Great find! Serious question -- should we file supplemental authority with NMCCA to let them know that such a vehicle exists? It's outside the record and, from our perspective, legally irrelevant. But given representations made during the oral argument, I think the proper thing to do would be to inform the court. Semper Fi, DHS Dwight H. Sullivan Senior Appellate Defense Counsel Air Force Appellate Defense Division (AFLOA/JAJA) 1500 West Perimeter Road, Suite 1100 Joint Base Andrews, MD 20762 240-612-4773 DSN: 612-4773 Fax: 240-612-5818 -----Original Message----- From: Sripinyo, Kirk Major NAMARA, CODE 45 [mailto:kirk.sripinyo@navy.mil] Sent: Wednesday, August 10, 2011 12:51 PM To: Sullivan, Dwight H CIV USAF AFLOA/JAJA; Babu Kaza; ksripinyo@yahoo.com; meridith.marshall@usmc.mil; neal@puckettfaraj.com Cc: dhsullivan@aol.com; haytham@puckettfaraj.com Subject: RE: Vokey Declaration Turns out there is a way to request an ethics opinion. From the website: "Request an Opinion from the Professional Ethics Committee (PEC) The PEC, which is a committee appointed by of the Supreme Court, issues ethics opinions responding to ethics-related questions. Only members of the State Bar of Texas may request a PEC opinion. Before you request an opinion: Check to see if an ethics opinion has already been published regarding your subject. The Texas Center for Legal Ethics maintains a searchable database of ethics opinions and rules at www.txethics.org To request an opinion from the PEC: Prepare a written request that includes: A scenario of background facts in the hypothetical situation; The question(s) presented; A discussion of applicable authority. This may not need to be exhaustive, but should focus on specific disciplinary rules that may be involved and any case law, prior opinions or opinions from other jurisdictions that may apply; and A statement that the question(s) presented is not in litigation. Send your request to the following address, and we will forward it to the PEC: Michelle Jordan, Attorney Liaison State Bar of Texas Office of the Chief Disciplinary Counsel Post Office Box 12487 Austin, Texas 78711 The PEC will not issue an opinion on a particular lawyer advertisement, but will consider general forms of lawyer advertising. Also, the PEC will not issue an opinion that concerns interpretation of legislation or interpretation of the unauthorized practice of law." There's no way we're getting that back before the opinion comes out, though. I've been searching the database for an opinion on TX military lawyers but I can't find anything that addresses our situation. v/r Sip -----Original Message----- From: Sullivan, Dwight H CIV USAF AFLOA/JAJA [mailto:Dwight.Sullivan@pentagon.af.mil] Sent: Wednesday, August 10, 2011 12:32 To: Babu Kaza; ksripinyo@yahoo.com; meridith.marshall@usmc.mil; Sripinyo, Kirk Major NAMARA, CODE 45; neal@puckettfaraj.com Cc: dhsullivan@aol.com; haytham@puckettfaraj.com Subject: RE: Vokey Declaration The person I would normally contact about this is Jack Zimmermann. But his daughter Terri is a Reserve judge on NMCCA, so I don't think I can in this instance. On the NLADA side, I know Dick Burr in Texas, but I don't think he's the right guy for this. Let me think. Semper Fi, DHS Dwight H. Sullivan Senior Appellate Defense Counsel Air Force Appellate Defense Division (AFLOA/JAJA) 1500 West Perimeter Road, Suite 1100 Joint Base Andrews, MD 20762 240-612-4773 DSN: 612-4773 Fax: 240-612-5818 -----Original Message----- From: Babu Kaza [mailto:babu_kaza@hotmail.com] Sent: Wednesday, August 10, 2011 12:13 PM To: ksripinyo@yahoo.com; Sullivan, Dwight H CIV USAF AFLOA/JAJA; meridith.marshall@usmc.mil; kirk.sripinyo@navy.mil; neal@puckettfaraj.com Cc: dhsullivan@aol.com; haytham@puckettfaraj.com Subject: RE: Vokey Declaration Only other option if nothing else works, and we want to press on this, would be to identify either a member of the TX Bar committee, or a law professor in TX who teaches TX ethics who could opine in writing that JAG rules trump TX rules for active duty judge advocates. Any members of the Marine mafia there, or anyone have contacts? Col Sullivan: Do you have any NLADA connections in TX, or other law prof friends who would know a TX law prof? Although, the absurdity of all this is stark. If JAG rules did not trump state bar rules, we would have all been likely committing ethical violations simply by being active-duty judge advocates. Every case with co-accused who are represented by different JAs from the same defense shop and under the same Senior Defense Counsel probably violates plenty of states' rules. But we never even consider that. Or that the 02 writes fitreps for both Code 45 and Code 46. There is an inherent conflict of interest endemic to military practice that we ignore. But now, all of a sudden, we are going to be worried about state bar rules for judge advocates when it has always been a non-factor before? > Date: Tue, 9 Aug 2011 17:31:03 -0400 > Subject: RE: Vokey Declaration > From: ksripinyo@yahoo.com > To: babu_kaza@hotmail.com; dwight.sullivan@pentagon.af.mil; meridith.marshall@usmc.mil; kirk.sripinyo@navy.mil; neal@puckettfaraj.com > CC: dhsullivan@aol.com; haytham@puckettfaraj.com > > I checked, we don't have any texas attys. Still waiting to hear from the texas bar. I'm fairly certain they won't talk to me. > > > Babu Kaza <babu_kaza@hotmail.com> wrote: > > > > >Obviously, something in writing from Vokey would be awesome, and if he said that he wanted to come back to active-duty, that would likely be case-dispositive. But it doesn't seem likely that is going to happen. Haytham/Neal: Any chance you could talk LtCol Vokey into at least calling the hotline to see what they say? > > > >Kirk, anyone at Code 45 a member of the TX bar, in case they want to play the game that they only talk to TX lawyers? Any other TX licensed judge advocates who could be trusted to do this if they don't talk to you? > > > > > > > >> From: Dwight.Sullivan@pentagon.af.mil > >> To: meridith.marshall@usmc.mil; kirk.sripinyo@navy.mil; neal@puckettfaraj.com > >> CC: dhsullivan@aol.com; ksripinyo@yahoo.com; haytham@puckettfaraj.com; babu_kaza@hotmail.com > >> Date: Tue, 9 Aug 2011 16:23:53 -0400 > >> Subject: RE: Vokey Declaration > >> > >> Meredith, > >> > >> I'm pretty sure Colby doesn't want to be recalled. The issue that came up > >> at oral argument yesterday is whether he would zealously represent his > >> client if he were recalled to active duty. The notion was thrown out by one > >> of the judges -- Judge Booker if I remember correctly -- that he might > >> refuse to actually participate in Wuterich's defense for fear of violating > >> the Texas Rules even if he were on active duty. > >> > >> We're united in thinking the question is bat shit crazy. We're wrestling > >> with how best to respond to that bat shit crazy question. > >> > >> Semper Fi, > >> DHs > >> > >> Dwight H. Sullivan > >> Senior Appellate Defense Counsel > >> Air Force Appellate Defense Division > >> (AFLOA/JAJA) > >> 1500 West Perimeter Road, Suite 1100 > >> Joint Base Andrews, MD 20762 > >> 240-612-4773 > >> DSN: 612-4773 > >> Fax: 240-612-5818 > >> > >> > >> -----Original Message----- > >> From: Marshall Maj Meridith L [mailto:meridith.marshall@usmc.mil] > >> Sent: Tuesday, August 09, 2011 4:10 PM > >> To: Sripinyo, Kirk Major NAMARA, CODE 45; Sullivan, Dwight H CIV USAF > >> AFLOA/JAJA; Puckett Neal > >> Cc: Sullivan Dwight; Kirk Sripinyo; Faraj Haytham; Babu Kaza > >> Subject: RE: Vokey Declaration > >> > >> Gentlemen, > >> > >> Just got back into the office and have been reading through the email > >> traffic. > >> > >> From Maj Sip's last paragraph, it sounds like we are back at square one. > >> > >> Does Colby want to be recalled to active duty to be on the case? > >> > >> Major Meridith L. Marshall > >> Senior Defense Counsel > >> MCAS, Miramar > >> 858-577-1720 (desk line) > >> dsn 267-1720 > >> 858-997-8332 (government cell) > >> meridith.marshall@usmc.mil > >> > >> > >> -----Original Message----- > >> From: Sripinyo, Kirk Major NAMARA, CODE 45 [mailto:kirk.sripinyo@navy.mil] > >> Sent: Tuesday, August 09, 2011 12:28 PM > >> To: Sullivan, Dwight H CIV USAF AFLOA/JAJA; Puckett Neal > >> Cc: Sullivan Dwight; Kirk Sripinyo; Faraj Haytham; Marshall Maj Meridith L; > >> Babu Kaza > >> Subject: RE: Vokey Declaration > >> > >> I agree that our starting position is that it doesn't matter whether Texas > >> would take disciplinary action against Vokey. But to me, this makes an > >> affidavit stating what Texas would, in fact, do irrelevant to our argument > >> by definition. In my mind, it detracts from our argument because we're in > >> effect saying "Oh yeah, well if you don't agree with that well, the TX bar > >> happens to say it's ok." > >> > >> I understand that we would be providing the information to the court to > >> reassure them that they wouldn't be wasting their effort in abating the > >> proceedings, (i.e., that Vokey would in fact do something rather than be a > >> potted plant) but that seems best addressed by having Vokey say so. > >> Regardless of what TX says on the hotline and even what the Courts say the > >> state bar of Texas can censure Vokey if they want to. Certainly that's > >> something that he could fight and perhaps win. But having Vokey say that he > >> doesn't care and would do his job is the best reassurance that we could > >> provide the court that he'll do his job. > >> > >> At any rate, the entire discussion is academic. I just called the Texas > >> hotline to ask, and there's a message stating that it is a resource provided > >> "exclusively for members of the Texas bar." In addition, it states that if > >> we're calling for another attorney that the attorney in question must call. > >> No humans, of course, but I left a message stating the issue very briefly > >> and asked them to call me back. > >> > >> Since it hasn't been mentioned, I'm guessing Vokey's not willing to call, > >> find out the answer, and then fill out an affidavit for us? > >> > >> v/r > >> Sip > >> > >> > >> -----Original Message----- > >> From: Puckett Neal [mailto:neal@puckettfaraj.com] > >> Sent: Tuesday, August 09, 2011 2:04 PM > >> To: Sullivan, Dwight H CIV USAF AFLOA/JAJA > >> Cc: Sullivan Dwight; kirk.sripinyo@navy.mil Major NAMARA 45 Sripinyo Kirk; > >> Kirk Sripinyo; Faraj Haytham; Marshall Meridith; Babu Kaza > >> Subject: Re: Vokey Declaration > >> > >> Good idea. Find out the answer first and then decide whether to use it. > >> That's why you make the big bucks. > >> > >> Neal A. Puckett, Esq > >> LtCol, USMC (Ret) > >> Puckett & Faraj, PC > >> 1800 Diagonal Rd, Suite 210 > >> Alexandria, VA 22314 > >> 703.706.9566 > >> www.puckettfaraj.com > >> www.twitter.com/puckettfaraj > >> > >> > >> The information contained in this electronic message is confidential, and is > >> intended for the use of the individual or entity named above. If you are not > >> the intended recipient of this message, you are hereby notified that any > >> use, distribution, copying of disclosure of this communication is strictly > >> prohibited. If you received this communication in error, please notify > >> Puckett & Faraj, P.C. at 703-706-9566 or via a return the e-mail to sender. > >> You are required to purge this E-mail immediately without reading or making > >> any copy or distribution. > >> > >> On Aug 9, 2011, at 2:00 PM, Sullivan, Dwight H CIV USAF AFLOA/JAJA wrote: > >> > >> Upon reading Maj Sip's email, my immediate thought was Babu's next-to-last > >> point: why not have someone make the call and see what we find out before > >> making a decision? > >> > >> Some states formally say that where military rules are inconsistent with > >> state rules, they won't impose discipline based on the state rules on > >> military attorneys. See, e.g., Major Bernard Ingold, Professional > >> Responsibility Note: JAG Attorneys Following Military Ethics Rules Will Not > >> Be Subject to Discipline for Violating Oregon Rules, Army Law., June 1990, > >> at 42 (discussing Or. State Bar Ass'n Informal Ethics Opinion 88-19 (1988)). > >> > >> If Colby were an Oregon lawyer, that would seem to be dispositive. Given > >> the Texas Hotline folks a chance to tell us whether there's anything similar > >> for Texas lawyers seems to be worth the time to make a phone call. > >> > >> Semper Fi, > >> DHS > >> > >> Dwight H. Sullivan > >> Senior Appellate Defense Counsel > >> Air Force Appellate Defense Division > >> (AFLOA/JAJA) > >> 1500 West Perimeter Road, Suite 1100 > >> Joint Base Andrews, MD 20762 > >> 240-612-4773 > >> DSN: 612-4773 > >> Fax: 240-612-5818 > >> > >> > >> -----Original Message----- > >> From: Puckett Neal [mailto:neal@puckettfaraj.com] > >> Sent: Tuesday, August 09, 2011 1:33 PM > >> To: Sullivan, Dwight H CIV USAF AFLOA/JAJA; Sullivan Dwight > >> Cc: kirk.sripinyo@navy.mil Major NAMARA 45 Sripinyo Kirk; Kirk Sripinyo; > >> Faraj Haytham; Marshall Meridith; Babu Kaza > >> Subject: Re: Vokey Declaration > >> > >> Col Sullivan, > >> Which side do you take in this disagreement? > >> Neal > >> > >> Neal A. Puckett, Esq > >> LtCol, USMC (Ret) > >> Puckett & Faraj, PC > >> 1800 Diagonal Rd, Suite 210 > >> Alexandria, VA 22314 > >> 703.706.9566 > >> www.puckettfaraj.com > >> www.twitter.com/puckettfaraj > >> > >> > >> The information contained in this electronic message is confidential, and is > >> intended for the use of the individual or entity named above. If you are not > >> the intended recipient of this message, you are hereby notified that any > >> use, distribution, copying of disclosure of this communication is strictly > >> prohibited. If you received this communication in error, please notify > >> Puckett & Faraj, P.C. at 703-706-9566 or via a return the e-mail to sender. > >> You are required to purge this E-mail immediately without reading or making > >> any copy or distribution. > >> > >> On Aug 9, 2011, at 1:22 PM, Babu Kaza wrote: > >> > >> I disagree...if the answer is in our favor how does that hurt the case? > >> That supports the argument we have already made in writing: JAG rules trump > >> TX, and there is no problem. How is getting corroboration from TX for what > >> we already said a problem? > >> > >> And it is consistent with our focus on Wuterich vice Vokey. This is about > >> Wuterich's rights. Whether Vokey likes it or not, he is in retired status > >> and subject to recall. He had (has) an ACR with Wuterich that was only > >> putatively severed under the improper notion that there was an > >> irreconcilable conflict. If there is no irreconciliable conflict, and this > >> is cured by recall, then what Vokey wants is irrelevant. Having an > >> affidavit from another counsel reinforces that this is about Wuterich's > >> rights, not what Vokey wants. Besides, it would make sense as Col Sullivan > >> pointed out to not have a declaration from a counsel who would be on the > >> case. > >> > >> TX rules should be irrelevant to NMCCA. But obviously, NMCCA cares about > >> them, and do not want to abate for futile reasons. If they are at all on > >> the fence, this closes that hole and tells them that if they flip switch > >> then Vokey is sitting at counsel table in uniform, no question. Whether he > >> is happy about it is irrelevant. The Court was not concerned with how > >> effective Vokey could be, but whether he could in fact ethically serve as > >> counsel. > >> > >> Regardless, we should get an answer from TX and make a decision then. If we > >> don't like the answer we don't need to use it. > >> > >> If the expectation is that we lose, or have a slim chance of winning, then > >> why would we not want to alter the paradigm and err on the side of decisive > >> action? > >> > >> > >> > >> > >> > >> Subject: RE: Vokey Declaration > >> > >> > >> Date: Tue, 9 Aug 2011 12:46:08 -0400 > >> > >> > >> From: kirk.sripinyo@navy.mil > >> > >> > >> To: babu_kaza@hotmail.com; dwight.sullivan@pentagon.af.mil; > >> > >> > >> dhsullivan@aol.com; neal@puckettfaraj.com; ksripinyo@yahoo.com > >> > >> > >> CC: haytham@puckettfaraj.com; meridith.marshall@usmc.mil > >> > >> > >> > >> I think that getting an affidavit about "what the TX hotline told > >> me" is a > >> > >> > >> bad idea. If LtCol Vokey is unwilling to say that he would zealously > >> represent Wuterich then an affidavit from a separate attorney saying that > >> they called the hotline and got an informal and non-confidential opinion > >> based on a brief description of the case wherein the attorney says "I called > >> the TX state bar and they said 'it's good to go'" is not going to help us. > >> > >> > >> > >> Disregarding the fact that it's hearsay for a moment, it's > >> completely > >> > >> > >> non-binding on the bar and rendered based solely on the facts provided to > >> the bar by us. Because of this, the statement is totally meaningless. All it > >> says is that we can explain the case to the Texas hotline in such a way that > >> they'll say (but not be bound to this statement) that they wouldn't sanction > >> Vokey. The Court's going to recognize that, and give it no weight--if it > >> even chooses to allow the attachment. > >> > >> > >> > >> Even worse though, it suggests that Vokey wouldn't zealously > >> represent > >> > >> > >> Wuterich if ordered back to active duty. Why else would some OTHER attorney > >> be making this statement? Certainly they'll figure out that we asked Vokey > >> to make that very statement, and that he was at least concerned enough with > >> the ethical obligations that he chose not to. > >> > >> > >> > >> Beyond this, Babu spent 30 minutes trying to convince the Court that > >> the > >> > >> > >> rights at issue were Wuterich's rather than Vokey's. The Court continuously > >> focused on Vokey's rights and ethical obligations. If we entertain the > >> question of what the TX bar will do to Vokey post trial, we're telling the > >> court that it was correct to do so. That's wrong. And it's dangerous to our > >> case because it focuses the Court's attention where we don't want it, back > >> on Vokey rather than on Wuterich. > >> > >> > >> > >> I realize that we're trying to close the hole of "what will Vokey > >> do," so > >> > >> > >> that we can make the court comfortable with ordering an abatement, but we > >> just don't close the hole without a statement directly from Vokey. What has > >> he said? > >> > >> > >> > >> v/r > >> > >> > >> Sip > >> > >> > >> > >> -----Original Message----- > >> > >> > >> From: Babu Kaza [mailto:babu_kaza@hotmail.com] > >> > >> > >> Sent: Tuesday, August 09, 2011 9:46 > >> > >> > >> To: dwight.sullivan@pentagon.af.mil; dhsullivan@aol.com; > >> > >> > >> neal@puckettfaraj.com; Sripinyo, Kirk Major NAMARA, CODE 45; > >> ksripinyo@yahoo.com > >> > >> > >> Cc: haytham@puckettfaraj.com; meridith.marshall@usmc.mil > >> > >> > >> Subject: RE: Vokey Declaration > >> > >> > >> > >> Good point sir. Makes sense to have a non-counsel do it. > >> > >> > >> > >> > >> From: Dwight.Sullivan@pentagon.af.mil > >> > >> > >> To: babu_kaza@hotmail.com; dhsullivan@aol.com; > >> neal@puckettfaraj.com; > >> > >> > >> kirk.sripinyo@navy.mil; ksripinyo@yahoo.com > >> > >> > >> CC: haytham@puckettfaraj.com; meridith.marshall@usmc.mil > >> > >> > >> Date: Tue, 9 Aug 2011 09:40:57 -0400 > >> > >> > >> Subject: RE: Vokey Declaration > >> > >> > >> > >> Roger that, but I would suggest having a counsel who isn't > >> counsel in > >> > >> > >> this > >> > >> > >> case make that call. Maj Sip, do you have someone who could > >> do that? > >> > >> > >> > >> Semper Fi, > >> > >> > >> DHS > >> > >> > >> > >> Dwight H. Sullivan > >> > >> > >> Senior Appellate Defense Counsel > >> > >> > >> Air Force Appellate Defense Division > >> > >> > >> (AFLOA/JAJA) > >> > >> > >> 1500 West Perimeter Road, Suite 1100 > >> > >> > >> Joint Base Andrews, MD 20762 > >> > >> > >> 240-612-4773 > >> > >> > >> DSN: 612-4773 > >> > >> > >> Fax: 240-612-5818 > >> > >> > >> > >> > >> -----Original Message----- > >> > >> > >> From: Babu Kaza [mailto:babu_kaza@hotmail.com] > >> > >> > >> Sent: Tuesday, August 09, 2011 9:36 AM > >> > >> > >> To: dhsullivan@aol.com; neal@puckettfaraj.com; > >> kirk.sripinyo@navy.mil; > >> > >> > >> ksripinyo@yahoo.com > >> > >> > >> Cc: Sullivan, Dwight H CIV USAF AFLOA/JAJA; > >> haytham@puckettfaraj.com; > >> > >> > >> meridith.marshall@usmc.mil > >> > >> > >> Subject: Vokey Declaration > >> > >> > >> > >> Team Wuterich, > >> > >> > >> > >> Any luck with getting the declaration from Vokey? > >> > >> > >> > >> If not, or as an addition, I was thinking that maybe one of > >> us could > >> > >> > >> call > >> > >> > >> the Texas Bar 1-800 number, and lay the situation out, and > >> see what they > >> > >> > >> say? Would they discipline an attorney with an imputed > >> conflict, who is > >> > >> > >> recalled to active duty to try a case, and then returned to > >> his firm 2 > >> > >> > >> months later? > >> > >> > >> > >> Although they can't issue an ethics opinion, based on what > >> they said > >> > >> > >> couldn't we do a declaration from one of us saying that we > >> called the > >> > >> > >> Texas > >> > >> > >> bar 1-800 number and they would be fine with this if Vokey > >> was recalled? > >> > >> > >> > >> That would get us around any unwillingness on the part of > >> LtCol Vokey to > >> > >> > >> do > >> > >> > >> his own declaration. > >> > >> > >> > >> s/f > >> > >> > >> > >> Babu > >> > >> > >> > >> > >> > >> > >> > >> > >
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