettably, but not surprisingly

in light of the premises underlying the survey, the report is generally critical of various aspects of

military justice in the armed forces, with a healthy slice of criticism directed at the Marine

Corps." The Department of Navy, in its response, commented on the GAO finding that the

Marine Corps had no plan for even taking the first step toward improving counsel independence.

Specifically the Department of the Navy stated, in part:

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The Marine Corps has never disputed that an organizational

structure which 'insulates' defense counsel from command will do

much to eliminate the so­called 'appearance of evil.' Nor has the

Marine Corps been unmindful of the fact that, as the GAO report

points out, unhealthy perceptions concerning the posture of

defense counsel are occasionally shared by persons within as well

as without the system. The lessons learned from pilot programs

are currently being evaluated at Headquarters Marine Corps with a

view towards determining the desirability and feasibility of

implementing similar or even more far reaching programs at other

Marine Corps commands. For reasons that are inextricably related

to force missions, service traditions, and available resources, the

Marine Corps has approached the concept of an independent

defense counsel organization with understandable caution. The

Marine Corps should be given the additional time necessary to

study and implement a plan for improving independence of

counsel which will serve both the ends of justice and the Marine

Corps mission.

In December 1978, the Department of Defense responded to the GAO report by stating

that "the Department of Defense does not believe that there is cause for wide ranging military

justice reforms.” The response further explained that "the Marine Corps will continue to devise

a program that is consistent with their mission and the goal of improving the independence of

trial defense counsel. DoD will monitor progress in these areas.” Within a year, the Army

joined the Air Force and created an independent defense organization, the Army Trial Defense

Service (TDS), a vertical command and management structure separate and distinct from that of

local commands. The creation of the Army TDS, which was given permanent organizational

status in November 1980, left the Navy and Marine Corps as the only services without an

independent defense function. In short, despite an identified organizational deficiency and two

studies directly recognizing the need for structural changes, nothing of any significance changed.

Predictably, distinctions between the way similarly-situated servicemembers were

different services led to appellate scrutiny. In 1983, the Court of Military Appeals, when

reviewing a troubling case where a Navy defense counsel had his fitness report written by a

prosecutor, recognized that independent and unified defense organizations "have worked well in

the Army and the Air Force" and applauded the Navy's plan to create the independent defense

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commands.2 Later that year, Congressional attention resulted in the Military Justice Act of

1983. That act provided the Secretary of each Department the authority to establish regulations

for the detailing (assignment) of defense counsel in order to remove the convening authority

from the detailing decision-making process. Within the Department of the Navy, the defense

counsel's commanding officer, or his designee, became that detailing authority for defense

counsel. Given that the Navy had previously removed their attorneys into shore based

organizations supervised by other attorneys, Navy defense counsel were

detailed by supervisory defense counsel. By contrast, the Marine Corps remained tethered to the

command structure. There were no “commanders” of law centers or LSSSs, and therefore

supervisory defense counsel remained responsible to their commander—the very same persons

prosecuting their clients.

This obvious deficiency became readily apparent in early 1984. At that time the Marine

Corps came under direct, intense scrutiny regarding the delivery of defense counsel services at a

Law Center aboard a now defunct Marine Corps Air Station (MCAS) located in El Toro,

California. In February 1984, a Marine officer stationed at MCAS, El Toro, wrote several

Senators and Congressmen asking for an inquiry into the delivery of defense counsel services in

the Marine Corps. While specifically mentioning previous Congressional interest leading to the

establishment of independent defense counsel organizations in the Army and Air Force, he

claimed:

[T]he SJA's direct supervision and control over the assignments of

defense counsel, therefore, is one of the most problematic defects

in our system. Again, I would point out that this defect is unique

to the Marine Corps. The Marine Corps system for affording

defense counsel to accused persons presents inherent conflicts for

counsel. This problem appears to be unique to the Marine Corps. I

believe that Marines deserve the same level of justice and just as

vigorous a defense as their counterparts in the other services enjoy.

Congressional and media interest in response to this complaint led to two investigations

and an appearance by the Base Commanding General on CNN. The first investigation focused

on the defense counsel, their lack of experience, misperceptions, and the Law Center Director's

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failure to discern the morale problems within the defense section. The second investigation

focused specifically on matters such as assignment and reassignment of counsel; approval

processes for the selection of individual military counsel;3 the writing of performance

evaluations; the sufficiency of facilities; morale; perceptions; the role of a Law Center Director

dual-hatted as the command legal advisor (SJA); and ethical concerns. On September 4, 1984, in

a letter to the Secretary of the Navy, the Commandant of the Marine Corps wrote:

[A]lthough our structure is basically sound, it exposes defense

counsel to the potential for improper pressures under a supervisory

and support system that is not designed to be continuous and

reviewable at my Headquarters level. Accordingly, I have decided

that structural and procedural changes will be implemented

effective 1 February 1985 which will adopt some of the beneficial

features of other services' defense counsel systems, tailored to

Marine Corps missions and readiness.

On September 20, 1984, the Secretary of the Navy responded to the Commandant,

writing:

As you correctly point out, this case has exposed a potential

weakness in the structure under which trial defense services are

provided in the Marine Corps. Not only must we avoid situations

in which defense counsel could be exposed to accusations of undue

command influence, we must ensure both the appearance and the

fact of fair play and due process. I commend the corrective

measures you have taken and plan to take regarding this particular

area, and welcome your determination to implement a new

structure and procedures for the provision of trial defense services

throughout the Marine Corps. In view of the clear need for

separation of trial defense counsel from the staff judge advocate

chain of command, please accelerate your proposed timetable.

On November 15, 1985, MCO 5800.11A was published. This order established the

billets of Chief Defense Counsel (CDC) of the Marine Corps and three Regional Defense

Counsel—essentially a performance evaluation report chain, linking all Marine defense counsel

and enlisted assistants within a “stovepipe” defense—only reporting chain, and de-linking them

from local cognizant command authorities. This was a huge step forward for our community,

but still fell short of a truly independent defense function. It served two important functions.

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First, it established a clear process for performance evaluations. This effectively eliminated

opportunity for the local commander and/or SJA to threaten defense counsel with poor

evaluations for effective performance. Second, it established a separate supervisory chain of

command. The Regional and Chief Defense Counsels were now responsible for the morale,

leadership, and mentorship of subordinate defense counsel, and were delegated detailing

authority from the local commander. But despite these positives, this was clearly a half-measure.

For example, local Law Center and LSSS directors retained operational control over assignment

of officers and enlisted Marines to duty as Marine defense counsel. Counsel who performed well

as defense counsel were quickly reassigned as prosecutors. Similarly, underperforming

prosecutors were sometimes moved into the defense. Neither the RDC nor CDC had any

significant influence on such personnel moves. Furthermore, while authority to assign cases was

delegated to Regional and Senior defense counsel, that authority remained vested in the

Commander who, at the stroke of a pen, could remove it. Threats to remove this authority

persisted throughout my tenure as Regional Defense Counsel-East from 2004 -2006. Third, the

role of the CDC was vague and defined mostly by the occupant, not by regulation. To some it

appeared that the CDC’s role was honorary, a title given to a retiring Colonel to bolster his or her

resume. As evidence of this, the CDC was not co-located at the strategic level of the legal

organization, Judge Advocate Division, Headquarters, U.S. Marine Corps. Instead the CDC

could choose her geographic location to coincide with her desired retirement location. Fourth,

RDCs were not selected by the CDC. Instead they were selected by Judge Advocate Division.

Typically they were solid selections, but the opportunity to slide an underperforming Lieutenant

Colonel always presented a tempting option. One early RDC, in an article in the Marine Corps

Gazette—the professional journal for Marine Officers—referred to the structure as a “paper

tiger” and argued for more robust independence and authority for supervisory defense counsel.4

But with some minor modifications, such as the CDC moving into the Judge Advocate Division

and gaining a voice in selection of his or her subordinate leaders, there was little significant

change in roles, relationships, or responsibilities until 2012.

Along the way there were agents for change—those who saw obvious deficiencies

concomitant to the piecemeal solutions being periodically put in place. They built the record.

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RDCs wrote memos, submitted proposals for change, and wrote articles. CDCs took these

proposals to their leadership. In 1998 it looked for a moment as if we were about to take that

final step forward—the Staff Judge Advocate to the Commandant submitted a proposal to the

Commandant to create a completely separate and independent defense organization. In his

proposal, the SJA to CMC explained:

Since 1985, when the Marine Corps first addressed defense

counsel independence, we've asked the question: did we go far

enough? Currently, the only protections for our defense counsel

are a separate reporting chain and commander/SJA professionalism

in honoring defense service functions. We are the only service

without a fully independent defense organization. [W]e owe it to

our Marines and their defense counsel to create a defense

organization that is fully independent and capable of providing the

zealous, high quality representation our Marines deserve.

This proposal met stiff institutional headwinds. Unwilling to cede any authority to supervisory

defense counsel, senior Marine judge advocates convinced the SJA to CMC to abandon his

proposal. Regrettably he did so, and the Marine defense organization remained unchanged when

the Commandant issued a new manual for legal administration in 1999.

Over the next dozen years four different CDCs helped build the record. Each was

frustrated by the role of the cognizant command authority in the provision of defense services;

each submitted proposals to the SJA to CMC to create a more independent defense organization.

While the specifics differed slightly, each recognized that the most important aspect of these

authorities was assignment of counsel—the authority to put the right counsel to the right case.

This authority is critical to establishing an effective defense bar. As such, each proposal had one

thing in common—the transfer of assignment (detailing) authority and the authority to approve

Individual Military Counsel requests from the cognizant command authority to the supervisory

defense counsel. This formed the necessary first step to eliminate actual or perceived conflicts of

interest in the counsel selection process. But each proposal, like the next, met similar

institutional resistance to change. The results were predictable.

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2010 once again saw the Marine Corps defense bar model subject to appellate scrutiny.

The Navy and Marine Corps Court of Criminal Appeals had directed a DuBay hearing, a post-

trial fact-finding hearing held by a military judge, to clarify certain points not found in the

record. In this particular case, the hearing concerned the assignment of counsel. In full

disclosure, I was deeply involved in this matter, as I was at the time of counsel assignment the

Regional Defense Counsel-East. The accused was an officer who had been convicted in relation

to a series of sex offenses—unwanted touching and solicitation of sex from other Marines during

a visit to Ireland in commemoration of World War II. But because of then-existing assignment

policies, the accused’s counsel was a judge advocate who served concurrently as a trial counsel

(prosecutor) and a defense counsel within the same LSSS. To be clear, I was involved in this

decision. But to be equally clear, I had little discretion in the matter, and made the best decisions

I could based on the authorities that governed. The DuBay Judge acknowledged that full review

of Marine defense structure was outside the scope of his mandate but nonetheless commented

that:

[T]his case should be instructive to the Marine Corps judge

advocate community on many levels. The command structure as it

currently exists clearly contributed to the events as they unfolded.

Based on (by all accounts) the excellent working relationship

among the OIC of the LSSS, the RDC, and the SDC at Camp

Lejeune, this is presumably the best the current system can work.

What of instances in which working relationships are strained?5

In short, the Judge noted that even where personalities meshed; even in a system where the

parties worked towards common sense solutions, the structural deficiencies were overwhelming.

Ultimately, and directly as a result of these deficiencies, the Navy and Marine Corps Court

overturned the conviction.

Further exacerbating matters, several incidents throughout 2010 gave credence to the

DuBay Judge’s concerns. Defense counsel were threatened by an SJA with reprisal for doing

their jobs; ordered by their commanding officer not to interview witnesses; opposed by their

cognizant command authority in court; had detailing authority revoked (leaving clients at one

installation with no defense counsel to provide representation); were subjected to short-tours as

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defense counsel; and witnessed other incidents that raised legitimate concerns, particularly

among junior defense counsel, about the fairness of how military justice is delivered in the

Marine Corps.

Agents for Change and Our Current Structure

Partially as a result of these events, but largely due to the efforts of three visionary

leaders things dramatically changed in 2012. Colonel Rosemarie Favors, U.S. Marine Corps

(Retired), CDC from 2007-2010, set the conditions for change; then Colonel, now Brigadier

General John Baker, U.S. Marine Corps, CDC from 2010-2013, developed the plan; and Major

General Vaughn Ary, U.S. Marine Corps (Retired), Staff Judge Advocate to the Commandant of

the Marine Corps from 2010-2014, provided the new vision for the provision of legal services in

the Marine Corps.

Capitalizing on a renewed interest in military justice by both Congress and the public,

General Ary went about establishing the first complete reorganization of the provision of Marine

Corps legal services since the 80’s. In doing so he did several important things. First, he

established a clear, bright line between those tasked with providing command advice (SJAs) and

those providing trial services (prosecutors and defense counsel). This helped establish a strong

regulatory buffer between the cognizant command authorities and those serving in the

courtroom. Second, he realigned trial services to each of the four Marine Corps installation

commands. This completely changed the way in which the Marine Corps viewed legal services.

Rather than being a logistical function, it became a base or station function, much like a hospital.

In fact, one common refrain from General Ary was to turn our four LSSS’s into “teaching

hospitals” for young attorneys to learn and hone their craft. Third, and most importantly, he and

General Baker established the Defense Services Organization. While still short of a truly

independent defense structure like one may find in the Army or Air Force, he bolstered the role

of the CDC; moved case assignment and Individual Military Counsel approval authority from

commanders to the CDC; established clear and easily articulable professional criteria for those

tasked to serve as CDC and as RDC; gave the CDC a stronger voice in the selection of his

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subordinate leadership; directed parity in training and resource dollars; set minimum tour lengths

for Defense Counsel; and directed the CDC retain operational control over the day-to-day

functions of Marines assigned to the DSO.

Presently the DSO remains under my operational control. I have four Regional Defense

Counsel, each aligned with the four Legal Services Support Sections: RDC National Capital

Region, located at Marine Corps Base Quantico, Virginia is responsible for to me for the

provision of defense services in Northern Virginia, The District of Columbia, Maryland, western

Europe, and the Reserve Force Structure in New Orleans,; RDC East, located at Marine Corps

Base Camp Lejeune, North Carolina, responsible to me for the provision of defense services in

North and South Carolina, Florida, and Georgia; RDC West, located at Camp Pendleton,

California, responsible to me for the provision of Defense Services in California, and Arizona;

and RDC Pacific, located in Okinawa, Japan, and responsible to me for the provision of defense

services in Okinawa, mainland Japan, and Hawaii. Beneath my RDCs are 10 Senior Defense

Counsel, one at each installation. They, in turn, have a number of line defense counsel

responsible to them varying in number based on local organizational demand signal. In total I

have more than 70 defense counsel, more than 20 enlisted support personnel, and two civilian

Highly Qualified Litigation Experts. I exercise operational control over the organization through

regular site visits, an established training campaign plan, advocating for resource and personnel

allocations with my peers inside Judge Advocate Division, and policy memos establishing

policies and procedures for counsel to follow. I also try to set a personal example by

participating in and leading training events and by carrying a small caseload commensurate with

my supervisory responsibilities.

Challenges for the Future

Despite the progress over the past four years, the Marine Corps remains the only service

without a truly independent Defense Services Organization. We have taken many important

steps forward, and I am constantly reminded that strategic change takes time, but there are still

areas which require improvement. This has animated my tenure as CDC, and informs my CDC

priorities over the past two years. Like my predecessors, I struggle to maintain those aspects of

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our practice and culture which makes us different as Marines, while staying true to our DSO

organizational creed:

We are Marines - Judge Advocates and Legal Services Specialists - who

are dedicated to defending our fellow Marines and Sailors, by providing

them legal counsel in any matter required by statute, regulation, or

otherwise authorized. We are zealous advocates for our clients, serving

independently of the local chain of command and under the supervision of

the Marine Corps Defense Services Organization. We zealously represent

each and every client within the guidelines of the law, consistent with our

professional ethics, and in accordance with our rules of practice. We

selflessly perform our duties with the utmost integrity, motivation and

pride, without fear of reprisal, or expectation of professional or personal

gain. In the same spirit as “Taking Care of Our Own,” we are: “Marines

Defending Marines.”

The Lee Court pointed out a critical fact—that the system under which we then operated

was entirely personality dependent. So long as the personalities meshed; so long as the RDC and

LSSS OIC were able to work together, the system could function at capacity. But because the

Government retained carte blanch authority, even when functioning at capacity it was

fundamentally deficient. The single greatest change in our system which resulted, and my most

powerful tool, is that of counsel assignment. Organizationally the DSO remains somewhat of a

paper tiger. I am responsible for the provision of defense services in the Marine Corps, yet I

share my responsibility for my Marines with the Officers-in-Charge of the four Legal Services

Support Sections. Marines remain assigned to those organizations. Only upon the decision of

the LSSS OIC is an Officer or Marine made a part of the DSO. My level of participation in

those decisions, and that of my subordinate leadership, remains entirely dependent on the

personality of the parties involved. Secondly, the authorities granted to the DSO by General Ary

are similarly personality-dependent. While I retain case assignment authority, the Government

retains control over the personnel assignment process, both for individuals and billet location.

The degree to which I am involved in that process is likewise personality-dependent. Finally, the

Government retains the power of the purse. I have no independent budget. Instead, I must ask

the Government to fund my travel, my training program, and civilian hiring. Despite the good

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21

intentions of all parties involved, particularly when it comes to civilian hiring, competition for

scarce dollars in a resource constrained environment is fierce. The same holds true for access to

evidence—my counsel have neither subpoena power nor independent defense investigators—and

must instead ask the prosecutor to produce, or the Military Judge to order production of,

evidence and witnesses.

So I end where I began. Strategic change takes time. Piecemeal solutions are not

solutions, —we must be prepared to do that which is hard. And we must build the record. I

suggest that the greatest lesson this panel can take from the Marine DSO is not in our

organizational structure, but is instead these three key points. It took nearly 43 years for the

Marine Corps to implement the changes now in place and establish the DSO. Strategic change

takes time, and requires tactical patience. Over those 43 years there were no less than three

studies, and multiple proposals for change. But even a minor crisis at El Toro only led to

stopgap measures. It took a subsequent crisis, United States v. Lee, and increased Congressional

and public scrutiny over military justice, for there to be substantive change. It may have been

wise to do the hard thing earlier rather than lurching from crisis to crisis, reacting to problems

rather than solving them. We must be prepared to do the hard thing to implement true strategic

change. Finally, the changes borne in 2012—the creation of the DSO and all the authorities

concomitant thereto—were only possible because for the past 43 years Marines have been

making the record. The men and women who built the DSO were able to rely on years of

thoughtful, thorough, analysis and an established record demanding strategic change. In view of

how hard strategic change is, we must continue to build the record.

We have made many great strides forward in the Marine Corps towards a truly

independent defense function. But while the DSO is functionally independent, the opportunity to

abuse resource allocation and personnel assignments in order to influence judicial outcomes is

still possible. In my estimation the Marine Corps is one or two iterations away from striking the

right balance between being a part of the Marine Corps structure and having the independence

required for the unfettered and zealous advocacy of our clients. If the DSO can obtain parity

with regards to independent funding, equipment, and resources; secure equal access to evidence,

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experts, and investigators; and obtain a “veto” or “right of first refusal” when it comes to

personnel assignments, the DSO will be where the GAO recommended it should have been in

1976: a truly “independent defense counsel organization.” I once again thank the Committee for

the opportunity to provide comment, and am prepared to take your questions.

The views and opinions in these remarks are those of the author and do not represent the

views or opinions of the United States Marine Corps, the Department of the Navy, or the

Department of Defense.

1 Unlawful Command Influence (UCI) has frequently been called the "mortal enemy of military justice" See United

States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986). Command influence in general is not per se unlawful—in fact it

is necessary and expected. However, in the military justice arena, command influence becomes unlawful when there

is inappropriate interference with the independent discretion vested in each stakeholder to the military justice

process (e.g. UCI can occur when senior personnel act outside the court to shape the proceedings by influencing

court members (the jury) to vote a certain way, indicating repercussions if a witness testifies a certain way, or senior

personnel have any ex parte communication with a military judge about a pending case). Such unlawful influence

not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect

for the chain of command, and public confidence in the military. The effects of UCI are so negative to morale and

so offensive to the notions of fair play and justice that even the appearance of UCI can lead to relief.

“. . . because the inherent power and influence of command are necessary and omnipresent facets of military life,

everyone involved in both unit command and in military justice must exercise constant vigilance to protect against

command influence becoming unlawful” United States v. Harvey, 64 M.J. 13, 17-18 (C.A.A.F. 2006).

“The mandate of United States [v.] Biagase, 50 M.J. 143 [C.A.A.F. 1999] could not be more clear. Undue and

unlawful command influence is the carcinoma of the military justice system, and when found, must be surgically

eradicated. And this is going to be what we are about to see, the eradication of something that has shocked the

conscience of this court” See United States v. Gore, 60 M.J. 178, 184 (C.A.A.F. 2004).

2 United States v. Nicholson, 15 M.J. 436, 439 (C.M.A. 1983).

3 Article 38(b) of the Uniform Code of Military Justice permits an accused to be represented by a defense counsel of

his own selection if that counsel is determined to be reasonably available under applicable regulations.

“Congress has provided members of the armed forces facing trial by general or special court-martial with counsel

rights broader than those available to their civilian counterparts. A military accused in such proceedings has the right

to representation by government-compensated military counsel regardless of indigence and also has the right to

select a particular military counsel in limited circumstances. These rights reflect the unique nature of military life, in

which members are subject to worldwide assignment and involuntary deployment under circumstances when

civilian counsel are not readily available.” United States v. Spriggs, 52 M.J. 235, 237-238 (C.A.A.F. 2000).

An additional counsel assigned to a case as the result of a by-name request made by an accused is referred to as

“individual military counsel” or “IMC”. 4 LtCol J. M. Roake, USMC, The Marine Corps Defense Bar: A Paper Tiger, Marine Corps Gazette, Dec. 1988.

5 United States v. Lee, 66 M.J. 387 (C.A.A.F. 2008).

Enclosure 1

Colonel Stephen C. Newman

Chief Defense Counsel of the Marine Corps, Officer-in-Charge, Defense Services Organization

Colonel Stephen C. Newman was born in Detroit, Michigan. Raised in Indiana, he graduated

from Eastbrook High School in 1982. After enlisting in the reserves of the United States

Marine Corps, in 1984 he attended recruit training at Marine Corps Recruit Depot San Diego,

California. In 1986 he graduated from Taylor University, Upland Indiana, with a Bachelors

Degree in Political Science. While attending Capital Law School in Columbus, Ohio, he

attended Officer Candidate School. Commissioned a Second Lieutenant in August of 1988, he

returned to law school and received his Juris Doctor in 1990. During this period he was

promoted to First Lieutenant. After graduating from The Basic School and Naval Justice

School, in 1992 he reported to Marine Corps Logistics Base, Barstow, California where he

served alternate periods as Trial Counsel, Defense Counsel, and Legal Assistance Officer,

prosecuting and defending a variety of felony offenses. During this period he was promoted to

Captain.

In 1995 Captain Newman attended Amphibious Warfare School. Graduating in 1996, he was

assigned as Deputy Staff Judge Advocate, 1st Force Service Support Group, I Marine

Expeditionary Force. In December of 1995 he was reassigned as Staff Judge Advocate, 13th

Marine Expeditionary Unit. During two deployments he participated in OPERATION SILENT

ASSURANCE and OPERATION SOUTHERN WATCH, and was promoted to Major.

In 1999 Major Newman was selected to attend The Graduate Course at The Judge Advocate

General’s School of the U.S. Army, where he received his LLM in Military Law (focus in

International and Operational Law). Following school Major Newman served in the Republic

of Korea as Deputy Chief, Operational Law Division, United States Force Korea, Ground

Warfare Law Officer, Combined Forces Command, Korea, Operational Law Attorney, United

Nations Command, and Staff Judge Advocate, United States Marine Corps Forces, Korea.

During this period Major Newman was a member of a team that negotiated with the

Democratic People’s Republic of Korea, leading to the first subsequent agreement the

Armistice Agreement in twenty years.

In 2002 Major Newman was reassigned to the 2d Force Service Support Group, II Marine

Expeditionary Force, where he served as Senior Defense Counsel, representing Marines in a

variety of high-profile cases. In February 2004 he was promoted to Lieutenant Colonel and

reassigned as Regional Defense Counsel, Eastern Region. Specifically requested for

representation by a Marine facing detainee abuse charges, Lieutenant Colonel Newman

deployed to Iraq in support of OPERATION IRAQI FREEDOM II.

In 2005 he was reassigned as Deputy Staff Judge Advocate, Marine Corps Installations East.

During this period Lieutenant Colonel Newman participated in OPERATION ENDURING

FREEDOM where he served as Chief, Current Operations for Combined Forces Command,

Afghanistan. Upon his return he served as the acting Staff Judge Advocate, Marine Corps

Installations East and was selected to be a student at the National War College, Fort McNair,

Washington, D.C., where he received his Masters Degree in National Security Strategy (with

Enclosure 1

Honors). Following this he was assigned duties as Staff Judge Advocate and Law Center

Director, Marine Corps Base Quantico, Virginia. In August 2009 he was promoted to Colonel.

In July 2010 he assumed duties as SJA, 2d Marine Aircraft Wing, II Marine Expeditionary

Force, supporting over 17,000 Marines and Sailors and 52 separate commanders at four Air

Stations in three states. In July 2012 he assumed duties as Director, Code-46, Appellate

Government Division, where he represented the United States before the Navy-Marine Corps

Court of Criminal Appeals and Court of Appeals for the Armed Forces. In June of 2014 he

assumed his present duties.

Colonel Newman is a member of the Ohio Bar. His writings include Duress as a Defense to

War Crimes and Crimes Against Humanity-Prosecutor v. Drazen Erdemovic, 166 MIL. L.

REV. 158 (2000), and Observations On War, International Law, And World Systems

Change: A Comparative Analysis Of Legitimacy As An Element Of Hegemonic Power (thesis

manuscript, 2008). His personal decorations include the Legion of Merit (gold star in lieu of

second award), Defense Meritorious Service Medal (oak leave cluster in lieu of second

award), the Meritorious Service Medal, the Navy Commendation Medal, the Joint Service

Achievement Medal, and the Navy Achievement Medal (gold star in lieu of second award).

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LEGADMINMAN

CHAPTER 2

THE MARINE CORPS DEFENSE SERVICES ORGANIZATION

PARAGRAPH PAGE

PURPOSE. . . . . . . . . . . . . . . . . . . . . . . . 2000 2-2

GENERAL. . . . . . . . . . . . . . . . . . . . . . . . 2001 2-2

PERSONNEL. . . . . . . . . . . . . . . . . . . . . . . 2002 2-3

TOUR LENGTH . . . . .. . . . . . . . . . . . . . . . . 2003 2-8

REASSIGNMENT . . . . . . . . . . . . . . . . . . . . . 2004 2-8

COLLATERAL DUTIES. . . . . . . . . . . . . . . . . . . 2005 2-9

DETAILING. . . . . . . . . . . . . . . . . . . . . . . 2006 2-10

REPRESENTATION AT INITIAL REVIEW OFFICER HEARINGS. . . 2007 2-11

REQUESTS FOR INDIVIDUAL MILITARY COUNSEL (IMC) . . . . 2008 2-11

PROFESSIONAL RESPONSIBILITY COMPLAINTS . . . . . . . . 2009 2-12

MISCONDUCT ALLEGATIONS . . . . . . . . . . . . . . . . 2010 2-12

ADMINISTRATIVE AND LOGISTICAL SUPPORT. . . . . . . . . 2011 2-12

BUDGETING AND FUNDING GUIDANCE . . . . . . . . . . . . 2012 2-12

APPLICABILITY. . . . . . . . . . . . . . . . . . . . . 2013 2-13

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CHAPTER 2

THE MARINE CORPS DEFENSE SERVICES ORGANIZATION

2000. PURPOSE. The purpose of this chapter is to describe the organization,

roles, and responsibilities of the Marine Corps Defense Services Organization

(DSO), as provided for in law, regulations, and rules of professional conduct.

2001. GENERAL

1. The Sixth Amendment to the United States Constitution provides, “In all

criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” For Service members pending court-

martial, the right to counsel is provided by Congress through Article 27,

Uniform Code of Military Justice (UCMJ) and implemented by the President through

Rule for Courts-Martial (R.C.M.) 506, Manual for Courts-Martial (MCM). The

Secretary of the Navy, through JAGINST 5800.7F, The Manual of the Judge Advocate

General (JAGMAN), provides Departmental policy and regulations regarding the

right to counsel and the formation of the attorney-client relationship. This

chapter, which supplements the JAGMAN, provides Service policy regarding the

delivery of defense counsel services within the Marine Corps. Further, the

Chief Defense Counsel of the Marine Corps (CDC) will publish policy and

administrative procedures applicable to judge advocates serving as Marine

defense counsel. These documents will be available on the DSO website.

2. Marine Corps defense counsel services are performed by commissioned officers

who are licensed attorneys, certified as judge advocates under Article 27(b),

UCMJ, and assigned to defense counsel billets in the DSO. Marine defense

counsel serve at locations throughout the Marine Corps and are administratively

attached to Legal Services Support Sections (LSSS). However, Marine defense

counsel are under the operational control and supervision of and responsible and

accountable to the CDC and the responsible Regional Defense Counsel (RDC) for

the delivery of defense counsel services at their respective locations.

3. A Marine defense counsel must exhibit unfettered loyalty and professional

independence in representing the client, and is ultimately responsible for

acting in the client’s best interest. A Marine defense counsel’s primary duty

is to provide zealous, ethical, and effective representation to Marines and

other Service members; this duty is limited only by law, regulation, and the

Rules of Professional Conduct (JAGINST 5803.1D).

4. Attorney-Client Relationships

a. A Marine defense counsel will not establish an attorney-client

relationship with any individual unless detailed, assigned, or otherwise

authorized to do so by his or her detailing authority.

b. Once established, the attorney-client relationship, whether for a court-

martial or administrative separation board, may only be severed under the

provisions of R.C.M. 505 and R.C.M. 506 of the UCMJ and the Rules of

Professional Conduct.

c. A Marine defense counsel shall continue to represent an accused post-

trial until the accused is assigned an appellate defense counsel, if applicable,

or until completion of any and all post-trial or post-board matters; however,

for purposes of paragraph 2004 of this chapter, a Marine defense counsel’s tour

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with the DSO is considered complete when R.C.M. 1105/1106 matters, if

applicable, have been submitted for every criminal case to which the defense

counsel was detailed and comments on the Report of the Board have been submitted

for every officer and enlisted administrative separation board to which the

defense counsel was detailed.

5. Guiding Principles

a. The Marine Corps DSO must be independent of unlawful pressure or

influence.

b. Funding for training, resources, and facilities shall be consistently

provided across the Marine Corps legal community, and there shall be equitable

distribution, commensurate with mission requirements, between the defense

function and the prosecution function with respect to the following: access to

resources, capabilities, and facilities; seats at continuing legal education

courses; training funds; and support staff.

c. Requests for specific case-related funding submitted to the convening

authority shall be considered and processed consistent with Article 46, UCMJ,

the MCM, and the JAGMAN.

d. Marine defense counsel shall be provided sufficient time and access to

clients to achieve a full and confidential exchange of legal, procedural, and

factual information. To ensure confidential communications, private meeting

spaces must be available at offices, confinement facilities, courtrooms, and all

other places where clients and counsel must confer in confidence.

e. To ensure that a Marine defense counsel’s workload is not too large as

to interfere with his or her ethical obligations to any individual client,

supervisory attorneys shall consider factors such as an individual counsel’s

experience and caseload, case complexity, anticipated end of tour date, and

traditional officer duties when assigning counsel to a particular case.

f. A Marine defense counsel’s ability, training, and experience should

match the complexity of the case. Supervisory attorneys will only assign

counsel who are properly qualified to handle a particular case.

2002. PERSONNEL

1. Marine Corps Defense Services Organization (DSO). The Marine Corps DSO

encompasses all defense counsel and defense support personnel assigned to Marine

Corps Commands. The DSO operates under the supervision of, and is responsible

and accountable to the CDC for the delivery of defense services throughout the

Marine Corps. For purposes of this chapter, “supervision” includes professional

responsibility oversight, defense-oriented training, assignment of defense

counsel to particular cases, and execution of the day-to-day operations of the

DSO.

2. Chief Defense Counsel of the Marine Corps (CDC). The CDC is the head of the

DSO and responsible for supervision of all Marine defense personnel and the

delivery of defense counsel services throughout the Marine Corps.

a. The CDC shall be an experienced judge advocate serving in or selected to

the grade of O-6/Colonel. The CDC is assigned in accordance with Article 6,

UCMJ. The Staff Judge Advocate to the Commandant of the Marine Corps (SJA to

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CMC) should, when possible, consult with the current CDC and take into

consideration the following when selecting a successor CDC:

(1) Designation with the Necessary Military Occupational Specialty

(NMOS) of 4409 (criminal law);

(2) Prior experience as a Defense Counsel (DC), Senior Defense Counsel

(SDC), Officer-in-Charge, Defense Counsel Assistance Program (DCAP), and/or

Regional Defense Counsel (RDC); and,

(3) Significant litigation experience as either a trial or defense

counsel or as a military judge.

b. Upon assignment, the SJA to CMC will provide the CDC with an appointment

in writing on behalf of the Commandant of the Marine Corps (CMC). The CDC's

reporting senior and reviewing officer is the SJA to CMC.

c. The CDC is assigned to Judge Advocate Division (JAD), Headquarters

Marine Corps (HQMC) and receives administrative support from HQMC.

d. The CDC is supported by a legal services specialist staff non-

commissioned officer of appropriate experience and temperament selected in

coordination with the Legal Services Chief of the Marine Corps.

e. The CDC serves as the supervisory attorney for the RDCs, DCAP, SDCs, and

DCs.

f. Specific CDC duties include, but are not limited to:

(1) Establishing standard operating procedures for the delivery of

defense counsel services throughout the Marine Corps;

(2) Conducting, at a minimum, one site inspection at each Legal Services

Support Section (LSSS) and subordinate LSST annually;

(3) Assessing through personal observations, inspections, reports of

others, and records reviews, the practice, procedure, and techniques of defense

counsel and enlisted support personnel in the performance of defense functions;

(4) Assessing the adequacy of facilities and assets provided to defense

counsel;

(5) Monitoring the experience level of judge advocates assigned as

defense counsel relative to judge advocates assigned as trial counsel;

(6) Reporting to the SJA to CMC annually regarding the delivery of

defense counsel services within the Marine Corps;

(7) Detailing Marine defense counsel and auxiliary defense counsel to

cases consistent with paragraph 2006 of this order and section 0130 of the

JAGMAN; and

(8) Making availability determinations for Marine defense counsel to

serve as Individual Military Counsel (IMC) consistent with paragraph 2008 of

this order and section 0131 of the JAGMAN.

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(9) Ensure the selection of subordinate leaders within the DSO who are

the best and fully-qualified to serve in leadership billets.

(10) Ensure that the internal organization structure of the DSO best

facilitates the accomplishment of the DSO mission.

(11) Ensure proper mentorship and training for all DSO members.

3. Officer-in-Charge, Defense Counsel Assistance Program (DCAP). DCAP is

directly responsible to the CDC for the training and support of the DSO Marines.

a. DCAP is a Marine judge advocate, preferably serving in or selected to

the grade of O-4/Major with the NMOS of 4409 (criminal law) who serves as head

of DCAP.

b. DCAP is administratively assigned to HQSVC Bn, HQMC and receives

administrative support from HQMC.

c. Specific DCAP duties include, but are not limited to:

(1) Planning and coordinating DSO-wide and regional training events to

ensure that defense counsel and support personnel receive appropriate training;

(2) Monitoring defense counsel performance through personal observation,

reading records of trial and briefs, and meeting and corresponding with senior

judge advocates, military judges, and commanders;

(3) Assessing and reporting to the CDC on the adequacy of support,

assets, and facilities provided defense counsel at their location; and

(4) Maintaining and updating web-based support, such as the DSO

SharePoint site and the DSO public website.

(5) DCAP may maintain a caseload that does not interfere with DCAP's

responsibilities for training and mentoring personnel within the DSO.

4. Regional Defense Counsel (RDC). An RDC is administratively attached to the

LSSS but is directly responsible to the CDC for the delivery of defense counsel

services within a region. A legal services specialist non-commissioned officer

with prior military justice or defense experience is assigned to each RDC

office.

a. RDCs are Marine judge advocates serving in or selected to the grade of

O-5/Lieutenant Colonel, with considerable expertise in military justice matters

and will normally possess the NMOS of 4409 (criminal law).

b. RDCs serve as the supervisory attorney for the SDCs and DCs assigned to

their LSSS and their subordinate LSSTs.

c. RDCs select personnel to serve as Senior Defense Counsel and approve the

assignment of judge advocates to serve as Defense Counsel.

d. Subject to the approval of the CDC, RDCs organize defense leadership

billets in their region to ensure efficient and effective DSO mission

accomplishment.

e. Specific RDC duties include, but are not limited to:

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(1) Coordinating with local commands to ensure that defense counsel and

support personnel receive appropriate training;

(2) Conducting, at a minimum, semi-annual site visits to each

subordinate LSST defense branch;

(3) Monitoring defense counsel performance through personal observation,

reading records of trial and briefs, and meeting and corresponding with senior

judge advocates, military judges, commanders, and Naval Criminal Investigative

Service supervisory special agents (NCIS SSA);

(4) Assessing and reporting to the CDC on the adequacy of support,

assets, and facilities provided to defense offices within the region;

(5) Detailing defense counsel assigned to their respective region,

provided that authority has been delegated by the CDC consistent with paragraph

2006 of this chapter; and,

(6) Making IMC availability determinations for defense counsel assigned

to their respective region, provided that authority has been delegated by the

CDC consistent with paragraph 2008 of this chapter.

f. An RDC’s primary duty is the training, mentoring, and supervision of

subordinate defense counsel in the RDC's region. If a RDC maintains a case

load, it should not interfere with the RDC’s responsibilities for training,

mentoring, and supervising personnel within the region.

5. Senior Defense Counsel (SDC). An SDC is directly responsible to the RDC and

CDC for the delivery of defense counsel services in support of the Marines and

Sailors serviced by their LSST or an element thereof.

a. SDCs are Marine judge advocates, preferably serving in or selected to

the grade of O-4/Major, normally with the NMOS of 4409 (criminal law), who serve

as head of the defense section for the LSST. SDCs will be appointed in writing

by the RDC.

b. SDCs are administratively attached to the LSST, but are responsible and

accountable to their RDC and the CDC for the delivery of defense services by

their LSST.

c. Specific SDC duties include, but are not limited to:

(1) Ensuring that defense counsel and support personnel receive

appropriate training;

(2) Monitoring defense counsel performance through personal

observation, reading records of trial and briefs, and meeting and corresponding

with senior judge advocates, military judges, commanders, and NCIS SSAs;

(3) Assessing and reporting to the RDC on the adequacy of support,

assets, and facilities provided defense counsel at their location;

(4) Detailing defense counsel assigned to that SDC’s specific location,

provided that authority has been properly delegated by the RDC or CDC consistent

with paragraph 2006 of this chapter; and

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(5) Reporting periodically on the condition of trial defense services

at his or her location to the RDC and/or CDC.

d. An SDC will maintain a caseload that does not interfere with the SDC’s

responsibilities for training, mentoring, and supervising personnel within the

section.

6. Defense Counsel. A defense counsel’s primary duties are to represent

Marines and Sailors in courts-martial, administrative boards, and other

proceedings, to provide counsel as required by law or regulation, and to perform

other duties as prescribed by the SDC, RDC, or CDC. Defense Counsel are

administratively assigned to the LSST, but once assigned to a defense billet in

the DSO, they are under the supervision of and responsible and accountable to

his or her SDC, RDC, and the CDC. Defense counsel will be assigned to their

duties by the cognizant LSSS OIC or LSST OIC detailing authority in written

memorandum that includes an anticipated end date for their tour as a defense

counsel.

7. Auxiliary Defense Counsel

a. If needed to meet requirements, the LSSS or LSST OIC may identify a

judge advocate that will be available to be detailed by the CDC or his or her

designee to be a defense counsel for a particular case. Staff judge advocates,

deputy staff judge advocates, trial counsel, victim legal counsel, or review

officers may not serve as auxiliary defense counsel.

b. As outlined in paragraph 2010.3 of MCO P1610.7F (PES), auxiliary defense

counsel concurrently performing non-defense duties may receive simultaneous

fitness reports from a member of the DSO to evaluate the auxiliary defense

counsel’s performance as a defense counsel and from his or her supervisor

outside of the DSO to evaluate the performance of non-defense counsel duties.

8. Student Judge Advocates. Student judge advocates (MOS 4401) may be assigned

by LSST OIC to support the LSST defense branch in a manner similar to that

provided to support the military justice section. While assigned to the defense

section, student judge advocates are under the supervision of and responsible

and accountable to the DSO. While they may assist in the preparation of cases

and are bound by the attorney-client privilege, they may not be detailed to

represent clients. With the approval of the military judge, student judge

advocates may sit at counsel table.

9. Enlisted Support Personnel

a. A defense legal services specialist’s primary duties are to assist

defense counsel in their representation of Marines and Sailors in courts-

martial, administrative boards, and other proceedings and to perform other

duties as prescribed by the SDC, DCAP, RDC, or CDC.

b. Defense legal services support specialists are administratively assigned

to the LSST, but once assigned to a defense billet in the DSO, they are under

the supervision of and responsible and accountable to his or her SDC, RDC, and

the CDC.

c. The Office of the Chief Defense Counsel of the Marine Corps should be

supported by a legal services support specialist with formal paralegal training

and in the rank of at least a staff sergeant/E-6. Also, the Offices of the

Regional Defense Counsel should be supported by a legal services support

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specialist with formal paralegal training and in the rank of at least an E-

6/Staff Sergeant.

10. Judge Advocate Reserve Defense Services Branch (JRD)

a. The DSO includes judge advocates who are members of the Reserve Component

of the Marine Corps. These Reserve DSO members serve in billets within the

Office of the CDC or in the RDC Offices.

b. The most senior-ranking billet for a Reserve Component member of the DSO

is Branch Head, Judge Advocate Reserve Defense Services Branch. This billet is

held by an O-6/Colonel and is the Reserve counterpart to the Chief Defense

Counsel of the Marine Corps.

c. The Reserve DSO members are administratively attached to the Reserve

Legal Support (RLS) Branch at the Judge Advocate Division, Headquarters, Marine

Corps. However, these judge advocates are under the operational control and

supervision of and responsible and accountable to the CDC.

2003. TOUR LENGTH

1. After consultation with the RDC, the LSSS or LSST OIC will establish an

anticipated end date for a Marine’s tour with the DSO, which normally will be at

least 18 months for defense counsel billets and 12 months for defense enlisted

support personnel. When assigning a Marine to the DSO, the OIC will memorialize

the anticipated end of tour date in writing and provide a copy of the assignment

letter to the RDC.

2. The RDC will ensure, as far as practicable, that the agreed upon tour length

for a defense counsel coincides with the termination of that defense counsel’s

duties and responsibilities.

3. If circumstances arise that require curtailing a defense counsel’s tour

before the previously established agreed upon end of tour date, the LSSS OIC and

RDC shall together establish a new end of tour date.

4. If the parties cannot mutually agree upon a new end of tour date, the

cognizant OIC, shall report, in writing, the circumstances requiring the tour

curtailment to the SJA to CMC via the CDC.

5. A defense counsel tour is not considered to be complete until R.C.M.

1105/1106 and post-board matters have been submitted for every case to which the

defense counsel remains detailed and written matters are submitted concerning

the reports of administrative separation boards such as Boards of Inquiry or

Involuntary Enlisted Administrative Separation Boards.

2004. REASSIGNMENT

1. The reassignment of a Marine defense counsel requires careful planning and

coordination between the RDC and the LSSS OIC.

2. Once a Marine defense counsel is slated for reassignment by the OIC, the

responsible RDC must ensure that the defense counsel is not detailed cases

anticipated to extend beyond the targeted reassignment date without the consent

of the OIC. If the RDC and the OIC cannot reach an agreement on the detailing

decision involving a case that will likely extend beyond the defense counsel’s

anticipated rotation date, the matter will be forwarded to the CDC for

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resolution. If the CDC cannot resolve the matter, the matter will be forwarded

to the SJA to CMC for final decision.

3. If a Marine defense counsel is pending reassignment, including discharge or

retirement, prior to the completion of defense counsel duties, including post-

trial representation, the responsible RDC must ensure the defense counsel has:

a. Notified all remaining clients and any co-counsel in writing of the

pending reassignment;

b. Informed all remaining clients of their options with regard to the

pending reassignment;

c. Arranged for the client, when the reassignment creates a conflict of

interest with a particular case, to consult with a conflict-free counsel about

the matter and ensure the client’s understanding of this advice is memorialized

in writing, counter-signed by the client, and, in court-martial cases, provided

to the military judge; and,

d. Notified the military judge detailed to any ongoing courts-martial of

the defense counsel’s pending reassignment.

4. Absent a knowing and affirmative waiver by the client of the apparent

conflict of interest, and approval by a military judge, judge advocates may not

serve concurrently, including periods of transition between billets, as a judge

advocate assigned to the DSO or an auxiliary defense counsel and as:

a. A trial counsel or a victims’ legal counsel on any case;

b. The deputy SJA or SJA to the convening authority of any case in which

the defense counsel is still performing defense counsel duties, including post-

trial representation;

c. The LSST OIC that the defense counsel is assigned to; or,

d. Other billets which would create a conflict of interest with concurrent

service as a defense counsel.

2005. COLLATERAL DUTIES

1. Marine defense personnel shall perform routine non-defense duties, such as

unit PT, training, and standing duty so long as those collateral duties do not

have a military justice connection or conflict with their statutory and ethical

obligations to their clients. For example, a defense attorney cannot serve as a

duty officer if he or she is responsible for checking Marines on or off

restriction or is required to make command visits to the local confinement

facility. A Marine defense counsel may, with the consent of the responsible

RDC, augment the local legal assistance office.

2. Recognizing the smaller caseload in a combat or expeditionary environment,

Marine defense personnel may also perform non-defense duties in an expeditionary

or combat environment such as working group member in operational planning teams

in civil affairs, information operations and detainee operations, or providing

legal assistance so long as these duties do not have a military justice

connection or conflict with their statutory and ethical obligation to their

clients. Prior to assigning a Marine defense counsel to these duties, the

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Marine Air Ground Task Force (MAGTF) SJA should consult with the responsible

RDC.

2006. DETAILING

1. For detailing purposes, the CDC is the OIC of the DSO under JAGMAN section

0130(b) and is the detailing authority for the DSO. Detailing authority

includes the authority to remove a counsel from a case for good cause. The CDC

may further delegate detailing authority for Marine defense counsel to

subordinates within the DSO, subject to the restrictions set forth below.

Further delegation of detailing authority will be published via CDC Policy

Memorandum.

2. Prior to detailing a defense counsel to a particular case, the detailing

authority will consider such factors as: the geographic locations of the

accused and counsel, the expected location of the hearing the anticipated

rotation date of the defense counsel, the counsel’s caseload and experience, any

applicable conflict-of-interest analysis, the case complexity, collateral duties

assigned to the defense counsel, and the defense counsel’s training and

education requirements. The detailing of assistant defense counsel to contested

and/or complex cases is encouraged.

3. When detailing a defense counsel to a particular case, the detailing

authority shall ensure that: 1) standard detailing criteria are used; 2) the

needs of the local commands are taken into consideration; 3) every accused

receives zealous representation by a fully qualified counsel; and 4) every

accused is detailed counsel in a timely manner.

4. The responsible detailing authority shall detail a defense counsel in

writing to a particular case as soon as practicable and in no case later than:

a. Ten days of being notified via e-mail, fax, or other written means by

corrections personnel, command representatives, the military justice section, or

some other government official that an accused has been placed in pretrial

confinement or arrest under R.C.M. 305;

b. Five days of being served notice of preferred charges;

c. Five days of being served notice of the appointment of an Article 32,

UCMJ, Investigating Officer;

d. Five days of being served an administrative separation/board of inquiry

package; or,

e. As otherwise required by law or regulation.

5. The detailing authority will provide a copy of the detailing memorandum to

the appropriate representative of the client’s command and the cognizant

prosecution section.

6. With the consent of the SJA to CMC, the CDC may detail himself or herself to

a case.

7. If delegated the authority, RDCs may detail defense counsel assigned to

their regions, except themselves, to cases supported by their LSSS.

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8. If delegated the authority, SDCs may only detail counsel assigned to their

LSST, including themselves, to cases supported by their LSST or an element

thereof either because of geography or a specific request for legal services.

However, SDCs who write fitness reports on subordinate counsel may not detail

themselves to cases that involve clients with a conflict of interest with

clients of a defense counsel for whom the SDC is the reporting senior.

9. Defense counsel are normally only detailed to represent an accused assigned

to an organization that is supported by that defense counsel’s LSST either as a

consequence of geography or through a specific request for legal services.

However, a defense counsel may be detailed to represent an accused assigned to

an organization that is not normally supported by the defense counsel’s LSST on

a case-by-case basis. Factors that may necessitate such a detailing include,

include but are not limited to, the following: unique requirements of the case;

supporting units and organizations without defense counsel; conflict-of-interest

cases; gaps in defense counsel coverage; and savings by using a counsel from

another location. If such detailing decisions will result in non-local travel

costs as defined by the Joint Federal Travel Regulations beyond those implicit

in the request for legal services, then prior to detailing a defense counsel to

the case, the authorized detailing authority shall get approval from the

Convening Authority (CA) or his or her Staff Judge Advocate (SJA) for travel

costs associated with that detailing decision. If the CA will not agree to fund

the non-local travel costs associated with the detailing decision the issue will

be forwarded to the CDC for resolution. If the CDC cannot resolve the funding

issue, it will be forwarded to the SJA to CMC for final decision.

2007. REPRESENTATION AT INITIAL REVIEW OFFICER HEARINGS. Unless the accused

has previously been detailed a defense counsel, the responsible detailing

authority shall ensure a defense counsel is assigned to represent Marines and

Sailors at Initial Review Officer (IRO) Hearings conducted under R.C.M. 305.

The defense counsel need not be assigned to the LSST that normally supports the

command to which the accused is assigned and may instead come from the LSST

closest to the confinement facility or by another Service’s defense organization

as approved by the RDC. A defense counsel’s representation at an IRO hearing is

a limited attorney-client relationship related solely to that hearing and does

not create an attorney-client relationship for any other purpose or create an

entitlement that the accused later be detailed the counsel who represented him

or her at this hearing.

2008. REQUESTS FOR INDIVIDUAL MILITARY COUNSEL (IMC)

1. Article 38, UCMJ, provides that an accused has the right to be represented

by a military counsel of his own selection, if that counsel is reasonably

available. Section 0131 of the JAGMAN sets forth standards for determining the

availability of a requested IMC.

2. Determining Authority for IMC requests

a. As the OIC of the DSO, the CDC is the determining authority under JAGMAN

section 0131b(2) for all IMC requests for Marine defense counsel assigned to the

DSO, except IMC requests for the CDC. The CDC may further delegate this

authority to subordinates within the DSO, subject to the restrictions set forth

below.

b. The SJA to CMC is the determining authority on IMC requests for the CDC.

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c. The CDC is the determining authority on IMC requests for RDCs and the

OIC, DCAP. For IMC availability purposes, an RDC’s organization encompasses the

Legal Services Support Area (LSSA) of the LSST assigned, not the unit the RDC is

administratively assigned. The OIC, DCAP’s organization is the DSO, not the

unit to which the OIC, DCAP is administratively assigned.

d. If delegated the authority, RDCs are determining authorities on IMC

requests for the SDCs and defense counsel assigned to their LSSS and subordinate

LSSTs. For IMC availability purposes, an SDC or defense counsel’s organization

is the LSST assigned and the location of the units supported from that location,

not the units to which the SDC or DC is administratively assigned.

e. The determining authority for IMC requests for judge advocates not

assigned to the DSO, including auxiliary defense counsel with active defense

cases, is that judge advocate’s OIC or commanding officer (CO).

3. If the requested defense counsel is made available as an IMC, the detailed

defense counsel shall normally be excused from further participation in the

case, unless the detailing authority approves a request from the accused that

the detailed defense counsel act as associate counsel.

4. Administrative Review and Appeal of IMC Request Denials

(1) The SJA to CMC’s denial of an IMC request may not be appealed, but

is subject to judicial review.

(2) For all IMC requests denied by the CDC, the SJA to CMC is the

immediate superior in command for administrative review and appeal.

(3) For all IMC requests denied by an RDC, the CDC is the immediate

superior in command for administrative review and appeal.

(4) For all IMC requests denied by an OIC or CO, that officer’s commander

is the immediate superior in command for administrative review and appeal.

2009. PROFESSIONAL RESPONSIBILITY COMPLAINTS. The SJA to CMC is the Rules

Counsel for all Marine judge advocates, including Marine defense counsel.

Informal professional responsibility complaints regarding Marine judge advocates

performing duties as defense counsel will be resolved within the DSO. Formal

professional responsibility complaints regarding Marine defense counsel will be

forwarded via the responsible RDC and CDC to CMC (JAR) for resolution in

accordance with any applicable CDC policy memos in effect.

2010. MISCONDUCT ALLEGATIONS. Allegations of misconduct (other than

professional responsibility complaints) concerning members of the DSO will be

resolved through the administrative chain of command.

2011. ADMINISTRATIVE AND LOGISTICAL SUPPORT. Cognizant commands will provide

personnel, administrative, and logistical support, commensurate with mission

requirements, to defense sections equitably with that provided to military

justice sections.

2012. BUDGETING AND FUNDING GUIDANCE

1. Funding to support the defense function should be provided equitably with

command funding provided to support the prosecution function. Funding for

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administrative and logistical support and training expenses for RDCs, SDCs, DCs,

and their support personnel will be provided by local commands, as available.

2. All case-related expenses shall be provided by the convening authority, as

required by JAGMAN section 0145.

2013. APPLICABILITY. This chapter is applicable to: Marine judge advocates

assigned duty as Marine defense counsel; legal services specialists assigned as

defense enlisted support personnel; members of the Judge Advocate Reserve

Defense Services Branch; and military personnel from other services assigned to

the DSO. This chapter does not apply to judge advocates or legal services

specialists attached to commands external to the Marine Corps.

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LSAM

VOLUME I, CHAPTER 4

MARINE CORPS DEFENSE SERVICES ORGANIZATION

PARAGRAPH PAGE

PURPOSE. . . . . . . . . . . . . . . . . . . . . . . . 4000 4-2

GENERAL. . . . . . . . . . . . . . . . . . . . . . . . 4001 4-2

PERSONNEL. . . . . . . . . . . . . . . . . . . . . . . 4002 4-4

TOUR LENGTH. . . . . . . . . . . . . . . . . . . . . . 4003 4-12

REASSIGNMENT . . . . . . . . . . . . . . . . . . . . . 4004 4-12

COLLATERAL DUTIES. . . . . . . . . . . . . . . . . . . 4005 4-13

DETAILING. . . . . . . . . . . . . . . . . . . . . . . 4006 4-14

REPRESENTATION AT INITIAL REVIEW OFFICER HEARINGS. . . 4007 4-16

REQUESTS FOR INDIVIDUAL MILITARY COUNSEL (IMC) . . . . 4008 4-16

PROFESSIONAL RESPONSIBILITY COMPLAINTS . . . . . . . . 4009 4-17

MISCONDUCT ALLEGATIONS . . . . . . . . . . . . . . . . 4010 4-17

ADMINISTRATIVE AND LOGISTICAL SUPPORT. . . . . . . . . 4011 4-17

PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION. . . 4012 4-18

BUDGETING AND FUNDING GUIDANCE . . . . . . . . . . . . 4013 4-18

GUIDANCE ON REFERRALS TO CIVILIAN DEFENSE COUNSEL. . . 4014 4-18

APPLICABILITY. . . . . . . . . . . . . . . . . . . . . 4015 4-19

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VOLUME I, CHAPTER 4

MARINE CORPS DEFENSE SERVICES ORGANIZATION

4000. PURPOSE. This Chapter describes the organization, roles, and

responsibilities of the Marine Corps Defense Services Organization

(DSO) and its personnel, as a functionally independent organization

and as provided for in law, regulations, and rules of professional

conduct.

4001. GENERAL.

1. The Sixth Amendment to the United States Constitution provides,

“In all criminal prosecutions, the accused shall enjoy the right . . .

to have the Assistance of Counsel for his defence.” This right to

counsel has been specifically assigned to service members by Congress

through Article 27, UCMJ, and is implemented by the President through

Rule for Courts-Martial (R.C.M.) 506, Manual for Courts-Martial (MCM).

The Secretary of the Navy, through JAGINST 5800.7F, Manual of the

Judge Advocate General (JAGMAN), provides Departmental policy and

regulations regarding the right to counsel and the formation of the

attorney-client relationship. This Chapter, which supplements the

JAGMAN, provides Service policy regarding the delivery of defense

counsel services within the Marine Corps. The Chief Defense Counsel

of the Marine Corps (CDC) also publishes policy, administrative

procedures, and standards of practice applicable to judge advocates

serving as Marine defense counsel. These documents are available on

the DSO website. Where feasible, they are also made available on the

DSO public website.

2. Marine Corps defense counsel services are performed by

commissioned officers who are licensed attorneys, certified as judge

advocates under Article 27(b), UCMJ, and assigned to defense counsel

billets in the DSO. Marine defense counsel serve at locations

throughout the Marine Corps and are administratively attached to Legal

Services Support Sections (LSSS). However, Marine defense counsel are

under the operational control and supervision of and responsible and

accountable to the CDC and the responsible Regional Defense Counsel

(RDC) for the delivery of defense counsel services at their respective

locations.

3. A Marine defense counsel must exhibit unfettered loyalty and

professional independence in representing his or her client, and is

ultimately responsible for acting in his or her client’s best

interest. A Marine defense counsel’s primary duty is to provide

zealous, ethical, and effective representation to Marines and other

service members. This duty is limited only by law, regulation, and the

Rules of Professional Conduct (JAGINST 5803.1D).

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4. Attorney-Client Relationships

a. A Marine defense counsel will not establish an attorney-client

relationship with any individual unless detailed, assigned, or

otherwise authorized to do so by his or her detailing authority.

b. Once established, the attorney-client relationship, whether

for a court-martial or administrative separation board, may only be

severed under the provisions of R.C.M. 505 and R.C.M. 506 of the UCMJ

and the Rules of Professional Conduct.

c. A Marine defense counsel shall continue to represent an

accused post-trial until the accused is assigned an appellate defense

counsel, if applicable, or until completion of any and all post-trial

or post-board matters; however, for purposes of paragraph 4004 of this

Chapter, a Marine defense counsel’s tour with the DSO is considered

complete when R.C.M. 1105/1106 matters, if applicable, have been

submitted for every criminal case to which the defense counsel was

detailed and comments on the Report of the Board have been submitted

for every officer and enlisted administrative separation board to

which the defense counsel was detailed.

5. Guiding Principles

a. In order to be free from either apparent or unlawful pressure

or influence, the Marine Corps DSO must not only be functionally

independent, but it must appear to the public as being functionally

independent, and must be treated as being functionally independent.

b. Funding for training, resources, and facilities and personnel

shall be consistently provided across the Marine Corps legal

community, and there shall be equitable distribution, commensurate

with mission requirements, between the defense function and the

prosecution function with respect to the following: assignment of

attorneys and enlisted support staff; access to resources,

capabilities, and facilities; seats at continuing legal education

courses; training funds.

c. Requests for specific case-related funding submitted to the

convening authority shall be considered and processed consistent with

Article 46, UCMJ, the MCM, and the JAGMAN.

d. Marine defense counsel shall be provided sufficient time and

access to clients to achieve a full and confidential exchange of

legal, procedural, and factual information. To ensure confidential

communications, private meeting spaces must be available at offices,

confinement facilities, courtrooms, and all other places where clients

and counsel must confer in confidence.

e. To ensure that a Marine defense counsel’s workload is not too

large as to interfere with his or her ethical obligations to any

individual client, supervisory attorneys shall consider factors such

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as an individual counsel’s experience and caseload, case complexity,

anticipated end of tour date, and traditional officer duties when

assigning counsel to a particular case.

f. A Marine defense counsel’s ability, training, and experience

should match the complexity of the case. Supervisory attorneys will

only assign a counsel to a case when that counsel is properly

qualified to handle that particular case.

4002. PERSONNEL

1. Marine Corps Defense Services Organization (DSO). The Marine

Corps DSO encompasses all defense counsel and defense support

personnel assigned to Marine Corps Commands. The DSO is functionally

independent. It operates under the supervision of, and is responsible

and accountable to, the CDC for the delivery of defense services

throughout the Marine Corps, who retains operational control over

personnel assigned to the DSO. For purposes of this Chapter,

“operational control” is defined as the authority to perform those

functions of leadership over subordinate defense counsel involving

their organization and employment, assigning tasks, designating goals

and objectives, and giving authoritative direction necessary to

accomplish the DSO mission. Operational control includes

authoritative direction over all aspects of DSO operations and

training necessary to accomplish the DSO mission, with the exception

of case-specific decisions made by individual defense counsel

concomitant to their representation of service members.

2. Chief Defense Counsel of the Marine Corps (CDC). The CDC is the

Officer-in-Charge of the DSO. He exercises functional, day-to-day

supervision and operational control over personnel assigned to the

DSO, and is directly responsible to the Staff Judge Advocate to the

Commandant for supervision of all Marine defense personnel and the

delivery of defense counsel services throughout the Marine Corps.

a. The CDC shall be an experienced judge advocate serving in or

selected to the grade of O-6/Colonel. The CDC is assigned in

accordance with Article 6, UCMJ. The Staff Judge Advocate to the

Commandant of the Marine Corps (SJA to CMC) should, when possible,

consult with the current CDC and take into consideration the following

when selecting a successor CDC:

(1) Designation with the Necessary Military Occupational

Specialty (NMOS) of 4409 (criminal law).

(2) Prior experience as a Defense Counsel (DC), Senior Defense

Counsel (SDC), Officer-in-Charge, Defense Counsel Assistance Program

(DCAP), and/or Regional Defense Counsel (RDC).

(3) Significant litigation experience as either a trial or

defense counsel or as a military judge.

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b. Upon assignment, the SJA to CMC will provide the CDC with an

appointment in writing on behalf of the Commandant of the Marine Corps

(CMC). This appointment should normally be for no less than two (2)

years. The CDC's reporting senior and reviewing officer is the SJA to

CMC.

c. The CDC is administratively assigned to Judge Advocate

Division (JAD), Headquarters Marine Corps (HQMC) and receives

administrative support from HQMC.

d. The CDC is supported by a legal services specialist staff non-

commissioned officer of appropriate experience and temperament,

serving as DSO Chief, selected in coordination with the Legal Services

Chief of the Marine Corps (see paragraph 4002.10.c, infra.).

e. The CDC serves as the supervisory attorney for the RDCs, DCAP,

SDCs, and DCs.

f. Specific CDC duties include, but are not limited to:

(1) Establishing standing operating procedures and Standards

of Practice for the delivery of defense counsel services throughout

the Marine Corps.

(2) Conducting, at a minimum, one site inspection at each

Legal Services Support Section (LSSS) and subordinate LSST annually.

(3) Assessing through personal observations, inspections,

reports of others, and records reviews, the practice, procedure, and

techniques of defense counsel and enlisted support personnel in the

performance of defense functions.

(4) Assessing the adequacy of facilities and assets provided

to defense counsel.

(5) Monitoring the experience level of judge advocates

assigned as defense counsel relative to judge advocates assigned as

trial counsel.

(6) Reporting to the SJA to CMC annually regarding the

delivery of defense counsel services within the Marine Corps.

(7) Detailing Marine defense counsel and auxiliary defense

counsel to cases consistent with paragraph 4006 of this Order and

JAGMAN section 0130.

(8) Making availability determinations for Marine defense

counsel to serve as Individual Military Counsel (IMC) consistent with

paragraph 4008 of this Order and JAGMAN section 0131.

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(9) Consulting with Judge Advocate Division in the

identification of the DSO leadership, including but not necessarily

limited to RDCs, DCAP, and the CDC/DSO Chief.

(10) Establishing policies and procedures to ensure that the

internal organization structure of the DSO best facilitates the

accomplishment of the DSO mission.

(11) Establishing policies to provide proper mentorship and

training for all officer and enlisted DSO members.

(12) In coordination with Judge Advocate Division, ensuring

the equitable distribution of Headquarters-level resources and funds

for training.

(13) On behalf of the SJA to CMC, inspecting at least annually

the equitable distribution of funds, training opportunities, resources

and personnel within each LSSS.

(14) Investigating and resolving all informal ethics

complaints made in the case of DSO personnel (see para. 4009, infra.).

(15) Investigating and forwarding all formal ethics complaints

to the SJA to CMC (see para. 4009, infra.).

(16) Establishing and maintaining a Judge Advocate Division

CDC/DSO Headquarters Branch, functionally independent of but

administratively assigned to and supported by Judge Advocate Division.

(17) The CDC may maintain a personal caseload that does not

interfere with the responsibilities otherwise described in this

chapter.

3. Officer-in-Charge, Defense Counsel Assistance Program (DCAP).

DCAP is directly responsible to the CDC for the training and support

of the DSO Marines.

a. The OIC, DCAP is a Marine judge advocate, preferably serving

in or selected to the grade of O-4/Major with the NMOS of 4409

(criminal law).

b. DCAP is administratively assigned to Judge Advocate Division

and receives administrative support from HQMC.

c. Specific DCAP duties include, but are not limited to:

(1) Planning and coordinating DSO-wide and regional training

events to ensure that defense counsel and support personnel receive

appropriate training.

(2) Monitoring defense counsel performance through personal

observation, reading records of trial and briefs, and meeting and

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corresponding with senior judge advocates, military judges, and

commanders.

(3) Providing advice and consulting with defense counsel in

the field on pending litigation, either face-to-face, telephonically

or through SharePoint.

(4) Assessing and reporting to the CDC on the adequacy of

support, assets, and facilities provided defense counsel at their

location.

(5) Maintaining and updating web-based support, such as the

DSO SharePoint site and the DSO public website.

(6) Other duties as assigned by the CDC.

(7) DCAP may maintain a caseload that does not interfere with

DCAP's responsibilities for training and mentoring personnel within

the DSO.

4. Regional Defense Counsel (RDC). RDCs are administratively

supported by the regional LSSS but are functionally independent of the

LSSS. They are under the operational control of, and are directly

responsible to the CDC for the delivery of defense counsel services

within their region. RDCs are assisted by a legal services specialist

SNCO (see paragraph 4002.10.e., infra.).

a. RDCs are Marine judge advocates serving in or selected to the

grade of O-5/Lieutenant Colonel, with considerable expertise in

military justice matters and will normally possess the NMOS of 4409

(criminal law). They are identified as being qualified for service as

an RDC by Judge Advocate Division (CDSP) acting in the capacity of

occupational field sponsor, in coordination with and after receiving

advice from the CDC.

b. Funding for administrative and logistical support of RDCs and

their support personnel, including travel, per diem, training and

continuing legal education in connection with duties described in this

Chapter, will be provided by the commands to which the RDCs are

administratively attached. RDCs are administratively supported by

their regional LSSS and assigned through the normal assignment process

as follows:

(1) The RDC, National Capitol Region and support personnel are

administratively attached to Headquarters and Service Battalion,

Marine Corps Base, Quantico, with Monitored Command Code TEM.

(2) The RDC, Eastern Region and support personnel are

administratively attached to Headquarters Battalion, Marine Corps

Base, Camp Lejeune, with Monitored Command Code TEH.

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(3) The RDC, Western Region and support personnel are

administratively attached to Headquarters Battalion, Marine Corps

Base, Camp Pendleton, with Monitored Command Code TEJ.

(4) The RDC, Pacific Region and support personnel are

administratively attached to Headquarters Battalion, Marine Corps

Base, Camp Smedley D. Butler, with Monitored Command Code TEG.

c. RDCs serve as the supervisory attorney for the SDCs and DCs

assigned to their LSSS and their subordinate LSSTs.

d. While assignment of counsel within the LSSS and LSST remains

within the purview of the LSSS and LSST OICs, selection of personnel

with the qualifications to serve as either Senior Defense Counsel or

Defense Counsel is a coordinated effort between the RDC and LSSS OIC.

e. Subject to the approval of the CDC, RDCs organize defense

leadership billets in their region to ensure efficient and effective

DSO mission accomplishment.

f. Specific RDC duties include, but are not limited to:

(1) Coordinating with local commands to ensure that defense

counsel and support personnel receive appropriate training.

(2) Conducting, at a minimum, quarterly site visits to each

subordinate LSST defense branch.

(3) Monitoring defense counsel performance through personal

observation, reading records of trial and briefs, and meeting and

corresponding with senior judge advocates, military judges,

commanders, and Naval Criminal Investigative Service supervisory

special agents (NCIS SSA).

(4) Assessing and reporting to the CDC on the adequacy of

support, assets, and facilities provided to defense offices within the

region.

(5) Detailing defense counsel assigned to their respective

region, provided that authority has been delegated by the CDC

consistent with paragraph 4006 of this Chapter.

(6) Making IMC availability determinations for defense counsel

assigned to their respective region, provided that authority has been

delegated by the CDC consistent with paragraph 4008 of this Chapter.

(7) Other duties as assigned by the CDC.

g. An RDC’s primary duty is the training, mentoring, and

supervision of subordinate defense counsel in the RDC's region. If a

RDC maintains a case load, it should not interfere with the RDC’s

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responsibilities for training, mentoring, and supervising personnel

within the region.

5. Senior Defense Counsel (SDC). An SDC is directly responsible to

the RDC and CDC for the delivery of defense counsel services in

support of the Marines and Sailors serviced by their LSSS or LSST.

a. SDCs are Marine judge advocates, preferably serving in or

selected to the grade of O-4/Major, normally with the NMOS of 4409

(criminal law), who serve as head of the defense section for the LSST.

SDCs will be appointed in writing by the RDC. SDCs are assisted by

legal service specialists of appropriate grade and experience assigned

by the LSSS or LSST OIC in consultation with the SDC.

b. SDCs are administratively attached to an LSST or LSSS, but are

functionally independent of the LSST or LSSS. They are under the

operational control of and are directly responsible and accountable to

their RDC and the CDC for the delivery of defense services by their

LSST or LSSS.

c. Specific SDC duties include, but are not limited to:

(1) Ensuring that defense counsel and enlisted support

personnel receive appropriate training.

(2) Monitoring defense counsel performance through personal

observation, reading records of trial, briefs, motions, and meeting

and corresponding with senior judge advocates, military judges,

commanders, and NCIS SSAs.

(3) Assessing and reporting to the RDC on the adequacy of

support, assets, and facilities provided defense counsel at their

location.

(4) Detailing defense counsel assigned to that SDC’s specific

location, provided that authority has been properly delegated by the

RDC or CDC consistent with paragraph 4006 of this Chapter.

(5) Reporting periodically on the condition of trial defense

services at his or her location to the RDC and/or CDC.

(6) Other duties as assigned by the RDC or CDC.

d. An SDC will maintain a caseload that does not interfere with

the SDC’s responsibilities for training, mentoring, and supervising

personnel within the section.

6. Defense Counsel. A defense counsel’s primary duties are to

represent Marines and Sailors in courts-martial, administrative

boards, and other proceedings, to provide counsel as required by law

or regulation, and to perform other duties as prescribed by the SDC,

RDC, or CDC. Defense Counsel are administratively assigned to an LSSS

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or LSST, but once assigned to a defense billet in the DSO, they are

functionally independent of the LSST or LSSS and remain under the

supervision of and are responsible and accountable to his or her SDC,

RDC, and the CDC. Defense counsel will be assigned to their duties by

the cognizant LSSS OIC or LSST OIC detailing authority in a written

memorandum that includes an anticipated end date for their tour as a

defense counsel.

7. Auxiliary Defense Counsel

a. If needed to meet requirements, the LSSS or LSST OIC may

identify a judge advocate that will be available to be detailed by the

CDC or his or her designee to be a defense counsel for a particular

case. Staff judge advocates, deputy staff judge advocates, trial

counsel, victims’ legal counsel, or review officers may not serve as

auxiliary defense counsel.

b. As outlined in paragraph 2010.3 of MCO P1610.7F, Performance

Evaluation System (PES), auxiliary defense counsel concurrently

performing non-defense duties may receive simultaneous fitness reports

from a member of the DSO to evaluate the auxiliary defense counsel’s

performance as a defense counsel and from his or her supervisor

outside of the DSO to evaluate the performance of non-defense counsel

duties.

8. Student Judge Advocates. Student judge advocates (MOS 4401) may

be assigned by the LSSS or LSST OIC to support the LSSS or LSST

defense branch in a manner similar to that provided to support the

military justice section. Student Judge Advocates may likewise be

assigned to augment the CDC/DSO Headquarters Element. While assigned

to the DSO, student judge advocates are under the supervision of and

responsible and accountable to the DSO. While they may assist in the

preparation of cases and are bound by the attorney-client privilege,

they may not be detailed to represent clients. With the approval of

the military judge, student judge advocates may sit at counsel table.

9. Enlisted Support Personnel

a. A defense legal services specialist’s primary duties are to

assist defense counsel in their representation of Marines and Sailors

in courts-martial, administrative boards, and other proceedings and to

perform other duties as prescribed by the SDC, DCAP, RDC, or CDC.

b. Defense legal services support specialists are

administratively assigned to the LSSS or LSST, but once assigned to a

defense billet in the DSO, they are under the supervision of and

responsible and accountable to his or her SDC, RDC, and the CDC.

c. The Office of the Chief Defense Counsel of the Marine

Corps/Officer-in-Charge, Defense Services Organization shall be

supported by a legal services support specialist in the rank of at

least a staff sergeant/E-6 or higher to serve as CDC/DSO Chief. This

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SNCO should have formal paralegal training and prior experience as an

RDC Chief, DSO section chief, defense clerk, or other relevant

military justice experience. The CDC/DSO Chief shall perform the

following duties:

(1) Serve as the DSO Legal Chief. Lead, supervise, train, and

support all Marine Corps DSO enlisted personnel.

(2) Serve as senior enlisted advisor to the CDC on all matters

pertaining to the DSO personnel, to include mentoring and the training

of 4421s.

(3) Support the four DSO regions and provide litigation

support to defense counsel.

(4) Serve as the CDC’s representative for the DSO Inspection

Program, inspecting all DSO office branches at least annually to

ensure compliance with the standards set by the CDC are being met.

(5) Other duties as required by the CDC.

e. The Offices of the Regional Defense Counsel shall be supported

by a legal services support specialist. This person shall be in the

rank of at least an E-6/Staff Sergeant, possess the MOS 8015 (SNCO

Degree Completion Program), normally will have formal paralegal

training, have previously served as a DSO section chief, defense

clerk, or possess other relevant military justice experience, and will

be administratively assigned as described in paragraph 4004.4.b.

supra.

10. Judge Advocate Reserve Defense Services Branch (JRD)

a. The DSO includes judge advocates who are members of the

Reserve Component of the Marine Corps. These Reserve DSO members

serve in billets within the Office of the CDC or in the RDC Offices.

b. The most senior-ranking billet for a Reserve Component member

of the DSO is Branch Head, Judge Advocate Reserve Defense Services

Branch. This billet is held by an O-6/Colonel and is the Reserve

counterpart to the Chief Defense Counsel of the Marine Corps.

c. Reserve DSO members may be detailed as respondent’s counsel

for administrative separation boards and boards of inquiry, but may

not be detailed to courts-martial.

d. The Reserve DSO members are administratively attached to the

Reserve Legal Support (RLS) Branch at the Judge Advocate Division,

Headquarters, Marine Corps. However, these judge advocates are under

the operational control and supervision of and responsible and

accountable to the CDC.

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4003. TOUR LENGTH

1. All members of the DSO shall have an established tour length and

established rotation date. After consultation with the RDC, the LSSS

or LSST OIC will establish an anticipated end date for a Marine’s tour

with the DSO, which normally will be at least 18 months for defense

counsel, SDCs, and DSO enlisted support personnel. When assigning a

Marine to the DSO, the OIC will memorialize the anticipated end of

tour date in writing and provide a copy of the assignment letter to

the RDC.

2. The RDC will ensure, as far as practicable, that the agreed upon

tour length for a defense counsel coincides with the termination of

that defense counsel’s duties and responsibilities.

3. If circumstances arise that require curtailing a defense counsel’s

tour before the previously established agreed upon end of tour date,

the LSSS OIC and RDC shall together establish a new end of tour date.

4. If the parties cannot mutually agree upon a new end of tour date,

the cognizant OIC, shall report, in writing, the circumstances

requiring the tour curtailment to the SJA to CMC via the CDC.

5. A defense counsel tour is not considered to be complete until

R.C.M. 1105/1106 and post-board matters have been submitted for every

case to which the defense counsel remains detailed and written matters

are submitted concerning the reports of administrative separation

boards such as Boards of Inquiry or Involuntary Enlisted

Administrative Separation Boards.

4004. REASSIGNMENT

1. The reassignment of any Marine defense counsel requires careful

planning and coordination between the RDC and the LSSS OIC.

2. Once a Marine defense counsel is slated for reassignment by the

OIC, the responsible RDC must ensure that the defense counsel is not

detailed cases anticipated to extend beyond the targeted reassignment

date without the consent of the OIC. If the RDC and the OIC cannot

reach an agreement on the detailing decision involving a case that

will likely extend beyond the defense counsel’s anticipated rotation

date, the matter will be forwarded to the CDC for resolution. If the

CDC cannot resolve the matter, the matter will be forwarded to the SJA

to CMC for final decision.

3. If a Marine defense counsel is pending reassignment, including

discharge or retirement, prior to the completion of defense counsel

duties, including post-trial representation, the responsible RDC must

ensure the defense counsel has:

a. Notified all remaining clients and any co-counsel in writing

of the pending reassignment;

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b. Informed all remaining clients of their options with regard to

the pending reassignment;

c. Arranged for the client, when the reassignment creates a

conflict of interest with a particular case, to consult with a

conflict-free counsel about the matter and ensure the client’s

understanding of this advice is memorialized in writing, counter-

signed by the client, and, in court-martial cases, provided to the

military judge; and,

d. Notified the military judge detailed to any ongoing courts-

martial of the defense counsel’s pending reassignment.

4. Absent a knowing and affirmative waiver by the client of the

apparent conflict of interest, and approval by a military judge, judge

advocates may not serve concurrently, including periods of transition

between billets, as a judge advocate assigned to the DSO or an

auxiliary defense counsel and as:

a. A trial counsel, SAUSA, or a victims’ legal counsel on any

case.

b. The deputy SJA or SJA to the convening authority of any case

in which the defense counsel is still performing defense counsel

duties, including post-trial representation.

c. The LSST OIC that the defense counsel is assigned to.

d. Other billets which carry the mantle of command presence and

therefore would create a conflict of interest with concurrent service

as a defense counsel.

5. Disputes over internal LSSS or LSST assignment or reassignment of

DSO personnel will be resolved at the lowest possible level. Those

disputes which cannot be resolved through the cooperative effort of

the RDC and LSSS OIC will be adjudicated by the SJA to CMC, after

consultation with the CDC.

4005. COLLATERAL DUTIES

1. Marine defense personnel shall perform routine non-defense duties,

such as unit PT, training, and standing duty, so long as those

collateral duties do not have a military justice connection or

conflict with their statutory and ethical obligations to their

clients. For example, a defense attorney cannot serve as a duty

officer if he or she is responsible for checking Marines on or off

restriction or is required to make command visits to the local

confinement facility. A Marine defense counsel may, with the consent

of the responsible RDC, augment the local legal assistance office.

2. Recognizing the smaller caseload in a combat or expeditionary

environment, Marine defense personnel may also perform non-defense

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duties in an expeditionary or combat environment such as working group

member in operational planning teams in civil affairs, information

operations and detainee operations, or providing legal assistance so

long as these duties do not have a military justice connection or

conflict with their statutory and ethical obligation to their clients.

Prior to assigning a Marine defense counsel to these duties, the

Marine Air Ground Task Force (MAGTF) SJA should consult with the

responsible RDC.

4006. DETAILING

1. The CDC is the detailing authority for all judge advocates

assigned to the DSO and auxiliary defense counsel. Detailing

authority includes the authority to remove a counsel from a case for

good cause. The CDC may further delegate detailing authority for

Marine defense counsel to subordinates within the DSO, subject to the

restrictions set forth below. Further delegation of detailing

authority will be published via CDC Policy Memorandum.

2. Prior to detailing a defense counsel to a particular case, the

detailing authority will consider such factors as: the geographic

locations of the accused and counsel, the expected location of the

hearing the anticipated rotation date of the defense counsel, the

counsel’s caseload and experience, any applicable conflict-of-interest

analysis, the case complexity, collateral duties assigned to the

defense counsel, and the defense counsel’s training and education

requirements. The detailing of assistant defense counsel to contested

and/or complex cases is encouraged.

3. When detailing a defense counsel to a particular case, the

detailing authority shall ensure that:

a. Standard detailing criteria are used.

b. The needs of the local commands are taken into consideration.

c. Every accused receives zealous representation by a fully

qualified counsel.

d. Every accused is detailed counsel in a timely manner.

4. The responsible detailing authority shall detail a defense counsel

in writing to a particular case as soon as practicable and absent good

cause, in no case later than:

a. Ten days of being notified via e-mail, fax, or other written

means by corrections personnel, command representatives, the military

justice section, or some other government official that an accused has

been placed in pretrial confinement or arrest under R.C.M. 305.

b. Five days of being served notice of preferred charges.

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c. Five days of being served notice of the appointment of an

Article 32, UCMJ, Investigating Officer.

d. Five days of being served an administrative separation/board

of inquiry package.

e. As otherwise required by law or regulation.

5. The detailing authority will provide a copy of the detailing

memorandum to the appropriate representative of the client’s command

and the cognizant prosecution section.

6. With the consent of the SJA to CMC, the CDC may detail himself or

herself to a case.

7. The CDC is authorized to detail, or to delegate detailing

authority, to assign counsel in certain officer and 1stSgt/MSgt cases

pending investigation under Chapter 2, JAGINST 5800.7F or under

investigation by an Inspector General.

8. If delegated the authority, RDCs may detail defense counsel

assigned to their regions, except themselves, to cases supported by

their LSSS.

9. If delegated the authority, SDCs may only detail counsel assigned

to their LSST, including themselves, to cases supported by their LSST

or an element thereof either because of geography or a specific

request for legal services. However, SDCs who write fitness reports

on subordinate counsel may not detail themselves to cases that involve

clients with a conflict of interest with clients of a defense counsel

for whom the SDC is the reporting senior.

10. Defense counsel are normally only detailed to represent an

accused assigned to an organization that is supported by that defense

counsel’s LSST either as a consequence of geography or through a

specific request for legal services. However, a defense counsel may

be detailed to represent an accused assigned to an organization that

is not normally supported by the defense counsel’s LSST on a case-by-

case basis. Factors that may necessitate such a detailing include,

include but are not limited to, the following: unique requirements of

the case; supporting units and organizations without defense counsel;

conflict-of-interest cases; gaps in defense counsel coverage; and

savings by using a counsel from another location. If such detailing

decisions will result in non-local travel costs as defined by the

Joint Federal Travel Regulations beyond those implicit in the request

for legal services, then prior to detailing a defense counsel to the

case, the authorized detailing authority shall get approval from the

Convening Authority (CA) or his or her Staff Judge Advocate (SJA) for

travel costs associated with that detailing decision. If the CA will

not agree to fund the non-local travel costs associated with the

detailing decision the issue will be forwarded to the CDC for

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resolution. If the CDC cannot resolve the funding issue, it will be

forwarded to the SJA to CMC for final decision.

4007. REPRESENTATION AT INITIAL REVIEW OFFICER HEARINGS. Unless the

accused has previously been detailed a defense counsel, the

responsible detailing authority shall ensure a defense counsel is

assigned to represent Marines and Sailors at Initial Review Officer

(IRO) Hearings conducted under R.C.M. 305. The defense counsel need

not be assigned to the LSST that normally supports the command to

which the accused is assigned and may instead come from the LSST

closest to the confinement facility or by another Service’s defense

organization as approved by the RDC. A defense counsel’s

representation at an IRO hearing is a limited attorney-client

relationship related solely to that hearing and does not create an

attorney-client relationship for any other purpose or create an

entitlement that the accused later be detailed the counsel who

represented him or her at this hearing.

4008. REQUESTS FOR INDIVIDUAL MILITARY COUNSEL (IMC)

1. Article 38, UCMJ, provides that an accused has the right to be

represented by a military counsel of his own selection, if that

counsel is reasonably available. JAGMAN section 0131 sets forth

standards for determining the availability of a requested IMC.

2. Determining Authority for IMC requests

a. As the OIC of the DSO, the CDC is the determining authority

under JAGMAN section 0131b(2) for all IMC requests for Marine defense

counsel assigned to the DSO, except IMC requests for the CDC. The CDC

may further delegate this authority to subordinates within the DSO,

subject to the restrictions set forth below.

b. The SJA to CMC is the determining authority on IMC requests

for the CDC.

c. The CDC is the determining authority on IMC requests for RDCs

and DCAP. For IMC availability purposes, an RDC’s organization

encompasses the Legal Services Support Area (LSSA) of the LSST

assigned, not the unit the RDC is administratively assigned. The DCAP

OIC’s organization is the DSO, not the unit to which the DCAP OIC is

administratively assigned.

d. If delegated the authority, RDCs are determining authorities

on IMC requests for SDCs and defense counsel assigned to their LSSS

and subordinate LSSTs. For IMC availability purposes, an SDC or

defense counsel’s organization is the LSSS or LSST assigned and the

location of the units supported from that location, not the units to

which the SDC or DC is administratively assigned.

e. The determining authority for IMC requests for judge advocates

not assigned to the DSO, including auxiliary defense counsel with

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active defense cases, is that judge advocate’s OIC or commanding

officer (CO).

3. If the requested defense counsel is made available as an IMC, the

detailed defense counsel shall normally be excused from further

participation in the case, unless the detailing authority approves a

request from the accused that the detailed defense counsel act as

associate counsel.

4. Administrative Review and Appeal of IMC Request Denials

(1) The SJA to CMC’s denial of an IMC request may not be

appealed, but is subject to judicial review.

(2) For all IMC requests denied by the CDC, the SJA to CMC is

the immediate superior in command for administrative review and

appeal.

(3) For all IMC requests denied by an RDC, the CDC is the

immediate superior in command for administrative review and appeal.

(4) For all IMC requests denied by an OIC or CO, that

officer’s commander is the immediate superior in command for

administrative review and appeal.

4009. PROFESSIONAL RESPONSIBILITY COMPLAINTS. The SJA to CMC is the

Rules Counsel for all Marine judge advocates, including Marine defense

counsel. Informal professional responsibility complaints regarding

Marine judge advocates performing duties as defense counsel will be

resolved within the DSO. Formal professional responsibility

complaints regarding Marine defense counsel will be forwarded via the

responsible RDC and CDC to CMC (JCA) for resolution in accordance with

any applicable CDC policy memos in effect.

4010. MISCONDUCT ALLEGATIONS. Allegations of misconduct (other than

professional responsibility complaints) concerning members of the DSO

will be investigated and resolved through the administrative chain of

command. Except in those cases where disclosure may jeopardize

ongoing sensitive police operations, the responsible LSSS OIC shall

immediately notify the responsible RDC and CDC in any case where a

member of the DSO is suspected of any offense, and shall keep the RDC

and CDC apprised of ongoing case developments. In cases where

sensitive police operations are ongoing, notification shall be made as

soon as doing so no longer hazards the investigation.

4011. ADMINISTRATIVE AND LOGISTICAL SUPPORT. Cognizant commands will

provide personnel, administrative, and logistical support,

commensurate with mission requirements, to defense sections equitably

with that provided to military justice sections.

4012. PROTECTION OF PERSONALLY IDENTIFIABLE INFORMATION. Defense

counsel will ensure that all personally identifiable information (PII)

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is properly handled, redacted, and disposed of in accordance with

SECNAVINST 5211.5E, the Privacy Act, 5 U.S.C. § 552a, paragraph 0141a

of JAGINST 5800.7, this Chapter, and any policies or procedures

established by the CDC, USMC/OIC, DSO to prevent the unlawful or

unauthorized disclosure of PII. All PII provided during discovery is

provided pursuant to the Official Use exception of SECNAVINST 5211.5,

which is not applicable to defense clients. While a defense counsel

may discuss PII with a client that is necessary to the preparation of

the client’s case, under no circumstances shall a defense counsel

allow a client to copy or otherwise maintain PII.

4013. BUDGETING AND FUNDING GUIDANCE

1. Funding to support the defense function should be provided

equitably with command funding provided to support the prosecution

function. Funding for administrative and logistical support and

training expenses for RDCs, SDCs, DCs, and their support personnel

will be provided by local commands, as available.

2. All case-related expenses shall be provided by the convening

authority, as required by JAGMAN section 0145.

4014. GUIDANCE ON REFERRALS TO CIVILIAN DEFENSE COUNSEL

1. Marines retain the right to be represented by counsel of their

choice, including civilian defense counsel hired at no expense to the

United States Government. Marines periodically request advice or

referrals from their detailed or individual military counsel for

private, non-governmental defense counsel representation. DSO

attorneys are obligated to honestly answer any and all questions posed

to them by their clients, but will typically avoid recommending to a

client which attorney among a group of two or more the client should

select.

2. When asked for advice, DSO attorneys may answer specific questions

about civilian attorneys, but shall make clear that any information

they provide does not reflect any Federal, Department of the Navy, or

Marine Corps endorsement of that attorney. Clients will be advised to

consult publically available resources such as attorney referral

services, local bar and state association web sites, etc. when making

their decision.

3. DSO Branch Offices shall not maintain a list of private attorneys

for purposes of referral.

4. Reserve judge advocates serving in any defense counsel capacity

are prohibited from soliciting or receiving fees or compensation for

the same matter about which they consulted with or advised a DSO

client.

Enclosure 3

MCO 5800.16

DD MMM YYYY

4-19

5. Nothing in this section prevents or interferes with an attorney’s

ability to provide free, unfettered, and independent advice to

individual clients consistent with this Chapter.

4015. APPLICABILITY. This Chapter is applicable to: Marine judge

advocates assigned duty as Marine defense counsel; legal services

specialists assigned as defense enlisted support personnel; members of

the Judge Advocate Reserve Defense Services Branch; and military

personnel from other services assigned to the DSO. This Chapter does

not apply to judge advocates or legal services specialists attached to

commands external to the Marine Corps.

Enclosure 3

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000

ARLINGTON, VA 22204-2482

In Reply Refer To: 5813

CDC

1 Oct 14

CDC Policy Memo 1.1

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: DSO MISSION STATEMENT, CREED, AND CDC EXPECTATIONS

1. Mission. The Defense Services Organization zealously

defends Marines and Sailors facing disciplinary action in order

to safeguard the Rights of those who safeguard our nation.

2. Creed. We are Marines - Judge Advocates and Legal Services

Specialists - who are dedicated to defending our fellow Marines

and Sailors, by providing them legal counsel in any matter

required by statute, regulation, or otherwise authorized. We are

zealous advocates for our clients, serving independently of the

local chain of command and under the supervision of the Marine

Corps Defense Services Organization. We zealously represent each

and every client within the guidelines of the law, consistent

with our professional ethics, and in accordance with our rules

of practice. We selflessly perform our duties with the utmost

integrity, motivation and pride, without fear of reprisal, or

expectation of professional or personal gain. In the same spirit

as “Taking Care of Our Own,” we are: “Marines Defending

Marines.”

3. Expectations.

a. Zealously defend your client—each time, every time:

(1) The client comes first. Be ethical. Be

professional. Be respectful. But do so while putting your

client first.

(2) Success begins with preparation. You can’t

always expect to be the smartest person in the room. You can

always expect to be the best prepared person in the room.

Certainly that is what I expect of you.

Enclosure 4

Subj: DSO MISSION STATEMENT, CREED, AND CDC EXPECTATIONS

2

(3) Success ends with professionalism. From the

perspective of the client, our military justice process is

intimate and personal. Never forget that. But don’t let your

passion for your client, or your ego, get in front of the

interests of your client, or your professional reputation.

(4) Do not use the word “unethical” casually.

Casting an indictment on the professional reputation of opposing

counsel, or of other parties involved in the process, has

lasting implications for you, your client, and for the party so

accused.

(5) Be firm, but be right. I expect you to stand on

your principles in the courtroom, and will stand with you when

you do. But I expect you to be right. Do what must be done in

the interest of your client, but do your homework. Investigate;

visit crime scenes; talk to witnesses; read everything; talk to

your peers; participate in moots and murder boards; consult our

Highly Qualified Experts; use SharePoint; consult with appellate

defense; call or email your leadership, including me. Get out

from behind your desk and do the legwork required to do the job

right.

(6) Read the law. I expect you all to stay up on

recent developments from the Navy and Marine Corps Court of

Criminal Appeals (NMCCA), the Court of Appeals for the Armed

Forces (CAAF), Supreme Court litigation, and new legislation.

Reading a post on a blog is good, but reading the caselaw, doing

your own analysis, and discussing it with your peers is better.

(7) Never be afraid to call me personally. I will

never undercut your leadership, but by the same token I want to

hear from you. I may not know the answer, but I may know

someone who does, or where to look.

b. Be good Marines.

(1) Take care of yourself and your families. Take

time go to the school play, the soccer game, or parent-teacher

meetings. Take your spouse to the doctor. Visit your parents.

Do those things necessary to take care of those who mean the

most to you. There is time to both attend to your clients and

your family.

(2) Take care of each other. Whether married or

single, children or none, you have a family—it’s the DSO. Take

care of each other.

Enclosure 4

Subj: DSO MISSION STATEMENT, CREED, AND CDC EXPECTATIONS

3

(3) Stay in shape. Making time for PT is like doing

a personal budget—pay yourself first.

(4) Do your PME. Enroll in PME appropriate to your

grade and make progress towards successful completion so that

when you come in zone for promotion or resident school, it is

not a discriminator for the board.

(5) Support the local command and LSSS/LSST OIC.

Participate in command functions, unit PT, and support your OIC,

who is there to support you.

c. The following five rules apply to our practice:

(1) Never utter the word "unethical" about an

attorney, judge, alleged victim, or other party to litigation

without consulting your RDC or me.

(2) Never interview an important witness by yourself.

(3) Never decide to accept a deal without an

affirmative decision from your client to do so. The final

decision to plead guilty or to accept a deal belongs to the

c1ient. We advise, they decide.

(4) Never reveal client confidences unless authorized

by the client or the Rules of Professional Responsibility.

(5) Never go into court unprepared.

4. Conclusion. This CDC Policy Memo is effective immediately.

CDC Policy Memo 1-10 is hereby cancelled.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

NMCTJ Code 52, OJAG

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 RM 1D130

ARLINGTON, VA 22204-2482

In Reply Refer To:

5800

CDC

4 Aug 15

CDC POLICY MEMO 1.2

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: CHIEF DEFENSE COUNSEL’S CRITICAL INFORMATION REQUIREMENTS

Ref: (a) JAGINST 5800.7F (JAGMAN)

1. Purpose. To update the Chief Defense Counsel’s Critical

Information Requirements in order to ensure the timely and

effective sharing of information within the Defense Services

Organization.

2. Discussion. CDC’s CIRs are significant events that the CDC

must be made aware of as soon as possible. Timely and accurate

reporting of CDC CIRs prior to or immediately following an event

significantly enhances the ability of the CDC to make timely

decisions and initiate appropriate actions. Timely reporting of

CDC CIRs can, in some situations, enable the CDC to prevent or

shape events.

3. Policy.

a. CDC’s Critical Information Requirements. A CDC CIR will

be initially reported via e-mail and the case affected will be

annotated as a CDC CIR case in the DSO’s Case Information System

(CIS) and weekly report.

(1) Immediate Reportable Items. All members of the DSO

will immediately report simultaneously to the CDC, the

applicable Regional Defense Counsel, and the applicable Senior

Defense Counsel, regardless of the time of day or day of the

week, the CDC CIRs listed below.

(a) Death or serious injury to any DSO member or

any DSO client.

(b) Death or serious injury to any DSO member’s

immediate family (parent, spouse, or child).

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

2

(c) Any report of suspected misconduct or

investigative action in the case of a member of the DSO,

including but not limited to arrest, pretrial confinement,

preferral of charges against, or notification of non-judicial

punishment.

(d) Any allegation that a member of DSO has acted

unethically.

(e) The filing of any pleading alleging another

government attorney has acted unethically or has engaged in

prosecutorial misconduct. Where feasible attach an electronic

copy of the pleading to the e-mail notification.

(f) Any suicide gesture by a DSO member.

(g) Any interaction with a client, including

individuals who are present for limited purposes such as NJP

counseling, who in the estimation of the DSO member appears to

be at risk for suicide.

(h) Any possible or suspected loss, compromise, or

spillage of classified material or information by any DSO

member.

2. Items Reportable through the RDC. All members of

the DSO will immediately report to their Regional Defense

Counsel via their Senior Defense Counsel, the CDC CIRs listed

below, and Regional Defense Counsels will ensure prompt

forwarding to the CDC.

(a) Any writ, appeal, or response to an Article 62

appeal by the Government. Where feasible attach an electronic

copy of the pleading to the e-mail notification.

(b) Any media interest in an investigation or case

concerning a DSO client.

(c) Any potential claim from a member of the DSO

that a government attorney is acting unethically or has engaged

in prosecutorial misconduct.

(d) Any case alleging a violation of Article 118

(or an attempted 118), UCMJ or that has been defined as a

national security case under paragraph 0126 of the reference.

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

3

(e) Any court hearing where a general or flag

officer or staff judge advocate will be called as a witness.

(f) Any case alleging misconduct by an officer

above the grade of O-3 and Chief Warrant Officers above CWO-3,

or an enlisted Marine above E-7.

(g) Any case alleging unlawful command influence,

prior to an articulation of the claim in a motion,

correspondence, pleading, on the record statement, or email to

the government.

4. Conclusion. Paragraph 3(d)(1) of CDC PM 5-14 is hereby

cancelled. This CDC Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

NMCTJ Code 52, OJAG

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000

ARLINGTON, VA 22204-2482

In Reply Refer To:

5800

CDC

8 Oct 14

CDC POLICY MEMO 1.3

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES,

CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE

RETENTION POLICIES

Ref: (a) MCO P5800.16 (series)

(b) DoN CIO Message, DoN SSN Reduction Plan Phase Three

of 17 Feb 12

(c) JAGINST 5800.7F (JAGMAN)

1. Purpose. To update certain business rules for the Marine

Corps Defense Services Organization (DSO) related to DSO

reporting requirements, work spaces, correspondence, case file

retention and standardized forms in order to ensure the

effective and efficient operation of the DSO as a functionally

independent organization.

2. Discussion.

a. Reference (a) establishes the DSO as a functionally

independent organization. In it, the Chief Defense Counsel of

the Marine Corps (CDC) is identified as the Officer-in-Charge of

the DSO (OIC, DSO). The CDC is appointed by the Staff Judge

Advocate to the Commandant of the Marine Corps (SJA to CMC).

The CDC is specifically tasked with establishing standard

operating procedures and standards of practice for the delivery

of defense counsel services throughout the Marine Corps.

b. In his role as OIC of the DSO, reference (a) entrusts

the CDC with operational control of all members of the DSO.

“Operational control” is defined as the authority to perform

those functions of leadership over subordinate defense counsel

involving their organization and employment, assigning tasks,

designating goals and objectives, and giving authoritative

direction necessary to accomplish the DSO mission. Operational

control includes authoritative direction over all aspects of DSO

Enclosure 4

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES,

CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE

RETENTION POLICIES

2

operations and training necessary to accomplish the DSO mission,

with the exception of case-specific decisions made by individual

defense counsel concomitant to their representation of

servicemembers. See, e.g. FM 101-5-1 MCRP 5-12A (Operational

Terms and Graphics) at p. 1-114.

c. Reference (a) entrusts local commanders with

administrative control over DSO personnel. This authority is

typically effected by the Officer-in-Charge, Legal Services

Support Section (LSSS) or Team (LSST). “Administrative control”

is defined as authority over subordinates in respect to

administration and support, including control of resources and

equipment, personnel management, unit logistics, individual and

unit training, readiness, mobilization, demobilization,

discipline, and other matters not included in the operational

missions of the subordinate or other organizations. The policies

below, which update certain standard operating procedures and

establish some new requirements related to running RDC and DSO

branch offices, ensure the lines between administrative and

operational control over members of the DSO remain clear. Id.

at p. 1-2.

3. Policy.

a. DSO Workspaces. DSO workspaces will be maintained in a

professional manner. DSO personnel will ensure that only

authorized personnel have access to DSO spaces and that

privileged material and personally identifiable information

(PII) are safeguarded at all times. The DSO office space should

be clearly identified as being a branch office of the DSO and be

separate and distinct from the rest of LSSS or LSST. To that

end, there will be appropriate signage entering DSO workspaces.

The DSO mission statement and creed and command-style

photographs of the Senior Defense Counsel (SDC), Regional

Defense Counsel (RDC), and the Chief Defense Counsel of the

Marine Corps (CDC) are to be prominently displayed in the DSO

hallway or on the wall of the client waiting room.

Additionally, each client waiting room will have a copy of

General Mattis’ letter to the DSO, contact information for local

mental health providers, and the D-Stress Poster on the wall.

b. DSO Correspondence. DSO letterhead will be used on all

defense-related correspondence (except for court pleadings) with

the DSO member’s role and the identity of the client clearly

articulated in the document itself. Social Security numbers

(SSN) or any portion of a SSN shall not be included in any

Enclosure 4

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES,

CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE

RETENTION POLICIES

3

document unless authorized under reference (b). To the extent

possible rely on EDIP. Defense-related e-mails from a member of

the DSO will identify the sender as a member of the DSO, the

sender’s role, identify of the client and, when appropriate,

will identify the contents as work product or privileged

communications. E-mails containing PII must be digitally signed

and encrypted and should include “privacy sensitive” notices in

the subject line and body.

c. Standard Forms. DSO personnel shall use the standard

forms available on the DSO SharePoint portal unless:

(1) Use of a particular form is not in the best

interest of the client.

(2) When a standard form does not meet the requirement

of a particular circumstance.

d. DSO Reporting Requirements.

(1) CDC’s Critical Information Requirements. CDC’s CIRs

are significant events that the CDC must be made aware of as

soon as possible. Timely and accurate reporting of CDC CIRs

prior to or immediately following an event significantly

enhances the ability of the CDC to make timely decisions and

initiate appropriate actions. Timely reporting of CDC CIRs can,

in some situations, enable the CDC to prevent or shape events.

A CDC CIR will be initially reported via e-mail and the case

affected will be annotated as a CDC CIR case in the DSO’s Case

Information System (CIS) and weekly report.

(a) Immediate Reportable Items. All members of the

DSO will immediately report simultaneously to the CDC, the

applicable Regional Defense Counsel, and the applicable Senior

Defense Counsel, regardless of the time of day or day of the

week, the CDC CIRs listed below.

1. Death or serious injury to any DSO member or

any DSO client.

2. Death or serious injury to any DSO member’s

immediate family (parent, spouse, or child).

3. Any report of suspected misconduct or

investigative action in the case of a member of the DSO,

including but not limited to arrest, pretrial confinement,

Enclosure 4

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES,

CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE

RETENTION POLICIES

4

preferral of charges against, or notification of non-judicial

punishment.

4. Any allegation that a member of DSO has

acted unethically.

5. The filing of any pleading alleging another

government attorney has acted unethically or has engaged in

prosecutorial misconduct. Where feasible attach an electronic

copy of the pleading to the e-mail notification.

6. Any suicide gesture by a DSO member.

7. Any interaction with a client, including

individuals who are present for limited purposes such as NJP

counselling, who in the estimation of the DSO member appears to

be at risk for suicide.

8. Any possible or suspected loss, compromise,

or spillage of classified material or information by any DSO

member.

(b) Items Reportable through the RDC. All members

of the DSO will immediately report to their Regional Defense

Counsel via their Senior Defense Counsel, the CDC CIRs listed

below, and Regional Defense Counsels will ensure prompt

forwarding to the CDC.

1. Any media interest in an investigation or

case concerning a DSO client.

2. Any potential claim from a member of the DSO

that a government attorney is acting unethically or has engaged

in prosecutorial misconduct (this is prior to an articulation of

the claim in a motion, correspondence, pleading, on the record

statement, or email which is mandated CIR direct to CDC in

paragraph 3c(1)(a)9 above).

3. Any case alleging a violation of Article 118

(or an attempted 118), UCMJ or that has been defined as a

national security case under paragraph 0126 of reference (c).

4. Any court hearing where a general or flag

officer or staff judge advocate will be called as a witness.

Enclosure 4

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES,

CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE

RETENTION POLICIES

5

5. Any case alleging misconduct by an officer

above the grade of O-3 and Chief Warrant Officers above CWO-3,

or an enlisted Marine above E-7.

6. Any case alleging unlawful command

influence, prior to an articulation of the claim in a motion,

correspondence, pleading, on the record statement, or email to

the government.

(2) Regular Reports. The following reports will be

filed by the deadline prescribed.

(a) Weekly Litigation Snapshot. RDCs or their

designee will send the CDC and the Officer-in-Charge, Defense

Counsel Assistance Program an e-mail by close of business each

Thursday listing the pending litigation for the following week

and the results for litigation from the current week.

(b) RDC Weekly Report. RDCs or their designee will

upload the RDC Weekly Report to Reports Folder on SharePoint by

close of business each Monday. The weekly report will identify

significant new cases, provide updates in CDC CIR and other

significant cases, identify significant motions litigated, list

all cases completed, identify significant litigation for the

following week and provide an up-to-date status of the RDC’s

cases.

(c) Regional Monthly Report. RDCs or their designee

will upload the Regional Monthly Report to the Reports Folder on

SharePoint by the close of business on the fifth day of the

month. The monthly report will identify completed and upcoming

training, issues related to working environment, significant

accomplishment and trends identified for the region.

Additionally, the RDC will update the Monthly Litigation

Statistics Report in the Monthly Report folder on SharePoint.

The CDC’s Legal Chief will ensure the Master Personnel Roster

and Fiscal Year to Date Litigation Statistics Report is updated

and placed into the Monthly Report folder by the seventh day of

the month.

(d) CDC Yearly Report. The CDC will provide the

Staff Judge Advocate to the Commandant of the Marine Corps (SJA

to CMC) a yearly report in the format provided by the SJA to

CMC.

Enclosure 4

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES,

CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE

RETENTION POLICIES

6

(3) Other Reports.

(a) Case Information System. Each counsel shall

update each individual case file on the Case Information System

(CIS) within two working days of a significant case event.

(b) DSO Training Tracker. RDC Chiefs will update

the DSO Training Tracker in the Reports folder on SharePoint

within five days of DSO member returning from a training event.

(c) DSO Master Personnel Roster. RDC Chiefs will

update the DSO Master Personnel Roster within one business day

of a Marine joining or departing the DSO.

(d) DSO At-Risk Client Roll-up. The CDC’s Legal

Chief will update the DSO At-Risk Client Roll-up within two

business days of receipt of a CDC CIR or notice of the

completion of suicide prevention related training event.

(4) DSO Leadership Meetings. Each week the CDC will

conduct a teleconference or videoconference with the RDCs and

their Chiefs. The RDCs will conduct a teleconference with their

SDCs.

e. Case File Retention. Case files are the responsibility

of the individual counsel, not the DSO. Case files are to be

kept in a secure location and in a manner that safeguards the

attorney-client privilege and the confidentiality of attorney

work-product. Case files must include the detailing letter,

notification of representation letter, the charge sheet or

notification letter, the client interview checklist, a record

that the client was provided the “coping with stress letter,”

potential witness list with contact information, all discovery

requests and responses, and, when applicable, a termination of

representation letter. Counsel have an obligation to maintain

their case files, even after leaving the DSO, at a minimum, for

the time periods set forth below. These obligations supersede

any state bar rule that would either authorize or permit

destruction of a case file at an earlier point.

(1) In a non-capital court-martial cases (general,

special, or summary), defense counsel will retain the case file

until the defense counsel has turned over the entire case file

to either the client or successor counsel or the earlier of:

Enclosure 4

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES,

CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE

RETENTION POLICIES

7

(a) completion of appellate review, including any

subsequent proceedings ordered by any appellate court and

completion of appellate review of any such subsequent

proceedings;

(b) the completion of any administrative proceeding,

including any authorized review, against the former client that

the counsel knows will occur or reasonably believes will occur

following the trial; or

(c) the death of the client.

(2) In a capital court-martial case, the defense counsel

will retain the case file until:

(a) the client is executed;

(b) the client’s death sentence has been set aside

in a final order (in the event that such a final order occurs

before the completion of appellate review and any subsequent

proceedings ordered by an appellate court, the defense counsel

will retain the case file in accordance with paragraph

(d)(1)(a), above); or

(c) the defense counsel has turned over the case

file to either the client or successor counsel.

(3) In an Article 32 investigation case in which charges

are not referred to court-martial, the defense counsel will

retain the case file until the earlier of:

(a) one year after the statute of limitations for

all offenses investigated has expired;

(b) one year after the client’s final discharge from

the Armed Services; or

(c) the death of the client.

(4) In a nonjudicial punishment case in which the

defense counsel entered into an authorized attorney-client

relationship and nonjudicial punishment is imposed and the

client is not the subject of an administrative separation board

or board of inquiry, the defense counsel will retain the case

file until the earlier of one year after the case is closed or

the death of the client.

Enclosure 4

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION WORKSPACES,

CORRESPONDENCE, REPORTING REQUIREMENTS, AND CASE FILE

RETENTION POLICIES

8

(5) For administrative separation boards and boards of

inquiry, the defense counsel will retain the case file until the

earlier of two years after the board’s completion or the death

of the client.

(6) A defense counsel who destroys a case file following

the expiration of the time periods set out above will do so in a

manner that safeguards the attorney-client privilege and the

confidentiality of attorney work-product.

4. Conclusion. CDC PM 4-13 is hereby cancelled. This CDC

Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

NMCTJ Code 52, OJAG

Enclosure 4

In Reply Refer To:

3000

CDC

17 Oct 14

CDC POLICY MEMORANDUM 1.4

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: DSO INSPECTION PROGRAM

Ref: (a) MCO P5800.16 (series)

(b) Article 6, UCMJ

(c) JAGINST 5803.1D

Encl: (1) Regional Defense Counsel Office Inspection Checklist

(2) Senior Defense Counsel and Branch Office Inspection

Checklist

1. Purpose. To establish an inspection program for the Marine Corps

Defense Services Organization (DSO) consistent with policies and

procedures established by the Staff Judge Advocate to the Commandant of

the Marine Corps (SJA to CMC) and to ensure the continued operation of

the DSO as a functionally-independent organization.

2. Discussion.

a. Reference (a) designates me as the Officer-in-Charge of the

DSO. In this role, I exercise operational control of and general

supervision over the professional development of Marine Corps judge

advocates and support personnel performing defense functions.

Reference (a) specifically tasks me with establishing standard

operating procedures and standards of practice for the delivery of

defense services throughout the Marine Corps. Reference (a) also tasks

me with assessing the practices, procedures, and techniques of both

defense counsel and support personnel in the performance of defense

functions. This responsibility includes assessment of the facilities

in which those functions are performed.

b. This policy establishes a vigorous inspection program in order

to reinforce those standard operating procedures and standards of

practice, exercise supervision of defense functions, emphasize DSO

functional independence, and support the Staff Judge Advocate to the

Commandant of the Marine Corps (SJA to CMC) in making “frequent

inspection in the field in supervision of the administration of

military justice,” as required by reference (b). I intend for this

program to be robust, transparent, and regular, yet executed internally

from within the DSO compliant with Rules 1.3, 1.6, and 5.1 of reference

(c).

Enclosure 4

3. Policy.

a. Each DSO branch office and detachment will be inspected at

least annually.

b. Annual inspections will typically be conducted in conjunction

with the Article 6 Legal Services Inspection (LSI). However, the CDC

may direct an off-cycle inspection of any branch office at the request

of the SJA to CMC (or his designee), any SJA, Commander, Officer-in-

Charge of a Legal Services Support Section or Team, or sua sponte.

c. The CDC usually travels with the SJA to CMC during his Article

6 visits. Inspectors will travel to the inspection site in advance of

the CDC, early enough to allow sufficient opportunity to prepare an

after action report for the CDC’s signature reporting out the result of

the inspection in a manner compliant with reference (c). Upon approval

and signature, the CDC will provide a copy of the report to both

Officer-in-Charge of the Legal Service Support Section or Team, and to

the SJA to CMC. The after action report will not contain any

privileged information.

d. Inspectors will usually be drawn from the office of the Chief

Defense Counsel and/or Defense Counsel Assistance Program, but may also

include members of the DSO selected by the CDC from a different region

than the Regional Defense Counsel or Branch Office being inspected.

Inspectors are specifically cautioned not to review any case files from

any conflict cases during the course of their inspection. Inspectors

will utilize the enclosure to inspect DSO branch offices.

e. The CDC will fund costs associated with travel and per diem

associated with assigning members of the DSO selected by the CDC from a

different region than the branch office being inspected.

4. Conclusion. CDC PM 5-13 is hereby canceled. This CDC Policy Memo

is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

Enclosure 4

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Regional Defense Counsel Inspection Checklist Inspector: Date:

01 General

01 001 – How does the RDC publish CDC CIRs to the Region? Does the RDC have CIRs

separate from CDC CIRs, and if so, what are they?

01 002 – Are the CDC and RDC photos prominently displayed?

01 003 – Are the DSO Mission Statement and DSO Creed prominently displayed?

01 004 – Is there appropriate DSO signage on the interior and exterior of the

building, as appropriate to location?

01 005 – Does the RDC have an updated photo and bio on the SJA to CMC public web

page?

01 006 – Does the RDC maintain a Regional SharePoint page? How is it being used?

01 007 – When did the RDC last meet with the LSSS and LSST OICs in the region?

01 008 – When did the RDC last meet with the SJAs in his region?

01 009 – When did the RDC last meet with the Circuit Judge?

01 010 – When did the RDC last meet with the local Navy DSO CO?

01 011 – How are new counsel conducting in-calls with the RDC?

02 Personnel

02 001 – Have the RDC and RDC Chief been appointed in writing?

02 002 – Does the RDC appoint Regional SDCs using the standard letter format?

02 003 - What is the current structure by Grade & MOS for the RDC office?

02 004 – What is the total on hand by Grade & MOS in the RDC Office?

02 005 – What coded BICs are there in the RDC office, and are they filled by

personnel with the appropriate MOS codes?

02 006 – Does the RDC office MCC have an MCC? If so, are both the RDC and Chief

assigned to it?

02 007 – What is the average RDC and Chief tour length, and how is it managed?

02 008 – How does the RDC interact with the LSSS and LSST OIC on personnel

management and tour length for counsel and enlisted support staff?

03 CLE/PME

03 001 – How does the RDC ensure his Marines (officer and enlisted) are afforded

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reasonable opportunities to attend schools in order to maintain their CLE and PME

requirements?

03 002 – How are CLE assignments and expenditures tracked?

03 003 – Does the RDC maintain a quarterly training plan? Attach a copy.

03 004 – Does the RDC perform quarterly regional training? Attach copies of this

fiscal year’s quarterly RDC training program schedules.

04 Budget 04 001 – Does the RDC have his own budget? If so, how is it administered and

managed? What mechanisms are in place to ensure accountability for funds?

04 002 – What were the past fiscal year’s expenditures, and what are the projected

expenditures for the present fiscal year?

04 003 – What mechanisms are in place for the RDC to track DTS claims of counsel

travelling for CLE and client related matters? How does the RDC ensure DTS

claims are filed in a timely fashion and in accordance with regulation?

05 Evaluations 05 001 – Are FITREPS and proficiency/conduct marks processed in a timely manner?

05 002 – Does the RDC have a person designated as a “trusted assistant” for the

processing of reports, and if so, who?

05 003 – Does the RDC maintain a master fitrep “matrix” identifying the

MRO/RS/RO relationships?

05 004 – Has the CDC Chief been designated/identified as command reviewer

for all enlisted fitreps?

05 005 – Is there an established billet description for each billet within

the RDC’s region?

05 005 – How does the RDC identify and address conflicts when writing

fitness reports on conflicted counsel? 06 Awards

06 001 – How does the RDC ensure his counsel are properly recognized for their

time in the DSO? Are letters of continuity drafted and submitted for personnel

changing duties within the LSSS/LSST?

06 002 – What criteria does the RDC have for selection of the Regional DECOY?

07 Military Training Requirements

07 001 – Does the RDC maintain a copy of the LSSS/LSST training plan?

07 002 – How does the RDC track training requirements for DSO personnel assigned

to his region?

07 003 – Are all Regional DSO PFT, CFT, Rifle and Pistol qualifications up to

date?

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Encl (1)

08 Record and File Maintenance 08 001 - Are retained correspondence files properly created, maintained, and

stored in a dedicated file retention area? SECNAV M-5210.2 Chap 1 & 2; MCO

5210.11E par 4A; NAVMC 5210.11E

08 002 - Does each retained correspondence file folder have disposal

instructions on the outside of the folder, and are they properly

retired/disposed of when appropriate? SECNAVINST 5210.8D par 7C.(5); MCO

5210.11E; SECNAV M-5210.1; NAVMC 5210.11E

08 003 - Are all retained correspondence files utilizing the member's DOD ID

Number? DODI 1000.30

08 004 - Is all privacy act information contained in retained correspondence

files cross shredded when disposed? MCO 5210.11E

08 005 - Is each retained correspondence file properly labeled with a standard

subject identification code and open/closed dates? SECNAV M-5210.2; NAVMC

5210.11E

08 006 - Are written internal control procedures (e.g. SOP binders, Policy

Memoranda) maintained and updated? MCO 5200.24D; MARADMIN 016/05; NAVMC 5210.11E

08 007 - Are there Regional control measures in place to ensure access to both

the DSO SharePoint and CIS pages are restricted to individuals that require it

and are access rosters maintained and updated on a quarterly basis? 5 U.S.C. §

552A (PRIVACY ACT)

08 008 – Is the RDC Office staffed with a personnel administrative clerk? If

not, does the RDC see a need for a junior enlisted personnel administrative

clerk? If so, explain.

08 009 – What Regional control measures are in place to ensure every GCM case

file contains a filed motion for investigator assistance or memoranda for the

record explaining the reasons why one was not requested?

09 Legal Services

09 001 – Does the RDC maintain a personal caseload, and if so, what is the

average number of cases the RDC does per calendar year?

09 002 – Does the RDC delegate detailing authority? If so, does he maintain

delegation authority letters? Attach copies.

09 003 – In cases where the RDC is detailed, is the standard notification of

representation delivered to the Trial Counsel? Attach the most recent copy.

09 004 - What mechanisms are in place for IMC requests within the Region?

Describe.

09 005 – How does the RDC define a “complex case” and what procedures does

the RDC have in place to ensure Regional SDCs consult in accordance with

CDC PM 3.1 (series)?

09 006 – What procedures has the RDC established for the region to identify

Enclosure 4

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Encl (1)

and resolve conflicts?

09 007 - What procedures has the RDC established for requesting Navy

Counsel in certain conflict cases?

Enclosure 4

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Encl (1)

Enclosure 4

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Encl (2)

Senior Defense Counsel (Branch Office) Inspection

Checklist

Inspector: Date:

01 General

01 001 – How does the SDC publish CDC and RDC CIRs to his/her Branch Office?

Does the SDC have his/her own CIRs?

01 002 – Is the SDC appointed and designated in writing using the standard

format?

01 003 – Has the SDC been delegated detailing authority as required by CDC PM 3.1

(series)?

01 004 – Does the SDC and his Chief receive the local Brig or Confinement report

in accordance with CDC PM 3.1 (series)?

01 005 - When was the last time the SDC visited the local confinement facility

used to house pretrial detainees? What were the conditions of pretrial

confinement?

01 006 – Are CDC, RDC and SDC photos displayed as required?

01 007 – Are the DSO Mission Statement, Creed, Gen Mattis’ letter, Mental Health

Contact Information, and D-Stress poster displayed as required?

01 008 – Does the SDC maintain a master military training/CLE training plan?

01 009 – Have all Counsel conducted an in-call with the Circuit Military Judge,

their LSST/LSSS OIC, and at least one local SJA in accordance with CDC PM 2.1

(series)?

01 010 – When was the last time the SDC personally met with the local SJAs,

individually or as a group?

01 011 – Has the SDC personally met with/conducted an in-call with the

Supervisory Special Agent In Charge?

01 012 – What mechanisms are in place for the SDC to receive regular feedback

from military judges concerning the performance of Counsel?

01 013 – How do Counsel in this Branch Office collaborate on cases with other DSO

attorneys worldwide?

01 014 – Do Counsel in this Branch Office have laptop computers and webcams?

01 015 – Do Counsel in this Branch Office have DCO accounts, and how are they

used?

01 016 – What procedures are in place in the case of a search authorization for

DSO spaces?

01 017 – Are the DSO spaces properly identified with appropriate exterior and

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interior signage?

01 018 – Does the DSO Branch Office have all the equipment necessary to

accomplish its mission, including but not limited to:

- Television and DVD player/VCR

- A cross-hatch shredder

- Color printers, copiers, and scanners

- Laptop computers

- Adobe Pro (most current version)

- MS Office Professional

- An audio player capable of playing a variety of audio files

including those from Hearings and Courts, but also those provided

in discovery or otherwise

- At least one Webcam per office

- At least one air-card per office

- At least one digital video and/or still camera per office

- At least one evidence ruler

- At least one digital audio recording device

01 019 – Does the Branch Office have the office supplies it needs to accomplish

its mission?

01 020 - Do all personnel in the Branch Office have access to a printed or

electronic version of the following publications?

- MCM (2012 ed.) and Supplement (2012 ed.)

- Military Judge’s Benchbook

- MCO 5800.16B Ch 1 (LEGADMINMAN)(LSAM after publication of change)

- MCO P1900.16F Ch 2 (MARCORSEPSMAN)

- JAGINST 5800.7F (JAGMAN)

- United States Navy Regulations

- Rules of Court

- JAGINST 5803.1D (Rules of Professional Conduct)

- Trial Guide

- Article 32 Investigating Officer’s Guide

- MCO 5800.14 (Victim Witness Assistance Program)

- MCO 1752.5B (SAPR Program)

- NAVMC 3500.82 (Legal Services T&R Manual)

- MCO 1200.17E (MOS Manual)

02 Personnel

02 001 – What is the Branch Office current FY Structure by Grade & MOS?

02 002 – What is the total on hand in this branch office by Grade & MOS?

02 003 – How does the SDC track personnel leave with regard to the docket and/or

training requirements to ensure Counsel are present when required?

02 004 – Have all Counsel completed and submitted the Bio Data Sheet in

accordance with CDC PM 2.1 (series)?

02 005 – Have all Counsel completed the New DC Orientation Checklist?

02 006 – Do Counsel adopt seasonal uniform changes in the courtroom?

Enclosure 4

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Encl (2)

02 007 – While in court do Counsel wear all ribbons to which entitled?

02 008 – Are Counsel in compliance with the Military Appearance Program in

accordance with standards established by MCO 6110.3 W/CH 1?

02 009 – Are all Defense Counsel appointed in writing? Are Support personnel

assigned to the DSO in writing?

02 010 – Do all Defense Counsel have an established rotation date?

02 011 – What is the average length of time an attorney spends as a Defense

Counsel in the Branch Office? Give actual numbers, not estimates.

02 012 – What is the average length of time a Marine spends as a Defense Clerk in

this Branch Office? Give actual numbers, not estimates.

02 013 – Is the information on each DSO member correct on SharePoint?

02 014 – Have DSO personnel established SharePoint alerts in accordance with CDC

PM 2.1 (series)?

02 015 – Have all Branch Office personnel signed the 4421/4401 Statement of

Understanding in accordance with CDC PM 2.2 (series)?

02 016 – What mechanisms are in place in the Branch Office to ensure personnel no

longer have access to CIS and SharePoint upon their transfer or upon change of

duties with the LSST/LSSS?

02 017 – How are 4421s being used in the Branch Office? Do they support all

Counsel or just the SDC?

02 018 – Do all personnel (officer and enlisted) in the Branch Office have a

Lexis account?

02 019 – Have all personnel (officer and enlisted) in the Branch Office been

trained in legal research on Lexis? When was the last time Lexis training was

held?

02 020 – How does the Branch Office access 3270?

02 021 – Have all 4421s been trained on how to draft motions, position papers, to

IRAC, and use the Blue Book?

02 022 – Do all 4421s have a proper understanding of the SDC’s expectations and

duties?

02 023 – Do all 4421s have a proper understanding of DSO procedures related to

NJP, Administrative Separations, Special Courts-Martial, Article 32 Hearings, and

General Courts-Martial?

02 024 – Do all 4421s have a proper understanding on the limitations related to

the provision of legal advice by a non-attorney?

02 025 – How does each Defense Counsel stay organized? How do they each track

deadlines, emails, phone messages, and appointments?

02 026 – Does each DSO office space present a neat, professional, military

Enclosure 4

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appearance? Is there any offensive or potentially offensive material displayed?

02 027 – Is each DSO office equipped with sufficient office furniture, including

chairs and desks?

02 028 – Are there any potential fire or equipment hazards, is there a properly

displayed emergency/fire exit plan, and do all DSO personnel in the Branch Office

understand what to do in case of an emergency or fire?

02 029 – Is there a panic button anywhere in the office?

02 030 – How does the SDC conduct holiday and weekend liberty and safety briefs?

02 031 – Does the DSO Branch Office have a phone tree or other non-duty hours

contact procedure?

03 CLE

03 001 – How does the SDC ensure his/her Marines are afforded reasonable

opportunities to attend schools in order to maintain their CLE requirements?

03 002 – Are counsel being afforded opportunity to attend CLE outside of their

regions (e.g., attend training other than RDC or SDC training)?

03 003 - Has each Counsel had the opportunity to attend at least one CLE outside

his/her region?

03 004 – How does the SDC track CLE assignment and (as required) expenditures?

03 005 – How does the SDC ensure travel authorizations and vouchers are submitted

and processed via DTS in a reasonable amount of time?

03 006 – Does the SDC have a local training program to train subordinate Counsel?

03 007 – How often does the SDC conduct local training for his Branch Office?

03 008 - Attach a copy of the local training curriculum/plan.

03 009 - Are 4421’s given the opportunity to attend the Legal Research & Writing

and Legal Ethics courses provided by the Naval Justice School, Newport, RI? How

many from this Branch Office have attended?

03 010 – What other CLE opportunities have Branch Office 4421’s been provided in

the past FY, both within the DSO region and otherwise?

04 Evaluations 04 001 – How does the SDC track fitness reports?

04 002 – Does the SDC maintain a master fitrep “matrix” identifying the

MRO/RS/RO relationships?

04 003 - Are FITREPS and proficiency/conduct marks processed in a timely manner?

04 004 – Has the DSO Legal Chief been designated/identified as command

reviewer for all enlisted fitreps processed in the DSO Branch Office?

Enclosure 4

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Encl (2)

04 005 - Does every individual have an established billet description in

accordance with MCO P1610.7F

05 Awards 05 001 – Are recommended awards forwarded to the approval authority in a timely

fashion and prior to a Marines departure?

06 Military Training Requirements

06 001 – Does the SDC maintain a training plan?

06 002 – Are rifle, pistol, PFT, CFT MCMAP and other military training

requirements current for Marines assigned to the Branch Office?

06 003 – How does the SDC ensure that his Marines are afforded range and other

military training opportunities on par with other Marines in the LSST/LSSS?

06 004 – Are all Marines in the Branch Office enrolled in PME appropriate to

their grade?

07 Detailing and IMC Requests 07 001 – How does the SDC detail Counsel to cases?

07 002 - How does the SDC maintain Detailing Letters in his/her Branch Office?

07 003 – How does the SDC manage termination of detailing in relation to

established tour lengths? Does the SDC use the standard format letter, and is it

provided to the LSST/LSSS OIC and CDC?

07 004 – How does the SDC ensure his new Counsel complete the New DC Orientation

Checklist prior to being detailed cases?

07 005 – How does the SDC maintain New DC orientation Checklists?

07 006 – Does the SDC allow new Counsel to sit as second chair in cases prior to

completion of the New DC Orientation Checklist?

07 007 – What is the average time from notification to detailing for Marines not

in pretrial confinement? Give actual numbers, not estimates.

07 008 – What is the average time from notification to detailing for Marines in

pretrial confinement?

07 009 – Is the standard notice of representation sent to the Trial Counsel

within the required timeline in accordance with CDC PM 3.1 (series)?

07 010 – How does the SDC define a “complex case” and what procedures are in

place to ensure each case is detailed to Counsel with experience appropriate to

the charged offenses?

07 011 – How does the SDC ensure compliance with the requirement of CDC PM 3.1

(series) to consult with the RDC before detailing a complex case?

07 012 – How does the SDC manage IMC requests, and are they processed in

accordance with the requirements of CDC PM 3.1 (series)?

Enclosure 4

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Encl (2)

07 013 – How does the SDC exercise the release of Counsel for good Cause to sever

the Attorney-Client relationship in compliance with CDC PM 3.1 (series)?

07 014 – What procedures are in place to allow the SDC to identify and address

conflicts within his Branch Office?

07 015 – What procedures are in place to request Navy DSO support in conflict

cases?

08 Case Management, Records and Files Management, and Office Management 08 001 – Are attorneys in the Branch Office updating CIS in accordance with CDC

PM 1.3 (series)?

08 002 - Are there Regional control measures in place to ensure access to both

the DSO SharePoint and CIS pages are restricted to individuals that require it

and are access rosters maintained and updated on a quarterly basis? 5 U.S.C. §

552A (PRIVACY ACT)

08 003 – Does the Branch Office maintain local forms? Obtain copies.

08 004 – How do counsel and support personnel store and access local and/or

DSO-wide forms?

08 005 – How are files maintained? Are they properly secured in accordance with

JAGINST 5803.1c? Inspect for the following:

- Can each individual Attorney’s office be secured, and who has

access?

- Is there accountability for office keys, and how?

- Who in the LSST/LSSS has master keys to the defense spaces, and how

is their entry/exit controlled?

- Does the office have file cabinets which can be locked or otherwise

secured?

- Do attorneys have lockable desk drawers?

08 006 – Does each client case file have at least the following:

- Standard Detailing Letter

- Notification of Representation Letter

- Charge Sheet/Notification letter

- Client Interview Checklist

- Coping With Stress Letter

- Potential Witness List (with contact information)

- Discovery Request(s)

- Termination of Representation Letter (as appropriate)

08 007 – Are retained files properly created, maintained, and stored

in accordance with CDC PM 1.3 (series)

08 008 – What procedures are in place for Counsel who EAS or PCS to take their

files with them?

08 009 - Does each retained file folder have disposal instructions on the

outside of the folder, and are they properly retired/disposed of when

Enclosure 4

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Encl (2)

appropriate? SECNAVINST 5210.8D par 7C.(5); MCO 5210.11E; SECNAV M-5210.1;

NAVMC 5210.11E; and CDC PM 1.3 (series)

08 010 - How are retained correspondence files identified, by SSN or EDIP?

08 011 - Is all privacy act information contained in retained correspondence

files cross shredded when disposed? MCO 5210.11E

08 012 - Is each retained correspondence file properly labeled with a standard

subject identification code and open/closed dates? SECNAV M-5210.2; NAVMC

5210.11E

08 013 - Are written internal control procedures (e.g. SOP binders, Policy

Memoranda) maintained and updated? MCO 5200.24D; MARADMIN 016/05; NAVMC 5210.11E

08 014 – What procedures are in place to manage Personally Identifiable

Information (PII) in accordance with MCO 1553.3b? What procedures are in place

to ensure PII is not available on desktops or on white boards during client

meetings?

08 015 – Is the Branch Office staffed with a personnel administrative clerk? If

not, does the SDC see a need for a junior enlisted personnel administrative

clerk? If so, explain.

08 016 – How does the SDC track deadlines for subordinate Counsel’s dockets in

the office?

08 017 – How does the SDC exercise his responsibility to supervise Counsel

throughout the litigation process? How does the SDC provide feedback (ask both

the SDC and Counsel)?

08 018 – What procedures are in place in the Branch Office for the conduct of

“murder boards” and moots?

08 019 – What procedures are in place in the Branch Office to ensure every GCM

case file contains a filed motion for investigator assistance or memoranda for

the record explaining the reasons why one was not filed?

09 NJP/31b/Administrative Separation Rights Counseling:

09 001 – What procedures are in place for to provide Marines in need with their

rights related to Non-Judicial Punishment, their rights when suspected of an

offense under Article 31b, and their rights when notified of being processed for

administrative separation?

09 002 – What is the policy for Counsel meeting with walk-in Marines with regard

to the confidentiality of the communications between that Marine and the Counsel?

09 003 – What is the policy for formation of attorney-client relationships with

walk-in Marines? Does the policy change with regard to the rank of the

individual who walks in?

09 004 – What mechanisms are in place for the SDC to ensure policies and

procedures with regard to confidentiality and formation of an attorney-client

Enclosure 4

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Encl (2)

relationship are effectively communicated to Marines who walk in for counseling?

09 005 – What mechanisms are in place to account for the presence of walk-in

personnel within the Branch Office? Is there a log book? Do they check in with

a clerk? What information is obtained and how is it retained?

10 Professional Responsibilities:

10 001 - Are all assigned judge advocates and civilian attorneys licensed and in

good standing with all licensing authorities? (JAGINST 5801.2A, para. 3-2A;

JAGINST 5803.1, Rule 8.6; MARADMIN 049/12)

10 002 - Does the DSO Branch Office maintain proof of good standing for all

judge advocates and civilian attorneys attached to it? (JAGINST 5801.2A, para.

3-2A; JAGINST 5803.1D, Rule 8.6; MARADMIN 049/12)

10 003 - Does the DSO Branch Office comply with the prohibition against

maintaining files regarding professional responsibility complaints other than

supervisory attorneys’ personal files? (JAGINST 5803.1D, para. 14.b.)

Enclosure 4

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Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 RM 1D130

ARLINGTON, VA 22204-2482

In Reply Refer To: 5813

CDC

24 Feb 16

CDC Policy Memo 1.5B

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM

Ref: (a) SECNAVINST 1650.1H

(b) MCO 1650.19J Ch 1

Encl: (1) Awards Flow Charts

(2) Eligibility Matrix

(3) DSO Marine of the Year Nomination Form

(4) Defense Counsel of the Year Nomination Form Motion

(5) Motion of the Year Nomination Cover Sheet

1. Purpose. To standardize procedures within the Marine Corps

Defense Services Organization (DSO) in order to recognize those

members of the DSO who have had the greatest positive impact on

the mission of “Marines Defending Marines,” and to make service

in the DSO something Marines in our community seek out as career

enhancing and valuable.

2. Discussion. There are few more challenging tasks than those

required of “Marines defending Marines.” Long hours and

difficult work are systemic for both attorneys and legal service

specialists alike. It is my honor and privilege to serve with

you all, each of you as capable and professional as the next.

Similarly, our clients are fortunate to have you standing by

their side and diving headlong into the military justice fray

each and every day. It therefore seems appropriate to formalize

our existing awards program in a manner which will reflect

credit on both the persons selected by the program, and the DSO

as a whole. This program is intended to supplement, not

replace, recognition by Commanders for meritorious performance

of duty submitted in accordance with the references.

3. Policy. The DSO is divided into four regions. These

regions are: National Capitol Region (NCR); East; West; and

Pacific. We will recognize both legal services specialists and

Enclosure 4

Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM

2

attorneys throughout the DSO in an appropriate manner. I intend

for the DSO to be a desirable, career-enhancing place for all

attorneys and legal service specialists. One way to do this is

through public recognition of exceptional performance of duty.

In addition to the Department of the Navy awards listed in the

references, the established DSO awards are: Marine of the Year,

Defense Counsel of the Year (DECOY), the Academic Writing Award

and the Motions Practice Award. Deadlines and processes for all

DSO awards are outlined in enclosure (1).

4. Personal Awards. Service in the DSO is personally and

professionally rewarding. DSO Marines perform a valuable

service to the Marines and Sailors they represent as well as to

the Marine Corps. In order to ensure proper recognition of the

contributions made by DSO personnel, I am standardizing the

personal award administrative procedures within the DSO.

a. End of Tour (EOT). An individual is recognized for

sustained superior performance at the termination of the period

during which that performance was demonstrated, such as at the

end of an assigned tour of duty. Defense counsel executing

PCS/PCA orders from the DSO will be nominated for a personal

award when appropriate.

b. Letter of Continuity. A letter of continuity should be

prepared when it is believed that an individual is deserving of

recognition but is only being reassigned and not executing

permanent change of station orders. The letter of continuity can

be prepared in letter format or as a summary of action and

forwarded under separate cover to the individual’s new reporting

senior. The information contained in the letter of continuity

should then be used for an end of tour award recommendation.

Likewise, when a Marine is reassigned to the DSO, the reporting

senior should obtain a letter of continuity at that time from

the previous reporting senior.

c. Specific Achievement. A specific achievement (or

impact) award may be authorized for exceptional performance over

a period of short duration, which is generally no longer than

twelve months. However, specific achievement awards may not

support an EOT award; neither the Summary of Action nor the

citation issued for the period of meritorious service shall

mention the specific achievement previously recognized. DSO

impact awards shall be submitted by the cognizant Regional

Defense Counsel (RDC) for the DSO Marine of the Year and the DSO

Defense Counsel of the Year in accordance with paragraph 7(b).

Additionally, circumstances may arise in which a personal impact

Enclosure 4

Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM

3

award may be appropriate (e.g. a defense counsel prevents an

imminent suicide). These awards will be provided to the RDCs

for vetting and submission to the Legal Services Support Section

(LSSS) OIC.

d. Administrative Routing. All awards for defense counsel

will be routed to the RDCs and then provided to the appropriate

LSSS OICs. RDCs are responsible for originating Senior Defense

Counsel (SDC) personal awards and forwarding them to the LSSS

OIC. A courtesy copy of all forwarded awards will be provided

to the DSO Legal Chief. The CDC will originate all RDC, Defense

Counsel Assistance Program (DCAP), DSO Legal Chief, and civilian

personal awards. Under no circumstances should personal awards

go directly from SDCs to LSSS OICs.

5. Marine of the Year/Defense Counsel of the Year. RDCs shall

establish written policies and procedures within their regions

for selection of Marines worthy of recognition as DSO Regional

Marine of the Year and Regional Defense Counsel of the Year

(DECOY). In doing so RDCs are encouraged to consider the “whole

Marine concept” and to solicit input from a variety of sources,

including but not limited to LSSS and Legal Services Support

Team (LSST) Officers—in—Charge, military justice personnel,

military judges, and Staff Judge Advocates.

a. Marine of the Year. Each Regional Defense Counsel shall

establish a program to recognize the hard work and dedication of

Legal Services Specialists in their region. Award eligibility

criteria are depicted in enclosure (2). At a minimum:

(1) Each DSO Region will recognize one Legal Services

Specialist in the grade of E-5 and below as the Regional DSO

Marine of the year. Regional Defense Counsel (RDCs) shall

establish policies and procedures for nomination and selection

within their regions, and will coordinate appropriate

recognition with the Officer—in—Charge of the Legal Services

Support Section or Team where the Marine selected is physically

employed.

(2) The four Regional DSO Legal Service Specialists of

the Year will compete for selection as DSO Marine of the Year.

RDCs will use enclosure (3) to submit their Regional DSO

nominations. The Chief Defense Counsel of the Marine Corps

(CDC), in consultation with the DSO Legal Chief and Reserve

Chief Defense Counsel of the Marine Corps, will make the final

selection.

Enclosure 4

Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM

4

b. Defense Counsel of the Year(DECOY). In addition to the

foregoing, each RDC shall establish a program to recognize the

hard work and dedication of Judge Advocates in their region.

Award eligibility criteria are depicted in enclosure (2). At a

minimum:

(1) Each DSO Region will recognize one Judge Advocate in

the grade of O-4 and below as the Regional Defense Counsel of

the year (DECOY). Senior Defense Counsel (SDCs) and RDCs are

ineligible. RDCs shall establish policies and procedures for

nomination and selection within their regions, and will

coordinate appropriate recognition with the Officer—in—Charge of

the Legal Services Support Section or Team where the Judge

Advocate selected is physically employed.

(2) The four Regional DECOY will compete for selection

as DSO DECOY. RDCs will use enclosure (4) to submit their

Regional DSO nominations. The Chief Defense Counsel of the

Marine Corps (CDC), in consultation with the DSO Highly

Qualified Experts, the Officer—in—Charge, Defense Counsel

Assistance Program, and the Reserve Chief Defense Counsel of the

Marine Corps, will make the final selection.

c. Nomination Process. Each RDC shall submit their nominee

for DSO Marine of the year and DECOY at least sixty calendar

days prior to the annual DSO World-Wide Community Training. Use

enclosures (3) and (4) for all submissions.

6. Writing Awards. Defending Marines requires far more than

oral advocacy. An effective advocate is also an accomplished

researcher and writer. The DSO Writing Awards will recognize

the best in academic writing and motions practice in order to

encourage our personnel to hone their research skills, improve

their writing capability, and enhance the professionalism of the

military legal community. This competition also establishes an

effective mechanism for ensuring the top 60+ motions of each

calendar year become available to the entire DSO, thereby

strengthening our collective ability to more effectively

represent and defend our clients. There are two categories

eligible for recognition, academic writing and motions practice.

a. Academic Writing Award. The DSO Academic Writing Award

is an annual award intended to encourage DSO attorneys to submit

articles for publication in professional journals, including but

not limited to, law reviews and military professional journals.

If there are no academic articles submitted during the award

period, there shall be no award for that period.

Enclosure 4

Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM

5

(1) Eligibility Criteria. Nominees must:

(a) Be in the grade O-4 or below;

(b) Be in a Defense Counsel billet at the time the

article is published;

(c) Not be a Regional Defense Counsel;

(d) Be published during the established annual award

period of 1 December to 30 November;

(e) Be published in a recognized professional law

review or journal, for example The Army Lawyer or The Marine

Corps Gazette;

(f) Have published a writing at least 1,500 words in

length;

(g) Have published in a subject of general interest

to the legal or military community.

(2) Articles written as part of an academic program are

eligible so long as the author is a member of the DSO upon

publication.

(3) Nominations may be submitted via email by any

member of the DSO through the individual defense counsel’s

operational chain of command. Include appropriate citation to

the source document in the nomination.

(4) Submissions are encouraged, but not mandatory.

(5) Nominations are due to the Chief Defense Counsel of

the Marine Corps no later than 30 calendar days after the end of

the established award period. Should the 30th day fall on a

Holiday or Weekend, nominations are due the last business day

preceding that Holiday or Weekend.

(6) The CDC, in consultation with the Reserve CDC and

DCAP, is the final arbiter of this award.

b. DSO Motions Practice Award. The DSO Motions Practice

Award is an annual award intended to encourage a vigorous

motions practice across the Marine Corps. Second, it is

intended to facilitate healthy turnover of new and updated

Enclosure 4

Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM

6

motions in our DSO Motions Database. Extraordinary Writs are

specifically included as eligible for this award.

(1) Eligibility Criteria.

(a) The award period is 1 December to 30 November.

The motion must have been filed with the Navy and Marine Corps

Trial Judiciary, the Navy and Marine Corps Court of Criminal

Appeals, the Court of Appeals for the Armed Forces, IRO officer,

or board during the established award period.

(b) Substantial portions of the motion must have

been drafted by the nominated counsel. Some duplication of

minor administrative matters between motions is acceptable. If

more than one counsel drafted the motion, the primary author

will be the nominee. Disputes over primary counsel will be

resolved at the Senior Defense Counsel (SDC) level.

(c) Relief from the Trial or Appellate Court is a

factor which adds credibility to the righteous nature of the

motion, but is not in-and-of-itself determinative.

(d) While there is no minimum or maximum length for

nominated motions, a good rule of thumb is that a motion should

be, “as long as necessary and as short as possible.”

(e) The forum in which the motion was submitted

(General Court-Martial, Special Court-Martial, Summary Court-

Martial, Initial Review Officer Hearing, Board of Inquiry, or

Administrative Separation Board) is irrelevant.

(f) The Chief Defense Counsel of the Marine Corps,

RDCs, DCAP, and Civilian Litigation Experts are not eligible for

this award.

(2) Nominations Process.

(a) Defense Counsel. Participation in the DSO

Motions Practice Award is mandatory. Each Defense Counsel in

the DSO shall, at a minimum, submit one motion for consideration

by his or her Senior Defense Counsel. On or before 30 November,

select a motion you believe meets the relevant eligibility

requirements. Scrub all motions of personally identifiable

information (PII). Submit an electronic copy to your SDC, along

with the completed defense counsel section of the nomination

cover sheet (encl (5)). Do not include enclosures, appendices,

exhibits, or attachments.

Enclosure 4

Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM

7

(b) Senior Defense Counsel. On or before 15

December forward all motions electronically to your RDC. Select

the best nomination and forward with completed SDC comments to

the RDC for consideration (encl (5)). If the SDC wrote an

original motion during the past calendar year, the SDC may

submit that motion to the RDC for consideration in addition to

the nominated motion.

(c) Regional Defense Counsel. On or before 1

January forward all motions to the Officer In Charge, Defense

Counsel Assistance Program. Select one nominee from your

region. Forward your nomination for the DSO Motions Practice

Award to the CDC with the completed cover sheet (encl (5)).

(d) Reserve CDC/Civilian Litigation

Specialists/DCAP. On or before 1 February provide input on the

four finalists to the CDC.

(e) Should any designated due date fall on a Holiday

or Weekend, nominations are due the last business day preceding

that Holiday or Weekend.

(f) The CDC is the final arbiter of this award, with

advice from DCAP.

(g) The DSO Motions Practice Award will be presented

in an appropriate ceremony at the Annual DSO World-Wide

Community Training Event.

c. Judging Criteria.

(1) Senior Defense Counsel. SDCs have discretion to

select the best motion submitted by their counsel during the

award period. While the SDC selection criteria are

discretionary, the nomination should be informed by, and nested

within, CDC criteria.

(2) Regional Defense Counsel. RDCs have discretion to

select the best motion nominated by their SDCs. While the RDC

criteria are discretionary, the nomination should be informed

by, and nested within, CDC criteria.

(3) CDC criteria.

(a) Rubric:

Enclosure 4

Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM

8

Persuasiveness Originality Citations Punctuation/Grammar Style Format

45% 20% 15% 10% 5% 5%

(b) Persuasiveness-45%. Above all else, a motion

must be persuasive. Persuasiveness is a subjective

determination made by the CDC and informed by: relief granted

(if any), input from the Reserve CDC, nominating RDC, nominating

SDC, and the OIC of DCAP.

(c) Originality-20%. Originality is a subjective

judgment based on the novelty of the issue. For instance, a

standard motion to compel witnesses would generally not score

very high in originality. An ADSEP motion for an out of area

witness to testify via FaceTime would grade higher. A motion to

compel a former interpreter from Iraq with Department of State

support would score high in originality.

(d) Citations-15%. Citations need to be correct and

accurate. This builds credibility in the argument and

credibility with the judge.

(e) Punctuation/Grammar-10%. Great attorneys can

write well. Proper punctuation and grammar count.

(f) Format-5%. While the substance of a motion

should govern, the format and presentation is important. This

recognition program will utilize the local circuit formatting

conventions.

(g) Style-5%. The writer’s voice, also known as

style, is very important. This is a subjective determination

made by the CDC and informed by input from the Reserve CDC,

nominating RDC, nominating SDC, and the OIC of DCAP.

c. Subordinate Element Missions:

(1) DCAP.

(a) Collect any and all academic writing submissions

and distribute to the CDC, Reserve CDC, and Civilian Litigation

Specialists for review.

(b) Compile all submitted motions for CD/hard drive

distribution at the CDC conference and/or SharePoint. Be

prepared to provide highlights from the newly created motions

bank during the DSO World-Wide Community Training Event.

Enclosure 4

Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM

9

(2) Civilian Litigation Specialists. Provide a non-

military perspective on the quality of nominated motions.

7. Recognition.

a. Award recipients will be publically recognized at the

CDC conference and will be included on a recognition plaque to

be displayed at the office of the CDC.

b. Recipients of the Marine of the Year and the Defense

Counsel of the Year will be nominated for a Specific Achievement

Award (as a Competitive Accomplishment) Navy and Marine Corps

Achievement Medal by the RDC of the region where the nominee is

physically employed in accordance with references (a) and (b).

The DSO Academic Writing Award and the DSO Motions Practice

Award recipients will receive a letter of appreciation from the

CDC for inclusion within their OMPF.

c. Award recipients and the regional nominees for Marine of

the year and DECOY shall be included in a MARADMIN submitted for

release by the Staff Judge Advocate to the Commandant of the

Marine Corps announcing the selection.

d. Each award recipient, including the DECOY, DSO Marine of

the Year (when a Sergeant), the DSO Academic Writing Award, and

the DSO Motion Practice Award receive a commendatory Fitness

Report.

(1) For the Defense Counsel of the Year or Marine of

the Year, include a comment substantially similar to the

following in the Marine’s Section I:

Directed Comment, Sect A, Item 6a: MRO was selected

by the Chief Defense Counsel of the Marine Corps as

the recipient of the 20[XX] [DSO Defense Counsel of

the Year][DSO Marine of the Year]. [MRO’s was selected

over [70 of his or her peers][12 of his or her peers].

This award is reflective of superior MOS technical and

tactical proficiency.]

(2) For the DSO Academic Writing Award, and the DSO

Motion Practice Award, include a comment substantially similar

to the following in the Marine’s Section I:

Directed Comment, Sect A, Item 6a: MRO [drafted the

motion][authored a published article] and was selected

by the Chief Defense Counsel of the Marine Corps as

Enclosure 4

Subj: DEFENSE SERVICES ORGANIZATION AWARDS PROGRAM

10

the recipient of the 20[XX] [DSO Academic Writing

Award][DSO Motions Practice Award]. [MRO’s article

(include amplifying comments about article, e.g. where

published, significance of issues addressed, etc.)] OR

[MRO’s motion was selected out of thousands of motions

submitted by over 70 defense attorneys and is

reflective of superior MOS technical and tactical

proficiency.]

8. Conclusion. The point of contact for this program is DCAP.

This CDC Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

NMCTJ Code 52, OJAG

Enclosure 4

Encl (3) 1

MARINE CORPS DEFENSE SERVICES ORGANIZATION MARINE OF THE YEAR

NOMINATION FORM Thank you for taking the time to nominate one of our 4421 as Marine Corps Defense Services Organization Marine of the Year. The intent of this award is to recognize the DSO 4421 who has best epitomized the DSO Creed during this past Calendar Year:

We are Marines – Judge Advocates and Legal Services

Specialists – who are dedicated to defending our fellow Marines and Sailors, by providing them legal counsel in any matter required by statute, regulation, or otherwise authorized. We are zealous advocates for our clients, serving independently of the local chain of command and under the supervision of the Marine Corps Defense Services Organization. We zealously represent each and every client within the guidelines of the law, consistent with our professional ethics, and in accordance with our rules of practice. We selflessly perform our duties with the utmost integrity, motivation and pride, without fear of reprisal, or expectation of professional or personal gain. In the same spirit as “Taking Care of Our Own,” we are: “Marines Defending Marines.”

In order to be eligible the 4421 must have served with the DSO during the last calendar year and remain on active duty through the date determined by the Chief Defense Counsel of the Marine Corps (published separately). The DSO Marine of the Year will be announced and recognized during the Annual DSO World-wide Community Training (DSO WWCT). It is not necessary that the nominee presently be a member of the DSO. Neither is it required that the nominee be present at the annual DSO WWCT, although it is preferred. Anyone may submit a nomination, which should be submitted on this form through the Nominee’s RDC, but the four Regional DSO Marines of the year are automatic nominations. All nominations must be submitted sixty (60) calendar days prior to the first day of the DSO WWCT. Please complete as much of this form as possible, understanding that you may not have access to all the information requested. 1. Your Info: 2. Nominee’s Name: 3. Nominee’s Billets during the last calendar year: 4. Nominee’s Current Battalion / Squadron Commander:

Enclosure 4

Encl (3) 2

5. Narrative Description why this Nominee should be DSO Marine of the Year: 6. Statistics: A. Number of Defense Counsel in Nominee’s section: B. Cases processed by this section in the last calendar year, including pleas and Board Waivers: -GCMs: -SPCMs: -BOIs: -AdSep Boards: 7. Mentorship – Please identify or describe specific examples of the Nominee teaching, training, or mentoring others in order to improve the practice of law: 8. Honoring the Creed – Please identify or describe specific examples of how the Nominee honored the DSO Creed in the performance of his or her duties with the DSO. 9. Professionalism - Describe how this Nominee interacts with members of the opposite side of the bar, members of the Judiciary, Staff Judge Advocates, Officers-in-Charge, Law Center Directors, Convening Authorities, and family members of their clients. 10. Non-DSO duties - Does this Nominee have any non-duty related accomplishments worthy of consideration (e.g. volunteer work, significant accomplishments in PME, publication, deployments, or other awards received during this period)? If so, please describe. 11. Other Information:

Enclosure 4

Encl (4) 1

MARINE CORPS DEFENSE SERVICES ORGANIZATION DEFENSE COUNSEL OF THE YEAR (DECOY)

NOMINATION FORM Thank you for taking the time to nominate one of our officers as DSO-wide Defense Counsel of the Year (DECOY). “Wins and losses” in the courtroom are important, but they matter less than recognizing the Judge Advocate in the DSO who has had the greatest impact in their region and the DSO over the last calendar year. In order to be eligible the Officer must have practiced as a defense counsel in the Region at some point during the last calendar year, and remain on active duty through a date specified by the Chief Defense Counsel of the Marine Corps (published separately). The DECOY will be announced and recognized during the Annual DSO World-wide Community Training (WWCT). It is not necessary that the nominee presently hold a Defense Counsel billet. Neither is it necessary that the nominee be present at the WWCT, but it is preferred. Anyone may submit a nomination, which should be submitted on this form through the Nominee’s RDC, but the four Regional DECOY are automatic nominations. All nominations must be submitted sixty (60) calendar days prior to the first day of the DSO WWCT. Please complete as much of this form as possible, understanding that you may not have access to all the information requested. 1. Your Info (Name, Billet, Phone Number): 2. Nominee’s Name: 3. Nominee’s Billets during the last calendar year: 4. Nominee’s Current Battalion / Squadron Commander: 5. Narrative Description why this Nominee should be DSO DECOY: 6. Statistics: A. Number of Defense Counsel in Nominee’s section: B. Cases processed by this section in the last calendar year, including pleas and Board Waivers: -GCMs: -SPCMs: -BOIs:

Enclosure 4

Encl (4) 2

-AdSep Boards: C. Number of cases processed by this Nominee in the last calendar year, including pleas and Board Waivers: -GCMs (Identify # contested): -SPCMs (Identify # contested): -BOIs: -AdSep Boards: 7. Mentorship – Please identify or describe specific examples of the Nominee teaching, training, or mentoring others in order to improve the practice of law: 8. Motion Practice - What motions have been written and argued by this Nominee? Identify the most significant motion written, the issues it addressed, how it well it was argued. Were there any creative or unique interpretations of the law advocated? Persuading the court on a particular point of law or motion should be noted, but prevailing on a motion for appropriate relief is not the most important factor to consider for the purpose of this nomination. 9. Advocacy In Contested Cases - Identify the Nominee’s most significant accomplishment in a contested trial. Describe the Nominee’s style and effectiveness with regards to advocacy, understanding of the Rules for Courts-Martial and Rules of Evidence, and how quickly he or she thinks on his or her feet in a contested trial. Acquittals and whether the trial was members or judge alone should be noted, but are not the most important factors to consider for the purposes of this nomination. 10. Advocacy in Uncontested Cases - Identify the Nominee’s most significant accomplishment in a guilty plea. Describe the Nominee’s style and effectiveness with regards to advocacy, understanding of the Rules for Court-Martial and Rules of Evidence, and how quickly he or she thinks on his or her feet in a guilty plea. Significant accomplishments and whether the plea was members or judge alone on sentence should be noted, but are not the most important factors to consider for the purposes of this nomination. 11. Post-Trial Matters - How effectively does this nominee advocate in the post-trial process? How well are post-trial matters written and advocated? Identify the most significant post-trial matter or issue raised or addressed by this nominee, if any. Identify any significant post-trial relief granted.

Enclosure 4

Encl (4) 3

12. Professionalism - Describe how this Nominee interacts with members of the opposite side of the bar, members of the Judiciary, Staff Judge Advocates, Officers-in-Charge, Law Center Directors, Convening Authorities, and family members of their clients 13. Non- DC duties - Does this Nominee have any non-duty related accomplishments worthy of consideration (e.g. volunteer work, significant accomplishments in PME, publication, deployments, or other awards received during this period)? If so, please describe. 14. Other Information - Please provide any other information you consider relevant to this nomination.

Enclosure 4

Encl (5) 4

Motion Cover Sheet:

To Be Completed by Defense Counsel:

To be completed by SDC only for nominated motion:

Comments:

To be completed by RDC only for nominated motion:

Comments:

Name: Motion (Generally):

Relief Requested: Relief Granted:

Date Filed: Date Argued:

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000

ARLINGTON, VA 22204-2482

In Reply Refer To: 5800

CDC

7 Oct 14

CDC POLICY MEMO 2.1

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: NEW DSO MEMBER ORIENTATION CHECKLIST

Encl: (1) Biographical Data Sheet (available at

https://ehqmc.usmc.mil/sites/cdc/Welcome%20Aboard/For

ms/AllItems.aspx)

(2) New Defense Counsel Orientation Checklist

(3) New Defense Legal Services Specialist Checklist

1. Purpose. To update the New Defense Counsel Orientation

Checklist and to issue the New Defense Legal Services Specialist

Checklist. To establish a baseline of knowledge for each

defense counsel, legal services specialist and student judge

advocates newly assigned to the Marine Corps Defense Services

Organization (DSO) concerning the rules and regulations involved

with serving as a defense counsel or enlisted support staff. I

intend for the New DSO Member Orientation to be an iterative

process, and to stimulate discussion between members of the DSO,

supported staff judge advocates, and the judiciary regarding the

role of the DSO in the military justice system.

2. Discussion. As part of our formal training program, each

new member of the DSO will complete either the New Defense

Counsel Checklist or the New Defense Clerk Checklist, as

appropriate. These checklists are part of an on-going effort to

improve and standardize defense training and practices. These

checklists allow every Marine joining the DSO, regardless of

rank or billet, to begin their assignment with a common

understanding of the rules and regulations governing defense

services and provide a better understanding of the defense's

role in the military justice system.

3. Policy. Each new member of the DSO will complete enclosure

(1) within seven (7) business days of being assigned to the DSO.

Newly assigned defense counsel and student judge advocate will

complete enclosure (2) within twenty-one (21) days of being

Enclosure 4

Subj: NEW DSO MEMBER ORIENTATION CHECKLIST

2

assigned to the DSO. Newly assigned legal services specialist

will complete enclosure (3) within fourteen (14) days of being

assigned to the DSO.

a. Completion of the enclosures is priority of effort for

all newly assigned personnel.

b. To the extent possible, newly assigned defense counsel

shall be co-detailed as “second chair” alongside experienced

counsel during completion of this checklist. Detailing

authorities are encouraged to co-detail new counsel to a broad

range of cases early.

c. Newly assigned defense counsel may only be detailed

“solo” to a case upon completion of the checklist, unless

otherwise approved by their RDC.

d. Enclosure (1) is available for download at

https://ehqmc.usmc.mil/sites/cdc/Welcome%20Aboard/Forms/AllItems

.aspx. In order to protect privacy interests, original copies

of enclosure (1) will be delivered by the individual counsel via

encrypted electronic mail message to the enlisted support staff

of the Office of the Chief Defense Counsel of the Marine Corps,

where they will be maintained under appropriate cover for

preservation of personally identifiable information.

e. Enclosures (2) and (3) will be maintained by the

supervisory attorney for the duration of the Marine’s assignment

within the DSO, and are subject to inspection.

4. Conclusion. CDC Policy Memo 3-13 is hereby cancelled. This

CDC Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

NMCTJ Code 52, OJAG

Enclosure 4

Enclosure (1)

Enclosure 4

Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401)

Orientation Checklist (October, 2014)

Enclosure (2)

Instructions: Print this checklist and mark the blocks as you complete each item. You may

complete in any order but should complete this within the next 21 days. Your Senior Defense

Counsel (SDC) or mentor will initial on the line for each topic, confirming your completion.

Where the checklist identifies that you discuss a topic with a DC, you may pick any in your

region, but you may not conduct all discussions with the same DC.

Administrative Tasks

Read the following materials:

Marine Corps Legal Services – Strategic Action Plan

Complete the following tasks:

Send the CDC an introductory email with a brief bio and Encl (1).

Conduct an in-call with your LSSS or LSST OIC and discuss the role

of the LSSS or LSST OIC (if new to the LSSS or LSST).

Conduct an in-call with an SJA and discuss the role of the SJA.

Conduct an in-call with the Legal Chief and discuss the role that legal services

support specialists play in the provision of legal services.

Meet with your local DSO NCO for a class on and access to CIS.

Conduct an in-call or teleconference with the RDC Chief and discuss the role

that 4421s in the DSO play in support of DCs.

Request access to the DSO SharePoint by visiting

https://ehqmcsupport.usmc.mil/sites/mcwar/default.aspx , select your email

certificate, click "REQUEST eHQMC PORTAL /MCATS ACCOUNT", and then

send a digitally signed email to HQMC IT Support Helpdesk at

(HQMCITAS.FCT@usmc.mil).

Call DCAP at (703) 604-0574 to introduce yourself and to be added to SharePoint.

Create email alerts for announcements, discussions, and acquittal alerts, and

respond to the “Who’s Using SharePoint” discussion thread.

Set up your voicemail identifying yourself as a Defense Counsel.

Create a Defense Connect Online account.

Confirm your Lexis account.

Pick a recent discussion topic on SharePoint, research the question asked and

post a written response.

Obtain access to the local Circuit’s weekly docket.

Ensure you have access to your local Defense Section shared drive.

Obtain an electronic version of your branch’s DSO letterhead.

Create your email signature block identifying yourself as a member of the DSO.

Ensure you have hard copies of the following in your office: MCM, JAGMAN,

LEGADMINMAN, JAGINST 5803.1D, MARCORPSEPSMAN, Circuit Rules,

CIS Handbook, and all CDC Policy Memoranda.

Download the Practicing Military Justice handbook from TJAGLCS.

Download the Electronic Military Judges’ Benchbook.

Gain access to the Navy DSO motions bank.

Enclosure 4

Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401)

Orientation Checklist (October, 2014)

2 Enclosure (2)

Duties of a Defense Counsel Read the following materials:

DSO Mission Statement and Creed.

DC 101 PowerPoint Presentation of 18 Sep 2012.

Article 38, UCMJ.

Rules for Courts-Martial 502 and 506 (particularly the discussions).

JAGINST 5803.1D (Rules of Professional Responsibility).

Chapter 4 of the LSAM.

All CDC Policy Memoranda.

General Mattis’ letter to the DSO.

Lessons Learned, by Larry Pozner.

Common Court-Martial Definitions and Frequently Asked Questions.

DCAP’s Client Intake Packet

Complete the following tasks:

Familiarize yourself with the following Appellate Court Opinion and Digest

websites: The Navy and Marine Corps Court of Criminal Appeals (NMCCA),

found at: http://www.jag.navy.mil/courts/opinion_archive.htm; The Court of

Appeals for the Armed Forces, (CAAF) found at:

http://www.armfor.uscourts.gov/newcaaf/home.htm.

Familiarize yourself with the following military justice blogs: CAAFLOG, found

at: www.caaflog.com; 31Blog, found at: http://article31blog.wordpress.com/;

Court Martial Trial Practice, found at: http://www.court-martial-ucmj.com/;

SCOTUSBlog, found at: http://www.scotusblog.com/.

Familiarize yourself with the Detailing/IMC/Notice of Appearance Forms in the

“Checklists, Forms, and Templates” section on SharePoint.

Discuss the duties of a DC and all CDC Policy Memos with your SDC.

Discovery & Witnesses

Read the following materials:

Rules for Courts-Martial 701, 702, and 703.

Find motions to compel discovery, motion to compel witness production, motion

for expert assistance and expert witness testimony on SharePoint.

United States v. Coleman, 72 M.J. 184 (C.A.A.F. 2013).

United States v. Behenna, 71 M.J. 228 (C.A.A.F. 2010).

Complete the following tasks:

Obtain the approved templates for discovery, witness, and expert requests.

Discuss reciprocal discovery obligations, the standards for lay witness on the

merits and in sentencing, and the difference between expert consultants and

witnesses with a DC.

Draft a discovery request, and a discovery motion (compel, production, etc.) in

a case to which you are detailed as second chair counsel.

Enclosure 4

Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401)

Orientation Checklist (October, 2014)

3 Enclosure (2)

Article 32 Pretrial Investigations

Read the following materials:

Article 32, UCMJ.

Rules for Courts-Martial 405.

Complete the following tasks:

Observe an Article 32 pretrial investigation.

Discuss Article 32 strategies, including waiver and discovery, with a DC. Discuss application of MRE 412 and 513 at an Article 32 with your SDC. Sit as second chair in an Article 32 pretrial investigation.

Article 39a Sessions

Read the following materials:

Rules for Courts-Martial 904.

United States v. Danylo, 73 M.J. 183 (C.A.A.F. 2013).

United States v. Wilson, 72 M.J. 347 (C.A.A.F. 2012).

United States v. Arriaga, 70 M.J. 51 (C.A.A.F. 2010).

Rules for Court-Martial 905.

United States v. Olano, 507 U.S. 725 (1993).

United States v. King, 58 M.J. 110 (C.A.A.F. 2003).

United States v. Treat, 73 M.J. 331 (C.A.A.F. 2014) .

Complete the following tasks:

Discuss arraignment versus a motion for docketing with your SDC.

Sit second chair in a motion session– read all relevant pleadings prior.

Discuss the effect of arraignment on the speedy trial clock with your SDC.

Discuss the types, forms, and purpose of motions practice with your SDC.

Guilty Pleas, Pretrial Agreements, and Sentencing

Read the following materials:

Trial Guide (most recent version) (particularly the guilty plea inquiry).

DCAP Guilty Plea Checklist.

Model PTA.

Collateral Consequence Advice Forms. Rules for Courts-Martial 1001-

1003.

United States v. Hines, 73 M.J. 119 (C.A.A.F. 2013).

United States v. Castellano, 72 M.J. 217 (C.A.A.F. 2012).

United States v. Rose, 71 M.J. 138 (C.A.A.F. 2011).

Enclosure 4

Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401)

Orientation Checklist (October, 2014)

4 Enclosure (2)

Complete the following tasks:

Observe a guilty plea and a sentencing hearing.

Discuss how to prepare a client for providence and the pros and cons generically

between contesting a case and accepting a PTA with your SDC.

Sit second chair in a guilty plea.

Contested Trials Read the following materials:

Rules for Courts-Martial 901-924.

The Lessons Learned from the last 10 Acquittal Alerts on SharePoint.

United States v. MacDonald, 73 M.J. 426 (C.A.A.F. 2013).

United States v. Lubich, 72 M.J. 170 (C.A.A.F. 2012).

United States v. Brewer, 61 M.J. 425 (C.A.A.F. 2005).

Complete the following tasks:

Observe a complete contested trial from voir dire to conclusion. Second chair an entire contested trial.

The Role of the Military Judge

Read the following materials:

Your local Circuit Rules.

United States v. Salyer, 72 M.J. 415 (C.A.A.F. 2012).

United States v. Phillips, 70 M.J. 161 (C.A.A.F. 2010).

United States v. Wiechmann, 67 M.J. 456 (C.A.A.F. 2008).

Complete the following tasks:

In-brief with your local Circuit Military Judge. Discuss the role of the Military Judge and circuit rules with your SDC. Discuss “standing courts” vs. military courts and the role of the CA/SJA with your SDC.

Clemency and the Post-Trial Process Read the following materials:

Rules for Courts-Martial 1101, 1105, 1106, and 1107.

Appellate Rights Statement.

Appellate Leave Request and all orders cited therein.

United States v. Nerad, 69 M.J. 138 (C.A.A.F. 2009).

United States v. Travis, 66 M.J. 301 (C.A.A.F. 2008).

Complete the following tasks:

Conduct an in-call with the Regional Review Officer to discuss the review

process and the DC’s role and responsibilities in that process.

Prepare a clemency package under the supervision of another DSO attorney.

Enclosure 4

Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401)

Orientation Checklist (October, 2014)

5 Enclosure (2)

Non-Judicial Punishment & Summary Courts-Martial (the “lower forums”)

Read the following materials:

Part V, Manual for Courts-Martial.

JAGMAN, Chapter 1, Part B (§§ 0106-0119).

CDC PM 2.3 (series).

Rules for Courts-Martial 1301-1306.

Appendix 9 of the Manual for Courts-Martial (SCM script). Article 64, UCMJ.

Lower Forum PTA templates.

United States v. Mead, 72 M.J. 479 (C.A.A.F. 2013)

United States v. Cary, 62 M.J. 277 (C.A.A.F. 2006).

Complete the following tasks:

Watch the NJP counseling video.

Observe NJP counseling at your LSSS or LSST.

Conduct an NJP counselling under the supervision of another DSO attorney.

Attend the next scheduled summary court-martial officer training class.

Draft a lower forum PTA for another DSO attorney.

Administrative Separations Read the following materials:

Chapters 1 and 6, MARCORSEPMAN.

Complete the following tasks:

Discuss the ad board process with your LSST’s Legal Administration Officer.

Observe an administrative separation board.

Discuss best practices in Ad Board litigation with your SDC.

Sit as second chair on an Administrative Separation Board.

Prepare a letter of deficiency for a separation where you either sat as second

chair, or for an Administrative Separation Package you have reviewed under the

supervision of another DSO attorney.

Article 31(b) Rights Read the following materials:

Article 31(b), UCMJ.

Military Rules of Evidence 304 and 305.

United States v. Hutchins, 72 M.J. 294 (C.A.A.F. 2013).

United States v. Clark, 69 M.J. 438 (C.A.A.F. 2010).

United States v. Seay, 60 MJ 73 (C.A.A.F. 2004).

United States v. Mapes, 59 MJ 60 (C.A.A.F. 2003).

Enclosure 4

Marine Corps Defense Services Organization Defense Counsel (4402) and Student Defense Counsel (4401)

Orientation Checklist (October, 2014)

6 Enclosure (2)

Complete the following tasks:

Find two motions to suppress due to inadequate rights advisement in the

Motions Bank on SharePoint. Read the motions and discuss with your

SDC.

Observe an Article 31(b) rights counseling session.

Discuss the pros/cons of a suspect making a statement with your SDC.

Initial Reviewing Officer Hearings and Confinement Facilities

Read the following materials:

Rule for Courts-Martial 305.

The local order addressing IRO hearings

Any MOU with local confinement facilities.

United States v. Mack, 65 M.J. 108 (C.A.A.F. 2007).

United States v. Regan, 62 M.J. 299 (C.A.A.F. 2006).

United States v. Crawford, 62 M.J. 411 (C.A.A.F. 2006).

Complete the following tasks:

Observe an initial reviewing officer hearing.

Discuss the pros and cons of waiving an IRO hearing with a DC.

Introduce yourself to the officer in charge of the nearest brig and/or civilian

confinement facility, tour the facility, and familiarize yourself with their rules

pertaining to communications with clients, requests for transport, client restraint

outside the facility. When you have completed all items on this checklist, give the original to your SDC, who will

arrange a meeting with the RDC.

I, ________________________________________, Senior Defense Counsel, that the

following named person, ________________________________________, has successfully

completed the New Defense Clerk Orientation Checklist in accordance with CDC Policy memo

4-14.

__________________________________ ______________________________

Senior Defense Counsel Attorney

Enclosure 4

Marine Corps Defense Services Organization New Defense Legal Services Specialist (4421) Checklist

1 Enclosure (3)

**Complete this checklist within the next 14 days. Have your respective defense chief review each area

with you and initial the line when you are done. If you are the chief, have your supervisory attorney

initial.**

Name: _________________________ Rank: _____________ Brank Office: _____________________

Never give legal advice.

General Overview of the Marine Corps Defense Services Organization. Discuss with the

Senior Defense Counsel and the Defense Chief the following:

□ DSO Mission & Creed

□ Professionalism Always

□ DSO Chain of Command vs. Administrative Chain

□ Your Role as a DSO 4421

Walk-In Counseling – Read the Information on Walk-In Counseling handout and the

Adsep/NJP/Court-Martial Flowchart. Observe a walk-in counseling session from start to

finish. Afterwards, ask the defense counsel any questions you may have about the process,

rights of the Marine or Sailor, or your role as a defense clerk.

Initial Court-Martial Client Intake – Observe an initial court-martial client intake

counseling session from start to finish. Afterwards, ask the defense counsel any questions you

may have about the process, rights of the client, or your role in the court-martial process.

Initial Ad-Sep Client Intake – Observe an initial administrative separation client intake

counseling session from start to finish. Afterwards, ask the defense counsel any questions you

may have about the process, rights of the client, or your role in the AdSep process.

Witness Interviews – Observe a witness interview from start to finish, including the

attorney’s preparation time beforehand. Afterwards, ask the defense counsel any questions you

may have about the process, rights, or your role.

Client At-Risk for Suicide – Read CDC PM 2.4 (series) and discuss its contents and the

important role that you will play in helping at-risk clients with one of the senior members of

your branch.

SharePoint

□ Visit https://ehqmcsupport.usmc.mil/sites/mcwar/default.aspx, select your email

certificate, click "REQUEST eHQMC PORTAL / MCATS ACCOUNT", and then send

a digitally signed email to HQMC IT Support Helpdesk (HQMCITAS.FCT@usmc.mil).

□ Contact the DSO Chief at (703) 604-0728 to introduce yourself and ask to be added to

SharePoint.

□ Bookmark the DSO SharePoint website (https://ehqmc.usmc.mil/sites/cdc).

□ Go to the Welcome Aboard section. Read the New Clerks section and the

Enclosure 4

Marine Corps Defense Services Organization New Defense Legal Services Specialist (4421) Checklist

2 Enclosure (3)

SharePoint & DCO Instructions guides in the How-To Guides section.

□ Familiarize yourself with the Enlisted Corner. Create an enlisted discussion

introducing yourself to your fellow 4421’s within the DSO.

□ Establish SharePoint Alerts for Announcements, Defense Discussions and Enlisted

Corner Discussions.

Case Information System – Familiarize yourself with how to add and update cases to

CIS. Learn how to generate reports common for your office.

Defense Personnel Master Roster – Ensure that your correct information is on the roster

for your respective branch office/region immediately. This will ensure continuity in the lines

of communication throughout the DSO.

3270 Access – Ensure you have a logon ID and password that works for 3270. Know the commands to get to the screens with our client’s BIR/BTR/ROS/Awards/ Page 11 information on them.

Lexis Access – Ensure you have a logon ID and password that works for both Westlaw

and Lexis. Know how to search for cases by case name and by topic. Know how to Shepardize

cases and be able to identify if the case is still good law. Know how to use Lexis to find

individuals.

Defense Connect Online – Establish an account on Defense Connect Online (DCO). If

you have questions how to do this, return to the How-To Guides section.

Case File Management – Familiarize yourself with how case files are stored within

the branch office. Ensure files are stored securely to protect client confidentiality. Ensure

proper OPSEC by not leaving your CAC, evidence, or client materials unattended.

CDC Policy Memoranda – Read all CDC Policy Memoranda, located on SharePoint.

Client Confidentiality – Re-read Rules 1.6 and 5.3 of JAGINST 5803.1D. Complete the

4421 Statement of Understanding per CDC PM 2.2 (series).

Communication – Memorize and use the three rules of effective communication: 1. What do I know?

2. Who needs to know it?

3. Have I told them?

Office Equipment – Ensure familiarity with printers, scanners, and networked storage

solutions. Know where and how to get resupplies when needed.

Email – Create a signature block identifying yourself as a member of the DSO and

listing the contact info for your branch office.

Enclosure 4

Marine Corps Defense Services Organization New Defense Legal Services Specialist (4421) Checklist

3 Enclosure (3)

Read Gen Mattis' letter to the DSO – It is located in the Welcome Aboard section on SharePoint.

DSO Website – Visit & bookmark the DSO website: https://hqmc.usmc.mil/dso

In-Call – Have an in-person or DCO in-call with the RDC Chief.

I, ________________________________________, Senior Defense Counsel, that the

following named person, ________________________________________, has successfully

completed the New Defense Clerk Orientation Checklist in accordance with CDC Policy memo

4-14.

___________________________ ___________________________

Senior Defense Counsel Defense Clerk

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000

ARLINGTON, VA 22204-2482

In Reply Refer To: 5813

CDC

6 Oct 14

CDC Policy Memo 2.2

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: ETHICAL OBLIGATIONS OF DEFENSE SUPPORT PERSONNEL

Ref: (a) JAGINST 5803.1 (series)

Encl: (1) Statement of Understanding for Defense Support

Personnel

(2) Rule 5.3: Responsibilities Regarding Non-Attorney

Assistants

1. Purpose. To ensure that all support personnel serving under

the supervisory control of Marine defense counsel understand and

comply with the ethics standards and procedures as prescribed by

reference (a). Defense support personnel include all Marines

(except judge advocates), civilian employees, and interns

assigned to a defense office.

2. Discussion. In the increasingly complex and fast-paced

world of litigation, Marine defense counsel rely heavily on the

support and services of defense support personnel who perform a

wide array of tasks and who must fully understand the ethical

implications of their billets. Although defense support

personnel are not governed by the reference, their supervisory

attorneys have specific responsibilities regarding their

training, understanding, and compliance with applicable ethics

standards that are illustrated in enclosure (1). The reference

specifically requires supervising attorneys to "make reasonable

efforts to ensure that the person's conduct is compatible with

the professional obligations of the covered attorney." Rule

5.3a(l) and (2). Under certain circumstances, the covered

attorney might even be responsible for the conduct of non-judge

advocate personnel under his supervision if he orders the

conduct, or fails to take remedial action when the consequences

of the conduct can be avoided or mitigated. See Rule 5.3a(3).

A copy of Rule 5.3 in its entirety is provided at enclosure (2).

Enclosure 4

Subj: ETHICAL OBLIGATIONS OF DEFENSE SUPPORT PERSONEL

2

3. Policy. Within two working days of the publication of this

policy memo, defense support personnel will be re-briefed by

their supervisory attorney regarding their ethical obligations.

If they have not already done so, together they will each sign

the Statement of Understanding (SOU) provided at enclosure (1).

All newly assigned defense support personnel will be briefed by

their supervisory attorney and sign the SOU within two days of

reporting to a defense office. Until the SOU is executed,

defense support personnel shall not have any access to attorney-

client confidential matters or attorney-work product. The

original SOU will be maintained by the supervisory attorney and

a copy will be provided to the defense support personnel for

continued reference throughout their tour in the defense office.

An electronic version will be uploaded into a designated file on

your Regional Defense Counsel's office within the Defense

Counsel of the Marine Corps SharePoint site. Supervisory

attorneys shall re-read and re-execute the SOU with their

subordinates at least annually.

4. Conclusion. CDC Policy Memo 1-11 is hereby cancelled. This

CDC Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

NMCTJ Code 52, OJAG

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000

ARLINGTON, VA 22204-2482

In Reply Refer To:

3000

CDC

17 Nov 14

CDC POLICY MEMORANDUM 2.3

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS

Ref: (a) MCO P5800.16 (series)

(b) CDC Policy Memo 3.1 (series)(Detailing and IMC Rules)

(c) Article 31, UCMJ

(d) R.C.M. 305, MCM (2012 ed.)

(e) JAGINST 5803.1 (series)(Rules of Professional

Conduct)

(f) CDC Policy Memo 2.4 (series)(Suicide Awareness and

Response to Clients in Crisis)

(g) CDC Policy Memo 3.4 (series)(Release of Counsel Due

To Conflict of Interest)

(h) CDC Policy Memo 2.1 (series)(New DSO Orientation

Checklists)

Encl: (1) Information for Walk-In Defense Counseling

(2) Walk-in Counseling Roster

(3) AdSep / NJP / Court-Martial Flowchart

1. Purpose. To provide updated guidance for the provision of

uniform and consistent “walk-in” defense counseling and

representation at Initial Review Officer (IRO) hearings by

defense counsel assigned to the Marine Corps Defense Services

Organization (DSO), in order to ensure that Marines and Sailors

receive the clear, consistent, and uniformly correct advice and

assistance, while reinforcing that DSO attorneys may not form or

establish an attorney-client relationship except when

specifically authorized by their detailing authority.

2. Discussion.

a. Reference (a) tasks the Chief Defense Counsel of the

Marine Corps (CDC) with establishing standards of practice for

the delivery of Trial Defense Services Marine Corps—wide. This

Enclosure 4

Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS

2

mandate includes “walk-in” services and representation at IRO

hearings.

b. Walk—In Defense Services. “Walk—in” defense services

play a crucial role in the defense of our Marines and Sailors.

Ready, available, and suitable to the situation, they not only

serve the best interest of the Marine seeking the service, but

their timely and accurate application also facilitates the

interests of good order and discipline. Walk-in defense

counseling is intended to cover certain “gaps” in the legal

system where a Marine or Sailor may require confidential legal

advice, yet does not rate, or has not yet been detailed, his or

her own defense counsel under reference (b). Walk—in services

include but are not necessarily limited to:

(1) Confidential and privileged legal advice to Marines

and Sailors facing non-punitive or administrative corrective

actions such as nonjudicial punishment, summary courts-martial,

“fast track” disposition packages, adverse entries into their

service record books or officer qualification records,

notifications of initiation of administrative separation

processing, or other similar administrative procedures; and

(2) Confidential and privileged legal advice to Marines

and Sailors who have been advised of their Article 31(b) rights

under reference (c) and have elected to exercise their right to

consult with counsel.

c. IRO Hearing Representation. Reference (d) accords

Marines in pretrial confinement the right to request provision

of military counsel for review of their continued confinement.

In the absence of a preexisting attorney—client relationship,

counsel are typically assigned for the limited purpose of

representation during pretrial confinement proceedings (pre—

referral). Like walk—in counseling services, representation of

Marines under these circumstances provides the DSO with an

opportunity to cover a “gap” in the legal process where a Marine

is pending preferred charges, is under restraint by military

authorities, requires confidential legal advice, yet has not

been detailed his or her own attorney.

3. Policy.

a. Nature of the Relationship. Unless otherwise authorized

by competent authority, DSO attorneys shall not form an

attorney-client relationship as defined by Rule 1.2 of reference

(e) with any servicemember receiving walk—in services or in the

course of IRO representation. While servicemebers seeking these

Enclosure 4

Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS

3

services are not detailed counsel and there is no attorney—

client relationship, they nonetheless may be generically

referred to as “clients.”

b. Communications Remain Privileged. While communications

between a DSO attorney and the individual receiving the walk—in

counseling or IRO representation remain privileged and

confidential, providing these services does not, in and of

itself, establish an attorney-client relationship as defined by

Rule 1.2 of reference (e).

c. Assignment of Duty is not Detailing. Merely being

assigned counseling or IRO duty by a supervisory attorney does

not constitute detailing of a DSO attorney to an individual case

or as a personal representative for a Marine or Sailor seeking

pretrial confinement representation or advice on applicable

administrative or disciplinary proceedings.

d. General Responsibilities of Counsel. As with everything

we do, a DSO attorney advising a servicemember on a walk—in

basis or at an IRO hearing owes that servicemember a duty of

honesty, integrity, candor and zealousness. This includes

confidential and privileged communications and advice. In doing

so, DSO attorneys shall ensure all parties understand that

merely receiving legal advice under these circumstances does not

establish an attorney—client relationship unless and until that

attorney is detailed by proper competent authority. In this

light, a DSO attorney advising a client on a walk—in basis, or

representing a client at an IRO hearing, may perform the

following non-exclusive list of general tasks:

(1) Discuss the factual background surrounding the issue

with the Marine or Sailor.

(2) Review any and all related paperwork, documents or

physical items.

(3) Contact command representatives to seek

clarification about any pending administrative procedure or

processes.

(4) Discuss the costs and benefits concomitant to

accepting or refusing nonjudicial punishment, summary court-

martial, agreeing to a “fast track” disposition, waiving an

administrative separation board, or making a statement to

military or law enforcement authorities.

Enclosure 4

Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS

4

(5) Provide technical explanations regarding basic

principles of military law.

(6) Discuss and provide general advice on potential

courses of action related to the exercise of a due process or

regulatory rights without forming an attorney-client

relationship.

e. Walk-in Specific Rules.

(1) Only defense counsel certified and sworn under

Articles 27(b) and 42(a) of the Uniform Code of Military Justice

may provide walk-in counseling. Student Judge Advocates and

legal services specialists may not provide legal advice.

(2) Senior Defense Counsel (SDC) will maintain regular

and consistent walk-in defense counseling hours which allow

Marines and Sailors the maximum opportunity to speak with

counsel, at a minimum two days per week. While typically

reserved for Marines in pay grades E-5 and below and Sailors in

pay grades E-6 and below, SDCs are authorized to make exceptions

for more senior walk—in clients as required. Staff

Noncommissioned Officers (SNCOs) and Officers will typically be

seen by appointment, normally arranged by the SDC.

(3) Some installations are larger than others. Others

are remote and do not have resident defense counsel. As such,

in addition to walk-in counseling hours at the DSO branch

office, SDCs are strongly encouraged to schedule walk-in

counseling hours on a regular basis at locations convenient to

large command populations and aboard installations where there

is no resident defense counsel. Telephonic consultations may be

appropriate in some cases.

(4) When forces deploy forward without a defense

counsel, the DSO is still responsible for providing walk-in

counseling. The responsible RDC will coordinate with the Staff

Judge Advocate of the deployed command and establish a support

plan for the provision of walk—in counseling to Marines and

Sailors assigned to the deployed command in a manner which is

responsive to the needs of the deployed commander.

(5) DSO attorneys must have certain minimum documents

and information at their disposal before providing counseling,

whether done in-person or remotely. These documents include but

are not limited to:

Enclosure 4

Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS

5

(a) The charge sheet.

(b) Administrative separation notification or

similar documentation.

(c) Any pages 11 and 12 of the member’s Service

Record Book.

(d) A summary of the evidence that will be used at

the hearing, if applicable.

(6) If a Marine or Sailor comes in for walk-in

counseling and does not have these materials, a member of the

DSO may contact the command in order to obtain those documents.

If the command refuses to provide the required documentation,

the SDC should contact the respective Staff Judge Advocate for

resolution. Counseling may be denied when no resolution is

possible.

(7) DSO Legal Services Specialists will conduct conflict

checks on all personnel prior to the initiation of walk-in

counseling.

(8) Before speaking with an attorney a client may be

required to watch any CDC—approved video designed to answer many

routine procedural questions regarding nonjudicial punishment,

summary courts-martial, and administrative separation boards.

(9) While personal, face—to—face counseling is

preferable, operational commitments and remote locations may

mean that this is not always possible. In such situations, the

SDC may authorize remote telephonic or video teleconference

counseling using locally available equipment, including

telephones and web cam enabled computers using Defense Connect

Online. The documentation and other requirements described

above pertain, even under these circumstances, and counseling

may be denied accordingly.

(10) Use enclosure (1) as a discussion guide. Provide

each Marine or Sailor counseled the Tools for Coping with Stress

Memorandum found at enclosure (f).

(11) DSO members will not sign forms or otherwise act as

a witnesses attesting that the Marine or Sailor needing

counseling has sought legal advice. SDCs may authorize the use

of stamps by DSO Legal Services Specialists to validate that the

individual did, indeed, receive the requested counseling.

Enclosure 4

Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS

6

(12) There may be occasions where servicemembers

present for walk-in counseling with adverse interests (e.g. co-

accused). Typically each servicemember will have the

opportunity to speak with a different DSO attorney. Where more

than one DSO attorney provides walk-in counseling to

servicemembers with adverse interests, those DSO attorneys are

prohibited from later representing one of those servicemembers

other than the party to whom he or she provided the walk-in

counseling.

(13) Resource constraints may periodically require one

DSO attorney to provide joint walk—in counseling to Marines

and/or Sailors with adverse interests (e.g. co-accused). Joint

walk—in counseling may only be done with the specific approval

of the DSO Branch Office SDC. A DSO attorney providing joint

walk—in counseling will not have privileged or confidential

communications with the individuals being counseled.

Furthermore, a DSO attorney who performs a joint counseling

session is prohibited from later be detailed to represent any of

the Marines or Sailors jointly counseled at any hearings or in

any disciplinary proceedings arising out of the facts related to

the joint walk—in counseling. The Marines or Sailors receiving

the joint walk—in counseling must be notified of these

limitations on their communications with the defense counsel.

(14) Unless the defense counsel has been authorized to

form an attorney-client relationship with the accused, a defense

counsel will not advise the Marine or Sailor being counseled to

accept or refuse nonjudicial punishment/summary court-martial,

to request an administrative board, or whether or not to make a

statement to investigators. To allow the Marine or Sailor to

make an independent decision, the defense counsel should, based

on the information provided, present the risks and benefits of

either accepting or refusing nonjudicial punishment/summary

court-martial, requesting and administrative board, or making a

statement to investigators.

(15) Each DSO Branch Office will maintain a record of

all servicemembers who appear for walk—in counseling in a manner

which allows for entry the DSO’s Case Information System (CIS),

and which provides a record of compliance with reference (f).

See enclosure (2).

f. Initial Review Officer Hearing Specific Rules.

(1) SDCs shall ensure a defense counsel is assigned to

represent Marines and Sailors at initial review officer (IRO)

Enclosure 4

Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS

7

hearings conducted under reference (d). Where an accused

previously detailed defense counsel is later placed in pretrial

confinement that attorney shall normally represent his or her

client at the IRO hearing.

(2) Because of a reduced number of available military

confinement facilities, Marines are occasionally confined in

civilian facilities or transferred to a confinement facility

located aboard an installation distant from the location of the

alleged crime and/or convening authority. Under these

circumstances DSO attorneys from the closest LSST or LSSS shall

normally provide IRO hearing support.

(3) Unless serving as detailed defense counsel, a DSO

attorney’s representation of a Marine or Sailor at an IRO

hearing is a limited attorney-client relationship related solely

to that IRO hearing. DSO attorneys advising an accused

concerning pretrial confinement should limit this advice to the

legal issues and factual background surrounding pretrial

confinement. Advising an accused of his or her rights

concerning pretrial confinement or speaking on behalf of an

accused at an IRO hearing does not, in and of itself, result in

detailing of a DSO attorney to that servicemember.

(4) DSO attorneys serving as IRO hearing advocates shall

ensure that each individual accused they represent in that

capacity understands the limited nature of their representation,

that they are not detailed as counsel to their case, and that

they are not their personal attorney or representative.

(5) Absent a voluntary and knowing waiver obtained in

writing in accordance with procedures established in reference

(g), defense counsel shall not represent Marines or Sailors at

IRO hearings with adverse interests. To allow for timely

resolution of conflicts early notification by command

representatives is strongly encouraged, preferably prior to

scheduling the IRO hearing. The SDC of the Branch Office

providing the IRO service is responsible for ensuring each

Marine and/or Sailor receives conflict free IRO hearing counsel.

(6) While personal, face—to—face IRO representation is

preferable, operational commitments and remote locations may

mean that this is not always possible. In such situations, the

SDC of the DSO Branch Office providing the IRO service may

authorize remote telephonic or video teleconference

representation using locally available equipment, including

telephones and web cam enabled computers using Defense Connect

Enclosure 4

Subj: GUIDANCE ON WALK-INS AND IRO HEARINGS

8

Online. Other requirements described above remain, even under

these circumstances.

4. Education. Enclosure (3) is provided to assist counsel in

explaining the different processes which may result from an

allegation of misconduct. It may be helpful under certain

circumstances. Use of enclosure (3) is not mandatory, however,

all newly-assigned members of the DSO are required to review

this flowchart with their Senior Defense Counsel in accordance

with the requirements of reference (h).

5. Conclusion. CDC Policy Memo 2-13 is cancelled. This CDC

Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000

ARLINGTON, VA 22204-2482

In Reply Refer To:

3000

CDC

14 Nov 14

CDC POLICY MEMORANDUM 2.4

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS

Ref: (a) JAGINST 5803.1D

(b) MCO 1720.2

(c) CDC Policy Memo 1.3 (series)(DSO Workspaces,

Correspondence, Reports, and Case File Retention

Policies)

Encl: (1) Suicide Assessment Mnemonic

(2) Tools to Cope with Stress Memorandum

(3) Columbia Suicide Severity Rating Scale

(4) CDC Quarterly Suicide Prevention Report

1. Purpose. To integrate policies and procedures into the

daily practice of Judge Advocates and Legal Services Specialists

assigned to the Defense Services Organization (DSO) in order to

prevent future suicides, preserve and protect those members of

the Marine Corps with whom we have daily contact, and ensure our

clients receive the help and assistance they need when they need

it.

2. Discussion.

a. A common indictment of our client base is the old adage

that 10% of the Marines take up 80% of the Commands attention.

But never forget that the Commander’s 10% is our 100%, and that

disciplinary matters are a significant risk factor for suicide.

Statistics from 1998 – 2007 show that over 40% of Marines who

died at their own hand were pending, or had recently resolved,

legal issues.

b. As Defense Counsel we are uniquely positioned to

identify persons at risk of doing harm to themselves. The

nature of the attorney—client relationship provides us with a

unique window into very personal and intimate details about the

Enclosure 4

Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS

2

lives, families, and relationships of our clients. We, as their

counsel, are frequently one of the few persons left in their

world they trust. We will use this trust as the foundation upon

which we sustain our ongoing efforts to combat suicide.

c. Suicide is a very complex problem. While we are not

trained mental health professionals, there are some common early

warning signs which we, as Defense Counsel, may be able to

identify. These early warning signs may not be easy to detect,

but the unique nature of our relationships with our clients

means that if anyone can recognize early warning signs it is us.

Because the risk for our clients is significant we will continue

to integrate suicide prevention tactics, techniques, and

procedures into our practice in order to ensure our clients

receive the care and help they need when they need it.

d. The DSO has a historical commitment to reducing suicides.

For at least the past five years we have worked hand—in—hand

with the Headquarters Marine Corps (HQMC) Suicide Prevention

Office to increase the DSO’s awareness of the heightened risk of

our client base. In the spring of 2010 we convened our first

all-hands DSO Training in part to discuss and train on this

issue; a tradition which continues today. Since then the HQMC

Suicide Prevention Office has provided classes in a variety of

locations to broad spectrum of the DSO on suicide prevention.

In order to enable us to better protect our clients, the Judge

Advocate General of the Department of the Navy revised Rule 1.14

of our Rules of Professional Conduct to give a defense counsel

authority to make limited disclosures so that mentally troubled

clients can get the help they need when they need it most. In

the intervening years, the DSO has continued to aggressively

train on this topic and raise awareness throughout the legal

community. The results have been awe—inspiring, with defense

counsel across the globe taking action to get help for their

clients by talking openly about suicide, being vigilant for

warning signs, and where necessary making limited disclosures to

get their clients help. Yet despite these efforts we continue

to lose Marines to suicide.

3. Policy. Suicide prevention within the DSO is founded on

trust, training and periodic reassessment.

a. Pillar One——Trust. The first pillar of the DSO suicide

awareness and prevention program is trust. DSO attorneys must

establish trust with their clients so that they may speak

frankly, openly and honestly about suicide. Our functional

independence as an organization cloaks each member of the DSO

Enclosure 4

Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS

3

with some degree of trust, but it is up to each individual

attorney to earn the trust of each of their clients through

aggressive, zealous representation. Establishing trust permits

members of the DSO to more effectively assess suicide risk

factors. Use enclosure (1) as an easy mnemonic tool. DSO

attorneys shall use enclosure (2) to discuss the risk factors

with their clients during their initial intake interview and

advise their clients where help is available. Additionally, DSO

attorneys shall periodically assess the following non-exclusive

list of risk factors with their clients throughout their

representational relationship:

(1) Does the client have a family history of suicide, or

has the client previously been exposed to suicidal behavior by

family members and/or friends?

(2) Does the client have a family or personal history of

psychiatric hospitalization or other psychiatric treatment or

illness?

(3) Does the client have a history of suicidal thoughts,

ideations, or behavior (even if untreated)?

(4) Has the client experienced any chronic personal

losses, paying particular attention to multiple personal losses?

(5) Does the client have a history of developmental

trauma (e.g., abuse, neglect, family violence, early bullying,

victimization)?

(6) Does the client have a history of impulsivity,

aggression, and/or violence against persons or animals,

including thoughts, dreams and ideations?

(7) Does the client suffer from low self—esteem and/or

high self—hate?

(8) Does the client have a history of substance abuse?

(9) Has the client or a close family member suffered

from a recent serious physical illness?

(10) Does the client claim to be a perfectionist, or

does the client exhibit behavior consistent with perfectionism?

b. Understanding that any person who is the subject of

disciplinary proceedings may suffer from some degree of

Enclosure 4

Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS

4

frustration, disappointment, stress, and/or agitation, members

of the DSO will pay particular attention for warning signs of

suicide. Use enclosure (1) and Behavioral Health Information

Network resources, available at http://bhin.usmc-

mccs.org/index.cfm?fuseaction=c_user.dsp_browse, for more

detailed information, but some warning signs include:

(1) Feelings of hopelessness, rage, and anger.

(2) Feeling trapped.

(3) A desire to seeking revenge on a person, place or

thing.

(4) Reckless and/or risk—taking behavior.

(5) Withdrawing from friends and family.

(6) Anxiety, agitation, hyper vigilance and/or an

inability to sleep.

(7) Excessive sleepiness or sleeping all of the time.

(8) Dramatic changes in mood or mood shifts.

(9) Feeling like there is no reason to live.

(10) Feeling no sense of purpose in life.

c. When a client exhibits risk factors or warning signs of

suicide, use enclosure (3) as an assessment tool and take action

accordingly.

d. Pillar Two——Training. Training is the second pillar of

the DSO suicide prevention platform. Training forms the

foundation upon which defense counsel build suicide awareness

and the ability to recognize situations in which they need to

intervene. Suicide awareness and prevention training will be

conducted at every level. It is a training focus of effort in

the DSO. In addition to annual suicide prevention training and

Never Leave a Marine Behind Suicide Prevention Training, the DSO

will conduct the following additional training:

(1) Regional Defense Counsel (RDCs) shall train all

defense counsel and legal services specialists in their region

on suicide awareness and prevention at least once per quarter.

Enclosure 4

Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS

5

(2) RDCs shall report monthly on suicide awareness

training and or incidents within their respective regions.

(3) The Chief Defense Counsel of the Marine Corps (CDC)

will make a quarterly report to Staff Judge Advocate to the

Commandant of the Marine Corps on suicide awareness training and

incidents within the DSO. Enclosure (4) pertains.

(4) CDC will meet at least twice a year with HQMC

Suicide Prevention Office to discuss the DSO’s efforts to

prevent suicide.

(5) Each member of the DSO will become familiar with the

Behavioral Health Information Network at http://bhin.usmc-

mccs.org/index.cfm?fuseaction=c_user.dsp_browse.

(6) All New Defense Counsel Orientation Courses will

include a period of instruction on dealing with at-risk clients

and this policy memo.

(7) Each new DSO attorney will review this policy memo

personally with their Senior Defense Counsel.

(8) The Defense Counsel Assistance Program (DCAP) will

record suicide prevention training on the at-risk client

database maintained on the DSO SharePoint.

(9) Each year the DSO—wide training program shall

include at least one block of instruction on suicide awareness

and prevention.

e. Pillar Three——Reassessment. The third pillar of the DSO

suicide awareness and prevention program is regular

reassessment. Client assessment is not a “one and done” matter.

It requires engaged leadership and regular reassessment by all

DSO personnel. As such, DSO attorneys and legal services

specialists must be aware of suicide risks and warning signs and

integrate them into their daily interactions with all clients.

DSO personnel shall incorporate the following into their

practice and daily interactions with our clients:

(1) Continually assess clients for suicide risk. Ask

the client at each meeting how they are doing and record the

response in the case file.

(2) Make a note of your assessment of the client’s

mental health after each meeting.

Enclosure 4

Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS

6

(3) Regularly reassess and inquire about the risk

factors and warning signs of suicide behavior.

(4) Regularly and candidly discuss the extent to which a

client uses or abuses alcohol and note this in the file.

(5) Regularly ask clients about previous mental health

problems and current mental health treatment.

(6) At each client meeting be attentive to the client’s

current words, actions, and demeanor for risk factors and

warning signs of suicide, using enclosure (1) as a mnemonic

tool.

(7) Use enclosure (3) as required to ask your client

about risk factors and warning signs in a safe, evidence based

manner.

(8) Identify potential sentencing witnesses early,

particularly family members, clergy, and other persons who ma

form a support network for the client. Contact these witnesses

early. Ask about their observations and assessment of the

client in order to help identify any potential suicidal issues.

(9) Each Senior Defense Counsel shall have a duty cell

phone for their office which shall be manned and maintained in a

ready, charged status during all off duty hours. Ensure each

client has access to this number. Make sure each client also

has ready access to resources and telephone numbers where other

help is available.

(10) All defense counsel shall have contact numbers for

the local mental health providers next to their telephones.

These numbers will also be posted in all branch office waiting

rooms.

f. Actions in Response to a Suicidal Client. If a client

talks of suicide, death, or a desire to die, listen intently to

your client and get as much information as you can. Ask

questions, take notes, pay attention to the details, never

assume that the client is joking or malingering, and do not

leave the client alone until these issues are resolved. If you

determine that your client is at risk of suicide, you need to do

everything in your power to prevent the client from taking his

or her own life. Follow these steps and remain with the client

until the client is properly handed over to an informed,

Enclosure 4

Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS

7

responsible member of your client’s command or a qualified

mental health professional:

(1) Do not leave your client alone until the client has

been handed over to responsible member of his or her command, or

to a qualified mental health professional.

(2) Without leaving your client unattended, but as soon

as practicable, contact your supervisory attorney for

assistance. Remember that reference (c) establishes this as a

CDC Critical Information Requirement (CCIR).

(3) Ask your client to contact a responsible member the

client’s command, in the defense counsel’s presence, in order to

request help from a mental health provider.

(4) If he or she will not or cannot do so, ask your

client for his or her permission for you to contact a

responsible member of the client’s command, in the client’s

presence, in order to request help from a mental health

provider.

(5) If the client does not wish to speak with his or her

command, ask your client to contact a mental health provider, in

the defense counsel’s presence, for assistance.

(6) If he or she will not or cannot do so, ask your

client for his or her permission for you to contact a mental

health provider, in the client’s presence, for assistance.

(7) Ask your client to tell the command representative

and/or mental health provider the things that raised your

concern about suicide or ask the client for permission for you

to reveal those communications to the command representative

and/or mental health provider.

(8) If your client does not consent to the above, in

accordance with Rules 1.6 and 1.14 of reference (a), make a

determination of whether you reasonably believe “that the client

has diminished capacity, is at risk of substantial physical,

financial, or other harm unless action is taken and cannot

adequately act in the client’s own interest” and whether you are

permitted to reveal information about the client to the extent

necessary to protect the client’s interests. If necessary,

consult a mental health provider about the case without

revealing the identity of your client.

Enclosure 4

Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS

8

(a) If you determine that reference (a) permits you

to do so, contact an appropriate command representative and/or

mental health provider. Inform this person that you are

concerned for your client’s safety. To the extent necessary

explain that your client is suicidal, as well as the reasons why

you believe your client to be suicidal.

(b) If you determine that reference (a) does not

permit you to reveal attorney-client communications in order to

seek mental health assistance for your client, ensure that your

client has the required mental health assistance points of

contact, encourage your client to seek assistance voluntarily,

ask your client to contract for his own safety, and then follow

up with your client within 12 hours.

(9) Document your discussions with the client and any

actions that you took in a memorandum for the file. In addition,

summarize your actions (mindful of attorney—client confidential

information) in the “Suicidal Clients” link of the DSO

Sharepoint site. This should normally be done after you have

successfully handed your client over to a mental health provider

or an informed, responsible member of your client’s command.

g. Actions in Response to a Client Suicide. There will be

occasions where, despite our best efforts, a Marine takes his or

her own life. The following applies under such circumstances.

(1) The immediate supervisory defense counsel of the

attorney whose client took his or her own life will meet with

the defense counsel in person as soon as practically possible in

order to ensure that the defense counsel has the necessary

support to deal with such a traumatic event.

(2) The supervisory attorney shall report the incident

as a CDC CIR as soon as possible. Include a report on the

status of the defense counsel concerned.

(3) The CDC and RDC will provide support as needed.

(4) CDC will notify SJA to CMC.

(5) CDC and RDC will consult with the SDC and defense

counsel within one week of the incident to assess lessons

learned.

Enclosure 4

Subj: SUICIDE AWARENESS AND RESPONSE FOR CLIENTS IN CRISIS

9

4. Conclusion.

a. It is your duty to ensure that your clients receive the

help they need. You are in a very unique position and are privy

to some of your clients’ innermost thoughts. Treat each

situation with the gravity it deserves, and always be mindful

that your client may be considering suicide. In many cases just

knowing that someone cares, even one person, is sufficient to

deter a suicide. The DSO will make sure that each client knows

that no matter what they are presently going through someone

cares about them. Together, we will continue to work to prevent

the tragic loss of Marines through suicide.

b. CDC Policy Memo 2-12 is cancelled. This CDC Policy Memo

is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

Enclosure 4

This mnemonic has been created to help assess individuals for immediate suicide risk (American

Association of Suicidology, 2006; Berman, 2006). The mnemonic is an easily memorized

question, "IS PATH WARM?" Each letter corresponds with a risk factor noted as frequently

experienced or reported within the last few months before suicide. The specific risk factors are:

Suicide Ideation: Does the client report active suicidal ideation or has she written about her

suicide or death? Does the client report the desire to kill herself? Does she voice a desire to

purchase a gun with the intention of using the gun to kill herself? Does she voice the intention to

kill herself with a gun, weapon, or car that she currently has in possession or can gain access to?

Substance Abuse: Does the client excessively use alcohol or other drugs, or has she begun

using alcohol or other drugs?

Purposelessness: Does the client voice a lack or loss of purpose in life? Does she see little or no

sense or reason for continued living?

Anger: Does the client express feelings of rage or uncontrolled anger? Does she seek revenge

against others whom she perceives have wronged her or are at fault for her current concerns or

problems?

Trapped: Does the client feel trapped? Does she believe there is no way out of her current

situation? Does the client believe death is preferable to a pained life? Does the client believe that

no other choices exist except living the pained life or death?

Hopelessness: Does the client have a negative sense of self, others, and her future? Does the

future appear hopeless with little chance for positive change?

Withdrawing: Does the client indicate a desire to withdraw from significant others, family,

friends, and society? Has she already begun withdrawing?

Anxiety: Does the client feel anxious, agitated, or unable to sleep? Does the client report an

inability to relax? Just as important, does the client report sleeping all the time? Either can

suggest increased risk of suicide or self-harm.

Recklessness: Does the client act recklessly or engage in risky activities, seemingly without

thinking or considering potential consequences?

Mood Change: Does the client report experiencing dramatic mood shifts or states?

Enclosure 4

DATE

MEMORANDUM

From: Detailed Defense Counsel, (insert local DSO office)

To: Defense Client (insert name)

Subj: TOOLS TO COPE WITH STRESS

1. Legal troubles are often very stressful, but there a number of healthy ways to cope with this stress. Several

resources are readily available to help you overcome the stress and uncertainty that you may be experiencing. I have

listed some of the options below. We will discuss these options today and you should know that not all of the

services that are available from the various sources provide you with confidentiality; however, if you are having

difficulties dealing with stress or having thoughts of suicide, you need to seek help from a qualified individual right

away.

a. National Suicide Prevention Lifeline (NSPL) is a nationwide network of crisis centers. If you are ever

feeling desperate, alone, or hopeless, you can call the NSPL at 1-800-273-TALK (8255). NSPL is a free,

confidential, 24-hour hotline available to anyone in suicidal crisis or emotional distress.

http://www.suicidepreventionlifeline.org/

b. Base Mental Health (insert local contact info) provides licensed psychologists, psychiatrists, and social

workers. In addition to you seeking services on your own initiative, if certain individuals, including members of

your chain of command or me, believe that you are a danger to yourself, we can recommend to your commander that

you be referred for a mental health evaluation.

c. DStress Line is available to active duty, Reserve, families, loved ones, and former Marines who are located in

certain areas. The line provides counseling for any stress related issues including work, personal, relationship,

financial, and family. It is available 24 hours a day, seven days a week and is staffed with former Marines. The

service is free and confidential. 1-877-476-7734.

d. Military One Source (MOS) provides telephonic, online and face to face counseling. MOS is provided by

DoD at no cost to active duty, Reserve, and their families. The service is private and confidential; however, your

identity must be verified for their internal records only. 1-800-342-9647

http://www.militaryonesource.com/MOS/About/CounselingServices.aspx

e. Chaplains/Clergy (insert local contact info) have confidentiality and are trained to help you with the problems

you are facing, including spiritual counseling. There is an absolute privilege for all information confided in a

chaplain or clergy as a formal act of conscience or faith.

2. REMEMBER: You are a valuable person and a member of the Marine Corps Family and we are

committed to providing you services and support during this stressful time. If you are having issues, please

do not hesitate to ask for help. I can help you get in contact with a qualified counselor or you can seek help

directly. If you have any questions concerning this information, please call me at (insert contact info).

X. X. XXXXXXXXXX

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 RM 1D130

ARLINGTON, VA 22204-2482

In Reply Refer To:

5800

CDC

4 Aug 15

CDC POLICY MEMO 2.5

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION POLICY ON THE

HANDLING OF REAL EVIDENCE

Ref: (a) JAGINST 5803.1D of 01 May 2012 (Professional Conduct

of Attorneys Practicing under the Cognizance and

Supervision of the Judge Advocate General)

(b) American Bar Association Standards for Criminal

Justice: Defense Function §4-4.6 at 190 (3d Ed. 1993)

(c) CDC Policy Memo 2.3 (series)(Guidance on Walk—Ins and

IRO Hearings)

1. Purpose. To establish a uniform practice for all DSO

attorneys concerning the acceptance, possession, and inspection

of real evidence, including knowledge concerning its location.

2. Discussion.

a. No DSO attorney should ever be forced to half-step in

the zealous defense of a Marine or Sailor out of fear of a

hostile response by the very same persons who arrest,

interrogate, investigate and seek to convict our clients. Yet

experience dictates that the zealous defense of servicemembers

sometimes leads to contact with real evidence——and the chilling

effect concomitant to the range of possible Governmental

responses thereto is all too real.

b. If we are doing our jobs right, contact with real

evidence is virtually inevitable. Courts have essentially said

as much, pointing out that client confidentiality may not allow

a defense attorney the luxury of avoiding contact with real

evidence:

[T]he legal responsibility imposed upon lawyers who

learn of the existence of tangible evidence of a

completed crime in the course of an attorney-client

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

2

relationship is complex and far from settled.

Moreover, a lawyer can be faced with a host of

conflicting important obligations to balance,

including the duty to preserve client confidences,

investigate the case, and maintain an allegiance to

the system of justice as an officer of the court.

Wemark v. State, 602 N.W.2d 810, 816 (Iowa 1999).

c. A sound attorney-client relationship is based on

trust. Its absence makes defending our clients nearly

impossible, particularly in view of the increasing

complexity of criminal representation. Drawing further

from the lessons in Wemark, this is particularly true for

three principle reasons:

(1) First, the law is so complex and so pervasive in

today's society that a Marine needs the assistance of an

attorney to resolve legal disputes with the Government.

(2) Second, in order to effectively do their job,

lawyers need full knowledge of all of the facts and evidence in

their client’s case. Frequently the best source of that

information is the client.

(3) Third, our clients will likely be reluctant to

reveal all of the facts to their attorney without some assurance

that, once disclosed, the attorney will not reveal those

confidences.

d. For these reasons confidentiality is the basis of the

trust we seek from our clients. Furthermore, confidentiality is

invoked through any communicative act between the attorney and

his or her client. Except under very limited circumstances, an

attorney may not disclose confidential information.

e. When a client notifies his or her attorney of the

existence of real evidence, or where a client attempts to

provide or deliver that evidence to an attorney (personally or

through a third party) it will generally be accompanied by some

form of confidential communication. In fact, the mere act

attempting to deliver a piece of real evidence may, in and of

itself, be a communicative act.

f. So while the item itself may need to be disclosed, the

confidentiality of the communicative act accompanying the

evidence may prevent counsel from revealing the contents of the

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

3

communication, including the source of their knowledge of the

location or possession of the item.

g. At the same time, our rules of practice generally

prohibit interfering with access to evidence by all parties.

Certainly our Code so requires. See ART. 46, UCMJ, 10 U.S.C.

§846. An attorney may not suppress, obstruct, alter, conceal or

destroy relevant items of real evidence which the law otherwise

requires be produced, nor may an attorney counsel another to do

so. Neither can an attorney conceal or fail to disclose

information and/or evidence in his or her possession which the

law requires he or she reveal.1 In either case the attorney may

jeopardize his or her license with an attendant allegation of

obstruction of justice. Furthermore, our practice generally

recognizes the military community’s legitimate interest in

safety, national security, and preventing the knowing

destruction of evidence of a crime, even when it is in a Defense

Counsel’s possession. This remains true even though the

interests of the client rarely align with those of the military

community at large.

h. The DSO will carefully balance these competing

interests. First, we will remain true to our creed, and keep

foremost in our minds our duty to our clients——a duty which, on

very rare occasions, may require that we accept, possess,

inspect or even possibly forensically test real evidence. Not

only might there be circumstances where a DSO attorney is unable

to avoid contact with such evidence, but there may also be the

unusual circumstance where he or she is ethically bound to

accept it in zealous defense of his or her client. But second,

these duties must be performed in the context of a system based

on confrontation——which states that defense counsel may not

suppress, obstruct, alter, hinder or conceal evidence in

counsel’s possession from the prosecution, and which recognizes

the military community’s legitimate interest in safety, national

security, and preventing the knowing destruction of evidence of

a crime.

i. For purposes of this Policy Memo real evidence is

defined as being some item which has a role in the prosecution

or defense of a preferred charge under the Uniform Code of

Military Justice. It is original evidence brought before a

tribunal, hearing, court or panel, or which either party seeks

to produce before a tribunal, hearing, court or panel, addressed

1 The difficulty lies in determining when the law requires disclosure. If any

question with regard to disclosure/nondisclosure of evidence exists,

immediately seeking the advice of your supervisory attorney is required.

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

4

directly to the senses of the tribunal, hearing, court or panel,

and not requiring the testimony of witnesses other than as may

be required to lay a foundation for its admission. It is not a

demonstrative aide. See, e.g., Smith v. Ohio Oil Co., 134

N.E.2d 526, 530 (Ill. 1956). This definition is intended, for

example, to include both the knife used in a homicide and the

wound caused by the knife. It is specifically intended to be

read broadly to include any original documentary, physical, or

electronic evidence either party seeks to produce concerning a

preferred offense charged under the Uniform Code of Military

Justice. As such it includes not only the knife and the knife

wound, but would also include a cell phone and the text messages

on that cell phone.

j. In this regard real evidence may be viewed in two

contexts, that which is exculpatory, genuinely enhancing the

client’s defense, and that which is incriminating or

inculpatory. As it may be difficult initially to distinguish

between these two types of evidence, and as evidence originally

thought to be entirely innocuous may become incriminating as the

scope of the investigation widens, consultation with your

supervisory attorney, and familiarity with both reference (a)

and the rules promulgated by your State licensing agency are

critical. In all cases counsel will thoroughly document the

case file.

3. Policy.

a. Acceptance of Evidence Generally Discouraged. It is

rarely necessary to accept real evidence from a client. No

physical item should be accepted without a conscientious

consideration of its necessity to provide an effective and

zealous defense in the absence of some other means to preserve

it. By definition, obviously inculpatory items should not be

accepted. But before accepting any evidence from anyone, a DSO

attorney should first ask: “Is this evidence so necessary to my

defense and so clearly exculpatory that I would be comfortable

asking CID or NCIS to come to my office to take possession of

the item?” If the answer to this question is not “yes” then

counsel should probably refrain from accepting the item.

b. Acceptance of stolen property or contraband will require

the defense attorney turn the item(s) over to the United States.

See l(4)(a) below.

c. While there is no mandatory disclosure rule in the DSO,

neither is there any requirement that you as defense counsel

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

5

accept possession of any physical item from your client or from

any third parties.

(1) In all cases where a DSO attorney comes in contact

with real evidence he or she shall immediately seek advice from

his or her supervisory attorney before taking any action.

(2) A DSO attorney shall not under any circumstances

personally destroy or alter evidence.

(3) A DSO attorney shall not under any circumstances

advise any party to destroy or alter any piece of evidence.

d. Knowledge of Evidence Generally Privileged. There is no

mandatory disclosure rule in the DSO. If you learn of evidence

but do not accept it into your possession, this information is

privileged with three narrow exceptions:

(1) First, where disclosure is necessary to prevent

reasonably certain death or substantial bodily harm.

(2) Second, where disclosure is necessary to prevent the

client from committing a criminal act that a DSO attorney

reasonably believes is likely to result in the significant

impairment of national security or the readiness or capability

of a military unit, vessel, aircraft, or weapon system.

(3) Third, where disclosure is required pursuant to law

or court order.2

2 See Navy Rules of Professional Conduct, Rule 3.4 (a) (1). But note the

prohibition is to “unlawfully obstruct access to evidence” of potential

evidentiary value. Counsel is ethically bound not to conceal or knowingly

fail to disclose evidence which he is required by law to reveal. Model Rules

of Prof'l Conduct R. 3.3(a)(2), 3.4(a). In United States v. Rhea, 29 M.J.

991 (A.F.C.M.R. 1990) a case of first impression in the military, the court

addressed the ethics of accepting real evidence from a client which is

subsequently sought by the government. During a pretrial investigation,

accused's counsel became concerned that an annotated calendar in their

possession belonging to the alleged victim contained evidence of defendant's

crime. The annotated calendar in the possession of the defense was

specifically sought in a search authorization of the accused's quarters but

had been given to the counsel by their client. On the advice of their

respective state bars, the counsel requested an ex parte hearing before the

trial judge, who ordered the material be turned over to the government. The

evidentiary nature of the calendar only became apparent after the Art 32

hearing and the Government search authorization was granted.

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

6

e. Return to Original Source. Attorneys of the DSO are

cautioned and encouraged to decline acceptance of incriminating

evidence and return it to its original source. This does not

interfere with an attorney’s obligation to inspect an item for

potentially exculpatory evidence. If a DSO attorney has taken

temporary possession of an item as described in paragraph 2(j)

above, that attorney is cautioned and encouraged not to retain

possession of any incriminating evidence, but should instead

return it promptly to its original source as soon as possible.

(1)Where a DSO attorney unavoidably receives or takes

possession of inculpatory and/or incriminating evidence, he or

she is under no obligation to automatically deliver that

evidence to those prosecuting his or her client.

(2) Where possible such evidence may instead be returned

to its original source. Reference (b) pertains. Where the

original source is a third party (e.g. the client’s spouse or

significant other) clearly explain that:

(a) You are not that third party’s attorney, and you

do not represent them.

(b) You are not advising them to destroy, alter or

otherwise conceal the evidence and can give them no advice about

what to do with the evidence.

(c) You do not want the evidence in your possession.

(d) Document your case file accordingly.

f. Where Return Is Not Possible. When it is not possible

to return the evidence to its original source DSO attorneys

should consider alternate methods of return or disclosure,

including anonymous disclosure through your Regional Defense

Counsel (RDC).3 As always, document your case file accordingly.

Any means of disclosure must specifically contemplate and

protect:

(1) The client's identity.

(2) The client's words to you concerning the item.

(3) Any other confidential information.

3 Before any disclosure it is highly recommended that you consult with your

state bar on the state-specific implications of any proposed method of

disclosure.

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

7

(4) The client's privilege against self-incrimination.

g. Caution Urged. But be cautioned——while this policy

letter does not establish a rule of automatic delivery, neither

does it divest you of responsibility for your actions. In

addition to consulting with your supervisory attorney and

reviewing reference (a), DSO attorneys who find themselves faced

with taking possession of real evidence are encouraged to

consult the rules promulgated by their State licensing agency

before making any decisions. Document these consultations in

your case file.

h. Imminent Threat. Items which poses a threat of

reasonably certain death or substantial bodily harm or present a

reasonably certain risk of significant impairment to national

security or the readiness or capability of a military unit,

vessel, aircraft, or weapon system are generally defined as an

“imminent threat.” If real evidence presents an imminent threat

immediately contact your supervisory attorney who will contact

appropriate authorities for anonymous disclosure.

i. Implications of acceptance. Any decision to accept real

evidence from a client or third party implies two things:

(1) First, acceptance implies that you have engaged in a

thoughtful analysis leading to the conclusion that accepting

possession may assist in the effective representation of the

client, and that the client’s defense genuinely requires this

evidence. In arriving at that decision you should consider

alternative methods of preserving the evidentiary value of the

item in lieu of possession. Frequently a photograph and a

percipient witness able to lay an appropriate foundation for

introduction of the photograph will satisfy the evidentiary

considerations without requiring acceptance of the item in

question.

(2) Second, acceptance implies a willingness and

capacity to establish and maintain a chain of custody for that

real evidence. In those unusual circumstances where a DSO

attorney is ethically bound to accept, or simply cannot avoid

taking possession of, real evidence, create and maintain a chain

of custody.

(3) In the event counsel believes effective

representation requires acceptance of an item of real evidence,

and where feasible, seek a non—detailed member of the DSO or DSO

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

8

support staff member to facilitate acceptance of the evidence in

question.

j. Duty of Disclosure to the Client. If you elect to take

possession of physical evidence of any nature, even if you

believe it to be exculpatory, at a minimum you have a duty to

inform your client of:

(1) The possibility that you may be required under the

Rules of Professional Responsibility to turn the evidence over

to the Government if it later proves to be in any way

incriminating. Specifically advise your client that items not

immediately incriminating may become incriminating as the

investigation evolves. This advice should be given in the

presence of another member of the DSO and documented in your

case file.4

(2) The possibility that acceptance of evidence may put

you, the detailed counsel, in the position of having to withdraw

as counsel on the case. Tell your client that the Rules of

Professional Conduct prohibit counsel from being a witness in a

case in which he or she is detailed, and that acceptance of the

evidence may well make you a witness. Reference (a). This

advice should also be given in the presence of another member of

the DSO and documented in your case file.

k. Pre—preferral and Walk—In Counseling: A servicemember

may become aware that he or she is under investigation before

charges are preferred, and a DSO attorney may be assigned to

provide that servicemember with advice. Reference (c) explains

that, while this does not necessarily equate to being

“detailed,” such counseling is generally confidential. Should

such a servicemember present with real evidence, or should a

third party attempt to present real evidence to a DSO attorney

on behalf of such a servicemember, the DSO attorney will

typically decline acceptance in consideration of the following:

4 In United States v. Rhea, 29 M.J. 991 (A.F.C.M.R. 1990) defense counsel

became aware of potential inclupatory nature of the item through the post Art

32 search authorization and sought a judicial order clarifying their

obligation to disclose the evidence already within their possession within

the parameters of the Navy Rules of Professional Conduct. The court

acknowledged the apparently innocuous nature of the evidence at the time it

was accepted by counsel. As the case progressed, however, it became vital

corroboration in the testimony of a sexual assault complainant.

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

9

(1) Determine if the item presents, or if acceptance

would present, an imminent threat. If so, follow the procedures

described in paragraph 3.g. above.

(2) If the evidence does not pose an imminent threat,

decline to accept the item. Under no circumstances will any DSO

attorney destroy or alter any evidence, nor will any DSO

attorney render advice to any party to do so. Consult your

supervisory attorney and document your case file or make a

contemporaneous memo if no file exists.

(3) Sometimes a non-client servicemember or third party

will deliver real evidence without acceptance by a DSO attorney,

e.g. deliver it by mail, or simply leave it behind. If it is

not possible to return the item to its source, place the

evidence in a sealed plastic bag or container, with a completed

chain of custody documents. Deliver it to your Regional Defense

Counsel (RDC) for anonymous disclosure to appropriate

authorities.

l. How to Deal with Real Evidence Post—Preferral or Where

there is an Established Attorney—Client Relationship. The

following is provided as an analytical framework for handling

real evidence. Under circumstances where a client or third

party presents with real evidence, a DSO attorney must ask:

(1) Do I have an attorney-client relationship with a

party for the offense to which this real evidence is linked? If

the answer that question is “no,” follow the procedures

described more fully in paragraph 3.j. If the answer to that

question is “yes” proceed.

(2) Can I decline acceptance? This is generally the

best choice, especially if the evidence is incriminating. If

the evidence is not genuinely required for the client’s defense

or its evidentiary value can be preserved through photography or

by other means, a DSO attorney should decline to accept the

evidence and return it to its original source. Even temporary

possession for purposes of photography or other testing should

be appropriately documented to protect against allegations of

obstruction.

(3) Can I accept the evidence? But in those rare

circumstances where an item is genuinely required for the

client’s defense, counsel may be ethically compelled to accept

it. So long as the DSO attorney is capable of preserving the

integrity of both the evidence and the chain of custody for the

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

10

evidence, and after consultation with a supervisory attorney, he

or she may do so.

(4) Once I accept the evidence, what do I do with it?

Real evidence will generally come in two categories, that which

is contraband or poses an imminent threat, and all other

evidence(“other real evidence.)”

(a) Contraband/Imminent threat: Contraband

evidence, or evidence which presents an imminent threat, may not

be accepted. But if you inadvertently take possession of

evidence that is contraband or which poses an imminent threat

(e.g controlled substances or stolen proceeds), acceptance will

legally and ethically compel a DSO attorney to turn the item

over to the United States in accordance with Rule 3.4 of

reference (a). This presents a dilemma in that if a DSO

attorney delivers evidence against his or her client, he or she

likely violates the attorney-client privilege and jeopardizes

the client’s Fifth and Sixth Amendment rights. History shows

that attorneys placed in this situation have been found

ineffective (which is why acceptance is typically discouraged).

Under these circumstances a DSO attorney should consider

delivering the evidence to the United States anonymously through

his or her RDC. This may help protect the DSO attorney and the

client. However a DSO attorney may:

1. Inspect the item as may be required to

photograph, preserve, forensically test,5 or otherwise document

the item.

2. Establish a chain of custody for the item.

3. Turn the item over to the United States

anonymously through the DSO attorney’s RDC.

4. Document your case file accordingly.

5 The Navy rules are silent on forensic testing. The ABA Criminal Justice Standards for the Defense Function have an allowance for forensic testing.

Check your state bar rules and consult your RDC/SDC prior to forensically

testing any evidence in which you have taken custody. Note that under

JAGINST 5803.1E Rule 3.4, a covered attorney shall not: “. . . unlawfully

alter, destroy, or conceal a document or other material having potential

evidentiary value.” While it is the DSO’s position that forensically testing

an item of evidentiary value is not unlawfully altering or destroying

evidence, it is best practices to preserve the evidence in its original state

as much as is possible. See Gregory C. Sisk, The Legal Ethics of Real

Evidence: Of Child Porn on the Choirmaster’s Computer and Bloody Knives

Under the Stairs. 89 Wash. U. L. Rev. 819 (2014).

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

11

(b) Other Real Evidence: While acceptance of real

evidence is discouraged, if your client’s defense genuinely

requires this evidence; you are capable of establishing and

maintaining a chain of custody for the evidence; you are

ethically bound to accept the evidence under reference (a) and

your State rules; and so long as the evidence is neither

contraband nor presents an imminent threat; it may be retained.

When presented with a court order, or when otherwise required by

law, deliver the evidence to appropriate authorities. Establish

a chain of custody for all accepted evidence.

(5) When a client or third party tells me of the

physical location of evidence, but does not deliver it to me,

what may I do? There may be occasions when a DSO attorney

learns the location of evidence, but does not take possession.

Even if this information relates to evidence of guilt secreted

away by the client, when the information comes to a DSO

attorney’s attention through a communicative act of the client,

the information remains covered by the attorney—client

privilege. Mere knowledge of the existence of evidence,

including its location, does not require disclosure. Assuming

that law enforcement personnel are somehow entitled to evidence

they otherwise would not discover does not square with the

attorney’s ethical obligation to zealously represent the

accused. Neither can it be squared with the client’s

Constitutional rights to be protected from self—incrimination

and to effective representation.

(6) Under most circumstances a DSO attorney will

decline to inspect the location of such evidence, but there may

be circumstances where a DSO attorney believes he or she is

ethically or legally bound to do so. Should any DSO attorney

believe he or she is ethically or legally bound to inspect the

evidence location, immediately consult your RDC or the Chief

Defense Counsel.

(7) Consistent with the procedure outlined in United

States v. Rhea, in the event a DSO attorney accepts possession

evidence which he/she later learns is inculpatory or is sought

by the government the DSO attorney should consult with his/her

RDC and seek an ex parte ruling on the requirement of disclosure

from the military judge or the Chief Judge of the Judicial

district if no military judge has yet been assigned.

4. Summary. There is no mandatory disclosure rule in the DSO.

Such a rule would run counter to the obligation of client

loyalty and enlist the client’s own attorney in the Government’s

Enclosure 4

Subj: DEFENSE SERVICE ORGANIZATION REPORTING REQUIREMENTS

12

attempt to convict him. Generally a DSO attorney will be able

to avoid taking possession of real evidence. This policy memo,

however, contemplates scenarios where such contact is

unavoidable——it contemplates the more difficult path where the

attorney—client privilege and the right of the accused to

effective, zealous representation are paramount. Even non—

testimonial evidence, itself without Fifth Amendment protection,

is typically privileged when delivered to an attorney by a

client. The mere act of producing an item has “communicative

aspects” of its own, wholly aside from the nature of the item.

Just as importantly, an attorney has an ethical and legal

responsibility to investigate on behalf of his or her client.

Properly executing this ethical obligation makes some degree of

contact with real evidence a virtual certainty. The foregoing

is drafted with these challenges in mind.

5. Conclusion: This CDC Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Colonel, U.S. Marine Corps

Enclosure 4

In Reply Refer To: 5800

CDC

24 Sep 15

CDC POLICY MEMO 2.6

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: POLICY FOR PERSONNEL DETACHING FROM THE DSO UPON

COMPLETION OF A DSO TOUR

Encl: (1) Detaching defense counsel checklist

(2) Detaching defense clerk checklist

1. Purpose. To provide policy guidance on and establish a

better understanding of the ethical obligations incumbent upon

Defense Services Organization (DSO) personnel, both officer and

enlisted, on the occasion of their detaching from the DSO.

2. Discussion.

a. The Marine Corps Defense Services Organization operates

as a global law firm. Members of the DSO commonly share case

related information, themes, and theories with each other

through SharePoint, case consultations, and casual conversation.

As a result DSO attorneys become privy to a host of

confidential, if not privileged, information, documents and

materials. Upon conclusion of a tour in the DSO, defense

counsel and defense clerks depart with extensive knowledge of

protected and privileged information related to ongoing cases.

As such, when detaching from the DSO defense counsel and defense

clerks alike have a continuing ethical and legal obligation to

protect and maintain important, confidential, and privileged

information, not only in relation to their clients and cases,

but also in relation to the clients and cases of which they have

become aware.

b. Due to the unique nature of the Judge Advocate community

departing DSO members sometimes transfer to other adversarial

billets, such as Victim’s Legal Counsel or Trial Counsel. These

transfers sometimes occur contemporaneous with the prosecution

of cases of which the former DSO member maintains personal,

professional, confidential or privileged information obtained as

the result of a communication with another defense counsel or

supervisory attorney. For this reason such transfers are ill-

Enclosure 4

advised. Given the opportunity for conflicts of interest,

actual or perceived, such transfers are fraught with peril.

While the transfer of personnel other than Regional and Senior

Defense Counsel is outside the scope of my authority as Officer-

in-Charge of the DSO, to the extent I can influence it, these

types of billet transfers will be discouraged.

c. As a final aspect of the DSO training pipeline I want to

emphasize the importance of ensuring DSO members depart our

organization with a thorough understanding of their

responsibilities to safeguard and protect information they

obtained as the result of their DSO tour.

3. Policy. Each detaching member of the DSO will complete the

appropriate enclosure no later than seven (7) business days

prior to assumption of a new, non-DSO billet. After reviewing

and completing the checklist, the departing DSO member and the

cognizant supervisory DSO attorney will review the checklist

together and verify that all roles and responsibilities are

properly understood. The DSO branch office will maintain a copy

of the completed checklist for a period of two years. The

completed checklist is subject to inspection.

4. Conclusion. This CDC Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

NMCTJ Code 52, OJAG

Enclosure 4

Marine Corps Defense Services Organization Detaching Defense Counsel (4402/4401) Checklist

Instructions: Print this checklist and mark the blocks as you complete each item. You may

complete in any order but should completion is required no later than seven days prior to

detaching from the DSO. After you complete the checklist, meet with your supervisory counsel to

review each of the topics. Your supervisory attorney will initial on the line for each topic,

confirming your completion and understanding. A copy of the completed checklist will remain

with the DSO branch office for a period of two years.

Attorney name: _____________________________________

Date DSO tour began: _______________________________

Anticipated DSO tour end date: _______________________

Anticipated next billet assignment: ____________________

Supervisory Attorney Reviewer: ______________________

_____ JAGINST 5803.1(series): Read and understand the following sections

1.6 CONFIDENTIALITY OF INFORMATION

1.7 CONFLICT OF INTEREST: GENERAL RULE

1.9 CONFLICT OF INTEREST: FORMER CLIENT

1.10 IMPUTED DISQUALIFICATION

3.8 SPECIAL RESPONSIBILITIES OF TRIAL COUNSEL AND OTHER

GOVERNMENT COUNSEL

_____ MCO P5800.16(series): Read and understand the following sections

Paragraph 2001(4): Attorney-Client Relationships

Paragraph 2002(6): Defense Counsel

Paragraph 2003(5): Tour Length

Paragraph 2004: Reassignment

_____ CDC Policy Memo 1.3: Read and understand the following sections

Paragraph 3(e): Case file retention

_____ Case Status

List any ongoing cases or administrative separations cases pending:

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

List any cases or administrative separations cases pending convening

authority/separation authority action:

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

Enclosure 4

Marine Corps Defense Services Organization Detaching Defense Counsel (4402/4401) Checklist

List any special or general courts-martial cases still pending appellate review:

__________________________________________________________________

__________________________________________________________________

_________________________________________________________________

I have reviewed the aforementioned references and discussed my responsibilities as a departing

member of the DSO with my supervisory counsel. I understand that all confidential information

I was privileged to as a member of the DSO must be safeguarded and protected. I will not use

any privileged information gained during my time in the DSO in any manner during any follow

on billet to which I am assigned.

____________________________________ ____________________________________

Attorney Signature Date Supervisory Attorney Signature Date

Enclosure 4

Marine Corps Defense Services Organization Detaching Defense Clerk (4421) Checklist

Instructions: Print this checklist and mark the blocks as you complete each item. You may

complete in any order but should completion is required no later than seven days prior to

detaching from the DSO. After you complete the checklist, meet with your supervisory counsel to

review each of the topics. Your supervisory attorney will initial on the line for each topic,

confirming your completion and understanding. A copy of the completed checklist will remain

with the DSO branch office for a period of two years.

Defense clerk name: _____________________________________

Date DSO tour began: _______________________________

Anticipated DSO tour end date: _______________________

Anticipated next billet assignment: ____________________

Supervisory Attorney Reviewer: ______________________

_____ JAGINST 5803.1(series): Read and understand the following sections

Paragraph 4(d)

1.6 CONFIDENTIALITY OF INFORMATION

1.7 CONFLICT OF INTEREST: GENERAL RULE

1.9 CONFLICT OF INTEREST: FORMER CLIENT

1.10 IMPUTED DISQUALIFICATION

3.8 SPECIAL RESPONSIBILITIES OF TRIAL COUNSEL AND OTHER

GOVERNMENT COUNSEL

_____ MCO P5800.16(series): Read and understand the following sections

Paragraph 4001(4): Attorney-Client Relationships

Paragraph 4002(6): Defense Counsel

Paragraph 4004: Reassignment

List all DSO attorneys to whom you have provided material support for any special or

general courts-martial cases still pending appellate review or any Board of Inquiry or

administrative separation board currently pending:

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

I understand that although the Rules in JAGINST 5803.1 do not apply directly to non-attorneys, they do

define the type of ethical conduct that is expected of me as a legal clerk. I have reviewed the

aforementioned references and discussed my responsibilities as a departing member of the DSO with my

supervisory counsel. I understand that all confidential information I was privileged to as a member of the

DSO must be safeguarded and protected. I will not use any privileged information gained during my time

in the DSO in any manner during any follow on billet to which I am assigned.

____________________________________ ____________________________________

Defense Clerk Signature Date Supervisory Attorney Signature Date

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 RM 1D130

ARLINGTON, VA 22204-2482 In Reply Refer To:

5800

CDC

29 Oct 15

CDC POLICY MEMO 2.7

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION POLICY ON

SOCIAL MEDIA

Ref: (a) JAGINST 5803.1(series)(Professional Conduct

of Attorneys Practicing under the Cognizance and

Supervision of the Judge Advocate General)

(b) 10 U.S.C. §827

(c) Marine Corps Social Media Guidance for Unofficial

Posts

(d) MARADMIN 365/10

(e) MARADMIN 173/15

1. Purpose. This policy memo establishes uniform practices for

all Defense Services Organization (DSO) attorneys concerning

acceptable uses of social media relative to official DSO duties.

2. Discussion.

a. While social media has been a part of the mainstream for

almost a decade, the left and right lateral limits of

permissible social media conduct for both attorneys and Marines

continues to evolve.

b. Attorneys practicing under the cognizance of the Judge

Advocate General of the Navy are subject to the Judge Advocate

General’s ethics instruction (ref (a)), local circuit rules, and

the ethics requirements of their state bars (ref (b)).

c. Social media policies which apply to all Marines are

listed in references (c)-(e). Given the nature of current

operations, it is incumbent on every Marine to be aware of his

or her digital presence and manage it in accordance with

promulgated anti-terrorism/force protection (AT/FP) protocols.

Enclosure 4

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION POLICY ON

SOCIAL MEDIA

2

d. Some civilian jurisdictions have held contempt hearings

and/or initiated ethics complaints against defense attorneys

using social media in the courtroom. While most military

circuit rules address the use of electronic devices in the court

room, the use of social media has largely been ignored.

e. This policy is necessary in order to address such

uncertainties, protect the legitimate privacy interests of the

parties, respect AT/FP concerns and protocols, not to mention

the dignity and respect concomitant to the military justice

process.

e. To be clear, this policy applies only when DSO attorneys

are performing duties as defense counsel. Furthermore, when

acting as the legal representative of a client you are compelled

to do what is in your client’s best interest, consistent with

the law and applicable ethical cannons, and this policy memo

does not foreclose any options you may have in the zealous

representation of a particular client. Neither is it intended

to chill speech made in a private capacity. When speaking in

your personal capacity you are completely unconstrained by this

guidance. This guidance is intended to ensure compliance with

all applicable social media guidelines, protect DSO personnel

from stepping on potential ethical landmines, and enhance the

professionalism of the DSO and the practice of military justice.

3. Policy.

a. With the exception of official military ceremonies,

training, and appropriate unofficial unit social activities,

without the express permission of a Military Judge all

photography or digital video recording inside military

courtrooms is prohibited. This prohibition applies regardless

of whether or not court is in session.

b. No member of the DSO shall photograph or digitally video

record another party without that party’s express consent.

Under no circumstances will a member of the DSO photograph or

digitally video record the members, a military judge, or any

other member of a tribunal while acting in that capacity,

transiting to or from the forum, or in the vicinity of the

proceeding. This prohibition applies to all identifiable

individuals in a photograph or digital video recording,

including those who may be in the background of such photographs

or digital video recordings.

Enclosure 4

Subj: MARINE CORPS DEFENSE SERVICES ORGANIZATION POLICY ON

SOCIAL MEDIA

3

c. Photographs outside of the courtroom depicting members

of the DSO with clients are permitted. Photos with clients in

front of an acquittal “A” or other DSO sanctioned emblems or

symbols are also permitted. However, social media dissemination

of these types of photos is strongly discouraged.

d. To ensure privacy, compliance with Marine Corps

guidance, and applicable bar rules, posting photos of clients on

social media is strongly discouraged—regardless of client

consent.

e. Text-based social media in which a colleague could

reasonably identify the client that is the subject of the post

is prohibited.

f. This policy in no way prohibits or restricts DSO

organizational, moral-building ceremonies intended to recognize

and memorialize acquittals and other favorable results.

g. All members of the DSO should regularly monitor their

online social media presence to ensure conformity with this

policy memo and the references.

4. Summary. Heightened security concerns, coupled with

potential ethical constraints, necessitate greater consideration

of our organization’s social media presence. While I celebrate

your successes with you, I would be derelict in the performance

of my duties if I allowed you to unknowingly step into this

potential minefield. “Act like you’ve been there before”

applies to more than just the playing field. We are military

justice professionals and shall conduct ourselves accordingly.

Respect for the dignity of the process, other parties to the

process, and the courtroom is not optional in the DSO.

5. Conclusion. This policy memo is effective immediately.

STEPHEN C. NEWMAN

Colonel, U.S. Marine Corps

Distribution List:

SJA to CMC, Legal Chief of the Marine Corps, All Marine Corps

SJAs, LSSS OICs, LSST OICs, All members of the DSO, NMCTJ Code

52, OJAG

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000

ARLINGTON, VA 22204-2482

In Reply Refer To: 5813

CDC

6 Oct 14

CDC Policy Memo 3.1

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL

DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE

MARINE CORPS DEFENSE SERVICES ORGANIZATION

Ref: (a) MCO P5800.16 (series)

(b) JAGINST 5800.7F (JAGMAN)

(c) JAGINST 5803.1D (Rules of Professional Conduct)

1. Purpose. To establish detailing and individual military

counsel (IMC) determination delegation authority within the

Marine Corps Defense Services Organization (DSO), and to cancel

Chief Defense Counsel (CDC) Policy Memo 1-13.

2. Discussion. Reference (a) identifies the Chief Defense

Counsel of the Marine Corps (CDC) as the Officer-in-Charge of

the DSO and the detailing and IMC determination authority for

defense counsel assigned to the DSO. Additionally, reference

(a) authorizes the CDC to delegate these authorities to Regional

Defense Counsel (RDC) and Senior Defense Counsel (SDC) subject

to certain restrictions that are incorporated below. This

policy memo supersedes and cancels all previous CDC Policy Memos

related to detailing and IMC approval.

3. Policy. A defense counsel will not establish an attorney-

client relationship, as defined by section 0131b(3) of reference

(b), with any individual unless detailed, assigned, or otherwise

authorized to do so by his or her detailing or IMC determination

authority. Once established, the attorney-client relationship

may only be severed under the provisions of Rule for Courts-

Martial (R.C.M.) 505 and 506 and reference (c). Unless the

attorney-client relationship is properly severed, or he or she

is otherwise properly relieved, a defense counsel shall continue

to represent an accused through the completion of applicable

post-trial matters as outlined in reference (a).

Enclosure 4

Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL

DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE

MARINE CORPS DEFENSE SERVICES ORGANIZATION

2

a. Detailing. Detailing authority includes the authority

to detail a counsel to a court-martial case, an administrative

separation board, or other due process proceeding in which the

detailing of counsel is specifically authorized by Departmental

or service regulations and, for the CDC and RDCs, authorization

to form an attorney-client relationship and to remove a counsel

from a case for good cause under the provisions of R.C.M. 505

and Rule 1.16 of reference (b).

b. Detailing Authority within the DSO. Detailing

authorities may detail defense counsel from the DSO to cases in

accordance with the procedures set forth in reference (a),

consistent with the considerations specified in paragraph 2

below. The following billet-specific delegations pertain:

(1) CDC: The CDC may detail defense counsel from the

DSO, and auxiliary defense counsel made available for a

particular case, to cases supported by the DSO. The CDC may

also remove counsel who have formed an attorney-client

relationship from a case for good cause under the provisions of

R.C.M. 505 and Rule 1.16 of reference (b).

(a) The CDC may self-detail with the consent of the

Staff Judge Advocate to the Commandant of the Marine Corps (SJA

to CMC).

(b) The CDC may authorize a defense counsel to form

an attorney-client relationship with officers and staff non-

commissioned officers (SNCOs) subject to investigation under

Chapter 2 of reference (b), or under investigation by an

Inspector General, where the CDC reasonably believes that such

an investigation may result in nonjudicial punishment (NJP)

and/or a board of inquiry or administrative separation.

(c) The CDC is the detailing authority for RDCs.

(d) The CDC will appoint a substitute CDC for

detailing purposes when the CDC is on leave or otherwise

unavailable to execute detailing responsibilities.

(2) RDCs: RDCs may detail defense counsel assigned to

their Legal Services Support Section (LSSS) and subordinate

Legal Services Support Teams (LSST), as well as Auxiliary

Defense Counsel made available by the LSSS or LSST OIC, to cases

arising in their Legal Services Support Area (LSSA), and may

remove counsel who have formed attorney-client relationships for

Enclosure 4

Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL

DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE

MARINE CORPS DEFENSE SERVICES ORGANIZATION

3

good cause under the provisions of R.C.M. 505 and Rule 1.16 of

reference (b).

(a) RDCs may not self-detail.

(b) RDCs may not detail cases involving an accused

in the grade of O-5 and above, or cases alleging violations of

Article 118(1) or (4).

(c) In cases with multiple co-accused an LSSS or

LSST SDC may be unable to detail due to conflicts or a lack of

available counsel. When such circumstances arise, the RDC will

normally detail defense counsel and auxiliary defense counsel to

these cases. In exceptional circumstances the RDC may contact

the CDC and request support from an adjacent LSSA.

(d) While the preference is to have Marines defend

Marines, RDCs may request that Navy defense counsel be detailed

by a local Navy Defense Service Office in exceptional

circumstances.

(e) RDCs will maintain a record of all cases

detailed to counsel within their region and other cases

involving accused assigned to commands supported by their LSSS

utilizing the Case Information System (CIS) on the DSO’s

SharePoint website.

(f) Except for officers in the grade of O-5 and

higher, RDCs may authorize defense counsel in their region to

form an attorney-client relationship with officers and SNCOs

pending NJP when they reasonably believe an NJP may lead to a

board of inquiry or an administrative separation.

(g) RDCs will appoint a substitute RDC and for

detailing purposes when the RDC is on leave or otherwise

unavailable to execute detailing responsibilities.

(3) SDCs: SDCs may detail defense counsel assigned to

their LSSS or LSST to cases supported by the SDC’s LSST or an

element thereof.

(a) SDCs may self-detail.

(b) SDCs may not detail counsel under the following

circumstances:

Enclosure 4

Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL

DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE

MARINE CORPS DEFENSE SERVICES ORGANIZATION

4

1. Cases involving a commissioned officer above

the grade of O-3, a Chief Warrant Officer above the grade of

CWO-2, or an enlisted accused above the grade of E-7.

2. Cases alleging violations of Article 118

(including attempts).

3. National security cases as defined by

section 0126 of reference (a).

(c) Additionally, SDCs who write fitness reports on

subordinate defense counsel may not detail themselves to

represent clients who have a conflict of interest with a client

of a subordinate defense counsel for whom the SDC is the

reporting senior.

(d) Prior to detailing counsel to complex cases the

SDC will consult with the RDC to ensure the right counsel is

detailed to the right case. The term “complex case” is a term

of art. Consider the following non-exclusive list of factors

when deciding what is and what is not a complex case: The

forum; the number and severity of charges; the severity of any

possible sentence; the number of potential witnesses; the

possible requirements for expert assistance or testimony; and

the relative experience base of counsel assigned to that SDC.

(e) In cases where the number of co-accused exceeds

the capacity of the SDC’s branch office, and/or where there are

conflicts which interfere with the ability to detail, the SDC

will forward the additional case files to the RDC for detailing.

(f) SDCs will maintain a record of all cases

detailed to counsel within their region and other cases

involving accused assigned to commands supported by their LSST

utilizing the DSO’s CIS.

(g) When an SDC is on leave or otherwise

unavailable to execute detailing responsibilities, RDCs will

appoint a temporary SDC for detailing purposes.

c. Detailing Considerations.

(1) Detailing authorities shall take the following into

consideration when detailing a defense counsel to a particular

case:

Enclosure 4

Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL

DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE

MARINE CORPS DEFENSE SERVICES ORGANIZATION

5

(a) Standard detailing criteria, including those

specifically listed in reference (a).

(b) The rights of the accused, including the right

to zealous, effective representation by a fully qualified

counsel.

(c) The needs of the local command and convening

authority.

(d) The complexity of the case in light of the

experience level and case load of the available counsel, work

load (including military duties), and any other factors which

may impact counsel’s ethical obligations to zealously and

effectively represent each individual accused.

(e) Any potential conflicts, actual or apparent.

(f) Timeliness.

(g) The location of the accused in relation to the

location of counsel, with preference given to detailing local

counsel.

(h) End of service and/or rotation dates of

counsel.

(2) Detailing shall be done in writing using the

approved detailing letter in the Forms section on the DSO

SharePoint page.

(3) Detailing shall occur as soon as practicable. In

no case shall detailing occur later than:

(a) Personnel in confinement: Ten days after being

notified in writing by corrections personnel, command

representatives, LSSS or LSST personnel, or any other official

representative of the United States, that an accused has been

placed in pretrial confinement or arrest under R.C.M. 305.

Written notification for purposes of this policy memo includes

electronic mail, facsimile, or any other electronic means of

distribution. SDCs shall ensure their branch office regularly

receives brig and confinement reports, and shall review them

regularly to identify newly-confined personnel.

Enclosure 4

Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL

DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE

MARINE CORPS DEFENSE SERVICES ORGANIZATION

6

(b) Personnel not in confinement: Five days after

being served notice of preferred charges.

(c) Personnel being processed for separation: Five

days after being served an administrative separation or board of

inquiry package.

(d) Other: As otherwise required by law or

regulation.

(4) The detailing authority will provide a copy of the

detailing memorandum to the responsible Staff Judge Advocate and

the cognizant LSSS or LSST prosecution or administrative support

section within seven days of detailing. Detailed counsel will

provide the trial counsel or recorder the approved Notice of

Representation from the Forms section on the DSO SharePoint

within seven days of being detailed to a court-martial case,

board of inquiry, or administrative separation board.

(5) Supervisory defense counsel will normally not be

detailed to represent a client, nor will they normally detail

themselves, when there is a conflict of interest with a client

of a subordinate defense counsel within their fitness reporting

chain. Only the CDC may grant an exception to this general

rule. If a supervisory defense counsel is detailed to a case

that creates a conflict of interest with a client of a

subordinate defense counsel, the supervisory defense counsel may

not review or write the fitness report of that subordinate

defense counsel. When this occurs the next-level supervisor

will replace the supervisory counsel in the subordinate defense

counsel’s fitness reporting chain.

(6) An accused in a non-capital case is not entitled to

be represented by more than one military counsel, and normally

only one defense counsel will be detailed to a particular case.

As explained in reference (a), the detailing of a second defense

counsel to contested and complex cases is encouraged. Detailing

authorities may, at their discretion, detail a second counsel to

such cases.

(7) Detailing authorities shall give preference to

detailing local counsel to local cases. Defense counsel are

normally detailed to represent personnel assigned to an

organization that is supported by that defense counsel’s LSSS or

LSST. Under certain circumstances, such as when an organization

has no local defense counsel, in conflict cases, or when unique

Enclosure 4

Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL

DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE

MARINE CORPS DEFENSE SERVICES ORGANIZATION

7

requirements of a case arise, defense counsel may be detailed by

the responsible RDC or by the CDC to represent an accused

assigned to an organization that is not normally supported by

that defense counsel’s branch office, subject to the following:

(a) Paragraph 0145 of reference (b) states that the

convening authority is responsible for both the cost of travel,

other than local travel as defined by the Joint Federal Travel

Regulations, and per diem, for a defense counsel in the course

of representing a member of his command.

(b) Prior to detailing a counsel to a case that

will incur non-local travel costs, the detailing authority shall

obtain approval from the Convening Authority (typically through

the Convening Authority’s SJA), including authority to expend

funds for travel and other expenses associated with

representation. If the Convening Authority declines to fund

non-local travel and per diem associated with representation,

forwarded the matter to the CDC for resolution. If the CDC

cannot resolve the issue, the CDC will forward it to the SJA to

CMC for final adjudication.

(8) Each defense counsel has an established rotation

date. Detailing authorities shall take this established

rotation date into consideration and shall not detail a defense

counsel to a case which they reasonably anticipate may extend

beyond this established rotation date without the consent of the

LSSS or LSST OIC. If the detailing authority and the LSSS or

LSST OIC cannot agree on a such a detailing decision, the matter

will be forwarded to the CDC for resolution. If the CDC cannot

resolve the issue, the CDC will forward it to the SJA to CMC for

final adjudication.

d. Inability to Form an Attorney-Client Relationship.

Occasionally, despite good faith efforts, counsel are unable to

locate their client and form an attorney-client relationship.

This most commonly occurs in two circumstances: when counsel is

detailed as substitute counsel for post-trial matters and the

accused has been discharged; and in reserve administrative

separation boards. Should this occur, detailed counsel shall

notify the detailing authority of the inability to form an

attorney-client relationship with the client and articulate the

steps taken to locate the client. If the detailing authority is

satisfied that all reasonable efforts have been exhausted to

locate the client, the detailing authority shall notify the

responsible trial counsel, recorder, Staff Judge Advocate, or

Enclosure 4

Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL

DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE

MARINE CORPS DEFENSE SERVICES ORGANIZATION

8

other appropriate and official agent of the United States, in

writing, using the approved Notice of Inability to Form an

Attorney-Client Relationship form found in the Forms Section on

the DSO SharePoint, that the detailed counsel has been unable to

form an attorney-client relationship and that the detailed

counsel will not make any personal or written appearance on

behalf of the servicemember.

e. Individual Military Counsel (IMC) Requests for Marines

Assigned to the DSO.

(1) Article 38, UCMJ, provides an accused the right to

be represented by military counsel of his or her own selection,

provided that said counsel is reasonably available.

(2) Section 0131 of reference (b) sets forth standards

for determining reasonable availability of the requested IMC.

(3) In accordance with reference (a), the CDC is the

determination authority under section 0131b(2) of reference (b)

for all IMC requests for defense counsel assigned to the DSO,

other than the CDC. The CDC is authorized to delegate that

authority to RDCs. Specific IMC approval authority is as

follows:

(a) The SJA to CMC retains IMC approval authority

on IMC requests for the CDC. For IMC availability determination

purposes, the CDC’s organization is the DSO, not the battalion

or organization to which the CDC is administratively attached.

(b) The CDC retains IMC approval authority on IMC

requests for RDCs, the OIC DCAP, all requests from officers of

the grade O-5 and above, and all requests from servicemembers

charged under Article 118 (1) and (4) (including attempts). For

IMC availability purposes, an RDC’s organization encompasses the

LSSA of the LSSS assigned, not the battalion or military

organization to which the RDC is administratively attached. The

OIC, DCAP’s organization is the DSO, not the battalion or

military organization to which the OIC DCAP is administratively

attached.

(c) Except as limited in paragraph (5) infra, RDCs

are delegated determination authority on IMC requests for

defense counsel and Senior Defense Counsel within their region.

For IMC availability purposes, counsel’s organization is the

LSSS or LSST to which assigned and the location of the units

Enclosure 4

Subj: DETAILING AND INDIVIDUAL MILITARY COUNSEL

DETERMINATION AUTHORITY FOR COUNSEL ASSIGNED TO THE

MARINE CORPS DEFENSE SERVICES ORGANIZATION

9

supported therefrom, not the battalion or military organization

to which the counsel is administratively assigned.

(4) Considerations for reasonable availability

determinations. Unless the case is one for which a sentence of

death may be adjudged under R.C.M. 1004, a national security

case as defined by section 0126 of reference (b), or the counsel

has an existing attorney-client relationship with the accused,

the requested counsel must either be located within the same

judicial circuit or assigned to an organization within 500 miles

where the proceedings are to be held in order to be found

reasonably available.

(5) Requests for associate counsel. If the requested

defense counsel is made available as an IMC, the detailed

defense counsel shall normally be excused from further

participation in the case, unless the detailing authority

approves a request from the accused that the detailed defense

counsel act as associate counsel.

4. Conclusion. CDC Policy Memo 1-13 is hereby cancelled. This

CDC Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

NMCTJ Code 52, OJAG

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000

ARLINGTON, VA 22204-2482

In Reply Refer To:

3000

CDC

20 Oct 14

CDC POLICY MEMORANDUM 3.2

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES

Ref: (a) MCO P1610.7F w/ch 1-2

(b) MCO P5800.16 (series)

(c) CDC PM 3.1 (series)(Detailing and Individual Military

Counsel Determination Authority)

(d) JAGINST 5803.1D (Rules of Professional Conduct)

Encl: (1) DSO RO Worksheet Memorandum

(2) Authorized Billet Descriptions

1. Purpose. To establish standard procedures within the Marine

Corps Defense Services Organization (DSO) for writing, reviewing

and submission of fitness reports for Marines assigned to the

DSO.

2. Discussion. There is no greater opportunity to have impact

on a Marine’s career than the fitness report. Little we do as

leaders has more impact and shelf-life with regard to such

things as future assignments, promotions, and schools.

Consequently, drafting and submitting timely, accurate, and

appropriate fitness reports is fundamentally important to me. I

intend for leaders in the DSO to submit meticulously drafted,

honestly prepared, consistently evaluated, and timely submitted

performance appraisals via the Automated Performance Evaluation

System (APES). While the Reporting Senior (RS) and Reviewing

Officer (RO) are most responsible for ensuring the integrity of

the process, this is a team effort——all Marines who write,

review, and receive fitness reports must work together to ensure

expectations are properly communicated and performance is

properly evaluated. Such communication, however, cannot begin,

and neither should it end, with the fitness report. It must

begin with “first contact” between the RS and Marine Reported On

(MRO), the point in time when they begin their professional

Enclosure 4

Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES

2

relationship, and must continue until their professional

relationship ends.

3. Policy. Fitness Reports will be written in strict

compliance with reference (a) and will properly document

observations and assessments of individual performance, personal

qualities, character, and the potential to serve at a more

senior level. All Fitness Reports submitted for Marines

assigned to the DSO shall be submitted in a timely manner using

APES through Marine Online (MOL). All reports must be completed

so that they arrive at Headquarters Marine Corps, Manpower

Management Support Branch (MMSB) no later than 30 days after the

end of the reporting period. To assist in meeting these

requirements and to address the unique issues related to serving

in the DSO, the following procedures are mandated.

a. Billet Descriptions: All DSO Marines will have a

written billet description. DSO leaders are tasked with

ensuring each Marine has a clear understanding not only of the

billet description, but also the leadership’s expectations based

on that billet description. Use the MROW as a tool to ensure

billet description clarity.

(1) The RS is the first officer in the reporting chain

senior to the MRO. Each RS is responsible for meeting face-to-

face with each MRO not less than 14 days from the initiation of

their reporting relationship in order to provide a copy to each

MRO of their billet description, and to discuss billet

expectations.

(2) Billet descriptions will be standardized to the

maximum extent possible. See enclosure (2) for authorized

billet descriptions.

(3) There may be occasions where officers and enlisted

personnel are assigned to the DSO for a limited period of time.

Billet descriptions for such personnel will be the same as for

others holding similar billets, but the RS will explain the

limited time period in Section I of the Fitness Report.

b. Submission Timelines.

(1) Marine Reported On Worksheet (MROW): Not only do

MRO and RS require a clear understanding of the Marine’s billet

description, but in order to draft an appropriate report they

also need a clear understanding of the Marine’s accomplishments

during the reporting period. The MROW is a tool used to ensure

Enclosure 4

Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES

3

clarity between the parties. It may also be used a tool for

periodic counseling sessions. In terms of submission for

purposes of fitness reports, it is used by the MRO to provide a

summary of billet accomplishments to the RS, and by the RS to

periodically re-validate the MROs billet description. MROs

shall ensure that their MROW is with their RS seven days prior

to the end of the reporting period. In addition to raw data

related to performance such as number of contested trials,

guilty pleas, administrative separation boards, NJP counselings,

etc., include such items as significant events, awards, and

professional military education (PME). Unless otherwise

directed or authorized, forwarded the MROW via the Automated

Performance Evaluation System (APES).

(2) Non-Adverse Reports: The RS will complete and

submit fitness reports which are not adverse to the Reviewing

Officer (RO) not later than 14 days after the close of the

reporting period. Submit the report to the RO via APES. Once

submitted, notify the RO via email that the report is pending

action. Attach a completed copy of enclosure (1) to the email.

The RO will ensure he or she completes and submits Fitness

Reports to Manpower Management Support Branch (MMSB) not later

than 30 days after the close of the reporting period.

(3) Adverse Fitness Reports: Adverse reports will be

processed in accordance with Chapter 5 of reference (a). The

Staff Judge Advocate to the Commandant of the Marine Corps (SJA

to CMC) will be the third officer reviewer for all adverse

officer reports. The CDC will be the third officer reviewer for

all adverse enlisted reports unless the CDC is in the reporting

chain. The Deputy SJA to CMC will be the third officer reviewer

for adverse enlisted reports when the CDC is the RO.

c. Reporting Senior Responsibilities.

(1) Preparing, advising and counseling each Marine on

his or her billet description in accordance with paragraph 3.a.

infra.

(2) Ensuring the timely processing of reports under his

or her cognizance. While the MRO bears responsibility for

preparing the MROW, this does not abrogate the leadership’s

responsibility to supervise the submission of an MROW via APES.

As such, each RS is responsible for ensuring that an MROW is

completed on each MRO and that a fitness report is ready to be

generated in APES not later than seven days prior to the end of

the reporting period.

Enclosure 4

Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES

4

(3) Ensuring proper review of enlisted reports. Each

RS is encouraged to designate the DSO Chief as an enlisted

reviewer. Otherwise, when writing reports on enlisted Marines,

the RS is encouraged to consult with the DSO Chief to ensure the

particular requirements of enlisted reports are properly

addressed.

(4) Counseling his or her Marines on their report

markings and comments. Upon submission of the report to the RO,

each RS will discuss the markings and comments in a private,

face-to-face counseling session with each MRO. Each RS is

tasked with accomplishing this counseling in a timely fashion

and answering any questions the MRO may have on markings and

recommendations. The focus of such counseling should be growth

or improvement of the MRO and career advice.

(5) Managing his or her RS profile. Each RS is

responsible for managing his or her RS profile, and carefully

balancing their reports accordingly. Don’t be afraid to

“explore the space” on your profile in order to allow

exceptional Marines to shine. For those exceptional Marines

being reported on among a group of exceptional Marines in a

large profile, use “break out” comments and speak directly to

Board members.

d. Reviewing Officer Responsibilities.

(1) RO leaders in the DSO are primarily responsible for

the execution of this policy letter, and are directly

responsible for implementing my intent and the guidelines

contained in reference (a).

(2) Each RO is further responsible to provide the

experienced leadership, supervision, and detached point of view

necessary to ensure consistent, accurate, and unbiased

evaluations. Each RO will closely scrutinize all reports prior

to their submission to MMSB.

(3) Each RO will be familiar with paragraph 2004 of

reference (a) in detail.

e. Reporting Chain Restrictions.

(1) DSO members may not be the RS or RO for other DSO

members who have clients with a conflict of interest with one of

their clients. See paragraph 3 of reference (c).

Enclosure 4

Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES

5

(2) With the exception of those in the grade of O-6, RS

and RO “same grade reports” are not authorized absent specific

exception granted in writing by me.

f. Fitness Reports For Periods of Transition: There will

be occasions when DSO personnel transition or rotate to other

duties within an LSSS or LSST, yet retain some degree of defense

responsibility. Under such circumstances the following applies:

(1) The transitioning Marine shall receive a fitness

report reflecting that the reporting period ended on the day

before the Marine begins his or her new duties.

(2) The reporting occasion for these Fitness Reports

shall be “Transfer (TR),” and shall contain the following

directed comment in section I:

“MRO is changing billets and will be assuming duties as [new

duty assignment] under a different RS; however, MRO still has

remaining defense counsel responsibilities and will receive a

simultaneous report authorized per para. 2010, MCO P1610.7F upon

completion of those responsibilities.”

(3) When the transitioning Marine completes all defense

counsel duties, he or she shall receive a final Fitness Report

as a member of the DSO with an end date of the reporting period

that coincides with the date that all remaining defense counsel

responsibilities are complete. The reporting occasion for these

Fitness Reports shall be “Change of Reporting Senior (CH).”

(4) Should another reporting period occur between the

date the Marine transitions and the date the Marine completes

his or her defense duties (e.g. promotion, annual or semi-

annual), the transitioning Marine shall receive a simultaneous

report reflecting he or she retains defense duties.

(5) Each report submitted in accordance with this

paragraph will be a simultaneous report as authorized by

paragraph 2010 of reference (a) and Figure 2-1 of reference (b)

and will contain the following directed comment:

“This is a simultaneous report as authorized per para. 2010, MCO

P1610.7F reporting MRO's successful completion of MRO’s duties

as defense counsel during the reporting period.”

Enclosure 4

Subj: SUBMISSION OF FITNESS REPORTS FOR DSO MARINES

6

(6) The exact date when an officer completes all defense

counsel duties is situation-dependent, largely based on the

number of clients retained, and the administrative, non-

judicial, and judicial corrective actions that each client

faces. However, at a minimum, the following events must occur,

as applicable, and each client must be counseled regarding their

completion before defense counsel duties may be considered

complete:

(a) Results of NJP are completed and, in the case

of officers, submitted to Higher Headquarters.

(b) Separation Authority Action on all enlisted

administrative separation proceedings is complete.

(b) Submission of the Report of BOI by the

Convening Authority to Higher Headquarters for all Boards of

Inquiry.

(c) Convening Authority Action on all special and

general courts-martial cases.

(d) Negotiated settlement to a forum lower than a

special court-martial, including withdrawal when applicable.

g. Seeking Release Prohibited: DSO attorneys shall never

seek a release from DSO clients purely for the purpose of

pursing deployment opportunities or facilitate transfer to other

duties. Once established, the attorney-client relationship may

only be severed under the provisions of Rule for Courts-Martial

(R.C.M.) 505 and 506, reference (d) and relevant CDC Policy

Memos.

4. Conclusion. CDC PM 3-12 is hereby cancelled. This CDC

Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

Enclosure 4

Enclosure (1)

1611

RDC

13 Jun 2012

From: Regional Defense Counsel, XXXX Region

To: Chief Defense Counsel

Subj: FITNESS REPORT IN THE CASE OF MAJOR I. M. MARINE, U.S. MARINE

CORPS (AN OCCASION; FROM 20110601 TO 20120531)

1. Date Submitted to APES. 13 Jun 2012.

2. Background Information.

a. Is the MRO PME complete for grade or currently enrolled? Yes,

MRO completed U.S. Marine Corps Command and Staff College through the

Distance Education Program.

b. Is MRO in zone for promotion? Yes, MRO is in zone for the

next promotion board.

c. What is MRO’s desired follow-on assignment? MRO seeks an

operational law billet with forward deployed forces in the U.S.

Central Command Area of Responsibility and to be looked for command

when eligible.

3. Additional Information.

a. MRO’s commitment to PME is illustrated by his willingness to

volunteer to teach classes for the Expeditionary Warfare School Non-

resident course aboard Base. Furthermore, MRO had two articles

published during the reporting period: “How to PT and do PME While an

SDC” in the Army Lawyer; and, “Leadership and Legal Service Support”

in the Marine Corps Gazette.

b. MRO’s ability to fulfill Senior Defense Counsel requirements

while simultaneously being fully engaged in PME and other duties is an

illustration of MRO’s tireless work ethic. Moreover, MRO is able to

maintain balance personally and professionally despite the demands

that nine children have upon MRO and MRO’s spouse.

c. MRO is a team builder and thrives as a mentor.

Enclosure 4

Subj: FITNESS REPORT IN THE CASE OF MAJOR I. M. MARINE, U.S. MARINE

CORPS (AN OCCASION; FROM 20110601 TO 20120531)

Enclosure (1) 2

4. Reporting Senior’s Profile for the Appropriate Grade.

5. Recommended RO Comments. MRO is an outstanding MAGTF Officer and

judge advocate. MRO set the conditions for success for his Defense

Team while simultaneously obtaining excellent results for all of MRO’s

clients. MRO did a superb job fulfilling duties as Acting Regional

Defense Counsel in the RDC’s absence. MRO superbly assisted my office

with the planning and execution of conferences and training events. A

humble but incredibly capable professional, MRO is a valued and

trusted member of the Defense Services Organization. MRO cares about

his Team, our clients, works hard to support the mission, and makes a

positive impact throughout the DSO. Highest Recommendation for

Promotion, School, and Command.

6. Recommended RO Marks in the Comparative Assessment. My

recommendation is highlighted below.

7. Respectfully submitted.

/S/

I. M. REPORTINGSENIOR

RS High for Grade till this Report 5.0

RS Low for Grade till this Report 3.0

RS Avg for Grade till this Report 4.0

MRO Avg (this report) 4.0

For all reports of this grade I rank MRO This is my

17th FitRep on

a Major as an

RS and MRO

ranks 9 of 17

THE EMINENTLY QUALIFIED MARINE X of X

ONE OF THE FEW X of X

EXCEPTIONALLY QUALIFIED MARINES X of X

ONE OF THE MANY HIGHLY QUALIFIED X of X

PROFESSIONALS WHO FORM THE X of X

MAJORITY OF THIS GRADE X of X

UNSATISFACTORY X of X

A QUALIFIED MARINE X of X

Enclosure 4

DEFENSE SERVICES ORGANIZATION BILLET DESCRIPTION EXEMPLARS

1

Enclosure (2)

1. Regional Defense Counsel Example:

-Leader of the Marine Corps Defense Services Organization for the Western

United States, supervising field grade, company grade, and enlisted personnel

located at six different offices. Responsible for ensuring that zealous,

ethical and effective defense services are provided to servicemembers facing

administrative, non-judicial, and judicial actions in order to help protect

and promote the due process, statutory and constitutional rights of clients

and servicemembers seeking counseling services.

-Lead and mentor subordinate personnel while conducting site visits,

observing court cases, observing board hearings, reviewing written motions

and work products, and ensuring the fulfillment of all Defense Services

Organization training requirements.

-Manage resources and personnel; coordinating with SJAs, Law Center

Directors, Legal Section OICs. Assign or approve the assignment of defense

counsel to specific cases.

-Liaison with Convening Authorities, military judges, and investigative

agencies.

-Fulfill reporting requirements to the Chief Defense Counsel of the Marine

Corps.

-Represent senior ranking servicemembers and others at courts-martial and

boards.

2. Defense Services Organization Regional Noncommissioned Officer-In-Charge

Example:

- Serve as Administrative Assistant to the Regional Defense Counsel for the

Western United States; Responsible for: office reports; reporting

requirements for cases and clients; support for the preparation and execution

of training events; managing office calendar; liaison with government

investigators, trial counsel, staff judge advocates, and commands relative to

processing of cases; and, manage all office correspondence.

- Lead, supervise, train, & support all Marine Corps Defense Services

Organization (DSO) enlisted personnel aboard 6 different offices serving the

Western United States.

- Serve as Regional Defense Counsel Office Manager; Responsible for: managing

an annual budget in excess of $20,000.00; coordinating travel planning,

execution, and travel claims; managing & maintaining DSO Defense Counsel

SharePoint site; maintaining library, office records, information technology

systems, communications equipment, and all supplies; liaison with higher

headquarters; and, manage Government Vehicle.

- Serve as a paralegal assisting defense counsel with witness interviews,

scheduling, investigative actions, legal research, & the creation of

demonstrative exhibits.

3. Senior Defense Counsel Example:

-Leader of the Marine Corps Defense Services Organization (DSO) Office for

MCAGCC 29 Palms, supervising subordinate judge advocates and Legal Services

Specialists.

-Responsible for ensuring that zealous, ethical and effective defense

services are provided to servicemembers facing administrative, non-judicial,

and judicial actions in order to help protect and promote the due process,

statutory and constitutional rights of both clients and for servicemembers

seeking to obtain counseling services.

Enclosure 4

DEFENSE SERVICES ORGANIZATION BILLET DESCRIPTION EXEMPLARS

2

Enclosure (2)

-Provide representation and zealous advocacy for servicemembers pending

courts-martial, involuntary Administrative Separation proceedings, and Boards

of Inquiry.

-Lead, supervise, and mentor subordinate personnel by: observing court cases

and board hearings; reviewing written work products; Conduct PME and MOS

training in order to fulfill all DSO training requirements; &, attend DSO

Regional meetings and conferences.

-Manage resources and personnel; coordinate and liaison with SJAs, Convening

Authorities, military judges, investigative agencies, & other DSO Offices and

members.

-Assign defense counsel to specific cases; fulfill all DSO reporting

requirements.

4. Defense Services Organization Office Non-Commissioned Officer-In-Charge

Example:

-Serve as Administrative Assistant to the Senior Defense Counsel for the

[office name] responsible for: office reports; support for the preparation &

execution of training events; managing office calendar; liaison with

government investigators, trial counsel, staff judge advocates, & commands

relative to processing of cases; &, manage all office correspondence.

-Assist the Senior Defense Counsel in fulfilling Defense Services

Organization training requirements.

-Serve as an Office Manager: support management of annual budget; coordinate

travel planning, execution, and claims; manage & maintain Defense Counsel

SharePoint site; maintain library, office records, information technology

systems, communications equipment; and manage and maintain all supplies.

- Serve as a paralegal assisting defense counsel with witness interviews,

investigation, legal research, & the creation of demonstrative exhibits.

Enclosure 4

DEFENSE SERVICES ORGANIZATION BILLET DESCRIPTION EXEMPLARS

3

Enclosure (2)

5. Defense Trial Team Leader Example:

-Leader of the Marine Corps Defense Services Organization (DSO) Defense Trial

Team XX at Camp Lejeune, supervising subordinate judge advocates and Legal

Services Specialists.

-Responsible for ensuring that zealous, ethical and effective defense

services are provided to servicemembers facing administrative, non-judicial,

and judicial actions in order to help protect and promote the due process,

statutory and constitutional rights of both clients and for servicemembers

seeking to obtain counseling services.

-Provide representation and zealous advocacy for servicemembers pending

courts-martial, involuntary Administrative Separation proceedings, and Boards

of Inquiry.

-Lead, supervise, and mentor subordinate personnel by: observing court cases

and board hearings; reviewing written work products; Conduct PME and MOS

training in order to fulfill all DSO training requirements; &, attend DSO

Regional meetings and conferences.

-Manage resources and personnel; coordinate and liaison with the Senior

Defense Counsel, Regional Defense Counsel & other DSO Offices and members.

-Assign defense counsel to specific cases; fulfill all DSO reporting

requirements.

6. Defense Counsel Example:

-Plan, coordinate, and conduct defense of Marine and Navy clients facing

special and general courts-martial, boards of inquiry, post trial hearings,

and administrative separation boards.

-Provide legal counseling to personnel considered for NJP, courts-martial,

pretrial confinement hearings, Competency review Boards, and situations in

which Article 31b, UCMJ, rights are invoked.

-Organize and maintain comprehensive client case files.

-Research, draft, and argue legal pleadings in pretrial hearings, during

courts-martial, post trial hearings, and during administrative discharge

proceedings.

-Seek clemency from convening authorities and address errors in post-trial

documents.

-Prioritize workload to meet all administrative obligations and court

appearances.

-Correspond with Convening Authorities, judges, staff judge advocates, and

prosecutors.

Enclosure 4

DEFENSE SERVICES ORGANIZATION BILLET DESCRIPTION EXEMPLARS

4

Enclosure (2)

7. Student Defense Counsel 4401 Example:

-Help Defense Counsel plan, coordinate, and conduct defense of Marine and

Navy clients facing special and general courts-martial, boards of inquiry,

post trial hearings, and administrative separation boards.

-Help Defense Counsel provide counseling to personnel considered for NJP,

courts-martial, pretrial confinement hearings, Competency review Boards, and

situations in which Article 31b, UCMJ, rights are invoked.

-Assist in the maintaining comprehensive client case files.

-Research and draft legal pleadings in pretrial hearings, during courts-

martial, post trial hearings, and during administrative discharge

proceedings.

-Assist Defense Counsel with correspond with Convening Authorities, judges,

staff judge advocates, and prosecutors.

8. Reserve Regional Defense Counsel Example:

- Help the Regional Defense Counsel ensure that zealous, ethical and

effective defense services are provided to servicemembers facing

administrative, non-judicial, and judicial actions in order to help protect

and promote the due process, statutory and constitutional rights of clients

and servicemembers seeking counseling services.

- Provide input and feedback to Chief Defense Counsel on matters related to

defense services throughout the Marine Corps

- Provide general guidance, training, mentoring, and assistance to all

defense counsel assigned to USMC Bases and Stations located in the Eastern

United States.

- Provide on-call assistance to all defense counsel in the region regarding

research, motion practice, conflictions of interest, and professional

responsibility

- Develop, review, edit, and provide training and education for all defense

counsel assigned to the Marine Corps Defense Services Organization.

- Provide defense services to senior officers and enlisted Marines as

necessary

9. Reserve Regional Training Officer Example:

-Help the Regional Defense Counsel ensure that zealous, ethical and effective

defense services are provided to servicemembers facing administrative, non-

judicial, and judicial actions in order to help protect and promote the due

process, statutory and constitutional rights of clients and servicemembers

seeking counseling services.

-Develop training program and practical training exercises, in coordination

with the Active duty and Reserve RDC-___________, to maintain the military

justice proficiency of reserve and active-duty judge advocates in the

____________ region

-Prepare course materials, in conjunction with the other Defense sub-det

training officers, for the USMC Defense Services Organization training

events.

-Prepare and draft references for publication in order to instruct the DSO on

policies and procedures required by the Chief Defense Counsel.

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000

ARLINGTON, VA 22204-2482

In Reply Refer To:

3000

CDC

5 Nov 14

CDC POLICY MEMORANDUM 3.3

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: RELEASE OF COUNSEL WITHOUT CONFLICT OF INTEREST

Ref: (a) R.C.M. 505(d)(2)

(b) JAGINST 5803.1D

Encl: (1) Supervisory Attorney Memorandum Regarding the Right

to Counsel

1. Purpose. To establish a standard procedure within the

Defense Services Organization (DSO) for seeking and

memorializing a client's voluntary decision to release a defense

counsel from further representation without the need to

demonstrate good cause.

2. Discussion. An established attorney-client relationship

may only be severed under a limited set of circumstances.

First, it may be severed when counsel is excused by the

detailing authority for good cause shown on the record. Second,

it may be severed when counsel is excused by the military judge

for good cause shown. Third, it may be severed when counsel is

excused upon the appointment of individual military counsel.

Fourth and finally, it may be severed when counsel is excused

with the express consent of the accused (voluntary severance).

This memorandum is only intended to address voluntary severance

of the attorney-client relationship.

3. Policy. Prior to any voluntary severance, DSO attorneys

must immediately discuss the issue with their supervisory

attorney, which in most cases will be their Senior Defense

Counsel (SDC). The SDC shall, in turn, immediately inform his

or her Regional Defense Counsel (RDC) that voluntary severance

has been proposed, and the planned course of action to ensure

continuity of representation. No voluntary severance shall

occur without the express permission of the DSO Attorney’s

immediate supervisory chain, typically the SDC and the RDC. In

Enclosure 4

Subj: RELEASE OF COUNSEL WITHOUT CONFLICT OF INTEREST

2

cases where an SDC seeks severance he or she must first obtain

the permission of the RDC and Chief Defense Counsel of the

Marine Corps. Where an RDC seeks voluntary severance, he or she

must obtain the express permission of the Chief Defense Counsel

of the Marine Corps. In those unusual circumstances where the

Chief Defense Counsel of the Marine Corps seeks voluntary

severance, he or she shall seek the advice of the Staff Judge

Advocate to the Commandant of the Marine Corps before doing so.

There are two basic scenarios contemplated by voluntary

severance.

a. Attorney-Initiated Voluntary Severance. Voluntary

severance may occur when a DSO attorney seeks to withdraw from a

particular case. For example, a DSO attorney pending an end of

active service date may determine that voluntary severance of a

preexisting attorney-client relationship is desirable.

1. As noted above, DSO attorneys must first seek

permission from their supervisory attorneys before proceeding.

2. Once granted approval, DSO attorneys will next

discuss voluntary severance with the client concerned. When

doing so DSO attorneys are specifically tasked with fully

explaining the reason voluntary severance is sought as well as

any potential impact voluntary severance may have on the

client’s case.

3. Advice to a client regarding the merits of voluntary

severance from a DSO attorney who seeks to terminate a

preexisting attorney-client relationship is strictly forbidden.

Doing so may create a conflict between the desire to be released

and the client's interests.

4. Instead, the DSO attorney who seeks release shall

ask his or her supervisory attorney to advise the client, and

the DSO attorney’s supervisory attorney SHALL provide the client

conflict-free advice regarding this important decision.

5. All attorneys involved in any stage of these

proceedings shall memorialize the advice they rendered and to

whom they rendered it using enclosure (1).

6. Should the client agree to voluntary severance,

provide a completed copy of enclosure (1) to the detailing

authority, military judge (if any), Staff Judge Advocate, and to

all replacement counsel. Severed counsel shall retain a copy

for their records.

Enclosure 4

Subj: RELEASE OF COUNSEL WITHOUT CONFLICT OF INTEREST

3

7. Should the client decline voluntary severance the

DSO attorney concerned shall maintain a copy of enclosure (1) in

the client’s case file.

b. Client-Initiated Voluntary Severance. Second, voluntary

severance may occur at the initiation of the client. For

example, a client who loses confidence in his or her attorney

may view severance of that preexisting attorney-client

relationship as desirable. Not only does the DSO seek to

provide zealous, professional representation, but we also have

to ensure that our clients are satisfied with, and confident in,

the quality of representation we provide. In that light, if a

DSO attorney suspects a client desires the assignment of new

counsel, he or she shall:

1. Without dissuading the client from the decision to

voluntarily sever, immediately discuss the issue with the

client.

2. If the DSO attorney still believes the client

desires new counsel, he or she shall inform their supervisory

counsel (typically the SDC).

3. Once notified the supervisory attorney shall, as

soon as possible, provide prompt conflict-free advice to the

client to ascertain whether the client seeks voluntary severance

of a preexisting attorney-client relationship.

4. Rather than dissuading a client who has lost

confidence in his or her DSO attorney, supervisory attorneys

shall instead listen to the client’s complaints and/or concerns,

determine if they may be addressed as a matter of performance,

and discuss remedial corrective measures.

5. Should the client persist in seeking voluntary

severance, and where there is available, conflict-free

replacement counsel, supervisory attorneys are specifically

directed to err on the side of honoring a client’s desire by

severing the relationship and detailing new counsel.

6. Should the client persist in seeking voluntary

severance even where there is no available, conflict-free

replacement counsel, immediately contact the Regional Defense

Counsel for further guidance.

7. Whether or not local replacement counsel is

available, supervisory attorneys are encouraged to re-advise the

Enclosure 4

Subj: RELEASE OF COUNSEL WITHOUT CONFLICT OF INTEREST

4

client about his or her right to request individual military

counsel.

8. If the supervisory counsel harbors doubts about the

client’s sincerity (e.g. if it seems to be a ruse to create

delay), immediately contact the Regional Defense Counsel before

proceeding.

9. If the client persists in requesting voluntary

severance, and such request is approved, use enclosure (1) to

document the process. Provided completed copies of enclosure

(1) to the detailing authority, the military judge (if any), the

Staff Judge Advocate, and all replacement counsel. Severed

counsel shall retain a copy for their records.

10. At any time in this process should the client

decline voluntary severance the DSO attorney concerned shall

maintain a copy of enclosure (1) in the client’s case file.

4. Conclusion. CDC Policy Memo 2-11 is hereby cancelled. This

CDC Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

Enclosure 4

UNITED STATES MARINE CORPS [BRANCH LETTERHEAD]

MARINE CORPS DEFENSE SERVICES ORGANIZATION [BRANCH LETTERHEAD]

IN REPLY REFER TO

5800

DSO/srs

DD Mmm YY

MEMORANDUM

From: Supervisory Attorney

To: Accused

Subj: ADVICE CONCERNING RIGHT TO COUNSEL

1. Purpose of Advice. Your trial defense counsel, Captain X, has advised me that (he has sought

your consent) (you have requested) to sever the attorney-client relationship (in order to allow

Capt X to)(because you feel) (state with specificity why the defense counsel is seeking to sever

the attorney-client relationship). Because Capt X has a personal interest in this issue, as his

supervisory attorney, I am providing you with conflict-free advice concerning your right to

counsel in this situation.

2. Scope of Advice. This advice is intended to help you make an informed decision about your

right to counsel. This communication is protected by the same attorney-client privilege (with the

same exceptions) as your communications with Capt X. This advice is provided solely for the

purpose of assisting you in making an informed decision about your right to counsel. I do not

represent you in your court-martial case

3. Right to Continued Representation by Capt X. Absent a good cause to sever the attorney-

client relationship, you have the absolute right to continued representation by Capt X and Capt X

will continue to represent you unless you expressly (consent to his request to)(request to) sever

the attorney-client relationship. If you agree to release Capt X as your defense counsel, a new

military defense counsel will be assigned to represent you. Like Capt X, that defense counsel

will be a licensed attorney and will represent you at no expense to you.

4. The Decision is Yours to Make. You should make your decision completely free of any

pressure. The decision to release Capt X under these circumstances is yours, and yours alone. No

person or circumstance can force, threaten, coerce, or pressure you to release Capt X.

5. Election of Counsel Rights. Once we have discussed your rights to counsel, I will request that

you memorialize your decision regarding (Capt X's)(your) request to sever the attorney-client

relationship in the subparagraphs below.

a. After having discussed (Capt X's request to be released)(my request to release Capt X)

as my counsel with (Supervisory Attorney), I expressly and voluntarily consent to releasing Capt

X as my counsel. I understand that a new military defense counsel will be detailed to represent

me instead of Capt X. I further understand that a copy of this consent form will be provided to

the detailing authority and the military judge to memorialize my voluntary consent to release

Capt X as my counsel.

Enclosure 4

Subj: ADVICE CONCERNING RIGHT TO COUNSEL

6

b. After having discussed (Capt X's request to be released)(my request to release Capt X)

as my counsel with (Supervisory Attorney), I expressly DO NOT agree to severing the attorney-

client relationship between Capt X and I. I do not agree to release Capt X as my counsel.

_____________________ _____________

Accused Date

6. Regardless of your election of rights, I will provide Capt X a copy of this letter and should

you elect to release Capt X, a copy of this letter will be provided to your new defense counsel,

the detailing authority, and the military judge.

I. M. INCHARGE

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000

ARLINGTON, VA 22204-2482

In Reply Refer To:

3000

CDC

7 Nov 14

CDC POLICY MEMORANDUM 3.4

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: RELEASE OF COUNSEL DUE TO CONFLICT OF INTEREST

Ref: (a) Sixth Amendment to the U.S. Constitution

(b) Discussion of R.C.M. 502(d)(6)

(c) JAGINST 5803.1D

(d) CDC Policy Memo 3.1 (series)(Updated Detailing and

IMC Determination)

Encl: (1) Conflict-Free Counsel Advice Form

(2) Notice of Change of Counsel At Request of Client

(3) Notice of Change of Counsel for Good Cause

(4) Notice of Finding of No Good Cause to Sever Despite

Conflict of Interest

1. Purpose. To establish standard procedures within the Marine

Corps Defense Services Organization (DSO) in order to advise

clients of a DSO attorney’s potential conflict of interest.

Where there is a potential conflict of interest on the part of a

DSO attorney, to establish standard procedures to memorialize

the client’s preference of counsel in order to assist the

detailing authority under Rule for Court-Martial (R.C.M.)

505(d)(2)(B)(iii), and the military judge under R.C.M.

901(d)(3), in determining whether good cause exists to sever the

attorney-client relationship.

2. Discussion.

a. Pursuant to references (a) – (c), a client has the right

to be represented by conflict-free counsel. There are, however,

circumstances under which a client may choose to waive the right

to conflict-free counsel. In order to make an informed decision

about waiving this important right, the client must be

adequately informed of the conflict of interest, appreciate any

and all material risks related to continued representation by

potentially conflicted counsel, and understand all reasonably

Enclosure 4

Subj: RELEASE OF COUNSEL DUE TO CONFLICT OF INTEREST

2

available representation alternatives. In no case should a

client’s decision regarding this critically important matter go

undocumented——put another way, the client’s informed consent

should always be confirmed in writing.

b. Conflicts may be actual, potential or perceived.

Severance as a severe remedy may be required based on the

circumstances. As always, the conduct of the DSO when

addressing such matters should be animated by the best interest

of the individual client. DSO attorneys should be on the alert

so as to avoid or prevent conflicts of interest from becoming

ripe. Engaged DSO leadership is critical in this regard.

Senior Defense Counsel and Regional Defense Counsel are tasked

with remaining engaged with their personnel in order to address

conflicts as they arise.

3. Policy. When a DSO attorney discovers he or she has an

actual or potential conflict of interest with a client, he or

she shall immediately consult with his or her supervisory

counsel. Where the detailing authority is different than the

supervisory attorney, consult both the supervisory attorney and

detailing authority. A conflicts of interest typically arises

in one of two circumstances——either pre- or post-formation of

the attorney client relationship.

a. Pre-Formation Conflicts. A DSO attorney may be

detailed to a case, yet discover a conflict of interest before

meeting with the servicemember. When a conflict of interest is

discovered and there is no pre-existing or established attorney-

client relationship with the individual servicemember do not

meet with the potential client. Notify your supervisory counsel

and/or your detailing authority, who will re-detailed the case

to conflict-free counsel under reference (d).

b. Post-Formation Conflicts. Similarly a DSO attorney may

identify a conflict of interest after formation of the attorney-

client relationship. If the conflict of interest establishes

good cause to sever the attorney-client relationship, use

enclosure (1) to:

(1) Inform the client of the nature of the conflict.

(2) Inform the client of the material risks of

continued representation by conflicted counsel.

(3) Inform the client of reasonably available

alternatives to continued representation by conflicted counsel.

Enclosure 4

Subj: RELEASE OF COUNSEL DUE TO CONFLICT OF INTEREST

3

(4) Obtain an informed decision whether or not the

client wants a new counsel.

(a) Client requests new counsel. If after being

advised of the conflict the client desires to have new counsel,

and if the detailing authority agrees, detail new counsel under

R.C.M. 505(d)(2)(B)(iii) and reference (d) using enclosure (2).

Provide copies of enclosures (1) and (2) to the trial counsel,

military judge, and Staff Judge Advocate in order to ensure

circumstances for the change are properly memorialized on the

record. See, e.g. United States v. Hutchins, 69 M.J. 28

(C.A.A.F. 2011).

(b) Client waives the conflict of interest. If the

client desires continued representation by conflicted counsel,

the detailed counsel must obtain informed consent from the

client, confirmed in writing. Use enclosure (1) to memorialize

this important decision. Tailor italicized portions to ensure a

complete explanation of the conflict to the client. Many

conflicts will be personal to the detailed defense counsel.

Where that is the case, advice regarding waiving the right to

conflict-free counsel must come from a disinterested attorney.

Once completed provide copies of enclosure (1) to the detailing

authority and the military judge to permit them opportunity to

conduct their own independent assessment relative to the

conflict. Notwithstanding the requested waiver, either party

may determine that the conflict establishes good cause to sever

the attorney-client relationship, and may choose to do so. If

the detailing authority finds good cause to sever the attorney-

client relationship, the detailing authority will do so using

enclosure (3) and will detail a new counsel under R.C.M.

505(d)(2)(B)(iii) and reference (d). Provide a copy of the

enclosures (1) and (3) to the military judge, the trial counsel,

and the Staff Judge Advocate concerned to ensure circumstances

for the change of counsel are memorialized on the record. If

the detailing authority does not find good cause to sever the

attorney-client relationship, the detailing authority will

provide the military judge with a copy of enclosures (1) and (4)

to allow the military judge to make a final determination on the

record under R.C.M. 901 whether the conflict of interest

disqualifies the detailed counsel. See, e.g., United States v.

Lee, 70 M.J. 535 (N-M.C.C.A. 2011). If the military judge

disqualifies the conflicted counsel, the detailing authority

will promptly detail a new counsel under reference (d).

Enclosure 4

Subj: RELEASE OF COUNSEL DUE TO CONFLICT OF INTEREST

4

4. Conclusion. CDC Policy Memo 2-12 is hereby cancelled. This

CDC Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

Enclosure 4

UNITED STATES MARINE CORPS [RDC OR SDC LETTERHEAD]

MARINE CORPS DEFENSE SERVICES ORGANIZATION (JAD) [RDC OR SDC LETTERHEAD]

1

CONFLICT-FREE COUNSEL ADVICE FORM 1. _____I understand that I have a constitutional right to be represented by counsel who has an

undivided loyalty to me and my case.

2. _____I understand that a lawyer ordinarily should not represent a client when the representation

involves a conflict of interest or the lawyer is representing another client regarding a matter arising out

of the same incident or whose interests are adverse to each other.

3. _____I understand that for a lawyer to represent more than one client concerning a matter arising out

of the same incident or if the lawyer has an actual or potential conflict with continued representation, I

must consent to that representation

4. _____I understand that the following facts have created an actual or potential conflict of interest for

Captain Ima X.: State with specificity the basis for the conflict of interest.

5. _____I understand that even if an actual conflict of interest does not presently exist, one could

possibly develop given the facts and circumstances explained to me by Captain X and Major Lee

Disinterested.

6. _____I understand that due to this conflict of interest that I am entitled to be represented by another

lawyer, who does not have a conflict of interest. [If applicable] I understand that I could insist that

Captain X not begin new duties that would create the conflict of interest until he has fully completed his

representation in my case.

7. After discussing this matter with Major Disinterested, I have made the conscious and informed

decision that I:

a. ______ do not waive my right to conflict-free counsel and request that a new conflict-free counsel be

assigned to represent me instead of Captain X.

b. ______ [If applicable] do not waive my right to conflict-free counsel and demand that Captain X not

begin new duties that would create the conflict of interest discussed with Major Disinterested above

until he has fully completed his representation in my case.

c. _____ do waive my right to conflict-free counsel and I voluntarily consent to Captain X’s continued

representation in my case despite the conflict of interest that I have discussed with Major Disinterested.

8. _____I have had sufficient time to make this decision.

9. _____ I understand that a copy of this form and its cover letter will be provided to Captain X, list all

co-counsel individually, the detailing authority, and to the military judge.

______________________________ ______________________________

Signature of Accused Date Signature of Major Disinterested

Enclosure 4

UNITED STATES MARINE CORPS [RDC OR SDC LETTERHEAD]

MARINE CORPS DEFENSE SERVICES ORGANIZATION (JAD) [RDC OR SDC LETTERHEAD]

2

IN REPLY REFER TO

5817

Office

DD Mmm YY

From: DETAILING AUTHORITY

To: Distribution List

Subj: NOTICE OF CHANGE OF COUNSEL AT THE REQUEST OF THE CLIENT IN THE CASE

OF UNITED STATES V. NAME AND RANK OF CLIENT

Ref: (a) R.C.M. 505(d)(2)(B)(ii), M.C.M. (2012 edition)

(b) JAGINST 5800.7F (JAGMAN)

(c) JAGINST 5803.1D

(d) MCO P5800.16A

(e) CDC Policy Memo 3.1 (series) (Detailing and IMC Rules)

Encl: (1) Conflict-Free Counsel Advice Form

1. In the enclosure, Client X requested a change in counsel due to Captain Old Counsel’s conflict of

interest.

2. Pursuant to the references, Major New Counsel is detailed to represent Client X and the attorney-

client relationship between Captain Old Counsel and Client X is hereby severed. Captain Old Counsel

and Major New Counsel are directed to conduct a face-to-face case file turnover as soon as possible.

R. D. COUNSEL

Copy to:

Old Detailed Counsel

New Detailed Counsel

Any co-counsel

Client X

RDC

CDC

SJA

TC

Military Judge

File

Enclosure 4

UNITED STATES MARINE CORPS [RDC OR SDC LETTERHEAD]

MARINE CORPS DEFENSE SERVICES ORGANIZATION (JAD) [RDC OR SDC LETTERHEAD]

IN REPLY REFER TO

5817

Office

DD Mmm YY

From: DETAILING AUTHORITY

To: Distribution List

Subj: NOTICE OF CHANGE OF COUNSEL FOR GOOD CAUSE IN THE CASE OF UNITED

STATES v. NAME AND RANK OF CLIENT

Ref: (a) CDC Policy Memo 3.1 (series)(Detailing and IMC Rules)

(b) MCO P5800.16A

(c) JAGINST 5803.1D

Encl: (1) Conflict-Free Counsel Advice Form

(2) Other enclosures if appropriate

1. In reference (a), I was delegated the authority to detail counsel. Detailing authority includes “the

authority to remove a counsel from a case for good cause.” Para 2006.1 of ref (b). This removal

authority is derived from RULE FOR COURTS-MARTIAL 505(d)(2)(B)(iii) which empowers “an authority

competent to detail counsel” the ability to remove a counsel from a case for good cause independent of a

military judge’s authority to remove a counsel under R.C.M. 506(c). See United States v. Hutchins, 69

M.J. 282, 289 (C.A.A.F. 2011).

2. After reviewing the enclosures and the references I find good cause, under R.C.M. 505(d)(2)(B)(iii),

to sever the attorney-client relationship between Captain Old Counsel and Client X despite Client X’s

request to continue to be represented by Captain Old Counsel.

3. Set forth the conflict and explain in detail why the conflict, despite the waiver, still creates good

cause to sever the attorney-client relationship

4. Captain New Counsel is detailed to represent Client X. Captain Old Counsel and Captain New

Counsel are directed to conduct a face-to-face case file turnover as soon as possible.

R. D. COUNSEL

Copy to:

Old Detailed Counsel

New Detailed Counsel

Any co-counsel

Accused

Military Judge

RDC

CDC

Enclosure 4

Subj: NOTICE OF CHANGE OF COUNSEL FOR GOOD CAUSE IN THE CASE OF UNITED

STATES v. NAME AND RANK OF CLIENT

2

SJA

TC

Military Judge

File

Enclosure 4

UNITED STATES MARINE CORPS [RDC OR SDC LETTERHEAD]

MARINE CORPS DEFENSE SERVICES ORGANIZATION (JAD) [RDC OR SDC LETTERHEAD]

IN REPLY REFER TO

5817

Office

DD Mmm YY

From: DETAILING AUTHORITY

To: Distribution List

Subj: FINDING OF NO GOOD CAUSE TO SEVER THE ATTORNEY-CLIENT RELATIONSHIP

IN THE CASE OF UNITED STATES v. RANK NAME OF CLIENT

Ref: (a) CDC Policy Memo 3.1 (series)

(b) MCO P5800.16A

(c) JAGINST 5803.1D

Encl: (1) Conflict-Free Counsel Advice Form

(2) Other enclosures if appropriate

1. In reference (a), I was delegated the authority to detail counsel. Detailing authority includes “the

authority to remove a counsel from a case for good cause.” Para 2006.1 of ref (b). This removal

authority is derived from RULE FOR COURTS-MARTIAL 505(d)(2)(B)(iii) which empowers “an authority

competent to detail counsel” the ability to remove a counsel from a case for good cause independent of a

military judge’s authority to remove a counsel under R.C.M. 506(c). See United States v. Hutchins, 69

M.J. 282, 289 (C.A.A.F. 2011).

2. After reviewing the enclosures and the references I do not find good cause, under R.C.M. 505(d)(2)

(B)(iii), to sever the attorney-client relationship between Captain Counsel and Client X, despite there

being an apparent conflict of interest.

3. Set forth the conflict and explain in detail why, despite the conflict of interest, there is no good cause

to sever the attorney-client relationship.

4. The military judge will make the final determination regarding whether or not there is good cause to

sever the attorney-client relationship on the record at a subsequent session of court.

R. D. COUNSEL

Copy to:

Detailed Counsel

Any co-counsel

Accused

RDC

CDC

SJA

TC

Enclosure 4

Subj: FINDING OF NO GOOD CAUSE TO SEVER THE ATTORNEY-CLIENT RELATIONSHIP

IN THE CASE OF UNITED STATES v. RANK NAME OF CLIENT

2

Military Judge

File

Enclosure 4

UNITED STATES MARINE CORPS CHIEF DEFENSE COUNSEL OF THE MARINE CORPS

MARINE CORPS DEFENSE SERVICES ORGANIZATION 701 SOUTH COURTHOUSE ROAD, BUILDING 2 SUITE 1000

ARLINGTON, VA 22204-2482

In Reply Refer To:

3000

CDC

17 Oct 14

CDC POLICY MEMORANDUM 3.5

From: Chief Defense Counsel of the Marine Corps

To: Distribution List

Subj: USE OF STUDENT DEFENSE COUNSEL

Ref: (a) MCO P5800.16 (series)

(b) CDC PM 2.2 (series) (Ethical Obligations of Defense

Support Personnel)

(c) CDC PM 2.1 (series)(Defense Counsel and Legal Intern

Orientation Checklist)

Encl: (1) Statement of Understanding for Student Judge

Advocates

(2) Client's Statement of Understanding Regarding Use of

Student Judge Advocates

1. Purpose. To establish procedures for the assignment of

Student Judge Advocates to the Defense Services Organization

(DSO) to serve as “Student Defense Counsel” in order to support

the DSO mission and to broaden the experience base of our future

attorneys. To publish two Statements of Understanding that must

be executed before a Student Judge Advocate in the DSO can be

assigned to support defense counsel for courts and

administrative hearings in order to ensure all parties

understand the nuances of serving as a Student Defense Counsel.

To encourage detailed defense counsel to seek judicial approval

for assignment of Student Defense Counsel as non-lawyer

assistants under R.C.M. 506(e) in order to allow Student Defense

Counsel to participate as non-lawyer assistants and sit at

counsel table in appropriate cases.

2. Discussion.

a. Reference (a) provides for the assignment of Student Judge

Advocates (MOS 4401) to support the provision of legal services

in the field. This program is important for two reasons.

First, it provides our Legal Service Support and Command Advice

attorneys in the field with additional manpower, most critically

Enclosure 4

Subj: USE OF STUDENT DEFENSE COUNSEL

2

during the summer PCS season. Second, it broadens the

experience of young Student Judge Advocates who, upon graduation

from the Basic School and Naval Justice School, will quickly

matriculate into our Legal Services Support Sections.

b. Reference (a) goes on to state that Student Judge

Advocates will be assigned to support DSO Branch Offices in a

manner consistent with their assignment to the Trial

(prosecution) office. I fully support the assignment of Student

Judge Advocates to DSO offices across the Fleet, and expect them

to be used to their full potential. Experience has shown this

program to be a huge success. Student Judge Advocates are force

multipliers for the DSO and the legal community as a whole. They

assist in the investigative phases of trial, draft motions,

research legal issues, prepare witnesses, and sit at counsel

table during cases.

c. Senior Defense Counsel are responsible for ensuring that

Student Defense Counsel are challenged, mentored, and fully

integrated into the DSO. One method to broaden a Student

Defense Counsel's experience while meeting the needs of our

clients is to assign them to serve as a non-lawyer assistant

under Rule for Courts-Martial 506(e) and obtaining court

permission to allow Student Defense Counsel to sit at counsel

table. Not only does this give the Student Defense Counsel

valuable experience for his or her future profession, but past

history has demonstrated how valuable Student Defense Counsel

can be to the defense team, and to the client. Consistent with

the direction of their Senior Defense Counsel, detailed defense

counsel are encouraged to request judicial approval for Student

Defense Counsel to sit at counsel table. Furthermore, I

encourage our military judges to support, endorse and approve

this practice as one valuable to our community as a whole.

3. Policy.

a. Upon assignment to the DSO, a Student Judge Advocates is

designated a "Student Defense Counsel" in writing by the Student

Defense Counsel’s Senior Defense Counsel, in a manner consistent

with the appointment of other DSO attorneys.

b. Student Defense Counsel may be assigned in writing to

Defense Counsel as non-lawyer assistants by their Senior Defense

Counsel.

c. Prior to designation, Student Defense Counsel shall

complete enclosure (1) and (2) of reference (c). Regional

Enclosure 4

Subj: USE OF STUDENT DEFENSE COUNSEL

3

Defense Counsel are authorized to tailor enclosure (2) to

reference (c) for Student Defense Counsel to meet the needs of

their region while still ensuring the professional development

and qualifications of Student Defense Counsel to perform basic

defense tasks.

d. Defense Counsel are encouraged to request to permission

of the Court, and Board Presidents, for Student Defense Counsel

to sit at counsel table as non-lawyer assistants under R.C.M.

506(e).

e. Student Defense Counsel may not be detailed to represent

individual clients but are instead assigned to assist defense

counsel in a particular case.

f. The severance limitations of Rules for Courts-Martial

505 and 506 do not apply to Student Defense Counsel serving as

non-lawyer assistants.

g. Student Defense Counsel will complete the enclosures to

this Policy memo in order to ensure all parties understand the

role of the Student Defense Counsel. The enclosures must be

completed before a detailed defense counsel can request a

Student Defense Counsel be allowed to sit at counsel table

before a court or board. Attach copies of the completed

documents to record of each board and Court in which the Student

Defense Counsel participates.

4. Conclusion. CDC PM 1-12 is hereby cancelled. This CDC

Policy Memo is effective immediately.

STEPHEN C. NEWMAN

Distribution List:

SJA to CMC

Legal Chief of the Marine Corps

All Marine Corps SJAs

LSSS OICs

LSST OICs

All members of the DSO

Enclosure 4

UNITED STATES MARINE CORPS [BRANCH OFFICE]

MARINE CORPS DEFENSE SERVICES ORGANIZATION [ADDRESS]

Enclosure (1)

IN REPLY REFER TO

5817

OFFICE

Date

From: Name of Student Defense Counsel

To: Distribution List

Subj: STATEMENT OF UNDERSTANDING REGARDING MY PARTICIPATION ON CASES WITHIN

THE DEFENSE SERVICES ORGANIZATION

Ref: (a) CDC Policy Memo 2.2 (series) (Ethical Obligations of Defense Support Personnel)

Encl: (1) Executed CDC Policy Memo 2.2 (series) Statement of Understanding

1. _____ I have read and understand the reference, which outlines my ethical obligations while assigned to the

Marine Corps Defense Services Organization (DSO). Enclosure (1) contains my executed Statement of

Understanding.

2. _____ I understand that I may be assigned to act as a Student Defense Counsel to assist detailed defense counsel

regarding cases assigned by the Defense Services Organization (DSO).

3. _____ I understand that all communications and work-product regarding DSO cases are privileged and may not

be disclosed without the clients’ prior informed consent, obtained by the detailed defense counsel.

4. _____ I understand the scope of my participation may vary, but under reference (b) I may not form an attorney-

client relationship as defined in reference (a) under any circumstances.

5. _____ I understand that I may execute orders at any time which would remove me from the DSO and those

orders take precedence over my duties within the DSO.

6. _____ I understand that I have an obligation, prior to departing the DSO, to conduct a thorough debrief with each

detailed defense counsel I have assisted to ensure that all tasks have either been completed or are properly turned

over to the detailed defense counsel.

7. _____I understand that a copy of this form and its cover letter will be provided to me, each client I assist, all

defense counsel I assist, the detailing authority, and the military judge.

______________________________

Signature of Student Defense Counsel

Witnessed by: ______________________________

Signature of Supervisory Counsel

Distribution List:

Client

Military Judge

Detailing Authority

RDC

Enclosure 4

Subj: STATEMENT OF UNDERSTANDING REGARDING MY PARTICIPATION ON

CASES WITHIN THE DEFENSE SERVICES ORGANIZATION

2 Enclosure (2)

IN REPLY REFER TO

5817

OFFICE

Date

From: Name of Accused

To: Distribution List

Subj: CLIENT’S STATEMENT OF UNDERSTANDING REGARDING USE OF STUDENT DEFENSE

COUNSEL ON MY CASE

1. _____ I understand that I have a right to be represented by a detailed defense counsel, a civilian defense counsel

and/or an individual military counsel. These rights do not extend to representation by a student defense counsel.

2. _____ I understand that a Student Defense Counsel may not be detail to my case, but that a student defense

counsel may be assigned to assist my defense team.

3. _____ I understand that an assignment of Student Defense Counsel to my case does not form an attorney-client

relationship between the student defense counsel and me.

4. _____ I understand that if a Student Defense Counsel assists my detailed defense counsel, all communications

and work-product by the student defense counsel regarding my case are privileged and may not be disclosed without

my informed consent.

5. _____ I understand that the Student Defense Counsel may execute order at any time which would remove them

from the Defense Services Organization and as a non-lawyer assistant on my case.

6. After discussing this matter with (Detailed Defense Counsel), I would like to request that:

a. . _____ a student defense counsel assist my defense team on my case.

b. _____ a student defense counsel NOT assist my defense team.

7. _____ I understand that a copy of this form and its cover letter will be provided to me, list all co-counsel

individually, the defense authority, and the military judge and a copy maintained in my case file.

______________________________

Signature of Student Defense Counsel

Witnessed by: ______________________________

Signature of Supervisory Counsel

Distribution List:

Client

Military Judge

Detailing Authority

RDC

Enclosure 4