Time to reconsider in-court representation of legal assistance clients.
I. INTRODUCTION II. A BRIEF HISTORY OF LEGAL ASSISTANCE AND IN-COURT REPRESENTATION BY AIR FORCE LAWYERS A. The Early Years B. The Air Force's Pilot Expanded Legal Assistance Program C. Current ELAP in the Air Force, Army and Navy III. PREEMPTION OF STATE ATTORNEY LICENSING REQUIREMENTS BY 10 U.S.C. [section] 1044 A. The Development of 10 U.S.C. [section] 1044 1. Legal Assistance Authorized by 10 U.S.C. [section] 1044 (d)(3)(A) 2. Legal Assistance Authorized by 10 U.S.C. [section] 1044 (d)(3)(B) 3. Breadth of Authorized Legal Assistance B. Congressional Intent to Preempt State Licensing Requirements C. Lets v. Flint and Access to Courts by Out-of-State Attorneys D. Preemption is Another Example of Congressional Efforts to Protect Service Members IV. MAKING IN-COURT REPRESENTATION PART OF LEGAL ASSISTANCE A. Recent Air Force Experience with ELAP Shows A Way Forward B. Advantages of Including In-Court Representation in Legal Assistance C. Issues with ELAP--Malpractice, Lack of Resources, and Upsetting State Authorities V. CONCLUSION
As this article goes to press, The Judge Advocate General (TJAG) is reviewing a new version of the Air Force Instruction (AFI) on Legal Assistance. (1) Previous versions of the instruction contained a provision stating representation of a legal assistance client in "a court or administrative proceeding" was outside the scope of permissible representation. (2) That provision effectively prevented legal assistance attorneys from providing in-court representation for their clients. The pending version is not so restrictive. Once approved, the new instruction will permit Air Force legal assistance attorneys or participants in an Expanded Legal Assistance Program (ELAP) to represent eligible clients in a civilian court. (3) The only restriction placed on the attorneys is the requirement to coordinate their representation through their Major Command (MAJCOM) Staff Judge Advocate and obtain approval from AFLOA/CLSL. (4) The Navy and Army also provide for ELAP. Unlike the Air Force, these services require attorneys not licensed in the state where they are stationed to comply with state licensing requirements before letting them appear in civilian courts where they are stationed. (5) As explained in this article, this is a service-imposed restriction that unnecessarily limits attorney participation in an ELAP. Because the Air Force's proposed revision of its legal assistance instruction is not burdened with this restriction, the Air Force has the opportunity to have a more proactive and robust legal assistance practice. Rather than almost never exercising the option for in-court representation, the Air Force could recognize there are recurring categories of cases where its attorneys ought to be able to represent eligible clients in civilian courts. Our base legal offices cannot be converted to a full-service civilian-type attorney's office. Even if desirable, resource and statutory limitations make that impossible. Instead, this article proposes the Air Force permit in-court representation in appropriate cases on a routine basis. While such representation may never be "common" it ought to be more frequent than seldom or exceptional.
This article addresses the preemptive nature of the 2006 amendment to 10 U.S.C. [section] 1044 and shows the amendment eliminated the requirement for legal assistance attorneys to comply with state licensing requirements. The article is divided into three sections. The first section will provide an historical review of in-court legal assistance. The second will discuss how Section 1044(d) of Title 10 preempts state licensing requirements. The third will review the advantages of making in-court representation a part of Air Force practice, suggest areas where such a program could be effective, and discuss issues which could arise should the Air Force use ELAPs more frequently.
II. A BRIEF HISTORY OF LEGAL ASSISTANCE AND IN-COURT REPRESENTATION BY AIR FORCE LAWYERS
A. The Early Years
The services began a formal military legal assistance program in 1943. (6) Between its inception through the late 1960s, the legal services provided were largely confined to providing general advice. (7) Most legal work was referred to civilian attorneys. (8) Of course, civilian counsel charged for their services but bar associations, then as now, assisted military clients by finding competent and sympathetic counsel who would provide assistance at reduced fees. (9) In 1969, Congress passed the Carey Amendment to the Economic Opportunity Act. (10) This act provided indigent military members and their families with legal assistance through the Office of Economic Opportunity (OEO). The OEO Director, however, could not expand his legal operations to accommodate this new entitlement for military personnel " unless and until the Secretary of Defense assumes the cost of such services ..." (11) Rather than transfer Department of Defense (DoD) funds to the OEO, the Secretary of Defense opted to establish a DoD alternative to the OEO. After an 18-month study involving all the services, the Defense Secretary directed the services to create a pilot program expanding legal assistance based on the OEO model. (12) The program included in-court representation of legal assistance clients in both criminal and civil matters by judge advocates. (13) Like the current legal assistance program, the services did not receive either additional funding or manpower to support the pilot program. They were required to use existing manpower and resources. The Air Force's experience with this pilot program illustrates both the benefits and problems to be expected in an expanded legal assistance program.
B. The Air Force's Pilot Expanded Legal Assistance Program
After receiving DoD approval, the Air Force chose four bases on which to establish its pilot program: Elmendorf Air Force Base, Alaska; Barksdale Air Force Base, Louisiana; Richards-Gebaur Air Force Base, Missouri; and Scott Air Force Base, Illinois. (14) Most programs were initiated by February 1, 1971. Representation was limited to Airman in grades E-4 and below who had less than four years of service. (15) After two years, the Air Force reported significant positive results. (16) During the pilot program, Air Force lawyers handled a total of 585 cases and made 290 court appearances. All of these cases were "expanded cases," which could not be handled under the Air Force's then existing "no representation" rule. (17) The types of cases were about evenly split between civil and criminal. (18) Of the former, most involved family law issues of divorce, adoption and non-support. (19) Criminal cases included the entire spectrum of misconduct from first degree murder to traffic offenses. (20) Brigadier General (then Colonel) Joseph R. Lowry, the Staff Judge Advocate at Richards-Gebaur, MO, was an enthusiastic supporter of the pilot program. (21) He stated, "The young JAGs in the office just loved these cases and they worked feverishly on them." (22) He added, "The result of the program was not only good representation for the young military people, but it provided excellent experience for the young JAGs." (23) He believes the pilot program "... brought out the best in the young JAGs." (24) While the Judge Advocates involved enjoyed the challenge, they encountered significant obstacles. The most significant and intractable was gaining access to the civilian courts for legal assistance attorneys not licensed in the state where they were stationed.
Of the four states involved in the pilot program, only one granted out-of-state military lawyers access to their courts. (25) Officials in Louisiana, Illinois, and Alaska declined to open their courts to legal assistance attorneys not licensed in their states. (26) Indigent clients at Barksdale Air Force Base, Louisiana and Scott Air Force Base, Illinois were represented by JAGs licensed and stationed in those states. (27) Alaskan officials believed already existing organizations such as the Alaskan Legal Service or the Public Defender should provide this service. (28) In their view, if the military desired to help indigent legal assistance clients, they should assign their attorneys directly to those organizations. (29) Missouri officials did permit out-of-state military lawyers to represent legal assistance clients in their courts. Their willingness to assist was not solely due to a concern for indigent military personnel. (30) At the time, it was the practice for Missouri courts to appoint counsel for indigent defendants but without fee or reimbursement for expenses. (31) Under these circumstances, the Executive Director of the Missouri Bar reported he was "... quite pleased to have this responsibility shifted to those of you who are military lawyers." (32)
In addition to courtroom access, the pilot program also surfaced additional issues. Among these were worries about malpractice liability, costs associated with representation, and continuity of representation for clients who left the service. (33) Some participants were concerned the Federal Tort Claims Act (FTCA) was not an exclusive remedy for dissatisfied clients. (34) They speculated a client could wait for the FTCA's statute of limitations to run and then take advantage of state law which provided for a longer period of time in which to file suit. (35) At that point, the legal assistance attorney may not be represented by the government. This raised the question about whether legal assistance attorneys should have or could even qualify for malpractice insurance. (36) As the offices received no additional attorneys or administrative support for this expanded program, legal assistance attorneys feared filing dates could be missed and give rise to another area of liability. (37) Court-related expenses for transcripts and depositions, and witness fees were significant. (38) The attorneys found that in some cases, fees could be waived because of a client's indigence, but in others a professional job required depositions be obtained. (39) Finally, because of the nature of the cases taken on during the pilot project, some clients transitioned out of the Air Force before the case was complete. During the pilot program, attorneys decided representation would end at the conclusion of trial but they recognized this could be a significant problem. (40) Based on the foregoing, it is not surprising that none of services adopted an OEO-style legal assistance regime for their current ELAPs.
C. Current ELAP in the Air Force, Army and Navy
The Services took different paths following their experience with the pilot programs. The Air Force does not have an on-going in-court ELAP at any of its bases. (41) On the other hand, both the Army (42) and Navy (43) retained the option of providing in-court legal assistance to eligible clients.
The Army's current guidance regarding in-court representation requires that legal assistance attorneys first obtain permission from their "supervising attorney." (44) The Army defers to State authorities with respect to licensing requirements. (45) In the Army, an approved legal assistance attorney can appear in a civilian court provided the attorney is either "qualified through bar membership or otherwise" or is practicing in accordance with an agreement "... with the State bar or pursuant to a motion granted by an appropriate court of the State concerned." (46) The Army reports their legal assistance offices provided in-court representation for 653 clients in Fiscal Year 2014. (47) Of these, the Army Legal office at Fort Lee VA accounted for 483. (48) Most were in the family law area but the office also provided representation in Guardian ad Litem cases for disabled soldiers and their family members. (49) Their work with merchants and landlords has had a positive impact in convincing them to treat their soldiers fairly. (50) The Fort Lee office reports positive short and long-term effects from their program. (51) The Fort Lee legal office has been providing in-court representation since 1989 and states it has strong support from the local judiciary. (52) Fort Lee's in-court legal assistance attorneys are all members of the Virginia bar. (53)
In the Navy, legal assistance attorneys can provide in-court representation in connection with an approved ELAP or for an individual case. (54) For the former, the Navy TJAG or his designee is the approval authority. (55) For the latter, the Deputy Assistant Judge Advocate General (Legal Assistance) must approve the case. (56) Like the Army, the Navy requires its legal assistance attorneys to accommodate State licensing requirements before authorizing them to appear in civilian courts where they are not licensed. (57) In the past year, the Navy's ELAP program was confined to the Navy Legal Service Office Southwest in San Diego, CA. (58) All of their ELAP cases involved the Serviceman's Civil Relief Act. (59) For those clients, Navy attorneys appeared in civilian courts seeking a stay in proceedings. (60)
By deferring to state licensing authorities, the Army and Navy limit the number of attorneys able to participate in an ELAP to those licensed or otherwise permitted access to local state courts. (61) For Army and Navy legal assistance attorneys in states without authorizing legislation or permissive court rules, the pool of eligible ELAP attorneys is reduced to those who happen to be stationed in a state in which they are licensed. In contrast, the proposed Air Force Legal Assistance Instruction does not defer to state authorities regarding attorney licensure. As explained in the next section, this new approach is appropriate because of the preemptive language in 10 U.S.C. [section] 1044(d) eliminates the necessity to comply with state licensing requirements.
III. PREEMPTION OF STATE ATTORNEY LICENSING REQUIREMENTS BY 10 U.S.C. [section] 1044
A. The Development of 10 U.S.C. [section] 1044
The analysis must begin with a review of 10 U.S.C. [section] 1044. Congress enacted the statute on October 19, 1984. The statue authorizes the Services to provide legal assistance to eligible clients in connection with their "personal civil legal affairs." (62) With respect to representation in a "legal proceeding," this statute permits "legal counsel" to represent clients who cannot afford to pay legal fees without "undue hardship." (63) Specifically:
This section does not authorize legal counsel to be provided to represent a member or former member of the uniformed services described in subsection (a), or the dependent of such a member or former member, in a legal proceeding if the member or former member can afford legal fees for such representation without undue hardship. (64)
Over the years, the principal changes Congress made to the statute resulted in the expansion of legal assistance to additional groups. Originally, military legal assistance was limited to active duty members, retired personnel, and their dependents. In a succession of amendments, Congress expanded the availability of this service to officers in the Public Health Service, certain reserve component members, survivors of deceased or former military members, and most recently to victims of sexual abuse. (65) These additions account for four of the statute's seven amendments. Two amendments were strictly administrative. (66) On January 6,2006, Congress enacted the only amendment specifically addressing whether states could regulate military legal assistance attorneys with regard to their ability to practice in states where they were not licensed. The title of the enactment reveals the intent behind the Congressional action. Section 555 of PL 109-163 was entitled:
CLARIFICATION OF AUTHORITY OF MILITARY LEGAL ASSISTANCE COUNSEL TO PRO VIDE MILITARY LEGAL ASSISTANCE WITHOUT REGARD TO LICENSING REQUIREMENTS (capitalization in original)
The amendment was codified as Section (d)(1), (d)(2), and (d)(3) of 10 U.S.C. [section] 1044 as follows:
(d)(1) Notwithstanding any law regarding the licensure of attorneys, a judge advocate or civilian attorney who is authorized to provide military legal assistance is authorized to provide that assistance in any jurisdiction, subject to such regulations as may be prescribed by the Secretary concerned. (Emphasis added)
(2) Military legal assistance may be provided only by a judge advocate or a civilian attorney who is a member of the bar of a Federal court or of the highest court of a State.
(3) In this subsection, the term "military legal assistance " includes--
(A) legal assistance provided under this section; and
(B) legal assistance contemplated by sections 1044a, 1044b, 1044c, and 1044d of this title. (67)
Section (d)(3) makes clear the "legal assistance" described in this subsection includes two specific types of legal services. These are set out in sub-sections (d)(3)(A) and Section (d)(3)(B).
1. Legal Assistance Authorized by 10 U.S.C. [section] 1044(d)(3)(A)
The provision states "military legal assistance" includes "legal assistance provided under "this section,' that is Section 1044. As discussed earlier, this section enables military legal assistance attorneys to provide representation to eligible clients for their "personal civil legal affairs" (68) and in-court representation to that portion of eligible clients who cannot afford to pay legal fees without undue hardship. (69)
2. Legal Assistance Authorized by 10 U.S.C. [section] 1044(d)(3)(B)
This provision makes clear military legal assistance attorneys can provide legal services involving notaries (10 U.S.C. [section] 1044a), powers of attorney (10 U.S.C. [section] 1044b), advance medical directives (10 U.S.C. [section] 1044c), and military testamentary instruments (10 U.S.C. [section] 1044d). Based on the most recent expansion of legal assistance eligibility, military legal assistance attorneys can now provide representation to victims of sexual assault (10 U.S.C. [section] 1044e and 10 U.S.C. [section] 1565(b)).
3. Breadth of Authorized Legal Assistance
The statute authorizes military legal assistance attorneys to provide a range of advice to eligible clients regarding their "personal civil legal affairs." This is a broad term which can include general legal advice on contracts, landlord/tenant issues, wills, powers of attorney and other transactional matters. With respect to representation in litigated matters (i.e., representation in a "legal proceeding"), however, only a select portion of the otherwise eligible pool of legal assistance clients can be accommodated. Only those legal assistance clients for whom payment of legal fees would be an "undue hardship" are eligible for in-court representation. Congress also set out the professional qualifications necessary for legal assistance attorneys. In order to provide legal assistance--including representation of indigent clients in a civilian court--the attorneys must be either a judge advocate or civilian attorney who is a member of either a Federal court of the highest court of a State. In short, this statute establishes federal (vice state) criteria for military legal assistance attorneys to access civilian state courts.
Because this federal statute intrudes in an area which has historically been a state responsibility, to be effective it must displace all conflicting state bar admission requirements. (70) The mechanism for accomplishing federal preemption is the Constitution's Supremacy Clause. (71) Assessing whether this statue qualifies for federal preemption will be considered next.
B. Congressional Intent to Preempt State Licensing Requirements
The Constitution's Supremacy Clause mandates that behind treaties, federal statutes "shall be the supreme law of the land." (72) Courts recognize three ways in which federal statutes may preempt state laws: (1) express language in a congressional enactment; (2) by implication from the depth and breadth of a congressional scheme that occupies the legislative field; and (3) by implication because of a conflict with a congressional enactment. (73) Where, as here, Congress is taking action in area where the police powers of the state (state regulation of admission to practice before its courts), there is an additional hurdle. In such cases, the Supreme Court imposes a "presumption against preemption." (74) The presumption can be overcome where there is either a clear Congressional purpose to preempt or the existence of a conflict is 'clear and manifest.' (75) In all preemption cases, the purpose of Congress is the ultimate touchstone. (76)
Despite the hurdles, this statute qualifies for preemption based upon the first criterion--express language in a Congressional enactment--and it overcomes the presumption against preemption by demonstrating an unmistakable Congressional intention to preempt state law. As noted above, both the title of the amending statute as well as its language make clear Congress intended to trump state attorney licensing requirements to enable military legal assistance attorneys to provide service to their eligible clients. The statute's title states the law's goal was to provide "clarification" to state licensing authorities that military legal assistance attorneys could provide legal assistance "without regard to licensing requirements." (77) The language of the statute implements the Congressional intent by specifically permitting legal assistance attorneys to practice in "any jurisdiction" irrespective of "any law regarding the licensure of attorneys." (78)
C. Leis v. Flint and Access to Courts by Out-of-State Attorneys
The leading case discussing an out-of-state attorney's access to courts where he/she is not licensed indicates there must be "an independent source of law" authorizing access before an attorney can practice in a court where he/she is not licensed. In that case, Leis v. Flynt, (79) the defendant's attorneys were out-of-state lawyers seeking permission to represent their client in an Ohio court pursuant to that state's pro hac vice procedure. In Ohio, the trial court judge has the discretion to approve or disapprove pro hac vice requests. The Leis trial court judge summarily rejected the attorneys pro hac vice applications. Believing they had a constitutional right to represent their client which was protected by the Due Process Clause of the Fourteenth Amendment, the attorneys sought relief through the State and Federal courts. (80) In making its decision, the Supreme Court noted the practice of law does not create a property right capable of protection by the Due Process Clause of the Fourteenth Amendment. To have such a claim, the court held there must be some independent source such as a state law. (81) The court next examined whether there was either a state or federal statute which could support the admission of these out-of-state lawyers to the Ohio courts. The existence, or, in this case, the non-existence of an independent source of law was the determining factor in the Court's opinion. The Court found no basis in either state or federal law to support the out-of-state attorneys' claim they had a right to practice law in Ohio. (82) For that reason, the court denied the attorneys' claim and upheld the Ohio court's right to summarily deny their pro hac vice applications. This is in accordance with the Court's recognition of the State's historic role in establishing the requirements, discipline and regulation of attorneys appearing in their courts. In contrast to the situation in Leis v. Flint, military legal assistance attorneys do have an independent source authorizing their admission into state courts where they are not licensed. Section 1044(d) explicitly gives them the right to provide legal assistance to eligible clients notwithstanding "any law regarding licensure of attorneys ..." and they can provide this service in "any jurisdiction."
D. Preemption is Another Example of Congressional Efforts to Protect Service Members
Where its service members are involved, Congress decisively intrudes into areas typically under the exclusive control of the States. Congress' decision to enable indigent service members to have the assistance of counsel is consistent with similar protective action it has taken with respect to military personnel and their families. As noted earlier, Congress has explicitly mandated states accept military powers of attorney, (83) advanced medical directives, (84) and military testamentary instruments. (85) Federal intrusion into State matters on behalf of its service members is not confined to legal assistance. The Servicemember's Civil Relief Act (SCRA) imposes mandates in other areas of traditional State concern such as requiring state courts to delay judicial proceedings, (86) toll state statutes of limitation, (87) terminate lease agreements, (88) prevent evictions, (89) adjust interest rates, (90) and stop mortgage foreclosures. (91) Another federal statute directly impinging on the State's authority on behalf of service members is the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA interposes a federal requirement on civilian employers to re-hire qualifying service members returning to civilian life from active duty. For the ex-service member to which it applies, USERRA ensures these former members can resume their civilian occupations with seniority rights. (92) Finally, Congress even provided for the possibility of legal malpractice by making the FTCA the exclusive remedy for any negligent or wrongful act or omissions by a member of the "legal staff' of a Department of Defense Agency. (93) Given this context, Congress' decision to provide indigent service members with a legal assistance attorney to represent them in a state court is neither unique nor a more significant federal intrusion into state affairs than those just listed.
Review of the laws in the eleven states where one of the Air Force's MAJCOMs, Air Mobility Command (AMC), has active duty installations provides an illustrative example of why federal preemption is needed. In the absence of a superseding federal law, AMC's legal assistance attorneys would confront a bewildering morass of state laws. Two states, Illinois and North Carolina, specifically authorize military legal assistance attorneys licensed in other states access to their courts to represent indigent clients. Illinois permits access based on an order from their Supreme Court. (94) North Carolina recognizes 10 U.S.C. [section] 1044(d) preempts their state's law regarding attorney admission. (95) Neither state requires additional training or payment of a fee by military legal assistance attorneys before enabling them to practice in their courts. Three states, Washington, (96) Florida, (97) and California (98) also authorize legal assistance attorneys to practice in their courts but impose pre-admission requirements. Washington and Florida require military legal assistance attorneys take state-approved continuing legal education courses. Once admitted, these two states permit the attorneys to represent low ranking enlisted clients on a wide spectrum of civil law matters. California restricts the practice of military legal assistance attorneys to issues arising out of the SCRA. The remaining states, Delaware, (99) Arkansas, (100) Kansas, (101) New Jersey, (102) North Dakota, (103) and South Carolina (104) make no provision for military legal assistance attorneys. To represent clients in court, legal assistance attorneys in those jurisdictions have to comply with state-specific requirements applicable to representation of indigent clients, admission by pro hac vice, or both. As compliance varies by state and degree of difficulty, it is not surprising that none of AMC's bases currently represent any indigent clients in civil proceedings. (105)
In sum, 10 U.S.C. [section] 1044 authorizes legal assistance attorneys to provide in-court representation for indigent clients in connection with their "personal civil legal affairs." Congress' 2006 amendment to this statute removed any doubt about a legal assistance attorney's ability to appear in courts in which they were not licensed. The title to this amendment announced it was a "clarification" of a military legal assistance attorney's authority to provide legal assistance irrespective of their state of licensure. The terms of the amendment put their intention into effect. Codified as subsection (d), this statute states "... a judge advocate or civilian attorney" authorized to provide legal assistance can do so "in any jurisdiction" notwithstanding "any law regarding the licensure of attorneys." This statute provides the "independent source of law" the Supreme Court found essential to authorize an out-of-state attorney's access to state courts where he/she is not specifically licensed. (106) This statute is consistent with other Congressional enactments designed to protect the rights of military members and their dependents. Finally, the hodgepodge of state laws on this subject makes federal intervention as appropriate as it is necessary.
The fact of preemption leads to a consideration of what, if anything, the Air Force can or should do with the opportunity to represent indigent clients in civilian courts. The next section describes the types of cases amenable to in-court representation and the results of a 2011-2012 pilot study, advantages that would accrue to the Air Force by adopting this policy, and it concludes with a discussion of likely areas of concern.
IV. MAKING IN-COURT REPRESENTATION PART OF LEGAL ASSISTANCE
A. Recent Air Force Experience with ELAP Shows A Way Forward
Congress has made it plain the Services are required to provide legal assistance with existing resources on a "space available" basis. (107) As no additional resources can be anticipated, the Air Force must be circumspect on how it utilizes its already scarce legal resources to accommodate its clients' expectations and needs regarding this benefit. The Air Force's earlier experience with an OEO-style ELAP provides useful practical experience on the types of cases to take and which to avoid. An ELAP will be in addition to rather than taking the place of traditional legal assistance. For that reason, cases involving protracted litigation or which require multiple appearances are not be good ELAP candidates. As in-court representation is statutorily limited to indigent clients and no additional resources can be expected, cases with the potential to incur substantial fees for transcripts or depositions are similarly inappropriate. On the other hand, legal offices should consider cases which leverage already existing capabilities, can be completed by a single court appearance, and do not involve excessive court fees or expenses. The 375 AW/JA office at Scott Air Force Base is an example of a legal office that achieved the proper balance. Their work provides an example of how to set up an ELAP and the benefits that accrue to both the client and the legal office. (108)
In anticipation of establishing this ELAP, AMC/JA leaders arranged to meet the local Family Court judges to brief them on the new program. (109) The judges learned that the Air Force attorneys and paralegals would receive training on local court practice by a reserve judge advocate licensed in Illinois and that the cases would be limited to uncontested divorce actions where there was no property or child custody issues. (110) The judges were enthusiastic supporters and suggested ways to enable Scott Air Force Base's legal assistance attorneys, who were not licensed in Illinois, to submit documents in their courts. (111) AMC/JA shared this information with TJAG who approved the pilot program on 3 Aug 11, (112)
After receiving TJAG's approval for their pilot program, the Scott Legal office tailored their legal assistance operation to the requirements of the Illinois Supreme Court order authorizing military legal assistance attorneys to practice in their courts. (113) This order, MR 2799, expressly authorizes military legal assistance attorneys to represent "... active duty personnel, their family members and retirees" ... in civil matters "... who might not otherwise be able to afford proper legal assistance." (114) In addition to MR 2799's authorization to practice in Illinois courts, the attorneys also sought court access through Illinois' pro hac vice procedure that is set out in Illinois Supreme Court Rule 707. (115) The version of Rule 707 in effect at the time gave the trial court judge discretion to approve out-of-state attorneys to appear and participate in Illinois courts. (116) There was no requirement to associate local counsel or pay any fees. The attorneys reported the judges approved their participation in a ruling from the bench. (117)
Recognizing representation was confined to indigent clients and noting the local bar's resistance to providing for free a service for which they would typically charge $ 1500, the Scott Legal office elected to provide in-court representation to eligible clients or their dependents serving in the ranks between E-1 (Airman Basic) and E-5 (Staff Sergeant). (118) To ensure their attorneys would not become embroiled in complicated cases involving repeated appearances and document preparation, the Scott Legal office further limited in-court representation to clients without minor dependents where both parties agreed on a property settlement. (119) These restrictions enabled them to bundle their cases together and bring them to a conclusion during a single court appearance. (120)
The paralegal's role was critical. (121) After appropriate training, the paralegals interviewed clients and identified potential candidates for the in-court representation program. (122) After confirming there was no conflict, clients meeting the income and other criteria discussed above were accepted. (123) The paralegals explained the limited scope of the office's representation, (124) reviewed documents submitted by clients, prepared forms for court, and assured the client and his or her spouse signed all documents. (125) The paralegals kept in touch with the client and conducted follow-up interviews as necessary. (126) To streamline the operation, the office created checklists that ensured all necessary documents were prepared prior to court. (127) Because of the paralegal's preparatory work, any legal assistance attorney in the office could quickly review the documents and be ready for court. (128) Aside from the personal appearance, which the paralegals could not do, the paralegals were responsible for accomplishing most of the work associated with the in-court representation program.
The Scott Air Force Base legal office reports they represented twenty-two clients in their program's one-year operation. (129) Of these, twelve clients completed the divorce process. (130) The attorney responsible for the program noted his clients' sincere gratitude and observed how this endeavor enhanced their legal assistance program. (131) He commented he could "... give much better information on Illinois law based on my experience in civil court. (132) Once you've gone through court proceedings, it's a lot easier to advise a client face-to-face." (133)
Scott Air Force Base's ELAP was active until Illinois amended their pm hac vice rules regarding permission of out-of-state attorneys to provide legal services in Illinois. (134) Although MR 2799, the Illinois Supreme Court order, explicitly authorizes military legal assistance attorneys licensed in other states to appear in their courts, the local court believed Scott Air Force Base's legal assistance attorneys had to comply with the new version of Illinois Supreme Court Rule 707. The amended Rule 707 transferred the admission decision for out-of-state attorneys from the trial judge to Illinois' Attorney Registration and Disciplinary Commission. In addition, the new rule required out-of-state attorneys to provide personal background information and proof of admission to the bar, and required them to associate with a licensed Illinois attorney. The new rule also imposes a $250 fee but the fee could be waived for indigent clients. (135) Faced with these new requirements and unaware of pre-emptive nature of 10 U.S.C. [section] 1044, the Scott Air Force Base legal office terminated their ELAP. (136)
B. Advantages of Including In-Court Representation in Legal Assistance
While the clients obviously benefited, both paralegals and attorneys reaped substantial experience and knowledge from participating in this ELAP. Paralegals demonstrated how a legal office could leverage scarce resources to accomplish important results. The paralegals did more than perfunctory administrative duties. While under the general supervision of an attorney, the paralegals accomplished significant legal work. They performed the initial interviews, made an eligibility determination, prepared representation agreements and court documents, and followed up with the client as necessary. To make the process more efficient, they developed and used checklists which ensured their attorneys would have all the documents they needed when the attorney and client entered the courtroom. The hallmark of their significant contribution was that any legal assistance attorney in the office could pick up the case on short notice and confidently take it to court. (137) The participating attorneys reaped considerable rewards as well. The attorneys were exposed to civilian judges, their court personnel, and gained valuable insight into process that only actual courtroom experience can provide. The knowledge gained translated to better advice to future clients. Just as important, if not more so, is the opportunity the attorneys had to genuinely partner with a paralegal. With the support of the local bench, the office reported they were exploring other areas such as name changes and domestic adoptions as possible candidates for an expansion of their ELAP. (138)
In addition to simple domestic relations cases, ELAPs are appropriate when a client's problem is representative of an issue affecting the military community. Where local merchants or landlords attempt to take advantage of military personnel, the ability of legal assistance attorney to appear in court is often all that is required to affect a favorable resolution. (139) The Army's experience at Fort Lee shows the mere possibility of in-court representation of legal assistance clients encouraged local merchants and landlords to treat their personnel fairly. (140) Resource and personnel limitation will, of course, require base staff judge advocates to select cases wisely. The positive experience and resulting protection of military personnel from predatory merchants where ELAPs have been in place make this option one all Staff Judge Advocates need to have. (141)
C. Issues with ELAP--Malpractice, Lack of Resources, and Upsetting State Authorities
One concern about permitting legal assistance attorneys to practice in civilian courts where they are not licensed is that their unfamiliarity with these courts might result in mistakes which lead to malpractice claims. (142) Such an event is not likely so long as the ELAP is restricted to cases similar to those undertaken by the Scott Air Force Base legal office--uncomplicated, capable of being resolved on a single appearance and not requiring the expenditure of additional resources. (143) To the extent unfamiliarity is an issue, it is one that can be remedied by training and experience. The Scott Air Force Base office utilized a Reserve judge advocate to guide them through the local courts. Air Force judge advocates and civilian attorneys are highly qualified professionals. They are competitively selected, undergo regular training, and commanders at all levels routinely seek them out for advice on the full spectrum of Air Force practice. There is every reason to believe they can master the law necessary to perform well in an ELAP. If a base office and MAJCOM decide to undertake an ELAP, fear of potential lawsuits should not dissuade them.
While resources and personnel will continue to be an issue, the Scott Air Force Base's ELAP experience shows establishing an ELAP does not necessarily mean a legal office has to increase the resources devoted to that portion of its practice. Even so, the recent personnel losses due to Force Shaping coupled with the recognition legal offices must prioritize other areas--especially military justice--over legal assistance means the Air Force should take every opportunity to maximize the impact of its remaining resources. An ELAP provides just such an opportunity because it leverages the talent of our paralegals and multiplies the effectiveness of the legal assistance attorneys. It is worth reiterating the paralegal's role in the ELAP is critical. While the legal assistance attorney will supervise their work, the paralegals will effectively run the ELAP. After interviewing the client, they will determine if the client meets the ELAP's statutory financial and legal criteria and ensures there are no representational conflicts. In addition to preparing all court-related documents for attorney review, the paralegals will be responsible for communicating with the court clerk and making all necessary arrangements with the clients and the attorney. As at Scott Air Force Base, once the ELAP is running, any attorney in the office can use the approved documents prepared by the paralegals and make any required court appearances. While an ELAP may be new to most offices, the experience at Scott Air Force Base shows an ELAP is not likely to overburden the office. To the contrary, the attorneys and paralegals reported favorable results and were looking for additional ways to assist their clients when they disbanded the program. If, however, an office believes an ELAP is too burdensome, they are under no obligation to continue to provide the service. Legal assistance, as noted earlier, is on a space available basis. The alternative to ELAP is to maintain our current practice of referring our most destitute and vulnerable clients to the civilian bar--hoping they are able to find either sympathetic civilian counsel or struggle through their legal issues on their own. (144)
Though Section 1044(d) permits legal assistance attorneys to practice in the civilian courts on behalf of indigent clients, the possibility exists a local bar would object to uniformed officers representing clients in civilian courts. Such a concern, if it exists, is misplaced. Clients eligible for in-court representation are not paying clients. By statute, only those clients for whom paying legal fees would constitute an "undue hardship" are eligible for this service. The best remedy for what may appear to be government interference with their livelihood is an out-reach program like the one employed by Scott Air Force Base. After encountering opposition from the local bar, Scott Air Force Base attorneys explained how their service extended only to those who could not otherwise afford professional legal help. Once that became clear, they report receiving more support from the local bar. It is conceivable there will be a segment of the local bar that objects to ELAP despite even the most compelling out-reach program. A base's decision on whether to initiate an ELAP should be driven by a reasoned assessment of the needs and resources of the office and not on the obstinate refusal of the few who will only be satisfied by a total ban on the effort. Finally, the existence of other resources designed to help the poor such as Legal Aid Societies and the American Bar Association's referral service are helpful but not a complete answer to the lack of effective legal representation for indigent clients. Even with a robust ELAP, the need for these services will far outstrip the demand. (145)
Once approved, the new Air Force Instruction on legal assistance will provide Air Force practitioners with an opportunity for a new direction in how legal assistance professionals provide this important service. Unlike the Army and Navy, the new instruction will permit Air Force legal assistance attorneys to take advantage of the preemptive language of Section 1044(d) and relieves them of the burden of complying with state licensing requirements. Effective teaming with paralegals will increase the efficiency, effectiveness, and ability of legal assistance attorneys to provide quality legal service. Significantly, in-court representation will enable legal assistance attorneys to protect service members from unscrupulous merchants and do more than write letters and request negotiations. Outreach to the local judiciary will be important and should emphasize ELAP is limited to indigent clients who would otherwise not be represented. While resources and manning will continue to be issues, an effectively run ELAP leverages already existing resources and should not overburden an office. Offices able to provide this enhanced service should be empowered to do so. Legal offices can build upon the experience of successful ELAPs at Fort Lee and Scott Air Force Base. While the attorneys and paralegals will benefit from the experience and training only a courtroom can provide, the best reason for initiating an ELAP is that it will benefit an underserved and largely unrepresented portion of our military community.
COLONEL FELIX A. LOSCO *
* Col Felix A. Losco, Judge Advocate, United States Air Force (J.D., Mercer University (1984); M.S., Northwestern University (1977); B.S., Penn State University (1975)) serves as the Deputy Staff Judge Advocate at Headquarters, Air Mobility Command, Scott Air Force Base, Illinois. He is a member of the Massachusetts Bar. The author wishes to express his appreciation and thanks to Lt Col Christopher C. Bazeley for his thoughtful review and helpful comments.
(1) E-mail from Lt Col Thomas F. Collick, Chief, Community Legal Services Division, to author (Nov. 24, 2014 16:08 CT) (on file with author). The new instruction will be entitled: U.S. Dep't of Air Force, Instr. 51-504, Legal Assistance, Special Victims' Counsel, Notary, Preventive Law, and Tax Programs.
(2) U.S. Dep't of Air Force, Instr. 51-504, Legal Assistance, Notary, Preventive Law, and Tax Program, para. 1.2 (October 27, 2003) discusses the scope of legal assistance. It lists nine situations where legal assistance attorneys are prohibited from forming an attorney-client relationship. Para. 1.2.9 forbids representation of a client in a court or administrative proceeding. On January 24, 2013, The Judge Advocate General (TJAG) amended this provision through a Guidance Memorandum (which was re-issued without change on October 22, 2014). The revised paragraph 1.2.9 reads: "Representation in a court-martial or administrative proceeding, unless acting as a SVC [Special Victims Counsel]." Because this change applied to courts-martial and not all "courts," the change appeared to remove the previous version's blanket prohibition against providing representation in courts or administrative proceedings. In a November 24, 2014 e-mail, Lt Col Collick confirms no expansion of representation was intended by this change. See supra note 1.
(3) Id. at para. 1.2.8.
(4) Id. at para. 1.3. AFLOA/CLSL is the Air Force Legal Operations Agency, Community of Legal Issues Division.
(5) U.S. Dep't of Army, Reg 27-3, Army Legal Assistance Program, para 3-7(g)(4) (21 Feb. 1996), and U.S. Dep't of Navy, Navy Legal Assistance Program, JAG Instruction 5801.2B, para 13-4(b) (15 Feb 13).
(6) The Army established the first legal assistance program with the publication of War Dep't Circular 74, Legal Advice and Assistance for Military Personnel (16 Mar 43). Three months later, the Navy created their own program. See Letter, JAG:J:JL, Legal Assistance for Navy Personnel (26 Jun 1943), reprinted in Dep't of Navy, Navy Bulletin R-1164 (1 Jul 1943). In December 1943, the Army Air Force established its legal assistance program. See Dep't of Army-Air Forces Reg. 110-1 (23 Dec 1943). In 1947, the Air Force became a separate service. Initially, the Air Force provided legal assistance in accordance with a directive inherited from the Army. On 17 Mar 1950, the Air Force published it first legal assistance regulation, AFR 110-1. Prior to the enactment of 10 U.S.C. [section] 1044, the statutory authority for legal assistance was derived from the service secretaries' obligation for "Administering (including the morale and welfare of personnel) and assigning officers to perform these duties as set out in 10 U.S.C. [section] 8013(a)(2)(b)(9) and 10 U.S.C. [section] 8013(g)(1). The Army and Navy have identical statutes for their services at 10 U.S.C. [section] 3013 and 10 U.S.C. [section] 5013, respectively.
(7) Col Alfred F. Arquilla, The New Army Legal Assistance Regulation, Army Law, May 1993, at 1-5.
(10) 42 U.S.C. [section] 2809 (1981), repealed by Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, [section] 683(a), 95 Stat. 519 (1981).
(12) Captain Jack S. Bender, III & Captain Alessandro J. Ranciglio, The Air Force Pilot Expanded Legal Assistance Program, 14 A.F. L. Rev. 173,176.
(13) F. Raymond Marks, Military Lawyers, Civilian Courts, and the Organized Bar: A Case Study of the Unauthorized Practice Dilemma, 56 Mil. L. Rev. 1 (1972). The intent of the pilot program was to provide representation to needy military personnel and their families to the same extent as provided by the OEO.
(14) Bender & Ranciglio, supra note 12, at 177.
(15) Id. The Air Force used the OEO's financial guidelines to determine which of their legal assistance clients would be eligible for this program.
(16) Id. at 181.
(17) Id. at 181. The legal assistance regulation at the time, A. F. Reg. 110-22, paras 4(a) and 4(b), stated legal assistance attorneys "... cannot appear in person or by pleading before any domestic or foreign court, tribunal, or government agency."
(21) Brigadier General Joseph R. Lowry, Oral History of Brigadier Joseph R. Lowry (Ret), United States Air Force History Office, Maxwell AFB AL, 17 Apr 1996, 94-95.
(22) Id. at 94.
(25) Bender & Ranciglio, supra note 12, at 177.
(26) Id. at 178. At the time referenced in the article, the authors reported Illinois officials had "... rebuffed all attempts to gain approval for the use of out-of-state attorneys in the program ..." Later, the Illinois Supreme Court adopted a rule permitting Air Force legal assistance attorneys access to their courts. See infra note 93.
(28) Id. at 177.
(30) Id. at 180. On Feb. 1, 1972, the Missouri Supreme Court adopted Rule 9.04 permitting Judge Advocates to represent indigent military personnel or their dependents provided those individuals could not pay a fee for the service involved. The rule was amended Nov. 20, 1990 and is still in effect.
(33) Bender & Ranciglio, supra note 12, at 181-183.
(34) Id. The Federal Tort Claims Act is codified at 28 U.S.C. [section] 1346(b).
(41) Telephone Interview with Lt. Col. Thomas Collick, Chief, Legal Assistance Policy Division (Dec. 16, 2014). While there are no current Air Force ELAPs, there have been occasions when Air Force legal assistance attorneys have routinely appeared in court on behalf of their clients. For example, the Warner Robins Air Logistics Center Legal Office received permission to establish an ELAP on Nov. 30, 1989. Between that date and 2011, a legal assistance attorney licensed in Georgia provided in-court representation to 20 to 25 clients per year. Typical cases involved local merchants, landlord/tenant issues, and simple adoption cases. They report their ELAP encouraged local merchants to treat their clients fairly and did not substantially increase their workload. In 2011, office leadership decided to devote ELAP resources to other areas. (E-mail from Debra Stone, Chief, Civil Law Division, 78 ABW/JA, to author (Dec. 16, 2014 14:55 CST) (on file with the author)).
(42) U.S. Dep't of Army, Reg. 27-3, Army Legal Assistance Program, para 3-7(g) (21Feb. 1996).
(43) U.S. Dep't of Navy, Navy Legal Assistance Program, JAGINST 5800.7E, para 0711 (February 15, 2013).
(44) U.S. Dep't of Army, Reg. 27-3, Army Legal Assistance Program, 27-3, para 3-7(g)(1) (February 21, 1996).
(45) Id. at para 3-7(g)(1), 3-7(g)(4)(a), and 3-7(g)(4)(b). The supervising Army attorney is authorized to approve representation for an individual case or a category of cases.
(47) E-mail from Mr. John T. Meixell, Chief, Legal Assistance Policy Division, Headquarters, Dep't of the Army, to author, (December 15, 2014. 9:48 AM) (on file with author).
(50) E-mail from Ms. Rhonda Mitchell, Chief, Client Services, at Fort Lee, VA to author, (Dec. 16, 2014, 20:28 CST) (on file with the author).
(53) Id. Ms. Mitchell also reports uniformed out-of-state Army Judge Advocates also appear on behalf of legal assistance clients under the supervision of licensed Virginia attorneys. See supra e-mail referenced in note 50.
(54) U.S. Dep't of Navy, Navy Legal Assistance Program, JAGINST 5801.2B, para 13-1 (February 15,2013).
(57) Id. at para 13-4.
(58) E-mail from Lt. Caleb T. Christen, Code 16, Legal Assistance, Washington Navy Yard, DC., to author, (December 30, 2014, 11:42 CST) (on file with the author).
(61) U.S. Dep't of Navy, Navy Legal Assistance Program, JAGINST 5800.7E, para 0711 (February 15, 2013) and AR 27-3, para 3-7(g) (February 21, 1996).
(62) 10 U.S.C. [section] 1044(a).
(63) 10 U.S.C. [section] 1044(c).
(65) Officers in the Public Health Service were added on 23 Sept. 96, (Pub. L. No. 104-201 [section] 583, 110 Stat. 2538 (1997)). Certain reserve component members became eligible on October 30, 2000 (Pub. L. No. 106-398 [section] 524, 114 Stat. 1654A-108 (2000)). Survivors of deceased members or former members became eligible on January 28, 2008 (Pub. L. No. 110-181 [section] 541, 122 Stat. 114 (2008). Most recently, victims of sexual assault became eligible on Dec. 26, 2013 (Pub. L. No. 113-66 [section] 1716, 127 Stat. 966 (2013)).
(66) There have been two administrative amendments (Pub. L. No. 111-84 [section] 513, 123 Stat. 2282 (2009) and Pub. L. No. 112-239 [section] 531(d)(2), 126 Stat. 1725, 1726 (2013)). On 28 Oct 09, Congress changed the reference to "Secretary of Defense" in 10 U.S.C. [section] 1044(a)(4) to Secretary. Congress' second technical amendment was enacted on January 2, 2013. This change made clear that within the Marine Corps, the Staff Judge Advocate to the Commandant (like the other Services) is responsible for establishing and supervising legal assistance programs under this section.
(67) 10 U.S.C. [section] 1044. This is how this subsection first appeared after its 6 Jan 2006 enactment. As noted supra note 65, the most recent amendment added victims of sexual abuse to the definition of "military legal assistance" by referencing 10 U.S.C. 1044(e) and 10 U.S.C. [section] 1565(b)(a)(1)(A). The amendment required the newly created "Special Victims' Counsel" be certified and designated by the Judge Advocate General of the armed force of which the judge advocate is a member. 10 U.S.C. [section] 1044 also permits Special Victims' Counsel to provide sexual assault victims legal assistance with "personal civil legal matters" in accordance with 10 U.S.C. [section] 1044. See 10 U.S.C [section] 1044(e)(b)(8) (A).
(68) 10 U.S.C. [section] 1044(a).
(69) 10 U.S.C. [section] 1044(c). The Army and Navy have used this provision to authorize their own in-court representation programs. Both defer to state authorities rather than rely on the access permitted by 10 U.S.C. [section] 1044(d). See AR 27-3, para 3-6(g) (21 Feb 1996) and JAGINST 5801.2B, para 13.1 (15 Feb 13).
(70) Leis v. Flynt, 439 U.S. 438, 442 (1979).
(71) U.S. Const, art. VI, cl. 2, states: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or laws of any State to the Contrary notwithstanding."
(72) Id. The U.S. Supreme Court has long recognized Congress' power to preempt state law in accordance with the Supremacy Clause, U.S. Const, art. VI, cl. 2; See Gibbons v. Ogden 22 U.S. 1 (1824).
(73) Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541, (2001).
(74) Wyeth v. Levine, 555 U.S. 555, 565 (2009). "In all preemption cases, and particularly in those in which  Congress has legislated ... in a field which the States have traditionally occupied, ... [courts] start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."
(75) Fellner v. Tri-Union Seafoods, L.L.C. 539 F.3d 237, 249 (3d Cir. 2008), (quoting Hillsborough Cnty. v. Automated Med. Labs, Inc., 471 U.S. 707,715 (1985)).
(76) Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996).
(77) National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163 [section] 555 119 Stat 3265 (2006).
(78) 10 U.S.C. [section] 1044(d).
(79) 439 U.S. 438, 99 S. Ct. 698, 58 L. Ed. 2d 717, (1979).
(80) Leis, 439 U.S. at 443. The attorneys objected to the summary dismissal of their pro hac vice application. They believed they had a due process right to a hearing before the Ohio judge where he would be required to provide them an explanation for his decision denying them access to the Ohio court.
(83) 10 U.S.C. [section] 1044(b)(a).
(84) Id. [section] 1044(c)(a).
(85) Id. [section] 1044(d)(a). State control of probate issues--especially as regards the legal sufficiency of testamentary instruments and devising of property within its borders--is an inherent sovereign power which has a long history of recognition by both state and federal courts. See Mager v. Grima, 49 U.S. 490 (1850) and Hall v. Vallandingham, 540 A.2d 1162 (Md. Ct. Spec. App. 1988). A federal mandate requiring States to accept Federal guidance with respect to these issues shows the reach of federal power is indeed broad when employed to protect its service members. See Nowell D. Bamberger Are Military Testamentary Instruments Unconstitutional? Why Compliance with State Testamentary Formality Requirements Remain Essential, 196 Mil. Law Rev. 91 (2008).
(86) 50 U.S.C. app. [section] 521. In addition to delaying the proceeding when a military member fails to appear, this section also requires the appointment of an attorney to represent the military defendant.
(87) Id. app. [section] 526.
(88) Id. app. [section][section] 534-535.
(89) Id. [section] 531.
(90) Id. [section] 527.
(91) Id. [section] 533.
(92) 38 U.S.C. [section][section] 4301-4333.
(93) 10 U.S.C. [section] 1054 and 28 U.S.C. [section] 1346(b); 2671-2680.
(94) M.R. 2799, Supreme Court of Illinois (1 Jul 1998). The Illinois Supreme Court specifically authorizes military legal assistance attorneys to represent indigent legal assistance clients. The senior legal officer for each Service stationed in Illinois identifies the attorneys who will be appearing on behalf of their clients. When entering an appearance, the legal assistance attorney files a copy of this authorization with the court clerk.
(95) Letter from Irwin W. Haskins III, Past President of the North Carolina State Bar, to William H. Neukom, Immediate Past President and General Earl E. Anderson, Chair-Standing Committee on Legal Assistance for Military Personnel, American Bar Association, (Nov. 12, 2008). Mr. Haskins acknowledges 10 U.S.C. [section] 1044 "... pre-empts any state law that would otherwise prohibit appearances by military attorneys in state courts." Without preemption, legal assistant attorneys would have to comply with N.C. R. St. Bar Subchap. ID, [section] D.0905. This statute permits out-of-state attorneys to provide pro bono legal services to indigent clients in North Carolina. The out-of-state attorney must apply for admission at least thirty days prior to the quarterly meeting of the State Bar Council's Administrative Committee. In addition, the out-of-state attorney must associate with a North Carolina lawyer at a supporting nonprofit legal services corporation who will supervise the out-of-state attorney's work.
(96) Wash. Rules of Court [section] (g). Washington permits Judge Advocates (vice civilian military legal assistance attorneys) to represent indigent legal assistance clients but requires them to take 15 credit hours of approved continuing legal education.
(97) Fla. Bar Reg. R. 18-1.2. While Florida does authorize military legal assistance officers to practice in its courts, it requires they report to a supervising attorney who is a Florida bar member. The state also requires military legal assistance officers complete a training course.
(98) Cal. Rules of Court, Rule 9.41.
(99) Del. Sup. Ct. R. 55. Military legal assistance attorneys not licensed in Delaware are required to comply with Delaware's "limited practice" rule. It requires out-of-state lawyers to affiliate with a state-recognized legal assistance program. The military's legal assistance program is not recognized by this state.
(100) Ark. Sup. Ct. Adm. Order No. 15.2. Military legal assistance attorneys not licensed in Arkansas are required to comply with the state rule on pro bono attorneys. Arkansas requires non-admitted lawyers to be part of state-recognized legal aid service provider. The local court may also require the military legal assistance attorney to associate with an Arkansas lawyer before being permitted to practice in the state. The military's legal assistance program is not recognized by this state.
(101) Kan. Sup. Ct. Rule 208. This rule provides only attorneys "registered" with the state may practice law in Kansas. Military legal assistance attorneys not licensed in Kansas would have to apply for admission pro hac vice in accordance with Kan. Sup. Ct. Rule 116. This would have to be accomplished on a case-by-case basis and there is a $100 fee for each application. In addition, a Kansas attorney would have to be associated with the case.
(102) N.J. Court Rules, R. 1:21-1. New Jersey requires all attorneys practicing in its courts to "... hold a plenary license to practice in this State ..." New Jersey does permit out-of-state attorneys to represent the poor through incorporated legal assistance organizations. The state requires the outof-state attorney to work through a member of the New Jersey bar.
(103) N.D. Admission to Practice Rule 3.1. North Dakota permits out-of-state attorneys to provide legal assistance "... to individuals who are unable to pay for such services ..." Out-of-state lawyers providing this service have to have engaged in the practice of law for at least five of the last ten preceding years. This provision would restrict appearances to the more senior judge advocates assigned to Grand Forks AFB.
(104) Rule 402, SCACR and Rule 410, SCACR. The former sets out the requirements for admission to the South Carolina bar. The latter precludes anyone not admitted to practice law in South Carolina. There are exceptions for certain law school professors (Rule 402(m), SCACR), but none for military attorneys. JAG attorneys who have served more than six months on active duty, are licensed in South Carolina, and elect to become "military members" of the South Carolina bar cannot practice law in South Carolina "... outside their duties in the Armed Forces of the United States." Presumably, if the South Carolina JAG's duties involved providing military legal assistance, the attorney could appear in South Carolina courts on the client's behalf. Aside from that possibility, out-of-state judge advocates serving in South Carolina would have to comply with Rule 404, SCACR, South Carolina's pm hac vice rule. In addition to a $250 fee (Rule 404(e), SCACR), South Carolina requires a South Carolina attorney be associated with the case (Rule 404(a), SCACR).
(105) See supra note 41.
(106) 10 U.S.C. [section] 1044(2015).
(107) H.R. Rep. No. 98-1080. This report accompanied the 1984 statute authorizing the Services to provide legal assistance. The report made it plain the statute's purpose was to "clarify the existing status of the benefit" and included the comment: "The conferees further intend that the adoption of this provision should not be interpreted to support requests for additional facilities or personnel beyond that required to accomplish the direct military mission."
(108) Capt. Bob Brady, Uncontested Divorces: What We Can Do For Our Clients, The Reporter, Vol. 40, No. 1., page 33 (2013), http://www.afjag.af.mil/library/index.asp.
(109) E-mail from Col. Felix A. Losco, AMC/JA, to Col. Marlesa K. Scott, AFLOA, (29 Aug 2011, 2:53 PM) (on file with the author).
(110) Deployment and mobilization related legal assistance has the highest priority and is not limited to will preparation. The impact of the client's legal problem on his/her command's ability to mobilize or deploy the service member is the most important criteria in determining the priority given to the service member's problem. U.S. Dep't of Air Force, Instr. 51-504, Legal Assistance, Notary, Preventive Law, and Tax Program, para 1.1 (October 27, 2003). On that basis, resolution of a dysfunctional marital situation is an area which should be a priority for legal assistance practitioners. After wills and estates, domestic relations is consistently the second most cited reason clients seek assistance from our legal offices. Lt. Col. Tom Collick and Maj. Karin Peeling, 2015 Legal Assistance Annual Refresher (29 Jan 15), https://flite.jag.af.mil/?id=28872&length=0&grade itemid=5585.
(112) Letter from Lt. Gen. Richard Harding, AF/JA, to AMC/JA (Aug 3, 2011) (on file with the author).
(113) Ill. Sup. Ct, Order M.R 2799 (1 Jul 1998). State permission for legal assistance attorneys to represent clients in local courts is not required. At the time, the program participants did not appreciate the federal preemption of state licensing requirements by 10 U.S.C. [section] 1044(d) provided an additional basis authorizing their appearance in the civilian court.
(114) Id. The Ill. Sup. Ct. Order is consistent with 10 U.S.C. [section] 1044(c), which limits representation in a legal proceeding to clients who "...could not afford legal fees without undue hardship."
(115) Ill. Sup. Ct., Rule 707, Pro Hac Vice (effective Jul 1, 2007) and amended by M.R. 3140 on June 18, 2013 and effective on Jul 1, 2013.
(117) E-mail from Capt. Michael J. Garcia, 375 AMW/JA, to Col. Felix A. Losco, AMC/JA, (16 Dec 13, 11:46 AM)(on file with the author).
(118) See supra note 106.
(120) Id. at 35.
(121) Id. at 34.
(124) The representation agreement signed by the client advised they would be responsible for all fees. E-mail from the author to Col Marlesa K. Scott, AFLOA, (29 Aug 2011, 2:53 PM)(on file with the author).
(125) See supra note 106.
(127) Id. at 35.
(128) Id. at 34.
(129) Id. at 33.
(131) Id. at 35.
(133) Id. He also noted the legal office spent between six and eight hours (including court time) for each client.
(134) E-mail from Capt. Michael J. Garcia, 375 AMW/JA, to Col. Felix A. Losco, AMC/JA, (16 Dec 13,11:46 AM) (on file with the author).
(135) See supra note 113.
(136) While understandable, their concern about the impact of the amended version of Ill. Sup. Ct. Rule 707 on their ability to appear in Illinois courts was misplaced. As confirmed by Ms. Mary Grochocinski, Deputy Director of Illinois' Attorney Registration and Disciplinary Commission, military attorneys seeking to represent indigent military personnel or their families in civil matters need not comply with this rule. E-mail from Mary Grochocinski, Deputy Registrar. Illinois Attorney Registration and Disciplinary Commission, to Col. Felix A. Losco, AMC/JA (27 Mar 2015, 8:06 AM) (on file with the author).
(137) The document preparation, client screening, and case management skills the paralegals demonstrated are transferable to other areas of Air Force practice and would be of interest to a future civilian employer.
(138) See supra note 113. Despite the favorable report, ELAP at Scott Air Force Base was not continued.
(139) See discussion supra note 50. The Air Force ELAP at Warner Robins Air Force Base reported similar results. See supra note 41.
(141) The Services' Judge Advocate Generals recognized the importance of in-court representation of legal assistance clients. In support of the American Bar Association s initiative to expand ELAP, the Services' TJAGs issued a joint letter which included the following:
The most powerful option available to an attorney is the ability to defend or enforce a right in court. In jurisdictions where the local community knows a judge advocate s practice cannot extend beyond simply writing letters and requesting negotiations, servicemembers often find themselves unable to achieve a fair resolution of even the most frivolous legal issues. On the other hand, when servicemembers have access to local courts it levels the playing field and helps ensure just outcomes.
Letter from Maj. Gen. Jack L. Rives, Air Force TJAG, Maj. Gen. Scott C. Black, Army Judge Advocate General, Rear Admiral Bruce MacDonald, Navy Judge Advocate General, and Brig. Gen. James C. Walker, Marine Corps Staff Judge Advocate to the Commandant of the Marine Corps, to the State Bar Presidents and Executives, (May 2, 2008) (on file with the author).
(142) As noted in discussion at supra note 33, this was a concern of an earlier generation of legal assistance attorneys. Their concerns state negligence law might require them to purchase malpractice insurance were addressed when Congress enacted 10 U.S.C. [section] 1054(a). This statute makes the Federal Tort Claims Act the exclusive remedy for "... damages for injury or loss of property caused by the negligent or wrongful act of any person who is an attorney, paralegal, or other member of a legal staff within the Department of Defense...." 10 U.S.C. [section] 1054(a) (2015).
(143) Not being in court does not mean the Air Force cannot be sued for legal malpractice. Clients have brought legal malpractice suits against legal assistance attorneys for advice given in their office. See Mossow v. United States, 987 F.2d 1365, 1993 U.S. App. LEXIS 4556 (8th Cir Minn 1993).
(144) See supra note 1.
(145) Deference to state authorities has not resulted in an increased willingness of civilian attorneys to represent indigent military clients. Despite the commendable efforts of groups like the American Bar Association (ABA), civilian attorneys have not accepted cases from indigent military clients in great numbers. In 2014, Air Force attorneys referred a total of 109 cases to the ABA's Military Pro
Bono Project. Of these, 47 were placed with civilian lawyers. This number is a small fraction of the number of clients seen by legal assistance attorneys. In 2014, legal assistance officers met with 16,164 domestic relations clients. See Lt. Col. Tom Collick and Maj Karin Peeling, 2015 Legal Assistance Annual Refresher (29 Jan 15) at https://flite.jag.af.mil/?id=28872&length=0&gradeit mid=5582015. An ELAP of the type described will not significantly change these numbers but it will afford those clients who are eligible for this service representation they would not otherwise receive.
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|Author:||Losco, Felix A.|
|Publication:||Air Force Law Review|
|Date:||Dec 6, 2015|
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