How to Choose and Work with a Military Defense Attorney
On this page
- Three decisions and what each does to the team
- Requesting a specific military lawyer
- Checking a civilian lawyer’s qualifications
- Questions to ask before retaining counsel
- What civilian counsel changes
- Working with the defense team
- A Marine, a civilian lawyer, and a Navy judge advocate (hypothetical)
- Sources
- Related posts:
Choosing a military defense attorney means making up to three decisions under Article 38(b) of the UCMJ, which applies at a general or special court-martial and at an Article 32 preliminary hearing: whether to keep detailed military defense counsel alone, whether to request a specific military lawyer, and whether to retain a civilian lawyer at your own expense. The decisions interact. A selected military lawyer replaces detailed counsel unless the detailing authority approves keeping both, while a civilian lawyer is joined by military counsel acting as associate counsel unless the accused asks to excuse them. Working with the team then turns on the lawyer-client privilege, the decisions the law leaves to the accused after consulting counsel, and the process for requesting a defense expert.
Three decisions and what each does to the team
| Decision | What the statute says | Effect on the defense team |
|---|---|---|
| Rely on detailed counsel | Defense counsel "shall be detailed for each general and special court-martial" (Art. 27(a)(1)); the accused may be represented by that counsel (Art. 38(b)(3)(A)) | Detailed counsel at no cost to the accused |
| Request a specific military lawyer | "by military counsel of his own selection if that counsel is reasonably available" (Art. 38(b)(3)(B)) | Detailed counsel "shall be excused", unless the detailing authority approves a request that detailed counsel stay as associate defense counsel (Art. 38(b)(5), (6)(B)) |
| Retain a civilian lawyer | "The accused may be represented by civilian counsel if provided by him" (Art. 38(b)(2)) | Military counsel "shall act as associate counsel unless excused at the request of the accused" (Art. 38(b)(4)) |
The entitlements themselves, including counsel qualifications and appellate counsel, are covered in the right to counsel in court-martial proceedings. This guide deals with the choices made on top of them.
Requesting a specific military lawyer
Each military department defines “reasonably available” and the procedure for deciding it by regulation (Art. 38(b)(7)). One limit is written into the statute: those regulations “may not prescribe any limitation based on the reasonable availability of counsel solely on the grounds that the counsel selected by the accused is from an armed force other than the armed force of which the accused is a member.” A request can therefore name a judge advocate from another service.
The trade is that a granted request swaps one military lawyer for another rather than adding a second, unless the accused asks to keep detailed counsel as associate defense counsel and the detailing authority approves (Art. 38(b)(5), (6)(B)).
Checking a civilian lawyer’s qualifications
A civilian defense counsel at a court-martial must be “a member of the bar of a federal court or of the bar of the highest court of a State”, or, if not, a lawyer authorized by a recognized licensing authority whom the military judge finds qualified on a showing of “appropriate training and familiarity with the general principles of criminal law which apply in a court-martial” (R.C.M. 502(d)(2)(B)). The practical step is to ask which bar the lawyer belongs to and confirm that membership with that bar.
For a lawyer admitted only outside the United States, the Discussion to the rule lists what the military judge should ask about, including “the availability of the counsel at times at which sessions of the court-martial have been scheduled” and “whether the accused wants the counsel to appear with military defense counsel”. Availability is a fair question to put to any civilian lawyer, because a court-martial runs on the government’s docket.
Two disqualification rules also matter. A person who has served in the same case as a preliminary hearing officer, member, military judge, or appellate judge may not serve as defense counsel “unless expressly requested by the accused,” and no one who acted for the prosecution may later act for the defense in the same case (Art. 27(a)(2); R.C.M. 502(d)(3)).
Questions to ask before retaining counsel
These are evaluation questions, not legal requirements:
- Trial work. How many contested courts-martial has the lawyer tried, as distinct from cases resolved by plea, and before members or a military judge alone?
- The charge. Has the lawyer handled this offense in this forum? Article 120 offenses are among the “covered offenses” listed in Article 1(17), and a special trial counsel “shall exercise authority over any such offense” (Art. 24a(c)), which changes who the defense deals with on charging decisions.
- Who does the work. Will the lawyer you meet try the case, or someone else in the practice?
- Fee scope. What the fee covers, what it excludes, and whether investigators or experts are billed separately.
A promise of a particular outcome is a reason for caution, because findings and sentence are decided by the members or the military judge, not by defense counsel.
What civilian counsel changes
Civilian counsel adds a lawyer who is outside the military chain, is paid by the accused, and works alongside military counsel unless the accused excuses them (Art. 38(b)(2), (4)). Civilian practices whose pages describe court-martial defense include Crisp and Associates Military Law and Joseph L. Jordan, Military Defense Attorney at Law. Detailed counsel remains available at no cost whether or not a civilian is retained (Art. 27(a)(1)).
Working with the defense team
Privilege covers the whole team. Under M.R.E. 502(a), a client may refuse to disclose confidential communications made to obtain legal services, including communications “between lawyers representing the client.” Civilian and military counsel on the same case can therefore share what the client tells either of them.
Some decisions are the accused’s. A request for trial by military judge alone is made by “the accused, knowing the identity of the military judge and after consultation with defense counsel” (Art. 16(b)(3), (c)(2)(B)). Excusing associate military counsel is likewise “at the request of the accused” (Art. 38(b)(4)). Guilty pleas are covered in how guilty pleas are handled in military courts.
Experts. The defense may request appointment or funding of an expert witness or consultant under the regulations of the Secretary concerned. After referral, the request may be raised before the military judge, and “Motions for expert consultants may be raised ex parte.” The judge decides whether an expert witness’s testimony is “relevant and necessary” or whether a consultant’s assistance is “necessary for an adequate defense”, and a granted expert “or an adequate substitute” is provided (R.C.M. 703(d)(2)).
Before any interview. Whether to answer investigators’ questions is a question for counsel before the interview, not after; see rights of the accused during a military investigation.
A Marine, a civilian lawyer, and a Navy judge advocate (hypothetical)
A Marine facing an Article 32 preliminary hearing retains a civilian lawyer and also asks for a named Navy judge advocate. The request cannot be refused solely because the lawyer is from the Navy (Art. 38(b)(7)). If the Navy judge advocate is found reasonably available, the originally detailed counsel is excused unless the Marine asks to keep that lawyer and the detailing authority approves (Art. 38(b)(5), (6)(B)). The selected Navy lawyer then serves as associate counsel to the civilian unless the Marine asks to excuse them (Art. 38(b)(4)).
Sources
- 10 U.S.C. § 838, Article 38, Duties of trial counsel and defense counsel (Cornell LII)
- 10 U.S.C. § 827, Article 27, Detail of trial counsel and defense counsel (Cornell LII)
- 10 U.S.C. § 816, Article 16, Courts-martial classified (Cornell LII)
- 10 U.S.C. § 824a, Article 24a, Special trial counsel (Cornell LII)
- Manual for Courts-Martial, United States (2024 ed.), R.C.M. 502(d), 703(d); M.R.E. 502
- Executive Order 14130, 2024 Amendments to the Manual for Courts-Martial, United States (December 20, 2024), 89 Fed. Reg. 105343 (govinfo), Annex amendment to R.C.M. 703(d)(2)(B)
This article is general information about military law, not legal advice for any individual case. Outside practices named here are examples of the civilian defense field, not endorsements.