How Does the Attorney-Client Privilege Operate in Military Courts?
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At courts-martial, the attorney-client privilege is Military Rule of Evidence 502. It lets the client refuse to disclose, and prevent others from disclosing, confidential communications made to obtain legal services. A uniformed defense counsel detailed or assigned to the case counts as a “lawyer” under the rule, so the privilege covers a detailed military defense counsel the same way it covers a retained civilian attorney. The rule has five exceptions, including one for communications made to commit or plan a future crime or fraud.
What the privilege covers
Under M.R.E. 502(a), a client “has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client”. It covers communications:
- between the client (or the client’s representative) and the lawyer (or the lawyer’s representative);
- between the lawyer and the lawyer’s representative;
- by the client or the client’s lawyer to a lawyer representing another person “in a matter of common interest”;
- between representatives of the client, or between the client and a representative of the client; and
- between lawyers representing the client.
Confidential means “not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication” (M.R.E. 502(b)(4)). A statement made where outsiders can hear it, and that the client did not intend to keep confidential, does not qualify.
Communications, not facts. The Court of Appeals for the Armed Forces’ digest summarizes United States v. Mellette, 82 M.J. 374 (2021 term): the privilege “prevents the disclosure of what an attorney advised a client to do, but it does not prevent the disclosure of what the client actually did or did not do in response to that advice”.
Military defense counsel are “lawyers” under the rule
M.R.E. 502(b)(2) defines “lawyer” in two ways: “a person authorized, or reasonably believed by the client to be authorized, to practice law; or a member of the Armed Forces detailed, assigned, or otherwise provided to represent a person in a court-martial case or in any military investigation or proceeding.”
The rule also says who is not a lawyer. A service member serving “in a capacity other than as a judge advocate, legal officer, or law specialist” is not a lawyer unless the member:
- is detailed, assigned, or otherwise provided to represent the person in a court-martial or military investigation or proceeding;
- is authorized by the armed forces, or reasonably believed by the client to be authorized, to render professional legal services to service members; or
- is authorized to practice law and provides legal services during off-duty employment.
Confiding in a sympathetic fellow service member who fits none of those categories does not create the privilege. Retained civilian counsel is covered under the first definition. How detailed and civilian counsel work together is explained in the right to counsel in court-martial proceedings.
Who can claim it
The privilege belongs to the client and may be claimed by the client, a guardian or conservator, a deceased client’s personal representative, or an organization’s successor or representative. “The lawyer or the lawyer’s representative who received the communication may claim the privilege on behalf of the client. The authority of the lawyer to do so is presumed in the absence of evidence to the contrary” (M.R.E. 502(c)).
The five exceptions
There is no privilege under M.R.E. 502(d):
| Exception | When it applies |
|---|---|
| Crime or fraud | The communication "clearly contemplated the future commission of a fraud or crime", or the lawyer's services "were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud" |
| Claimants through the same deceased client | Communications relevant to an issue between parties claiming through the same deceased client |
| Breach of duty | Communications relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer |
| Attested document | Communications relevant to a document the lawyer attested as a witness |
| Joint clients | Communications on a matter of common interest made to a lawyer retained or consulted in common, "when offered in an action between any of the clients" |
Past acts versus future crimes. The crime-fraud exception turns on the future. Explaining to counsel what already happened, to prepare a defense, is the core of the privilege. Seeking counsel’s help to fabricate testimony, influence a witness, or destroy evidence is what the exception describes. Obstruction offenses connected with such conduct are discussed in obstruction of justice under the UCMJ.
Waiver and protection against unauthorized disclosure
Voluntary disclosure. A holder waives the privilege by voluntarily disclosing, or consenting to disclosure of, “any significant part of the matter or communication under such circumstances that it would be inappropriate to allow the claim of privilege.” An accused who testifies does not, merely by testifying, waive the privilege unless testifying voluntarily about the privileged matter (M.R.E. 510).
Disclosure without the holder’s consent. “Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if disclosure was compelled erroneously or was made without an opportunity for the holder of the privilege to claim the privilege” (M.R.E. 511(a)). In United States v. Marcum, 60 M.J. 198 (C.A.A.F. 2004), the court applied that principle and noted that a lawyer may not reveal information relating to the representation unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or it is otherwise permitted (CAAF digest).
Telephone and other media. Transmitting privileged information by telephone does not by itself affect the privilege (M.R.E. 511(b)).
Two meetings with counsel (hypothetical)
A service member meets detailed defense counsel in a closed office twice.
- In the first meeting, the member describes how an altercation that led to an assault charge actually unfolded, including unflattering details. The communication is confidential, was made to obtain legal services, and counsel is a “lawyer” under M.R.E. 502(b)(2). It is privileged.
- In the second, the member asks counsel to help arrange matching false accounts with a friend. That request contemplates a future crime and falls within the crime-fraud exception (M.R.E. 502(d)(1)).
Related protections
- Work product. CAAF’s digest, summarizing Mellette, describes the work-product protection as “separate and distinct” from the privilege; R.C.M. 701(f) shields “notes, memoranda, or similar working papers prepared by counsel and counsel’s assistants and representatives.”
- Other privileges. M.R.E. 503 covers communications to clergy made “as a formal act of religion or as a matter of conscience”, and M.R.E. 513 covers psychotherapist-patient communications (how the Military Rules of Evidence operate in courts-martial), each with its own holder, definitions, and exceptions.
Sources
- CAAF Digest, Core Criminal Law Subjects: Evidence: Privileges (CAAF)
- Manual for Courts-Martial, United States (2024 ed.), M.R.E. 502, 503, 510, 511, 513; R.C.M. 701(f)
This article is general information about military law, not legal advice for any individual case.