| It's fun to talk about all this in a vacuum. But let's look at reality. First: only Salinas would file a complaint. Not the State Bar. They don't know anything unless a complaint comes in. He wouldn't. Second: do you really think Colby WON'T get waivers if he's ordered to active duty. We could get them in 2 seconds. Neal A. Puckett, Esq LtCol, USMC (Ret) Puckett & Faraj, PC 1800 Diagonal Rd, Suite 210 Alexandria, VA 22314 703.706.9566 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 2:10 PM, Sullivan, Dwight H CIV USAF AFLOA/JAJA wrote: The more I think about it, the more I'd be inclined to use a favorable answer. Our position -- which I think is right -- is that it doesn't matter whether Texas would take disciplinary action against Colby. If he's returned to active duty, he's obligated to follow the JAG Rules. Active duty counsel are routinely required to handle cases in which a member of their same office is conflicted even though their state rules might say that's impermissible. It doesn't matter. A defense counsel in that position couldn't refuse to take action on behalf of the client -- that would be inconsistent with both the Navy Rules' requirement for zealous representation and Article 92's requirement that the lawyer do his or her job. And failing to provide zealous representation would violate the Texas Rules as well. So Colby would HAVE to provide zealous representation even if Texas were to say, "We'll hammer the shit out of him" if he does. But it seems somewhat helpful to our case to be able to say, "Colby HAS to provide zealous representation and, you know what, nothing bad will happen to him if he does. Rather, bad things would happen to him if he DIDN'T." We could also cite the NMCCA case where the trial defense counsel were denied a continuance and then essentially went on strike. The military appellate courts ripped them limb from limb -- and set aside the conviction. 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 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 |