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
> >
> >
>