| And don't forget Jack represented LCpl Tatum, a former co-accused and cold blooded killer in the Haditha cases. What, I can't editorialize? 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 10, 2011, at 12:32 PM, Sullivan, Dwight H CIV USAF AFLOA/JAJA wrote: 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 thetexas bar. I'm fairly certain they won't talk to me. Babu Kaza <babu_kaza@hotmail.com> wrote: said that he wanted to come back to active-duty, that would likely beObviously, something in writing from Vokey would be awesome, and if he 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? the game that they only talk to TX lawyers? Any other TX licensed judgeKirk, anyone at Code 45 a member of the TX bar, in case they want to play advocates who could be trusted to do this if they don't talk to you? From: Dwight.Sullivan@pentagon.af.mil neal@puckettfaraj.comTo: meridith.marshall@usmc.mil; kirk.sripinyo@navy.mil; babu_kaza@hotmail.comCC: dhsullivan@aol.com; ksripinyo@yahoo.com; haytham@puckettfaraj.com; Date: Tue, 9 Aug 2011 16:23:53 -0400 Subject: RE: Vokey Declaration Meredith, upI'm pretty sure Colby doesn't want to be recalled. The issue that came at oral argument yesterday is whether he would zealously represent his oneclient if he were recalled to active duty. The notion was thrown out by of the judges -- Judge Booker if I remember correctly -- that he might violatingrefuse to actually participate in Wuterich's defense for fear of the Texas Rules even if he were on active duty. wrestlingWe're united in thinking the question is bat shit crazy. We're 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. one.From Maj Sip's last paragraph, it sounds like we are back at square 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----- [mailto:kirk.sripinyo@navy.mil]From: Sripinyo, Kirk Major NAMARA, CODE 45 Sent: Tuesday, August 09, 2011 12:28 PM To: Sullivan, Dwight H CIV USAF AFLOA/JAJA; Puckett Neal Meridith L;Cc: Sullivan Dwight; Kirk Sripinyo; Faraj Haytham; Marshall Maj Babu Kaza Subject: RE: Vokey Declaration TexasI agree that our starting position is that it doesn't matter whether would take disciplinary action against Vokey. But to me, this makes an argumentaffidavit stating what Texas would, in fact, do irrelevant to our inby definition. In my mind, it detracts from our argument because we're bareffect saying "Oh yeah, well if you don't agree with that well, the TX 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 be aproceedings, (i.e., that Vokey would in fact do something rather than potted plant) but that seems best addressed by having Vokey say so. theRegardless of what TX says on the hotline and even what the Courts say state bar of Texas can censure Vokey if they want to. Certainly that's that hesomething that he could fight and perhaps win. But having Vokey say 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 providedhotline to ask, and there's a message stating that it is a resource if"exclusively for members of the Texas bar." In addition, it states that call.we're calling for another attorney that the attorney in question must brieflyNo humans, of course, but I left a message stating the issue very and asked them to call me back. call,Since it hasn't been mentioned, I'm guessing Vokey's not willing to 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 Kirk;Cc: Sullivan Dwight; kirk.sripinyo@navy.mil Major NAMARA 45 Sripinyo 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 and isThe information contained in this electronic message is confidential, are notintended for the use of the individual or entity named above. If you anythe intended recipient of this message, you are hereby notified that strictlyuse, distribution, copying of disclosure of this communication is prohibited. If you received this communication in error, please notify sender.Puckett & Faraj, P.C. at 703-706-9566 or via a return the e-mail to makingYou are required to purge this E-mail immediately without reading or any copy or distribution. wrote:On Aug 9, 2011, at 2:00 PM, Sullivan, Dwight H CIV USAF AFLOA/JAJA next-to-lastUpon reading Maj Sip's email, my immediate thought was Babu's beforepoint: why not have someone make the call and see what we find out making a decision? withSome states formally say that where military rules are inconsistent state rules, they won't impose discipline based on the state rules on military attorneys. See, e.g., Major Bernard Ingold, Professional NotResponsibility Note: JAG Attorneys Following Military Ethics Rules Will 1990,Be Subject to Discipline for Violating Oregon Rules, Army Law., June (1988)).at 42 (discussing Or. State Bar Ass'n Informal Ethics Opinion 88-19 GivenIf Colby were an Oregon lawyer, that would seem to be dispositive. similarthe Texas Hotline folks a chance to tell us whether there's anything 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 Sripinyo;Cc: kirk.sripinyo@navy.mil Major NAMARA 45 Sripinyo Kirk; Kirk 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 and isThe information contained in this electronic message is confidential, are notintended for the use of the individual or entity named above. If you anythe intended recipient of this message, you are hereby notified that strictlyuse, distribution, copying of disclosure of this communication is prohibited. If you received this communication in error, please notify sender.Puckett & Faraj, P.C. at 703-706-9566 or via a return the e-mail to makingYou are required to purge this E-mail immediately without reading or 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? trumpThat supports the argument we have already made in writing: JAG rules whatTX, and there is no problem. How is getting corroboration from TX for we already said a problem? aboutAnd it is consistent with our focus on Wuterich vice Vokey. This is statusWuterich's rights. Whether Vokey likes it or not, he is in retired and subject to recall. He had (has) an ACR with Wuterich that was only putatively severed under the improper notion that there was an thisirreconcilable conflict. If there is no irreconciliable conflict, and is cured by recall, then what Vokey wants is irrelevant. Having an affidavit from another counsel reinforces that this is about Wuterich's Sullivanrights, not what Vokey wants. Besides, it would make sense as Col thepointed out to not have a declaration from a counsel who would be on case. aboutTX rules should be irrelevant to NMCCA. But obviously, NMCCA cares onthem, and do not want to abate for futile reasons. If they are at all switchthe fence, this closes that hole and tells them that if they flip hethen Vokey is sitting at counsel table in uniform, no question. Whether is happy about it is irrelevant. The Court was not concerned with how aseffective Vokey could be, but whether he could in fact ethically serve counsel. If weRegardless, we should get an answer from TX and make a decision then. don't like the answer we don't need to use it. thenIf the expectation is that we lose, or have a slim chance of winning, decisivewhy would we not want to alter the paradigm and err on the side of 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 thatrepresent Wuterich then an affidavit from a separate attorney saying opinionthey called the hotline and got an informal and non-confidential calledbased on a brief description of the case wherein the attorney says "I us.the TX state bar and they said 'it's good to go'" is not going to help Disregarding the fact that it's hearsay for a moment, it's completely tonon-binding on the bar and rendered based solely on the facts provided All itthe bar by us. Because of this, the statement is totally meaningless. thatsays is that we can explain the case to the Texas hotline in such a way sanctionthey'll say (but not be bound to this statement) that they wouldn't itVokey. The Court's going to recognize that, and give it no weight--if even chooses to allow the attachment. Even worse though, it suggests that Vokey wouldn't zealously represent attorneyWuterich if ordered back to active duty. Why else would some OTHER Vokeybe making this statement? Certainly they'll figure out that we asked withto make that very statement, and that he was at least concerned enough the ethical obligations that he chose not to. Beyond this, Babu spent 30 minutes trying to convince the Court that the continuouslyrights at issue were Wuterich's rather than Vokey's. The Court focused on Vokey's rights and ethical obligations. If we entertain the thequestion of what the TX bar will do to Vokey post trial, we're telling ourcourt that it was correct to do so. That's wrong. And it's dangerous to backcase because it focuses the Court's attention where we don't want it, on Vokey rather than on Wuterich. I realize that we're trying to close the hole of "what will Vokey do," so wethat we can make the court comfortable with ordering an abatement, but hasjust don't close the hole without a statement directly from Vokey. What 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 |