Re: Vokey Declaration

On Aug 9, 2011, at 2:04 PM, Sullivan, Dwight H CIV USAF AFLOA/JAJA wrote:

Hey, Babu suggested it first.

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
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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