I'm thinking creatively and I have done NO research on my idea, so tread lightly.
What if...
You sue the DoN in USDC for a writ of mandamus ordering the government to dismiss the case. Here's the logic: You and Vokey have an AC with Wuterich that you cannot ethically sever. On the other hand, you can't appear in the court-martial because you have been improperly discharged. No court-martial could be held without violating Wuterich's rights to counsel. You're in a legal no-man's land. The defense can't even show up to a court-martial because counsel are effectively barred from the proceedings and you must advise your client not to go to court without you. Therefore, a legally valid court-martial is a legal impossibility and should be stopped. You could also write to the convening authority's boss (and then his boss) explaining the situation and requesting dismissal from him.
Just thoughts...
From: Haytham Faraj <haytham@puckettfaraj.com>
Subject: RE:
To: "'Bart Slabbekorn'" <bart.slabbekorn@yahoo.com>
Date: Friday, September 10, 2010, 3:23 PM
Thanks Bart. You identified all the areas of concern that we identified, Specifically, the matter of conflict that is arguably defense created. We approached this from the perspective of but for the Government discharging he would not have taken a job that he shouldnât have but did because he had no options. Thatâs the best I have. Since writing the motion I have adjusted my approach to focus on the harm resulting from our discharge. Wuterich has a right to detailed counsel or at least to counsel that are not prejudiced in their representation from an inability to be compensated. The other issue is why should Colby and continue representation. Neither of us have an agreement with Wuterich. The law before Hutchins was end of service ends continued representation. Colby and I knew differently and
made an appearance because out professional obligation demands that we not just walk away. If we are bound by an AC that the government imposed on us, shouldnât we either be allowed to sever that relationship when the government no longer compensates us or force the government to compensate us if they force us to continue representation.
Thanks for warning on the dates. Thatâs an important catch.
Haytham Faraj, Esq.
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From: Bart Slabbekorn [mailto:bart.slabbekorn@yahoo.com]
Sent: Friday, September 10, 2010 10:46 AM
To: haytham@puckettfaraj.com
Subject:
I read your Hutchins motion from the Wuterich case online. Its really good. I just wanted to share a few thoughts with you. Take them for what they're worth.
The biggest problem you have, I think, is remedy. One possible ruling from the MJ would be to abate the proceedings until the government reactivates you and/or LtCol Vokey. In the Hohman case, Bob is beyond the USMC jurisdiction at this point. Maybe something similar can be said for you two. The federal statute barring post service grafting (18 USC 203) might be a good hook. But I think there are ethics opinions that say an attorney can represent a client he rep'd while on active duty. Bob knows all about that issue.
I think LtCol Jones will ask you specifically about LtCol Vokey's conflict. I would be prepared to fully explain why LtCol Vokey's employment at the firm that rep's Salinas prevents him from rep'ing Wuterich now. MORE IMPORTANTLY, assuming that the conflict does bar further represenation, how is that not the Defense's (i.e. LtCol Vokey's) fault? In other words, how did LtCol Vokey, Wuterich, Salinas and the firm handle the conflict as it arrised? If handled properly, could the conflict have been avoided or waived? If the MJ thinks the defense created the issue, then the MJ will likely not give the dismissal remedy.
Also, make sure your timelines are locked down. The motion states you and LtCol Vokey were detailed to the Wuterich case in January 2006. I checked into the LSSS in April 2006 and I don't remember anything about these cases until much, much later. Also, the motion implies that LtCol Vokey stayed on active duty much, much longer than you did but then it says you both retired in August 2008.
I'm on your side. I think the motion was extremely well presented. This is just red cell stuff.
Let me know if you need anything, Sir.
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