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The Army Lawyer (ISSN 0364-1287) THE ARMY Headquarters, Department of the Army Department of the Army Pamphlet 27-50-248 July 1993 Table of Contents Memorandum From The Judge Advocate General ...................................................................................................................................... 3 Articles Rules of Engagement: A Primer ........................................................................................................................................................................................... 4 Lieutenant-Commander Guy R. Phillips International Child Abduction Remedies ............................................................................................................................................................................... 28 Major W.A. Stranko USALSA Report ............................................................. ...................................................................................... 36 United States Army Legal Services Agency Clerk of Court Notes .......................... ..................................................................................................................................................................... 36 Waiving Appellate Review; Help Wanted from Trial and Defense Counsel: Overseas Travel of Witnesses; ACMR Published Opinions Available on LAAWS Bulletin Board; Court-Martial Processing Times; Court-Martial and Nonjudicial Punishment Rates TJAGSA Practice Notes .............................................................. .......................................................... 38 Faculty, The Judge Advocate General‘s School ......................................... .......................... .......... 38 Criminal Law Notes ................................................................................................................................................................................... ......... 39 COMA Further Extends the Good-Faith Exception: United States v. Chapple; When Is A Foreign Search or Seizure “Participated In” by United States Personnel? Army Court of Military Review Gives Guidance in United Srates v. Porter International Law Note ................................................................................................................................................... ............... 44 NEPA in the “Global Commons” Legal Assistance Items ......................................................................................................................................................................................................... 45 Consumer Law Note (Legal Assistance Attorneys Are Not Debt Collectors); Estate Planning Note (Uniform Statutory Will Act); Tax Note (Failing to File a Timely Return: Holder Y. Commissioner Examines the Financial Liability) ....................................................................................... ........................................................................... 48 ims Information); Management Note (Base Realignment and Closure) Professional Res ........................................................................................................................................................ 49 OTJAC Standards of Conduct Ofice f Ethical Awareness; Professional Responsibility Opinion Number 92-6 Notes from the Field ............... 52 Are Military Clauses Necessary or I CLE News .................. ....................................................................................... ......................................... .... 52 Current Material of Interest ....................................... .......................................... ..... 57 .... The Army Lawyer (ISSN 0364-1287) Editor Captain John B. Jones, Jr. The Army Lawyer articles are indexed in the Index to Legal The Army Lawyer is published monthly by The Judge Advocate Periodicals, the Current Law Index, the Legal Resources Index, and the General's School for the official use of Army lawyers in the performance of their legal responsibilities. The opinions expressed by the authors in Index to U.S.Government Periodicals. the articles, however, do not necessarily reflect the view of The Judge Individual paid subscriptions are available through the Superintendent Advocate General or the Department of the Army. Masculine or of Documents, U.S. Government Printing Office, Washington, D.C. feminine pronouns appearing in this pamphlet refer to both genders 20402. unless the context indicates another use. The Army Lawyer welcomes articles on topics of interest to military lawyers. Articles should be typed double-spaced and submitted to: Editor, The Army Lawyer, The Judge Advocate General's School, U.S. Provide changes to the Editor, The Army Lawyer, TJAGSA, Army, Charlottesville. Virginia 22903- 178 1. Footnotes, if included. Charlottesville. VA 22903-1781. should be typed double-spaced on a separate sheet. Articles also should Issues may be cited as ARMYLAW., [date], at [page number]. be submitted on floppy disks, and should be in either Enable, WordPerfect, Multimate, DCA RFT, or, ASCII format. ,Articles should Second-class postage paid at Charlottesville, VA and additional follow A Uniform System of Citation (15th ed. 1991) and Military mailing offices. POSTMASTER: Send address changes to The Judge Citation (TJAGSA, July 1992). Manuscripts will be returned only upon Advocate General's School, U.S. Army, Attn: JAGS-DDL, specific request. No compensation can be paid for articles. Charlottesville. VA 22903-1781. DE?ARTMENT OF THE AGiMY OFFICE OF THE JUDGE ADVOCATE ZEYERAL WASHINGTON. DC 20310-ZZCG aEpLy TC AT~ENTICUti DAJA-SC (27-1) 4 June 1993 MEXORXNDUM FOR STAFF AND COWAND JUDGE ADVOCATES SLJEJECT: Supervision of Nonlawyer Assistants 1. As the Judge Advocate General's Cor2s dowF.sizes, we will have to make greater use of our military and civilian nonlawyer assistants if we are to meet the demands for legel services. 2. Gonerally, a lawyer may delegate to a nonlawyer assistant any tesk normally performed by the lawyer except those tasks proscribed to one not licensed as a lahyer by statute, court rule, administ'rative rule or regulation, the Rxles of Professional Conduct, or other controlling authority. Such delegation is subject to conditions: a. The nonlawyer's activities must b r supervision of a lahyer who takes responsiblllty for the work; t b. The nonlawyer's status must be apparent to the client; and c. Activities calling for the profession21 judgment of a lawyer, such as that required to provide a lecal opinion or legal advice to a client or legal representation to a client at a hearing or deposition, must be performed by a lawyer. 3. Contact with clients, such as serving as liaison between attorneys and clients and conducting client interviews, is permitted. Other permissible activities include gathering facts, interviewing witnesses, and drafting documents. The training and experience of nonlawyer assistants are essential factors governing their use. 4. A supervising lawyer is responsible for all of the profession21 actions of a nonlawyer assistant performing legal services at the lawyer's direction and should take reasonable measures to ensure that the nonlawyer's conduct is consistent with AR 27-26, Rules of professional Conduct for Lawyers. To this end, sapervising lawyers must be thoroughly familiar with Rule 5.3, Responsibilities of Nonlawyer Assistants, and Rule 5.5, Unauthorized Practice of Law. Supervising lawyers must take reasorable measures to ensure all client confidences are preserved end to prevent conflicts of interest resulting from a nonlawyer's other responsibilities or interests. 5. I strongly encourage all supervising attorneys in the Judge Advocate Legal Service to make maximum use of our outstanding nonlawyer assistants, and to do so in accord with the high professional standards which are our hallmark. The Judge Advocate General Rules of Engagement: A Primer Lieutenant-Commander Guy R. Phillips Canadian Forces At the evening update, the [Commander and suffering casualties as a result-is as unsatisfactory as in Chiej General H. Norman Schwarzkopf] either firing too soon-and potentially escalating a crisis-or was briefed on an incident in which an Iraqi firing at an innocent target. MiG-25 crossed the Saudi border some six to ten miles. Our aircrafi in response were These concerns are weighty enough without adding the locked on and prepared to fire when the complexities of coalition force interaction. This mode of MiG-25 turned and flew back across the warfighting appears to be more likely for future international border. The CINC reminded the operations armed conflicts.5 During the Persian Gulf War, an augmented oficer that we did not want to start the war squadron of Canadian Forces (CF) CF-18 aircraft were inte- over a single aircrafi and that we carefully grated fully into the United States Combat Air Patrol’s (CAP) should review our rules of engagement.’ schedule over the Persian Gulf. These aircraft protected Canadian, United States, and other coalition ships that were I. Introduction conducting the maritime interdiction operations in enforce- ment of the United Nations (U.N.) embargo against Iraq. With the Coalition’s success in the Persian Gulf War during Later, during Operation Desert Storm, the Canadian pilots the winter of 1990 and spring of 1991, the importance and flew in support of actual allied combatant operations.6 The role of rules of engagement (ROE) have received greater -18 pilots’ ROE had to recognize two lines
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