Avoiding Catch-22s: Approaches to Resolve Conflicts between Military and State Bar Rules of Professional Responsibility

Abstract

Military lawyers (judge advocates) operate under two sets of professional responsibility rules: the rules of the state that licenses the attorney, usually based on the American Bar Association (ABA) Model Rules or older Model Code of Professional Responsibility, and the rules of professional conduct of that judge advocate's military service. What happens if those sets of rules conflict? ABA Model Rule 8.5 and the military rules claim that these conflicts can be ameliorated through conflicts of law analysis, and that any potential conflict may only be theoretical. However, the military rules also state that their rules supercede any conflicting state rules of attorney conduct. Furthermore, at least one state has ruled the other way, finding that its rules preempt any military regulations regarding attorney conduct. This creates the potential of placing judge advocates only trying to do their job and follow legal orders in a catch-22. I examine this problem in four parts. First, I examine the history of the ABA Rules and the military ethics rules, finding that the patchwork-method of attorney regulation has created this potential conflict. Second, I perform an in-depth comparison of the ABA Model Rules and the various military service rules of professional conduct, identifying all potential conflicts for judge advocates. Third, I unravel the two popular explanations for how the military and ABA rules can co-exist, the conflicts of law analysis of ABA Model Rule 8.5, and the claim of federal regulatory preemption. Regarding the claim of preemption, I offer two historical examples to demonstrate why the military cannot claim that the military rules preempt pervasive state regulation of the legal profession. Finally, I offer a solution to this problem by drafting an amendment to Article 27, Uniform Code of Military Justice (10 U.S.C. 827) which provides clear statutory language directing that military rules preempt state ethics rules. By amending the UCMJ to make congressional intent of preemption clear, judge advocates will not have to worry about being placed in an unfair catch-22.

Keywords: Professional Responsibility, Ethics, Conflicts of Laws, Catch-22, Military Law, Judge Advocate

JEL Classification: K19, K29, K39, K49