PRO-BONO ATTORNEY TRAINING MANUAL Representing Victims of Military Sexual Violence in the Investigation and Prosecution of the Perpetrator

PRO-BONO ATTORNEY TRAINING MANUAL Representing victims of military sexual violence in the investigation and prosecution of the perpetrator

JANUARY 2020 Protect Our Defenders (POD) is the We seek reform to ensure all only national organization solely survivors and service members dedicated to ending the epidemic of are provided a safe, respectful rape and sexual assault in the military work environment and have access and to combating a culture of pervasive to a fair, impartially administered misogyny, sexual harassment, and system of justice. retribution against victims. We honor, Protect Our Defenders provides support, and give voice to survivors free legal and other assistance for of military sexual assault and sexual military sexual assault survivors, harassment – including service including active-duty service members, veterans, and civilians members, veterans, and civilians. assaulted by members of the military.

TABLE OF CONTENTS QUICK REFERENCE: ACRONYMS

AWOL Absence Without Leave

1 What is Military Sexual 11 Options for How a Victim CA Convening Authority Violence? Can Report a Sexual Assault CAAF The United States Court of Appeals for the Armed Forces

2 Rates of Military Sexual 12 How Policy Changes Have FOIA Freedom of Information Act

Violence Impacted How Military GCM General Court-Martial Sexual Assault Cases Move GCMCA General Court-Martial 3 How Victims Find and Forward Convening Authority

Engage POD JAG Judge Advocate General

14 Step By Step Actions to MPO Military Protection Order Take, Timeline, and Time 3 The Role of Attorneys in MRE Military Rules of Evidence Commitment the Military Justice System MST Military Sexual Trauma

NDAA National Defense 6 Overview of Military Justice 19 Special Issues Authorization Act

System PHO Preliminary Hearing Officer

19 Dealing with Military SPCM Special Court-Martial Judges 9 Legal Authority — “Rules of SPCMCA Special Court-Martial the Road” Convening Authority

20 Sample Engagement Letter SVC The Special Victims’ Counsel

UA Unauthorized Absence

UCMJ Uniform Code of Military Justice

VLC Victims’ Legal Counsel WHAT IS MILITARY SEXUAL VIOLENCE?

Military sexual violence is when a member of any branch of the armed services (Army, Navy, Air Force, Marine Corps, Coast Guard, or National Guard), who is active duty or reserve (not engaged in full-time active duty service), sexually assaults or pervasively sexually harasses another person, either a fellow member of the armed services, a Department of Defense (DoD) civilian employee, or a civilian. Your client may be active duty, reserve, veteran, DoD civilian employee, or a civilian not employed by the military.

Public awareness has been heightened about the impact Furthermore, the ethos and culture of the military of sexual violence on the survivors with the advent of the promotes and requires trust in and between its members. #MeToo movement. Much like the stories we have heard The job functions literally can require life or death decision- about the dynamics of sexual violence in the entertainment making and an enduring commitment to “having each and business industries, the perpetrators often have other’s back.” Moreover, the military is consistently voted — and exploit — much higher levels of influence, control, the most admired institution in America. and command. This dynamic exists in the military, where Consequently, sexual assaults committed by service the command level, rank, length of service, and assigned members are a particularly shocking violation of trust duty is explicitly stated and enforced as an integral part from the survivors’ perspective. In addition to this sense of of the military structure. betrayal, there is additional fear and distrust because the One of the unique and particularly troubling aspects of command structure that is in place to ensure order and sexual violence in the military is that the perpetrator and discipline is the same command structure that is tasked the victim not only often work together, but often live in with investigating and prosecuting the crime. This “double very close proximity to each other (on the same base, in the duty” of the commander can create innate conflicts of same unit*, maybe even in the same barracks/ship, etc.). interest, which we will discuss more fully below.

* Each branch of the military has its own terms for If your client is a veteran and the military sexual violence its ranks, roles, and structures. When you first happened while s/he was active duty or reserve, there are meet with your client, ask him/her to give you a quick briefing on their particular branch. It will many ways in which the military sexual violence can and go a long way toward building trust that you are must be taken into consideration by: an administrative interested in learning the unique terminology process within the branch in which your client served and culture of that branch. There are also some great online “courses” that will give you a good regarding discharge level if your client received a discharge overview of military culture and norms. at a lower level that s/he feels was warranted; and by the US Department of Veterans Affairs (VA) in determining the The Veteran 101: Service Branch Overview can be viewed here. disability rating received by your client from the VA.

What is Military Sexual Violence? Military Justice System Overview Step by Step Actions & Timeline Rates of Military Sexual Violence Legal Authority Special Issues How Victims Find and Engage POD Victim Reporting Options Military Judges Roles of Attorneys Impacts of Policy Changes

PRO-BONO ATTORNEY TRAINING MANUAL 1 Both the discharge and disability rating have a direct correlation to whether your client is eligible for any For an overview of how the VA benefits, the amount of monetary support and/or retirement defines Military Sexual Trauma benefits they may receive, and whether your client can (MST) and the services available to victims of MST, click here. receive physical and mental health care from the VA.

The military and the VA use the term Military Sexual Trauma (MST) to refer to sexual offenses that occur against * Those other organizations rely heavily on pro bono attorney assistance as someone in the military (active duty or reserve). If your well, so you could continue to represent your client in those matters with client needs help with their history of MST, their discharge the training and mentorship of those organizations. level or any issues with the VA, please contact Protect Our For additional information on the ways that survivors of MST have Defenders (POD) and we will connect your client to other experienced long-lasting impact on their careers, financial stability, organizations that specialize in those legal areas.* and ability to access assistance from the VA, click here.

RATES OF MILITARY SEXUAL VIOLENCE

Annually, the U.S. Department of Defense (DoD) — which oversees all branches of the military except the Coast Guard — is required by Congressional mandate to issue a report to Congress reporting on the rates of sexual assault, and other relevant data points, for each branch of the military.

The DoD Sexual Assault Prevention and Response (SAPR) POD works to educate the public and policymakers on is responsible for collecting the data and issuing the the crisis of sexual violence in the military. POD’s policy annual SAPR report. POD analyzes that data and priorities to create systemic change are enumerated here. makes its easily accessible through its website. Many of the improvements to the system in which you will be representing your client can be attributed to the Despite consistent attention to the issue of military advocacy of POD. sexual violence at the DoD level since the Tailhook scandal of the early 1990s (and some would even say For a well-articulated overview of the challenges facing before then), the rates of sexual violence remain survivors of military sexual violence, read this law review pervasive and alarmingly high. article, Protecting Our Defenders: The Need to Ensure Due Process for Women in the Military Before Amending the Selective Service Act, Kelsey L. Campbell, Hastings Constitutional Law Quarterly, Vol. 45, No. 1, Fall 2017.

PRO-BONO ATTORNEY TRAINING MANUAL 2 HOW VICTIMS FIND AND ENGAGE POD

Most survivors of military sexual violence who contact POD have learned about POD through word-of-mouth from fellow service members, from Congressional offices, or from internet searches.

All potential clients are asked to complete an on-line For the cases that fall within POD’s area of service, our intake form prior to a representative of POD speaking intake staff then speak with the survivor by phone to get a with them. Through that intake form we are able to gather more thorough understanding of the facts. In consultation important information such as: their branch of service and with POD’s President, Col. (Ret.) Don Christensen, former rank (or civilian status) of the survivor, the branch and chief prosecutor for the Air Force and military judge, POD rank of the perpetrator, the status of the investigation and determines whether a case is appropriate for placement court martial proceeding, and what issues they are facing. with a pro bono attorney.

Our staff, Don, and other experts who are associated with POD (some long-term pro bono attorneys) are available to mentor you and provide you with advice and consultation throughout your representation of the client.

THE ROLE OF ATTORNEYS IN THE MILITARY JUSTICE SYSTEM

THE SPECIAL VICTIMS’ COUNSEL (SVC)/VICTIMS’ LEGAL COUNSEL (VLC)

Starting in 2012, the Air Force led the military in establishing the Special Victims’ Counsel * The United States Court of Appeals for (SVC) program. In August 2013, Secretary of Defense Chuck Hagel ordered the Secretaries the Armed Forces exercises worldwide appellate jurisdiction over members of all the branches to establish similar victims’ counsel programs. This program is called of the armed forces on active duty and the Victims’ Legal Counsel (VLC) in the Navy and SVC in all other branches. The role of the other persons subject to the Uniform SVC/VLC is to represent the victim in the court martial proceeding and enforce the rights Code of Military Justice. The Court is composed of five civilian judges provided to victims of sexual assault and (as of 2019) domestic violence, in those proceed- appointed for 15-year terms by the ings — most importantly the rights afforded by Military Rules of Evidence 412 and 513. President with the advice and consent of the Senate. Cases on the Court’s The right to independent counsel for the victim is further affirmed under case law docket address a broad range of legal issues, including constitutional law, established in LRM v. Katsenberg, 72 MJ 364 (2013) in which the United States Court of criminal law, evidence, criminal Appeals for the Armed Forces* states that the victim has an absolute right to have a procedure, ethics, administrative law, representation through the SVC/VLC or independent counsel. and national security law. Decisions by the Court are subject to direct review by the Supreme Court of the United States.

PRO-BONO ATTORNEY TRAINING MANUAL 3 PRO BONO COUNSEL (YOU!!)

Though there is the SVC/VLC assigned to the survivor, Another reason that civilian attorneys are necessary is there is still an important role for civilian attorneys in because victims who are civilians are not entitled to an representing the victim. First and foremost, is that the SVC/VLC. POD will take on these cases and find an attorney civilian attorney (YOU) is from outside the military and to represent the civilian victim in the court martial case. has no real or perceived conflicts of interest. The The court-martial process is confusing even for victims assigned SVC/VLCs are under the same command as the who are military members. For civilian victims, all aspects accused, the victim, and the JAGs assigned to the case. of the military are likely foreign to them, but especially the Though this is true for any court martial, it can feel military justice process. Because the civilian victim is not particularly difficult for a victim of the crime — especially entitled to an SVC, the victim will not understand the role a victim of rape or sexual assault. the chain of command plays or his or her rights during the process. A civilian attorney is crucial to ensure the victim Knowing that there is someone representing his/her has a champion, who can also help them make informed interests without any possibility of split allegiances, decisions. pressures from command, fears of impact on one’s career, or — in the extreme — being given conflicting instructions The civilian attorney’s role is NOT to criticize the work of regarding whose interests they serve can make an the SVC/VLC, but to assist and help them better do their enormous difference for the victim. job. Some SVC/VLCs will not understand why you are there, and may initially respond as if you are not needed — Furthermore, the civilian attorney has the support and that they are completely fulfilling the role of representing resources — from POD and the firm at which you work — the victim. Of course, the best tact to take is to make them to devote sufficient time to fully investigating the case, your friend and be as helpful to them as possible. Other bringing forward evidence that may not be known or SVC/VLCs will have previously worked with civilian attorneys sufficiently flagged by the JAG, and to advocate strongly and will be very open and willing to share. Contact POD for the outcome most wanted by the victim. if you need any help in fostering this relationship and gaining credibility with the SVC/VLC (as a civilian, you will The rules governing the role of the SVC/VLC do vary a bit likely have at least a little ground to make up regarding depending on which branch of the military the SVC/VLC how well you understand the military world and lingo). serves (which will be the same branch that the accused Establishing a good working relationship with the SVC/ serves under, which in most cases will also be the branch VLC is really helpful to the outcome of the case! the victim serves under).

See page 9 for branch specific practice rules.

PRO-BONO ATTORNEY TRAINING MANUAL 4 JUDGE ADVOCATE GENERAL (JAG)

“The Judge Advocate General’s Corps (JAG Corps) is the branch or specialty of [the] military concerned with military justice and military law. Officers serving in a JAG Corps are typically called judge advocates. Only the chief attorney within each branch is referred to as the Judge Advocate General (or TJAG); however, individual JAG Corps officers are colloquially known as JAGs. Judge Advocates serve primarily as legal advisors to the command to which they are assigned. In this function, they can also serve as the personal legal advisor to their commander. Their advice may cover a wide range of issues dealing with administrative law, government contracting, civilian and military personnel law, law of war and international relations, environmental law, etc. They also serve as prosecutors for the military when conducting courts-martial. In the United States military, they are charged with both the defense and prosecution of military law as provided in the. Uniform Code of Military Justice. More senior officers of the JAG Corps serve as military judges in courts-martial.” Click here for more information.

An attorney from the JAG Corps will serve as the “prosecutor”; another as the defense attorney, and a third senior office of the JAG Corps as the judge, if a court martial is convened.

TRIAL COUNSEL

Trial counsel is the term for the role we would call the prosecutor in the civilian court system. However, the trial counsel also has a slightly different role. They swear in all witnesses and practice under the belief that everything that is disclosed to them must be handed over to the defense. Though this is to some degree also true under Brady v. Maryland, the US Supreme Court case that dictates that all exculpatory evidence in the

possession of the prosecution must be turned over to the defense*, trial counsels general * Click here for instructions on how interpret their obligations under Brady very expansively. Therefore, you must be very Brady issues should be handled in civilian courts. careful about what you do and do not share with trial counsel. At the same time, it is nice to have a good working relationship with trial counsel, so do all you can to be helpful to them as well.

“Then I heard about Protect Our Defenders. Not only did they provide legal assistance and support but most importantly, they listened, and for the first time I felt validated and understood. I can honestly say without

the support of POD I would not have been able to continue.” —SHERRY

PRO-BONO ATTORNEY TRAINING MANUAL 5 OVERVIEW OF MILITARY JUSTICE SYSTEM

You may have little or no experience interacting with people in the military, so getting used to all the terms and norms used by the military can feel intimidating. Taking a little bit of time to familiarize yourself with this new system and its associated terms will increase your confidence exponentially.

PsychArmor has an enormous catalogue of free online courses that will give you some good background information, particularly in the Military Culture section.

Protect Our Defenders has compiled an extremely helpful list of Frequently Asked Questions. To learn about the equivalent aspects of the civilian judicial system in the military justice system, read the answers to these questions in particular:

You must become familiar What are military ranks? with these terms below. What is the Chain of Command? All terms are also included here. What is the Military Justice process?

WHAT IS NON-JUDICIAL PUNISHMENT?

Non-judicial punishment, or Article 15* (called the Captain’s Mast in the Navy), is by law reserved for minor offenses, but this limit is often ignored and may be used for serious * See Article 15 of the UCMJ for more offenses. The process is as follows: The military police will gather evidence and conduct information about this process. an investigation, which will then be sent to the assigned JAG. That JAG will review the evidence and make a recommendation to the military member’s (the person who committed the wrong-doing) Commander on how to proceed. Based on the evidence, investigation, review, and recommendation, the commander makes the final determination about whether the offense happened and if it did, the non-judicial punishment. The UCMJ sets the particular burden of proof. In the Air Force, it is recommended the evidence be beyond a reasonable doubt, but each service is different. A military member may not be sent to confinement through an Article 15. A military member may refuse the process and demand instead the allegations be heard at a court-martial. A member may contest the charges if s/he chooses to accept the non-judicial punishment.

While the vast majority of service members accept the non-judicial process, some will refuse the process and demand trial by court-martial. The reasons for doing so may include a distrust of the commander, the belief that: (a) a court-martial will be less likely to find the service member guilty, or (b) the commander has already determined the service member committed the offense(s).

PRO-BONO ATTORNEY TRAINING MANUAL 6 Victims do have the right to let the deciding authority WHAT IS AN ARTICLE 32 HEARING? know their preferences for the outcome of the non-judicial An Article 32 hearing is the military justice pre-trial punishment, or if they feel that that forum is too lenient hearing (used in lieu of civilian preliminary hearings or given the offense. Victims can elevate that preference to a grand juries), to determine if there is sufficient evidence higher authority if they feel like their preference was not in a criminal case to proceed to a general court-martial. taken into consideration. A preliminary hearing officer (PHO) presides over the Article 32 hearing. The government is represented by There are many reasons why the current command-based counsel, as is the accused. Following recent reforms, an military justice process is fraught with challenges for a SVC is now also entitled to attend the hearing. The PHO survivor. Review these four documents for explanations oversees the proceeding, and determines which witnesses and special insights into all that a survivor has faced after and evidence will be considered. At the conclusion of the making the difficult decision to report the sexual assault, hearing, the PHO prepares a report with a nonbinding and most likely, before contacting POD. recommendation on whether to prosecute. That report goes WHAT IS A CONVENING AUTHORITY? to the General Court-Martial Convening Authority (GCMCA), who ultimately decides whether to convene a trial. A Convening Authority (CA) is the commander who “convenes” a court-martial, which is a criminal trial and As a result of hard-fought reforms championed by Protect functions as the military’s judicial process. By convening Our Defenders, a victim can no longer be forced to testify a court the CA is sending charges against an accused to at an Article 32 hearing. In the past, an Article 32 hearing be tried at a court-martial. The CA will almost always be was a mini-trial that could last days, offering opportunities in the accused’s chain-of-command. The vast majority of for defense counsel (who can either be a JAG or a civilian commanders are not convening authorities. In 2013 there attorney) to engage in exhaustive “discovery” by endlessly were approximately 14,500 commanders in the DoD. and without constraint cross-examining the victim for Of those, only 15.5% were special court-martial CAs hours on end. This was due to wide latitude granted to (misdemeanor equivalent) and only 2.7% were general defense counsel for questioning about all matters even court-martial CAs (felony equivalent). vaguely relevant. The victim was often re-traumatized by lengthy cross-examination that could be designed to CAs are not attorneys or prosecutors. Instead, they are intimidate, confuse, exhaust, and/or demoralize him or military professionals such as pilots, artillery officers or her. It was not unusual for the victim to decline further surface warfare officers. They control the military justice participation in the case after such a terrible Article 32 process and the decision on whether to prosecute a sexual experience. Due to these reforms, Article 32 hearings offense. This responsibility is plagued by bias and conflict now serve as a preliminary hearing, functioning solely and is a significant reason why victims do not report to determine probable cause for whether the case should because they believe the CAs will not go forward, and that be sent to trial. only retaliation and further harm to the victim will follow making a report.

PRO-BONO ATTORNEY TRAINING MANUAL 7 WHAT IS MILITARY RULES OF EVIDENCE (MRE) 412 WHAT IS MILITARY RULES OF EVIDENCE (MRE) 513 — (EQUIVALENT TO CIVILIAN “RAPE SHIELD LAWS”)? PROTECT THE PRIVACY OF VICTIMS’ MENTAL HEALTH

MRE 412 is the military’s “rape shield law” and is RECORDS AND HISTORY? designed to protect victims’ privacy. It states that a victim’s MRE 513 is the military’s rule that protects the mental sexual history, sexual orientation, and other sexually health records and history of a victim. It states that a related details are generally inadmissible as evidence in victim has the right of privacy to confidential communication any military justice proceeding. There are three exceptions made to a psychotherapist, which includes mental health to this rule and defense counsels are often given wide records. With the support of Protect Our Defenders, latitude to explore the exceptions. The initial questioning Congress recently strengthened the protections of MRE of a victim into these matters is procedurally reserved for 513, making it more difficult for military judges to a closed, MRE 412 hearing — in order to protect the victim indiscriminately review such evidence to turn over to the from public intrusion. Unfortunately, in practice, this is not defense. Again, your advocacy is critical to protect improper always the case and sometimes victims are questioned invasion of your client’s mental health records and history, about these personal and protected details in an open which is often sought simply to embarrass or harass the hearing, like the Article 32. This is why your advocacy at victim. this stage is paramount — to protect your client’s privacy and keep him/her from having to face intrusive questioning.

WHAT HAPPENS AT A COURT-MARTIAL?

A contested court-martial is a military trial and is similar in many ways to a civilian trial. Generally, the people involved are a military judge, the court-martial panel (the military jury), defense counsel, defendant (called the “accused”), prosecutors, and witnesses. A military judge is usually at the rank of O5 or O6, and is always a JAG officer. The military Click here to learn more about judge rules on objections, admits or denies evidence, instructs the jury, and generally military ranks and insignia. presides over the court-martial. The prosecutors, defense counsel, and witnesses generally hold the same roles as in the civilian sector.

The military jury (called members panel) is slightly different than in the civilian court system. If the accused is enlisted, he or she can select to have the jury comprised of at least 1/3 enlisted members, although all court-martial members must outrank the accused. For a General Court-Martial (GCM) there must be a minimum of 5 members, and for a Special Court-Martial (SPCM) there must be minimum of 3 members. In the military system, a conviction occurs when at least 2/3 of the members vote for a guilty verdict. An acquittal occurs when more than 1/3 of the members vote for a not-guilty verdict. This is called the findings phase of trial.

PRO-BONO ATTORNEY TRAINING MANUAL 8 If the accused is found guilty of any offense, the court-martial immediately moves into the “sentencing” phase. During this proceeding, prosecutors may present matters in “aggravation,” which is evidence that tends to increase punishment, and is an opportunity for a victim to describe in greater details how he or she has suffered. Defense counsel present matters in “extenuation and mitigation,” which is evidence that tends to decrease punishment, and often includes testimony from friends and family. In the military system, the members then vote on what they consider to be an appropriate sentence and the lowest level punishment that can be agreed on, is the punishment awarded. They are able to award a range of punishments, from: no punishment at all, to fines and forfeitures, extra duty, restriction, confinement, and a punitive discharge (Bad Conduct Discharge, Dishonorable Discharge, or Dismissal for Officers). Now sexual offenses under Article 120 carry a mandatory minimum of either a Dishonorable Discharge or a dismissal.

LEGAL AUTHORITY — “RULES OF THE ROAD”

Below are some very important resources to consult when preparing to represent your client — the victim — in a court marital proceeding. The Manual for Courts-Martial applies to all branches of the military. The others links are to branch-specific regulations and instructions. Which “rules” apply depends on which branch of the military the accused serves under.

THE UNIFORM CODE OF MILITARY JUSTICE (UCMJ): MANUAL FOR COURTS-MARTIAL:

The UCMJ is the body of law that governs the military. It You can order it here or find it in your law library. Pay was enacted by Congress and became effective on May 31, special attention to Rule 32 and forward, as these are 1951. Before that time, the Army and Navy operated under the procedural rules. laws derived directly from the British Articles of War, AIR FORCE MILITARY JUSTICE PROCEDURES which had been in force since before the Revolutionary INSTRUCTION War. Today, the UCMJ contains most common law crimes such as murder, rape, theft, assault, etc. It also contains ARMY JUSTICE PROCEDURES REGULATION: military specific crimes such as Unauthorized Absence or NAVY JUSTICE PROCEDURES REGULATION Absence Without Leave (UA or AWOL), Orders Violations, Conduct Unbecoming an Officer, etc. RIGHT TO COUNSEL FOR VICTIMS

LRM v. Katsenberg, 72 MJ 364 (2013) This is the case from the CAAF that establishes that the victim has a clear right to have counsel represent him/her.

PRO-BONO ATTORNEY TRAINING MANUAL 9 ARTICLE 120 OF UCMJ THE UNITED STATES COURT OF APPEALS FOR THE

Rape, Sexual Assault and other Sexual Misconduct ARMED FORCES (REFERRED TO AS CAAF) This the offense that the accused in your cases has been Here is a link to a CAAF opinions digest by subject to charged with. check on relevant case law that is binding on all branches of the military. REFERRED TO AS ARTICLE 6(B) Here is a link to a Military Justice Blog that often has Full citation is 10 U.S. Code § 806b.Art. 6b. Rights of the interesting commentary on CAAF opinions and their victim are spelled out under this chapter. implications. MILITARY RULE OF EVIDENCE 412 United States v. Mangahas — a recent CAAF decision that Below are some key cases interpreting this rule. Please imposes a statute of limitations of five years on cases of reach out to POD for exemplar briefs on this rule and how rape that happened before October 2006. There is no it should be applied. statute of limitation on rape cases that occurred after United States v. Carpenter, 77 M.J. 285 (C.A.A.F. 2017) October 2006. Currently, POD is working with survivors United States v. Erikson, 76 M.J. 231 (C.A.A.F. 2017) who were raped before October 2006 to decide whether to United States v. Ellerbrock, 70 M.J. 314 (C.A.A.F. 2010) seek charges in the civilian criminal court system. Civilian law enforcement in the state in which the rape took place United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011) could decide to prosecute if the statute of limitations for MILITARY RULE OF EVIDENCE RULE 513. rape in that state has not passed. You can look at this website to see each state’s statute of limitations for rape. Please reach out to POD for exemplar briefs on this rule If the statute of limitations has not passed, the survivor and how it should be applied. CAAF has rarely addressed will have to make a complaint (often called “pressing the application on Rule 513. Their most recent opinion on charges”) with the civilian police in the city or town in it is from 2006. The rule was significantly changed recently which the rape occurred. There is no guarantee that the to provide better protections for the victim and to make it police will pursue an investigation and prosecution, more difficult for an accused to access the records, but especially if it is an older case without substantiating the impact of those changes have not been reviewed by evidence; but a survivor (with your help and guidance) CAAF. The military service courts have treated the issues does have the option of trying that course of action. inconsistently and CAAF has been unwilling to resolve those conflicts. While judges are much less likely to order Mangahas is currently before the Supreme Court on production of mental health records now, some judges review, and a ruling will be issued by August 2020. have abated proceedings until the victim consents to the release of the records.

PRO-BONO ATTORNEY TRAINING MANUAL 10 OPTIONS FOR HOW A VICTIM CAN REPORT A SEXUAL ASSAULT

A military victim, dependents of a military member, and DoD employees have two options for reporting a sexual assault.

1 RESTRICTED REPORT 2 UNRESTRICTED REPORT

The first is a restricted report that enables the victim to The second type of report is an unrestricted report. An access services such as medical care and legal advice unrestricted report can be made to law enforcement, the without a formal investigation being initiated. Only certain chain of command, or a supervisor. By law, an unrestricted individuals are able to receive a restricted report such as report must be investigated by military investigators. an SVC/VLC, SARC, or medical provider. Legal authorities Generally, civilian victims may only file an unrestricted and the chain of command will not be provided details of the report. report such as the name of the victim or the perpetrator.

Once the investigation is complete, a copy of it must be sent to the offender’s commander. Prior to 2012, a commander had what is known as initial disposition authority. Disposition allowed a commander to take no action or initiate a range of actions including preferring charges, which is the first step of the court-martial process. In 2012, the Secretary of Defense elevated disposition authority for sex assault, forcible sodomy, and rape to the Special Court-Martial Convening Authority (SPCMCA) in the grade of at least O6 level. In other words, lower ranking commanders no longer have the ability to “kill” sex assault and rape cases, but the lower level commander may still prefer charges. The commander must forward the investigation and charges if preferred along with recommendations as to disposition to the SPCMCA.

The SPCMCA operates under the restrictions of Rules for Courts-Martial 306 when exercising initial disposition authority. For a good example of how this is supposed to work see Air Force Instruction 51-201, paragraph 5.7. The SPCMCA has the following options: take no action; administrative action; nonjudicial punishment; or disposition of any charges by dismissing the charges, referring the charges to a special court (penetrative * A victim may opt to report to the offenses can only be referred to a general court-martial), or forward the charges to the civilian law enforcement agency that has jurisdiction over the case, General Court-Martial Convening Authority (GCMCA) with recommendations after an determined by the state in which Article 32 hearing. If no charges have been preferred, the SPCMCA could prefer charges the sexual assault occurred — themselves. Most importantly for you, the victim has the right to express his/her views federal or state court, depending on the nature of the offense. Of on how the case should be handled including whether the victim would prefer that a course, the flaws of the civilian civilian jurisdiction* prosecute the offender and those views must be considered prior criminal justice system in serving to SPCMA’s initial disposition. The military “prosecutor” and/or the SVC/VLC is supposed victims of rape and sexual assault are well documented, and so the to notify the victim that s/he has the right to opt out of the military system and pursue pros and cons of each system can charges in the civilian court, but rarely does. It is imperative to educate yourself on the and should be weighed with the local jurisdiction to give the victim informed advice on which path to pursue. victim.

PRO-BONO ATTORNEY TRAINING MANUAL 11 HOW POLICY CHANGES HAVE IMPACTED HOW MILITARY SEXUAL ASSAULT CASES MOVE FORWARD

Every year Congress must pass the National Defense Authorization Act (NDAA), which “specifies the annual budget and expenditures of the US Department of Defense,… establishes funding levels, and sets the policies under which the money will be spent.”

Because the NDAA is sure to be considered and passed by Congress (since it is a required piece of legislation to keep the military running), it is also a vehicle for getting other reforms to the DoD legislated. Since NDAA 2013, POD has achieved significant reforms to the military justice system —and there is still so much more to be done.

Some of the most significant changes are:

Article 32 Reform: Prior to the 2013 reform, the Article 32 Codify Right to In-Court Representation for Special process had little if any protections for a victim appearing Victims’ Counsel (SVC): While all branches of the DoD before the investigation. Rather than being a probable established a Special Victims’ Counsel program to represent cause hearing, the Article 32 process was viewed as an victims of sexual assault and rape, the actual scope of a investigation and discovery tool for the defense. This led to Counsel’s authority in a court martial was unclear. Often often abusive questioning of a victim of sexual assault or judges would not allow Special Victims’ Counsel to speak rape, having nothing to do with probable cause. The 2013 on behalf of their clients at a court martial, meaning that reform refocused the Article 32 on the question of probable the SVC’s were powerless in fighting against unwarranted cause, enhanced victim protections (including mental intrusions into the mental health records and sexual health and Rape Shield), and most importantly gave the histories of a victim. Congress rectified this by making it victim the option of testifying or not at the hearing. clear that the SVC role included representation in court, allowing SVC’s to file motions and make arguments defending their client’s rights. Through a later NDAA, SVC’s services were expanded to include dependents and DoD civilian employees who are victims. Through an even later NDAA, SVC’s services are now available to victims of domestic violence in the military.

“If it wasn’t for POD, I wouldn’t be standing here with strength to keep going. I am getting my Masters to be a

therapist to other girls and guys that are raped, and be a voice to help them through dark times.” —BRITTANY

PRO-BONO ATTORNEY TRAINING MANUAL 12 “I can never repay Protect Our Defenders for the work they’ve done. [They] gave me the support and clarity I needed to make informed decisions. Thank you for empowering me, providing honest and professional feedback, but most of all for treating me as an individual who matters and not as a circumstance.”

—TRACI

Mandate Consultation With Victims’ Counsel During Criminalize “Revenge Porn”: Recognizing the widespread Scheduling of Proceedings: Congress instructed the impact on victims who had their intimate images shared Secretary of Defense to establish policies and procedures without their consent, Congress criminalized the distribution designed to ensure that any counsel of a victim of a sexual on social media of such videos and photographs by offense is provided prompt and adequate notice of the military personnel. The sharing of such images by military scheduling of any hearing, trial, or other proceeding in personnel, as demonstrated by the Marines United connection with the prosecution of their case. scandal, was particularly devastating for military women.

Reform of Pre-Trial Depositions: After victims were given Domestic Violence: For the first time, domestic violence the right not to testify in Article 32 hearings, the defense was made a specific offense in the UCMJ. Prior to this, sought to use depositions as a means of forcing victims perpetrators of domestic violence escaped being appro- to be subjected to cross-examinations prior to a trial. The priately labeled for their crimes. This legislation ensures deposition rule in effect at the time was poorly written and that when a military member’s conviction is reported to was used by judges to force victims who were willing to civilian authorities, his crimes will be properly identified testify at court to undergo invasive depositions. The law as domestic violence, making it less likely that the was changed making it clear that depositions should not offender will have access to firearms. be ordered for any witness who was willing to appear at a trial.

Enhanced Appellate Rights for Victims: For the first time, the victim of a sex assault crime can appeal a military judge’s ruling violating a victim’s rights, such as her mental health privilege or the right to be treated with fairness.

PRO-BONO ATTORNEY TRAINING MANUAL 13 STEP BY STEP ACTIONS TO TAKE, TIMELINE, AND TIME COMMITMENT

The most common steps of your representation of your client are listed below, roughly in the order in which you will encounter each issue. However, every case is unique and unexpected things come up. Feel free to reach out to POD at any time as items come up. Also, read this through carefully. It is hard to predict how quickly a case may be resolved, but as a general guideline cases typically take around 450 days from when an offense is reported and a court-martial concludes.

RUN CONFLICTS CHECK MEET WITH CLIENT

When you first receive a case referral from POD, of course Meet with client to discuss the facts of the case — you will need to run a conflict of interest check with your telephonically or in person, if possible. practice/firm. SVC/VLC However, please note that the US Department of Defense or the US Army (or whatever branch in which your client Determine who is the assigned SVC/VLC on the case. served) is NOT the adverse party, so you will not be conflicted out if you have ever provided legal representa- TRIAL COUNSEL tion to those entities, nor will you create a conflict for Figure out who is the Trial Counsel. later work with those entities.

DOCUMENTS YOU WILL NEED TO REVIEW AND/OR ENGAGEMENT LETTER REQUEST

The next step is to meet with your client, conduct more of At your first meeting with your client, ask him/her to bring an interview/investigation, have them sign an engagement (or send you if you are meeting remotely) all the forms and letter, determine any pending court dates, and determine paperwork they have been given. You will want to review what immediate action is required. See page 20 for a all of those documents. sample engagement letter. You may need to submit a FOIA ASAP to get copies of records that your client does not have (see more information on page 16).

PRO-BONO ATTORNEY TRAINING MANUAL 14 Survivors United (www.survivorunited.org) — founded by survivors of military sexual crimes — has created this EXTREMELY helpful website that explains the process that your client has already gone through prior to the court martial proceeding being initiated regarding whether to report, the difference between restricted and unrestricted reporting, how to make a report, etc. One part of the website that is particularly informative is the following, which lists all the forms that your client should have gotten. Ask your client about each of these forms and get copies of each for review:

FROM SURVIVORS UNITED WEBSITE:

Important DOD Forms You Are Entitled To: These forms should be given to your client post-trial:

DD FORM 2910 Information about the difference between DD FORM 2703 A brochure that explains to a victim what restricted and unrestricted reporting. DD stands for happens post-trial and how to exercise the rights afforded Department of Defense so these forms are military-wide. to a victim.

DD FORM 2911 Information about the forensic exam, DD FORM 2704 Victim/Witness Certification and Election if your client had one. Concerning Prisoner Status: This form is for victims and appropriate witnesses to elect to be notified of changes in DD FORM 2701 Initial Information for Victims and the offender’s status while in confinement. For all cases Witnesses of Crime: This form explains the victim’s rights, resulting in a sentence to confinement, this form should as well as the rights of a witness of a crime. It also be completed and forwarded to the Service Central provides resources afforded to a victim. This form should Repository, the gaining confinement facility, local be provided to you by the Criminal Investigative Official responsible official, and the victim or witness/witnesses. assigned to your client’s case. DD Form 2705 Notification of Victim/Witness of Prisoner DD FORM 2702 A brochure that explains the Court Status: This form is completed and sent to victims and Martial Process and Court Proceedings to victims and witnesses to notify them of a change in a prisoner’s witnesses. If your client has not been provided this form, status. It affords the victim an opportunity to appear please notify the legal team and/or the SVC/VLC assigned before a Clemency/Parole Board regarding the convicted to assist your client. perpetrator of the crime.

SURVIVORS’ BILL OF RIGHTS ACT OF 2016

This bill amends the federal criminal code to establish statutory rights for sexual assault survivors, including the right to: (1) not be prevented from receiving a forensic medical examination and not be charged for an examination; (2) have a sexual assault evidence collection kit (i.e., a rape kit) preserved for 20 years or the maximum applicable statute of limitations, whichever is shorter; (3) receive written notification prior to destruction or disposal of a rape kit; and (4) be informed of these rights and policies. Learn more about the Survivors’ Bill of Rights here.

PRO-BONO ATTORNEY TRAINING MANUAL 15 CRIMINAL INVESTIGATIVE REPORTS & COURT PROCEEDINGS

As a survivor of sexual assault, you have a right to request a copy of the Criminal Investigative Reports and General & Special Court Martial Proceedings. It is strongly encouraged that you complete a Freedom of Information Act (FOIA) request for all documentation regarding your case. In order to obtain any information regarding the legal proceedings on your case, you will need to submit a FOIA to the Criminal Investigative Agency of your branch of service as well as to the Office of Military Courts. Both civilian’s and active duty military, can submit FOIA requests regarding legal proceedings.”

The Survivors United website then has critical information on how to prepare and submit a FOIA request, specific to each branch of the military.

MILITARY PROTECTION ORDER (MPO)

Your client’s safety may be an immediate concern, especially Here are some links to information about military in situations such as your client living on the same base protection orders: as the perpetrator. It is important that you ask your client Click to see the DD Form 2873 (the form most commonly IMMEDIATELY if s/he has any safety concerns and whether used to issue an MPO): they would like to seek a military protection order.

ASSERTING RIGHTS OF CLIENTS IN COURT MARTIAL A Military Protective Order (MPO) is a short-term order PROCESS. issued by a unit commander against an active duty service- member under his or her command. The law permits A lot of the assertion of rights happens before the trial commanders to issue MPOs under 10 US Code § 1567(a). even begins. Here are the enumerated rights of the victim: There is no hearing involved in the process, and there is no + The right to be treated with fairness and respect for stated length of time that they are in effect. Generally, an your dignity and privacy; MPO is supposed to be issued upon the request of a victim or victim’s advocate. Violations of MPOs can be charged as + The right to be reasonably protected from the accused violations of orders under Article 90, UCMJ. Protective offender; orders can be issued verbally or in writing. The orders + The right to reasonable, accurate, and timely notice are most commonly in writing on a DD Form 2873. The of public preliminary hearings, pretrial confinement Department of Defense Instruction on the matter, and the hearings, court proceedings, and clemency and parole DD Form 2873, clearly state that the MPO is intended to: hearings related to the offense; + Safeguard victims; + The right to be present at all public proceedings related + Quell disturbances; and, to the offense unless the hearing officer or military judge determines that your testimony would be materi- + Maintain good order and discipline while victims have ally altered if you as the victim heard other testimony; time to pursue protection orders through civilian courts. + The right to reasonably confer with the prosecutor/ Trial Counsel in the case; + The right to receive available restitution;

PRO-BONO ATTORNEY TRAINING MANUAL 16 + The right to be reasonably heard at: 1) a public may choose to testify if s/he wants to. You and your client hearing concerning the continuation of any pretrial may want to attend this hearing and listen to the proceedings. confinement of the accused; 2) a sentencing hearing You will get a very clear sense of the posture of the case, related to the offense; 3) a public Military Department the strength of the trial counsel’s case, what the defense Clemency and Parole Board hearing related to the case theory is, where you may need to assist in gathering offense; additional evidence, witnesses, etc. The testimony at the + The right to submit a written statement for the hearing is recorded and your client is entitled to a copy of consideration of the Convening Authority prior to the recordings, but a victim will have difficulty obtaining taking action on findings and sentence; copies of any exhibits offered during the hearing.

+ The right to proceedings free from unreasonable DISCOVERY delay; and The attorney for the Defendant will — almost without + The right to be provided information, if applicable, exception- try to get access to your client’s mental health about the conviction, sentencing, imprisonment, records. However, they are clearly privileged under Convening Authority’s action, appellate review, and Military Rule of Evidence 513, so be prepared from the release of the offender start to oppose these discovery requests. Additionally, Military Rule of Evidence 412 is the equivalent of a rape Military Rules of Evidence Rule 412 and 513 further shield law or rule in the civilian context. Again, from the protect the right to privacy. The most common violations start, prepare your opposition to the almost guaranteed that come up are that you will be required to enforce as efforts to discover and introduce the victim’s sexual history. vociferously as possible are: The defense also often seeks access to your client’s social + The right to privacy media accounts, phone records, cell phone data, financial + The right to notice and conferring with trial counsel records and even school transcripts. The military gives an accused much greater discovery rights than civilian + The right to be heard jurisdictions. These rights are often used in attempts to + The right to restitution invade a victim’s privacy and intimidate him/her.

You must assert these rights as soon as you are aware of any There may be very compelling reasons for the trial coun- violations. You should immediately notify trial counsel and sel — or you, as the victim’s attorney — to call an expert SVC/VLC about these violations, and then file a motion before as a witness. For example, an expert can be called to the military judge so that the violations can be addressed explain how trauma impacts the brain and why that may and violations rectified. Consult the appropriate branch’s mean a victim’s response to the rape, questioning about court rules (see above) on how to properly file a motion. the rape, or a forensic exam may seem counter-intuitive, but is NOT an indication that the victim is lying. If you feel ARTICLE 32 HEARING like calling an expert would benefit the outcome of the Also M.R.E. 412 (rape shield) now applies during the case, please contact POD to get recommendations of the hearing. A victim has a right to attend the hearing and can best experts to contact. no longer be forced to testify at the hearing. The victim

PRO-BONO ATTORNEY TRAINING MANUAL 17 VOIR DIRE The writ standard is exceptionally unfavorable to the victim. A writ of mandamus is viewed as “drastic and extraordinary You and your client will want to be present for jury selection. remedy” reserved for “really extraordinary causes.” Though your client will not have any formal say over who E.V. v. United States, 75 M.J. 331 (CAAF 2016). Still, there is empaneled to the jury, you will want to develop a have been successful reversals of a military judge’s order relationship with trial counsel such that s/he is conferring to produce and disclose a victim’s mental health records. with you and your client about jury selection. The jury pool See for example, J.M. v. Payton-O’Brien, 76 M.J. 782 can feel very rigged in favor of the defendant, and this (NMCCA 2107) and D.B. v. Lippert, (ACCA 1016) WL381436. can be a grueling process. Prepare your client for this process well in advance. If there is no conviction, there is no appeal after that.

TRIAL If a case has been tried to a verdict and has resulted in a In many ways the trial will appear similar to a federal conviction, in most of these cases the accused is entitled criminal procedure. One major difference is that courts- to an automatic appeal. The victim has very little rights martial are not standing courts. Courts are created for at this appellate level, but may seek to have an adverse each new offense at the time of referral. As such, it is more appellate ruling by a CCA certified to CAAF. The government difficult for either party or the victim to seek redress from has no ability to appeal an adverse ruling by a CCA, but a judge early in the process. Recent changes do give judges the service TJAG may certify an issue to CAAF. CAAF must authority to act on a number of pre-referral issues such accept a certified issue for review. The defense, government, as subpoenas and warrants. For victims, this may include or the victim can seek certification from a TJAG, and on the ability to quash subpoenas. See Article 30a, UCMJ. several occasions victims have persuaded a TJAG to certify an adverse holding to CAAF. One such case, Mangahas, A victim has standing to argue on any 6(b) right, MRE 412, is now pending before the Supreme Court (see above). MRE 513, MRE 514 or MRE 615 issues after referral and at the Article 32. It is up to the trial judge for the form and SENTENCING timing of any assertions of these rights, but you should The military sentencing system is unlike most civilian always be aggressive in arguing for your client. systems. One stark difference is that in the military sentencing system the rules of evidence apply at sentencing APPEAL including hearsay. The government may call witnesses to Article 6b(e) gives a victim the right to appeal certain provide victim impact testimony. However, this testimony rulings at an Article 32 or by a military judge. The appeal is under oath and subject to cross-examination. However, is by a petition for a writ of mandamus and is limited to under RCM 1001A, the victim may elect to present her rights contained in 6b or MRE 412, 513, 514 or 615. A own victim impact statement, either sworn or unsworn. victim may also seek to quash an order to submit to a This is a distinct right separate from the government’s deposition. The petition will have priority over all other pre-sentencing case and occurs after the government matters to the extent practical before the Court of Criminal case but before the defense’s. The statement is restricted Appeals or the Court of Appeals for the Armed Forces. and must be limited to impact that is financial, social,

PRO-BONO ATTORNEY TRAINING MANUAL 18 psychological, or medical and directly relating to or before presenting it at the pre-sentencing hearing. arising from the offense. The victim cannot recommend Contact POD if you need any help or guidance in preparing any type of sentence. this statement with your client.

If sworn, the victim will be subject to cross-examination. The victim or her counsel are the only ones who can If unsworn it can be done in writing, orally, or both. It can offer the evidence under RCM 1001A. See United States v. be read by either the victim or her counsel. Any mention Barker, 77 M.J. 377 (CAAF 2018). And see U.S. v. Hamilton, of psychological harm or treatment may open the door to CAAF case issued in February 2019 regarding the mental health records. Many judges also require a victim inadmissibility of certain unsworn victim impact submit her statement to the judge and counsel for approval statements presented at sentencing.

SPECIAL ISSUES

The vast majority of sexual assault allegations are never prosecuted in the military, yet for many victims getting a case to trial is their ultimate goal. A victim has a right to consult with the trial counsel and the right to make her preferences as to case disposition known to the convening authority. A victim who believes a case is not being handled properly can also contact her representative or senator.

DEALING WITH MILITARY JUDGES

Make sure you have read the rules for the court. Each service has its own rules that you may need. You will want to make sure you have the most up to date versions. Here is an example.

Most judges are now used to having SVCs in their courts and will treat you with respect. Each trial judge may also have their own unique rules for SVCs. You will still run into trial judges who are hostile to the idea of SVCs. For example, some will allow SVCs to attend RCM 802 sessions (out of court session with the parties) while others will not.

Thank you so much for taking on these important cases. PLEASE contact POD with any questions you may have. We are here to assist!

PRO-BONO ATTORNEY TRAINING MANUAL 19 SAMPLE ENGAGEMENT LETTER

[______], 2020

VIA E-MAIL

[______] [______] [______]

Re: Legal Representation

Dear [______]:

We are delighted that you have selected [______] as legal counsel. This letter describes the scope and terms of our engagement. We apologize for the formality of this letter, but much of this language is required by the ethical rules under which we practice. Although this letter addresses the formalities of our engagement, we want you to know how honored we are that you have placed your trust in us.

[______] will represent you in connection with asserting your legal rights as a survivor of sexual assault in pending and/or potential criminal proceedings against [______]. We will not be responsible for assisting you in any other legal matters unless separately agreed to by us in writing.

We have agreed to handle this matter on a pro bono basis. We will not charge you for our time on this matter. We also do not plan to bill you for our out-of-pocket expenses. However, we reserve the right not to incur expenses in this matter in excess of $1,500.

To enable us to represent you effectively, you agree to cooperate fully with us in all matters related to your case and to fully, accurately, and timely disclose to us all facts and documents that may be relevant to the matter or that we may otherwise request. This information will form the basis of our legal advice. We also need you to immediately notify us about any change in phone number or address and to make yourself reasonably available to us for necessary meetings, conferences or other proceedings. If you send information electronically that is time sensitive, you are responsible for confirming that it was received.

Nothing in our agreement to represent you and nothing in our statements to you should be construed as a promise or guarantee about the probable outcome of this matter. Any expression of our professional judgment is, of course, limited by our knowledge of the facts, the law, and subject to factors or conditions beyond our control.

PRO-BONO ATTORNEY TRAINING MANUAL 20 [______] [______], 2020 Page 2

For any litigation matters, if you are allowed, awarded or otherwise recover (or are eligible to recover) from a court, agency or some other person or entity, any legal fees or disbursements incurred or paid on your behalf, you will fully cooperate with us to maximize the recovery from such court, agency or other person or entity for all such charges. To the extent you are allowed, awarded or otherwise recover from someone else for fees and disbursements, that allowance, award or other recovery shall be paid immediately by you to [______] for reimbursement of the fees and disbursements we have paid or incurred on your behalf. and we will reimburse you for any disbursements you have paid if there is any excess after reimbursement to ourselves for our fees and for disbursements we have paid.

Your communications with us about legal matters are subject to the attorney-client privilege. Confidential information can be kept from the world at large, except for situations involving crime, fraud or where a court can compel disclosure. The attorney-client privilege may be waived if you discuss the substance of your communications with outside parties. Please do not do so. However, you agree that, as either you or we deem necessary, we may discuss your matter with Protect Our Defenders and that such communications do not waive any attorney- client privilege that we may have to protect the confidentiality of our communications. If we need to establish relationships with legal colleagues or other legal service providers, we do not share fees or personnel.

Our representation of you does not include acting as counsel for any family member or other person, unless this additional representation is separately and clearly undertaken by us. If in the future we and you mutually agree to expand our representation of you to include anyone else, it is agreed that the terms, conditions and consents contained herein will apply to such representation(s).

You are free to terminate our services at any time and to retain separate counsel outside of [______]. We retain the right to cease performing legal services and to terminate our legal representation for any reason consistent with ethical rules, including conflicts of interest. Our representation in this matter will cease on completion of our work set forth above unless you ask us to perform additional work that we agree to undertake. If you wish to have us return material from your files after the conclusion of our representation, we will provide you such material at your request. We will have no obligation to retain your files for more than one year after the conclusion of our representation.

We provide only legal services to you in connection with this agreement. You are not relying on us for any services other than legal services, and we are specifically not providing any business, investment, insurance or accounting advice or any investigation of the character or credit of persons with whom you may be dealing. Under rules in certain jurisdictions where we practice, we must advise you that, at any time before or during our representation of you, you may consult

PRO-BONO ATTORNEY TRAINING MANUAL 21 [______] [______], 2020 Page 3 independent counsel (at your sole expense) regarding this engagement letter or related documents governing our relationship.

[______] represents many other companies, individuals and government agencies (“clients”). During the time we are representing you, we may be asked to represent:

(1) other present or future clients in transactions, litigation or other disputes directly adverse to you that are not substantially related to our representation of you; and/or

(2) parties who are considered directly adverse parties in matters we handle for you. Our work for these directly adverse parties would be in matters that are not substantially related to our work for you.

We request your consent to allow [______] to undertake such future representations without the need to obtain any further or separate approval from you, as long as those representations described in (1) and (2) above are not substantially related to work [______] has done, or is doing, for you. Your signature below constitutes your consent to such representations. We agree not to use any proprietary or other confidential nonpublic information concerning you acquired by us as a result of our representation of you in connection with any litigation or other matter in which we represent a party directly adverse to you.

[______] may need to consult with or secure consent from its other current or prospective clients who are or may become adverse to you in order to clear or address actual or potential conflicts of interest. You agree and consent that to the extent it is reasonably necessary in such communications, [______] may disclose to each such current or prospective client the fact that [______] has or has had an attorney-client relationship with you.

During our representation of you, there may from time to time be issues that raise questions as to our duties under the rules of professional conduct that apply to lawyers. These might include, e.g., conflict of interest issues, and could even include issues raised because of a dispute between us and a client over the handling of a matter. Under normal circumstances when such issues arise we would seek the advice of our Professional Standards Counsel, Loss Prevention partners or Professional Standards Conflicts Attorneys who are experts in such matters. Historically, we have considered such consultations to be attorney-client privileged conversations between firm personnel and the counsel for the firm. In recent years, however, there have been judicial decisions indicating that under some circumstances such conversations involve a conflict of interest between the client and [______] and that our consultation with [______]’s counsel may not be privileged, unless we either withdraw from the representation of the client or obtain the client’s consent to consult with [______]’s counsel.

PRO-BONO ATTORNEY TRAINING MANUAL 22 [______] [______], 2020 Page 4

We believe that it is in our clients’ interests, as well as [______]’s interest, that in the event legal ethics or related issues arise during a representation, we receive expert analysis of our obligations. Accordingly, as part of our agreement concerning our representation of you, you agree that if we determine in our own discretion during the course of the representation that it is either necessary or appropriate to consult with our firm counsel (either [______]’s internal counsel or, if we choose, outside counsel) we have your consent to do so and that our representation of you shall not, thereby, waive any attorney-client privilege that [______] may have to protect the confidentiality of our communications with counsel. The costs associated with such legal counsel will be paid by [______].

This letter confirms the terms and conditions under which [______] will provide legal services to you. If this letter correctly sets forth our understanding, please sign and date a copy of this letter and promptly return it to me. If you have any questions about this letter or generally about our services or bills, please call me at any time. We look forward to working with you and thank you for placing your confidence in [______].

Sincerely,

[______]

ACCEPTED AND AGREED:

[______]

By:

Print Name:

Date:

PRO-BONO ATTORNEY TRAINING MANUAL 23 ACKNOWLEDGEMENTS:

Special thanks to Lydia Watts, Esq, Greater Good Consulting; and our pro bono attorneys Ryan Guilds, Arnold & Porter; Mary Rose Hughes, Perkins Coie, for their contributions to the preparation of this manual.

Thanks to the American Bar Endowment for their invaluable support of this project.

PRO-BONO ATTORNEY TRAINING MANUAL 24 Headquarters: 950 N. Washington Street, Alexandria, VA 22314 [email protected] | 703-639-0396

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Protect Our Defenders is a non-profit 501(c)(3) charitable organization. The IRS has determined that donations to POD are tax-deductible for the donor as charitable contributions. There are no limits or restrictions on these donations. EIN# 45-4044997