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through the preparation of a broad programmatic environmental impact statement discussing the impacts of a wide ranging or long term Stepped program followed by narrower statements or environmental assessments concentrating solely on issues Specific to the analysis Subsequently prepared (40 CFR 1508.28). (1) Appropriate use of tiering: Tiering is appropriate when it helps the lead agency to focus on issues which are ripe for decision and exclude from Consideration issues already decided or not yet ripe. (40 CFR 1508.28(b).) The sequence of statements or analyses is: (i) From a broad program, plan, or policy environmental impact Statement (not necessarily site Specific) to a subordinate/Smaller Scope program, plan, or policy Statement or analysis (usually site specific) (40 CFR 1508.28 (a)). (ii) From an environmental impact statement on a Specific action at an early stage (such as need and Site Selection) to a supplement (which is preferred) or a Subsequent Statement Or analysis at a later Stage (Such as environmental mitigation) (40 CFR 1508.28(b)). (iii) In addition to the discussion required by these regulations for incluSion in environmental impact statements, the programmatic environmental impact statement shall also discuss: (A) A description of the Subsequent Stages or sites that may ultimately be proposed in as much detail as presently pOSSible; (B) All of the implementing factors of the program that can be ascertained at the time of impact Statement preparation; (C) All of the environmental impacts that will result from establishment of the overall program itself that will be Similar for subsequent Stages or Sites as further implementation plans are proposed; and (D) All of the appropriate mitigation measures that will be similarly proposed for Subsequent Stages or Sites. (iv) The analytical document used for stage or site specific analysis subsequent to the programmatic environmental impact statement shall also be an environmental impact statement

when the subsequent tier itself may have a significant inpact on the quality of the human environment or when an impact Statement is otherwise required. Otherwise, it is appropriate to document the tiered analysis with an environmental assessment to fully asSeSS the need for further documentation or whether a FONSI would be appropriate.

§ 775.10 Relations with state, local and regional agencies.

Close and harmonious planning relations with local and regional agencies and planning Commissions of adjacent Cities, Counties, and states, for coOperation and resolution of mutual land use and environment-related problems should be established. Additional Coordination may be obtained from state and area-wide planning and development “clearinghouses”. These are agencies which have been established pursuant to Executive Order 12372 of July 14, 1982 (3 CFR, 1982 Comp., p. 197). The clearinghouses serve a review and Coordination function for Federal activities and the proponent may gain inSights On other agencies’ approaches to environmental assessment S, Surveys, and studies in relation to any current proposal. The clearinghouses would also be able to assist in identifying possible participants in Scoping procedures for projects requiring an EIS.

$775.11 Public participation.

The importance of public participation (40 CFR 1501.4(b)) in preparing environmental assessmentS is clearly recOgnized and it is recommended that Commands proposing an action develop a plan to ensure appropriate Communication with affected and interested parties. The command Public Affairs Office can provide a SSistance with developing and implementing this plan. In determining the extent to which public participation is practicable, the following are among the factors to be weighed by the command: (a) The magnitude of the environmental considerations associated with the proposed action; (b) The extent of anticipated public interest; and (c) Any relevant questions of national security and classification.

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776.38 776.39

Evaluation for use by third perSOnS. Meritorious claims and contentionS. 776.40 Expediting litigation. 776.41 Candor and obligations toward the tribunal. 776.42 Fairness to opposing party and counSel. 776.43 Impartiality and decorum of tribunal. 776.44 Extra-tribunal StatementS. 776.45 Judge advocate as witness. 776.46 Special responsibilities of a trial counsel. 776.47 Advocate in nonadjudicative proceedingS. 776.48 Truthfulness in Statements to otherS. 776.49 Communication with person represented by Counsel. 776.50 Dealing with an unrepresented perSOIl. 776.51 Respect for rights of third persons. 776.52 Responsibilities of the judge advocate general and Supervisory judge advocates. 776.53 Responsibilities of a Subordinate judge advocate. 776.54 Responsibilities regarding nonlawyer aSSiStant S. 776.55 Professional independence of a judge advocate. 776.56 Unauthorized practice of law. 776.57—776.65 [Reserved] 776.66 Bar admission and disciplinary matterS. 776.67 Judicial and legal officials. 776.68 Reporting professional misconduct. 776.69 Misconduct. 776.70 Jurisdiction. 776.71–776.75 [Reserved]

Subpart C–Complaint Processing Procedures

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Related investigations and actions.
Informal complaints.
The Complaint.
Initial Screening and Rules Counsel.

Preliminary inquiry.
Ethics investigation.
Action by JAG.

776.85 Finality.

776.86 Report to bar. 776.87—776.89 [Reserved]

Subport D—Outside Port-Time Low Proctice of Novol Service Attorneys


776.20 Competence.

776.21 Establishment and Scope of representation.

776.22 Diligence.

776.23 Communication.

776.24 FeeS.

776.25 Confidentiality of information.

776.26 Conflict of interestS: General rule.

776.27 Conflict of interests: Prohibited tranSaCtions.

776.28 Conflict of interests: Former client.

776.29 Imputed disqualification: General rule.

776.30 Successive government and private employment.

776.31 Former judge or arbitrator.

776.32 Department of the Navy as client.

776.33 Client under a disability.

776.34 Safekeeping property.

776.35 Declining or terminating representation.

776.36 Advisor.

776.37 Mediation.




776.94 Revalidation.

776.95 Relations with non-DON



AUTHORITY: 10 U.S.C. 826, 827; Manual for Courts-Martial, United States, 1984; Secretary of the Navy Instruction 5430.27A, Responsibility of the Judge Advocate General for Supervision of Certain Legal Services; U.S. Navy Regulations, 1990.

SOURCE: 59 FR 45214, Sept. 1, 1994, unless otherwise noted.

Subport A–General, Predmble Cind Premises

$776.1 Purpose.

In furtherance of the authority Citations [which, if not found in local libraries, are available from the Office of the Judge Advocate General (Administrative Law Division), 200 Stovall Street, Alexandria, VA 22332–2400], which require the Judge Advocate General (JAG) to supervise the performance of legal services under his cognizance throughout the Department of the Navy (DON), this part is promulgated—

(a) To establish Rules of Professional Conduct for DON civilian and military attorneys practicing under the Supervision of JAG;

(b) To promulgate procedures for receiving, processing, and taking action on complaints of professional misconduct made against attorneys practicing under the supervision of JAG, or certified by JAG under articles 26(b) or 27(b) of the Uniform Code of Military Justice (UCMJ) (10 U.S.C. 826(b), 827(b)); and

(c) To prescribe limitations on, and procedures for, processing requests to engage in the part-time Outside practice of law by DON judge advocates or civilian attorneys under the Supervision of JAG.

$776.2 Applicability.

(a) This part defines the professional ethical obligations of, and applies to: (1) AttorneyS: (i) Certified by JAG under the proviSions of article 27(b), UCMJ, 10 U.S.C. 827(b); (ii) Designated by JAG as legal asSistance attorneyS; (iii) Who practice within DON and who are certified under article 27(b), UCMJ, 10 U.S.C. 827(b), or who are des— ignated as a legal assistance attorney by the Judge Advocate General/Chief

Counsel of another armed force, or both; and (2) Who are not certified in accordance with article 27(b), UCMJ, 10 U.S.C. 827(b), or designated as a legal assistance attorney, but who practice under the Supervision of JAG. (3) Military trial and appellate judges who practice or perform legal Services under the cognizance of JAG. (4) Reserve judge advocates of the Navy or Marine Corps on active duty, extended active duty, active duty for training, inactive duty for training, or when performing duties subject to the supervision of JAG. Subpart D of this part, however, does not apply to Reserve judge advocates unless they serve on active duty for more than 30 consecutive days. (5) DON civilian counsel practicing under the supervision of JAG. (6) Civilian counsel representing individual members of the naval Service in any matter for which JAG is charged with supervising the provision of legal services including, but not limited to, courts-martial, administrative boards, and disability evaluation proceedings. Subpart D of this part, however, does not apply to such counsel. (b) Although subpart B of this part does not apply to nonlawyers, the rules in that subpart do define the type of ethical conduct that the public and the military community have a right to expect not only of lawyers but also of their nonlawyer employees and associates in all matters pertaining to professional conduct. Accordingly, Subpart B shall serve as models of ethical conduct for the following personnel when involved with the delivery of legal services under the purview of JAG(1) Navy legalmen and Marine Corps legal administrative officers and legal service specialists; (2) Limited duty officers (law); (3) Legal interns; and (4) Civilian support personnel including paralegals, legal Secretaries, legal technicians, secretaries, Court-reporters, and others holding Similar positions. Attorneys who supervise nonlawyer employees are responsible for their ethical conduct to the extent provided for in §776.54.

$776.3 Policy.

(a) DON judge advocates and civilian attorneys to whom this part applies shall maintain the highest Standards of professional ethical conduct. Loyalty and fidelity to the United States, to the law, to clients both institutional and individual, and to the rules and principles of professional ethical Conduct set forth in subpart B of this part must come before private gain or perSonal interest. (b) Subpart B and related procedures set forth herein concern matters solely under the purview of JAG. Whether conduct or failure to act constitutes a violation of the duties imposed by this part is a matter within the sole discretion of JAG or officials authorized to act for JAG. The Subpart B rules are not substitutes for, and do not take the place of, other rules and standards governing DON personnel such as the Government rules of ethical conduct, the Code of Conduct, the Uniform Code of Military Justice, and the general precepts of ethical conduct to which all of ficers of the Navy and Marine Corps are expected to adhere. Similarly, action taken pursuant to this part is not supplanted or barred by, and does not Supplant or bar, the following action from being taken by authorized officials, even if the underlying misconduct is the same— (1) Punitive or disciplinary action under the UCMJ; or (2) Administrative action under the Manual For Courts-Martial or U.S. Navy Regulations, 1990, or under other applicable authority.

$776.4 Attorney-client relationships.

(a) The executive agency to which asSigned (DON in most cases) is the client Served by each DON Civilian attorney or judge advocate unless detailed to represent another client by competent authority. Specific guidelines are contained in §776.32.

(b) DON judge advocates and civilian attorneys will not establish attorneyclient relationships with any individual unless detailed, assigned, or otherWise authorized to do so by competent authority.

(c) Employment of non-DON civilian Counsel by an individual client does not alter the responsibilities of a DON

judge advocate or civilian attorney to that client. Specific guidance is set forth in §776.95.

$776.5 Judicial conduct.

To the extent that it does not conflict with statutes, subpart B of this part, or regulations of the sort mentioned in §776.3(b), the American Bar ASSociation’s Code of Judicial Conduct applies to all military and appellate judges and to all judge advocates and other attorneys performing judicial functions under JAG Supervision within the Department of the Navy.

$776.6 Conflict.

To the extent that a conflict exists between subpart B of this part and the rules of other jurisdictions that regulate the professional conduct of attorneys, subpart B of this part will govern the conduct of attorneys engaged in legal functions under JAG supervision.

$776.7 Reporting requirements.

Individuals subject to this part shall promptly report to the Rules Counsel (see $776.9) discipline by another jurisdiction upon himself, herself, or anOther individual subject to this part.

$776.8 Professional Responsibility Committee.

(a) Composition. This standing Committee will consist of the Assistant Judge Advocate General (AJAG) for Military Justice; the Principal Deputy ASSistant Judge Advocate General (PDAJAG) (Operations & Management); the Chief Judge, Navy–Marine Corps Trial Judiciary; and in cases involving Marine Corps judge advocates, the Deputy Director, Judge Advocate Division, HQMC; and such other perSonnel as JAG from time-to-time may appoint. A majority of the members constitutes a quorum. The Chairman of the Committee shall be PDAJAG (Operations & Management). The Chairman may excuse members disqualified for cause, illness, or exigencies of military Service, and may request JAG to appoint additional or alternative members On a temporary Or permanent basis.

(b) Purpose. (1) When requested by JAG or by the Rules Counsel, the Committee will provide formal advisory opinions to JAG regarding application of subpart B of this part to individual or hypothetical cases. (2) On its own motion, the Committee may also issue formal advisory opinions on ethical issues of importance to the DON legal community. (3) Upon written request, the Committee will also provide formal advisory Opinions to individuals subject to this part about the propriety of proposed courses of action under subpart B of this part. If such requests are predicated upon full disclosure of all relevant facts, and if the Committee advises that the proposed course of conduct is not violative of subpart B of this part, then no adverse action under this part may be taken against an individual who acts consistent with the Committee’s advice. (4) The Committee Chairman will forward copies of all opinions issued by the Committee to the Rules Counsel.

§ 776.9 Rules Counsel.

Appointed by JAG to act as a special assistant for the administration of Subpart B of this part, the Rules Counsel derives authority from JAG and, with respect to administrative matters under this part, has “by direction” authority. The Rules Counsel shall cause Opinions issued by the Professional ReSponsibility Committee of general interest to the DON legal community to be published in summarized, non-perSonal form in suitable publications. Unless another officer is appointed by JAG to act in individual cases, the following officers shall act as Rules CounSel—

(a) In cases involving Marine Corps judge advocates, Director, Judge AdvoCate Division; and

(b) In all other cases, Assistant Judge Advocate General (Civil Law).

$776.10 Informal ethics advice.

(a) Advisors. Judge advocates may Seek informal ethics advice either from the OJAG officers named below or from their Supervisory judge advocates in the field. Within the Office of the JAG, the following officials are designated to respond to informal, oral inquiries Concerning this part in the areas of practice indicated—

(1) Head, Military Affairs/Personnel Law Branch, Administrative Law DiviSion: administrative boards and related matters;

(2) Deputy Director, Criminal Law Division: military justice matters;

(3) Deputy Director, Legal Assistance Division: legal assistance matters; and

(4) Head, Standards of Conduct/Government Ethics Branch, Administrative Law Division: all others.

(b) Informal advice. Informal ethics advice will not be provided by OJAG advisors concerning matters currently in litigation.

(c) Written advice. A request for informal advice does not relieve the requestor of the obligation to comply with Subpart B of this part. Although DON judge advocates and civilian attorneys are encouraged to seek advice when in doubt as to their responsibilities, they remain personally responsible for their professional conduct. If, however, a Subordinate judge advocate acts in acCordance with a supervisory judge adVOCate’s written and reasonable resolution of an arguable question, then no adverse action under this part may be taken against the subordinate judge advocate. JAG is not bound by unwritten advice or by advice provided by nonSupervisors.

§ 77; Outside part-time practice of 3|We

A DON attorney’s primary profesSional responsibility is to the executive agency to which assigned, and he or she is expected to devote the required amount of effort and time to satisfactorily accomplish assigned duties. The Outside practice of law, therefore, must be carefully monitored. Attorneys to whom this section applies who wish to engage in the part-time, Outside practice of law must first obtain permission from JAG. Details are contained in Subpart D of this part.

$776.12 Maintenance of files.

Ethics complaint records and outSide, part-time law practice request files shall be maintained by the AdminiStrative Law Division, Office of the Judge Advocate General.

(a) Files shall be labeled with the name of the individual against whom complaints are made, or who request

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