News | July 24, 2012

A Focus on Legal Representation Outside the Courtroom

By Lt. Steven M. Shepard, Naval Legal Service Office Southwest

Although providing courts-martial representation is commonly seen as the primary role of legal defense departments, defense counsel spend a great deal of their time on administrative separations and boards of inquiry, pre-trial confinement hearings, and personal representation advice to walk-in clients who find themselves at odds with the Navy outside the courtroom.  

The numbers are significant. For example, between April and August 2011, Naval Legal Service Office Southwest (NLSO SW) resolved seven administrative boards and advised 40 walk-in clients for every court-martial it closed.   To better address the incoming workflow, NLSO SW implemented a version of a previously existing organizational structure – a Personal Representation Division to specialize in these non-courtroom services.   Staffed by four lieutenants and a modest, well-trained support staff, the Personal Representation Division—in an average week—provides representation at 5 administrative separation boards and boards of inquiry, walk-in and telephonic defense advice to 26 personnel, and representation to one incarcerated service member at an Initial Review Officer hearing.

NLSO SW’s goal in separating the non-court-martial defense work from courts-martial is to improve the quality of representation, the accuracy of advice, and efficiency.  This model leaves the remaining defense attorneys able to focus exclusively on courts-martial.   NLSO SW is part of Naval Legal Service Command.  Naval Legal Service Command contains two types of commands.  Nine Region Legal Service Offices (RLSOs) employ those who prosecute court-martial cases and provide staff judge advocate advice to Navy commands.  Eight Naval Legal Service Offices (NLSOs) employ those who provide defense counsel for courts-martial and administrative separation clients along with personal legal assistance services for service members and their families to include wills, powers of attorney, and consumer, family, landlord-tenant, and predatory lending law advice and assistance.   Though still in its infancy, NLSO SW’s division of labor shows promise, providing an alternate model for offering first-rate services while training first-tour lieutenants in advocacy before they enter the military justice courtroom.  An early assessment demonstrates the division of labor has led to improved representation.   Personal representation attorneys, free from the shifting demands of the court docket, have been able to settle in to a comfortable battle rhythm. Each attorney sets aside two days a week for boards, leaving two days free to assist walk-ins and prepare for boards, and one day to train.  In essence, the long-range focus of military justice and the short-range turnaround of personal representation have been separated to promote less shifting of gears and juggling of schedules.   In addition, the institution of the Personal Representation Division allows each member of the Legal Defense Department to be more knowledgeable in the subject-matter of their field.  Without the Personal Representation Division’s tasks on their plate, the military justice attorneys are able to explore a more robust motions practice and conduct more in-depth training on various litigation topics.  

The Personal Representation Division is also better situated to handle the myriad complex questions that stem from the direction, “go see legal.”  Often their concerns cannot be easily answered by citing a paragraph in the Manual for Courts-Martial.   Personal representation attorneys are routinely asked to advise service members on adverse personnel actions (e.g., negative evaluations, detachments for cause, reports of misconduct, security clearance revocations, administrative separation notification-procedure appeals, Perform-to-Serve), grievance procedures, the impact that civilian criminal charges could have on military careers, Family Advocacy Program investigations, the Physical Evaluation Board process, how to get out of the Navy, and so on. The Personal Representation Division’s weekly training, combined with a growing library of resources and templates, and the support of a group of dedicated attorneys, helps provide accurate and sensible advice to service members.   The Personal Representation Division also seeks to provide more efficient services to the convening authorities of administrative separations and boards of inquiry.  Although the primary duty is to the board client, personal representation attorneys are also cognizant of the NLSO’s function as a “service” command, as well as Rule 3.2 of the professional conduct rules, which limits the permissible grounds for seeking delay.  The Personal Representation Division is better able to expeditiously respond to requests for counsel, get clients representation, and resolve cases.  With the increased tempo of processing boards—to increasingly favorable results—administrative wait-times have decreased.   Despite a constant number of incoming boards, NLSO SW’s standing docket of pending boards dropped 29 percent, from 98 in April 2011 to 70 in August 2011, due to the quicker turnover of cases.  Having distinct Personal Representation and Military Justice Divisions inside of the Legal Defense Department has been an early success for NLSO SW providing a winning situation all the way around.  Clients are receiving more focused, knowledgeable representation.  Attorneys are able to hone their craft by specializing in their particular field.  The command benefits from having an easy on-ramp, off-ramp for junior officers about to enter the courtroom or leave the courtroom on their way to another command. Perhaps most importantly, the Personal Representation Division has had great success for those service members confronting the administrative process of the Navy, reminding all of us of the importance of the “everything else” that a Legal Defense Department is called upon to do.

Recent Developments   On Oct. 1, 2012, the Navy JAG Corps will restructure the Naval Legal Service Command by realigning the legal assistance mission and resources to the RLSOs, creating four Defense Services Offices (DSO). Among the factors driving realignment, the new structure is designed to improve our military justice practice by aligning the right number of litigation specialists and experts with the Navy’s court-martial caseload.  The new structure will put our best litigators in the right billets to try cases.   The Naval Legal Service Command will replace the eight NLSOs with four DSOs.  The DSOs will focus solely on defense counsel services (personal representation, court-martial defense, administrative separation, etc.). Sailors and their families will see no change in local availability of personal legal assistance services.  At 13 locations that previously had a defense presence, Sailors will have 24/7 access to defense counsel and will conduct initial consultation with a defense attorneys by telephone or other remote communication technology vice immediate face-to-face meetings.   For more information about NLSO SW and the JAG Corps, go to www.jag.navy.mil.
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