| Concur with the Oracle. We can't even get a wavier from Salinas without revealing atty/client privileged information to him and without tipping off the government to our strategy for him. That's why we had to move for Colby's excusal in the beginning. 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 22, 2011, at 1:19 PM, Sullivan, Dwight H CIV USAF AFLOA/JAJA wrote: Maj Kaza -- Thanks; that's good to know. Of course, the military's answer is the exact opposite of Texas's -- the military says, in essence, "Obey our rules; they trump your state rules." Even if a state provided a different answer, that would still be the "right" answer for a uniformed attorney. I really don't think we want to ask Salinas to waive anything. I think it's important that we have no control over what Salinas does. Nor do we have any control over what Vokey does. Jones' solution of saying Vokey can do X, Y, and Z if (but only if) Salinas does W doesn't help Wuterich, since he can't control any of that. 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. From Maj Sip's last paragraph, it sounds like we are back at square one. 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----- From: Sripinyo, Kirk Major NAMARA, CODE 45 [mailto:kirk.sripinyo@navy.mil] Sent: Tuesday, August 09, 2011 12:28 PM To: Sullivan, Dwight H CIV USAF AFLOA/JAJA; Puckett Neal Cc: Sullivan Dwight; Kirk Sripinyo; Faraj Haytham; Marshall Maj Meridith L; Babu Kaza Subject: RE: Vokey Declaration I agree that our starting position is that it doesn't matter whether Texas would take disciplinary action against Vokey. But to me, this makes an affidavit stating what Texas would, in fact, do irrelevant to our argument by definition. In my mind, it detracts from our argument because we're in effect saying "Oh yeah, well if you don't agree with that well, the TX bar 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 proceedings, (i.e., that Vokey would in fact do something rather than be a potted plant) but that seems best addressed by having Vokey say so. Regardless of what TX says on the hotline and even what the Courts say the state bar of Texas can censure Vokey if they want to. Certainly that's something that he could fight and perhaps win. But having Vokey say that he 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 hotline to ask, and there's a message stating that it is a resource provided "exclusively for members of the Texas bar." In addition, it states that if we're calling for another attorney that the attorney in question must call. No humans, of course, but I left a message stating the issue very briefly and asked them to call me back. Since it hasn't been mentioned, I'm guessing Vokey's not willing to call, 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 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 <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 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 <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 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 = |