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RE: Vokey Declaration
So then our position is solidified that Texas is irrelevant? If LtCol Vokey is recalled and then approaches the MJ with his TX conflict and says that he does not believe he can represent Wuterich, the MJ should say that the JAG rules have supremecy and that LtCol Vokey needs to represent Wuterich?
Subject: Re: Vokey Declaration
From: neal@puckettfaraj.com
Date: Mon, 22 Aug 2011 13:24:50 -0400
CC: babu_kaza@hotmail.com; dhsullivan@aol.com; kirk.sripinyo@navy.mil; ksripinyo@yahoo.com; meridith.marshall@usmc.mil; haytham@puckettfaraj.com
To: Dwight.Sullivan@pentagon.af.mil
Remember, sport fans, the TX state bar doesn't "go after" attys absent some complaint. Salinas wants nothing but the best for Wuterich and certainly has nothing to gain from going after Colby or really, anything to lose from Colby representing Wuterich.
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 22, 2011, at 1:20 PM, Sullivan, Dwight H CIV USAF AFLOA/JAJA wrote:
It's also interesting to think about which is the "most restrictive" rule. The military would say to Vokey, "You have an ethical obligation to zealously represent Wuterich." Texas would say, "You have an ethical obligation not to represent Wuterich." It isn't clear to me philosophically why Texas's answer is "more restrictive" than the military's answer.
Semper Fi,
DHS
Dwight H. Sullivan
Acting Chief
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: Monday, August 22, 2011 12:33 PM
To: dhsullivan@aol.com; neal@puckettfaraj.com
Cc: Sullivan, Dwight H CIV USAF AFLOA/JAJA; kirk.sripinyo@navy.mil; ksripinyo@yahoo.com; meridith.marshall@usmc.mil; haytham@puckettfaraj.com
Subject: RE: Vokey Declaration
All,
Scott Stoebner got back to me, and said that he had a phone conversation with an individual on the Texas hotline. He gave her the facts, and she told him that the best course of action was to go with the more restricitve rule...that is, Texas Rule 8.05. And under that rule, there would be an imputed conflict.
Now that is only an informal opinion over the phone, and I still think it is highly unlikely that TX would do anything to LtCol Vokey if he were recalled, but regardless that is not the answer we needed.
As for options, any chance of getting a waiver from Salinas? Concurrently, how about a waiver from Wuterich which is specifically worded, such that Wuterich only waives the TX conflict if LtCol Vokey is recalled and in uniform at counsel table? Justification would be that (1) he had a right to LtCol Vokey as an Article 38 military counsel, not as a pro bono civilian and (2) he would not feel comfotable waiving the conflict unless LtCol Vokey were not actively working at the firm during trial.
That's about all I can think of.
________________________________
From: DHSULLIVAN@aol.com
Date: Sat, 13 Aug 2011 11:52:29 -0400
Subject: Re: Vokey Declaration
To: babu_kaza@hotmail.com; neal@puckettfaraj.com
CC: dwight.sullivan@pentagon.af.mil; kirk.sripinyo@navy.mil; ksripinyo@yahoo.com; meridith.marshall@usmc.mil; haytham@puckettfaraj.com
p.s. -- we might be in a race with NMCCA on this. I would think that the opinion will come out pretty soon. Since I'll be out of the office Monday through Wednesday, it will no doubt be then. ;-)
In a message dated 8/13/2011 11:36:45 A.M. Eastern Daylight Time, babu_kaza@hotmail.com writes:
Scott Stoebner, a trustworthy former Navy JAG who I served with at Code 45, and a licensed Texas attorney, has agreed to make the call to the 1800 number on Monday. I didn't give him any details beyond the skeleton outline.
The question he will pose will be words to the effect of: "If I am hypothetically recalled to active duty to handle a case, would I be allowed to represent a client who had a materially adverse interest to a former client of my civilian firm? I was screened off and never obtained any privileged or confidential information concerning my firm's former client. Would Texas sanction me if I was properly following all Navy JAG rules while in a military status and representing a servicemember at a court-martial?"
________________________________
Subject: Re: Vokey Declaration
From: neal@puckettfaraj.com
Date: Wed, 10 Aug 2011 13:50:31 -0400
CC: dwight.sullivan@pentagon.af.mil; kirk.sripinyo@navy.mil; ksripinyo@yahoo.com; meridith.marshall@usmc.mil; dhsullivan@aol.com; haytham@puckettfaraj.com
To: babu_kaza@hotmail.com
I read "not in litigation" to be applicable in our case. Believe that avenue of requesting an opinion is foreclosed.
As far as I know, Haytham has not heard anything back from Colby.
Neal A. Puckett, Esq
LtCol, USMC (Ret)
Puckett & Faraj, PC
1800 Diagonal Rd, Suite 210
Alexandria, VA 22314
703.706.9566
www.puckettfaraj.com <http://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 10, 2011, at 1:45 PM, Babu Kaza wrote:
I agree that this is counter to what I stated to the Court (and also counter to what LtCol Vokey has stated).
But what about the fact that to request an opinion, the requestor must make "A statement that the question(s) presented is not in litigation." It would seem that since the question of Vokey's recall is in litigation, he would not have been eligible to ask the PEC for an opinion.
From: Dwight.Sullivan@pentagon.af.mil
To: kirk.sripinyo@navy.mil; babu_kaza@hotmail.com; ksripinyo@yahoo.com; meridith.marshall@usmc.mil; neal@puckettfaraj.com
CC: dhsullivan@aol.com; haytham@puckettfaraj.com
Date: Wed, 10 Aug 2011 13:29:01 -0400
Subject: RE: Vokey Declaration
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 <http://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.