appropriate disciplinary or administrative action.

(2) If the Rules Counsel determines that further action is warranted, he or she shall

(1) In cases involving Marine Corps judge advocates not serving as defense counsel or attached to Navy units, request, on behalf of JAG, that the OEGCMJ appoint a disinterested judge advocate (normally senior to the concerned judge advocate and not previously involved in the case) to initiate an ethics investigation into the matter;

(ii) In all other cases, appoint, on behalf of JAG, a disinterested judge advocate (normally senior to the individual whose conduct is being investigated and not previously involved in the case) to initiate an ethics investigation; and

(iii) Notify all interested command officials.

§ 776.83 Ethics investigation.

(a) Whenever an ethics investigation is initiated, the concerned judge advocate will be so notified in writing by the Rules Counsel.

(b) The concerned judge advocate will also be provided written notice of his or her right to request a hearing before the investigating officer; to inspect all evidence gathered; to present written or oral statements or materials for consideration; to call witnesses at his or her own expense (local military witnesses should be made available at no cost); to be assisted by counsel (paragraph (c) of this section); to challenge the investigating officer for cause (such challenges must be made in writing and sent to the Rules Counsel via the challenged officer); and to waive any or all of these rights.

(c) The respondent may be represented by counsel at the hearing. Such counsel may be

(1) A civilian attorney retained at no expense to the government; or,

(2) In the case of a military respondent, military counsel

(1) Detailed by the cognizant naval legal service office, law center, or legal service support section; or

(ii) Requested by the respondent, if such counsel is attached to the cognizant naval legal service office, legal

service support section, law center, or to a Navy or Marine Corps activity located within 100 miles of the hearing site at the time of the scheduled hearing, and if such counsel is reasonably available as determined by the requested counsel's reporting senior in his or her sole discretion. There is no right to detailed counsel if requested counsel is unavailable.

(d) If a hearing is requested, the investigating officer will conduct it after reasonable notice to the judge advocate concerned. The hearing will not be unreasonably delayed. The hearing is not adversarial in nature and there is no right to subpoena witnesses. Rules of evidence do not apply. The concerned judge advocate or his or her counsel may question witnesses that may appear. The proceedings shall be recorded but no transcript of the hearing need be made. Evidence gathered during, or subsequent to, the preliminary inquiry and such additional evidence as may be offered by the concerned judge advocate shall be considered.

(e) After completing the hearing, the investigating officer shall prepare a summary of the evidence and forward it together with his or her recommendations to the Rules Counsel

via

(1) In cases involving Navy or Marine Corps judge advocates serving with Naval Legal Service Command units, Commander, Naval Legal Service Command;

(2) In cases involving Navy judge advocates serving with Marine Corps units, the Commandant of the Marine Corps (Attn: JA);

(3) In cases involving Navy or Marine Corps judge advocates serving in subordinate Navy fleet or staff billets, the fleet or staff judge advocate attached to the appropriate second-echelon commander;

(4) In cases involving members of the Navy-Marine Corps Trial Judiciary, the Trial Judiciary Chief Judge;

(5) In cases involving Marine Corps judge advocates serving in defense billets, via the Marine Corps defense service chain of command;

(6) In cases involving Marine Corps judge advocates not serving in defense counsel billets or in Navy units, via the

OEGCMJ over the concerned judge advocate; and

(7) The appropriate attorney discipline section if the complaint involves judge advocates certified by the Judge Advocates General/Chief Counsel of the other uniformed services.

(f) A copy of the report shall be provided to the concerned judge advocate and to all authorities previously provided copies of the charges who are not via addressees.

(g) The Rules Counsel shall review the report and either forward it to JAG together with his or her recommendations or return it, via the appropriate chain, to the investigating officer for further inquiry into specified areas.

§ 776.84 Action by JAG.

(a) JAG is not bound by the Rules Counsel's or investigating officer's recommendations, but will base his action on the record as a whole.

(b) JAG may, but is not required to, refer any case to the Professional Responsibility Committee for an advisory opinion on interpretation of the rules in subpart B of this part or their application to the facts of a particular case. (c) Upon receipt of the investigation, and any requested advisory opinion, JAG will take such action, as JAG considers appropriate in JAG's sole discretion. JAG may, for example—

(1) Return the report for further inquiry into specified areas;

(2) If JAG considers the allegations to be unfounded, or that no further action is warranted, JAG will direct the Rules Counsel to make the appropriate file entries and to notify all interested parties accordingly;

(3) If JAG considers the allegations to be supported by clear and convincing evidence, JAG may take appropriate corrective action including, but not limited to:

(i) Limiting the concerned judge advocate to practice under direct supervision of a superior judge advocate;

(ii) Limiting the concerned judge advocate to practicing in certain areas or forbidding him or her from practicing in certain areas;

(iii) Suspending or revoking the concerned judge advocate's authority to provide legal assistance;

(iv) If JAG finds that the misconduct so adversely affects the judge advocate's continuing ability to practice law in the naval service that certification under article 27(b), UCMJ, 10 U.S.C. 827(b), should be suspended, JAG may direct such certification to be suspended for a prescribed period;

(v) If JAG finds that the misconduct so prejudices the reputation of the judge advocate community, the administration of military justice, the practice of law under the cognizance of JAG, or the armed services as a whole, that certification under article 27(b), UCMJ, 10 U.S.C. 827(b), is no longer appropriate, JAG may direct such certification to be removed; or

(vi) In the case of a judge, if JAG finds that the misconduct so prejudices the reputation of military trial and appellate judges that certification under article 26(b), UCMJ, 10 U.S.C. 826(b), is no longer appropriate, direct such certification to be removed; and

(vii) Direct the Rules Counsel to contact appropriate authorities such as the Chief of Naval Personnel or the Commandant of the Marine Corps so that pertinent entries in appropriate DON records may be made; to make entries in and to close the file; to notify the individual concerned as well as any officials previously provided copies of the complaint; and notify appropriate tribunals and authorities of any action taken to suspend, decertify, or limit the practice of an attorney as counsel before courts-martial or the Navy-Marine Corps Court of Military Review, administrative boards, or as a legal assistance attorney.

§ 776.85 Finality.

Any action taken by JAG is final subject to any remedies afforded by Navy Regulations to the concerned counsel.

§ 776.86 Report to bar.

Upon determination by JAG that a violation of subpart B of this part or the Code of Judicial Conduct has occurred, JAG may cause the Rules Counsel to report that fact to the licensing authorities of the attorney concerned. If so reported, notice to the concerned attorney shall be provided by the Rules Counsel.

§§ 776.87-776.89 [Reserved]

Subpart D-Outside Part-Time Law Practice of Naval Service Attorneys

§ 776.90 Background.

(a) A DON attorney's primary professional responsibility is to DON, and he or she is expected to devote the required level of time and effort to satisfactorily accomplish assigned duties. In addition to the obligations of an attorney engaged in the outside practice of law to comply with local bar rules governing professional responsibility and conduct, DON attorneys remain bound by subpart B of this part.

(b) Outside employment of DON personnel, both military and civilian, is limited by Executive Order 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306, and Secretary of the Navy Instruction 5370.2J, Standards of Conduct [available on request from the Office of the Judge Advocate General, Administrative Law Division, 200 Stovall Street, Alexandria, VA 22332-2400]. Additionally, section 0710 of the Manual of the Judge Advocate General prohibits active duty judge advocates and civilian attorneys under the supervision of JAG from accepting or receiving, directly or indirectly, any fee or compensation of any nature for legal services rendered to those persons eligible for legal assistance under article 0706 of the Manual of the Judge Advocate General, whether or not the service is rendered during duty hours, or is part of official duties.

(c) Additionally, DON officers and employees are prohibited by 18 U.S.C. 209 from receiving pay or allowances from any source other than the United States for the performance of any official service or duty unless specifically authorized by law. Furthermore, 18 U.S.C. 203 and 205 prohibit Federal officers and employees from personally representing or receiving, directly or indirectly, compensation for representing any other person before any Federal agency or court on matters in which the United States is a party or has an interest.

(d) These limitations are particularly significant when applied to DON attorneys who intend to engage concur

Outside part-time law practice is defined as any regular provision of legal advice, counsel, assistance or representation, with or without compensation, that is not performed pursuant or incident to duties as a naval service attorney. Occasional uncompensated assistance rendered to relatives or friends is excluded from this definition. Teaching a law course as part of a program of education or training offered by an institution of higher education is not practicing law for purposes of this part. § 776.92 Policy.

(a) As a general rule, JAG will not approve requests to practice law parttime in association with lawyers or firms which represent clients with interests adverse to DON.

(b) JAG's approval of a particular request does not constitute DON certification of the requesting attorney's qualifications to engage in the proposed practice or DON endorsement of activities undertaken after such practice begins. Furthermore, because any outside law practice is necessarily beyond the scope of a DON attorney's official duties, the requesting attorney should consider obtaining personal malpractice insurance coverage.

§ 776.93 Action.

(a) DON attorneys to whom this enclosure applies who contemplate engaging in an outside part-time law practice must first obtain approval from JAG. Requests should be forwarded in the form provided in Judge Advocate General Instruction 5803.1A [the form is available on request from the Administrative Law Division] to the Administrative Law Division, via the attorney's chain of command. Marine Corps attorneys will also include Commandant of the Marine Corps (JAR) as a via addressee.

(b) The requesting attorney's commanding officer may—

(1) Disapprove and return the request if he or she perceives actual or apparent conflicts of interests; or

(2) Forward the request recommending approval and providing such other information as may be relevant.

(c) JAG will review the request and advise applicants in writing of the decision, and of any conditions and limitations under which a particular practice may be undertaken. Until permission is granted, applicants will not commence any outside law practice.

8776.94 Revalidation.

(a) Attorneys to whom permission is given to engage in the outside parttime practice of law will notify JAG in writing, via their chain of command, within 30 days of any material change in:

(1) The nature or scope of the outside practice described in their requests, including termination; or

(2) Their DON assignment or responsibilities.

(b) Attorneys to whom permission is given to engage in the outside practice of law will annually resubmit an application to continue the practice with current information by 1 October each year.

§ 776.95 Relations with non-DON civilian counsel.

Employment of non-DON civilian counsel by an individual client alters no responsibilities of a DON attorney to that client.

(a) When civilian counsel is retained by an individual client, the DON attorney assigned to that client shall inform civilian counsel

(1) of the contents of this part;

(2) That subpart B of this part applies to civilian counsel practicing before military tribunals, courts, or boards as a condition of such practice; and

(3) That subpart B of this part takes precedence over other rules of professional conduct that might otherwise apply.

(b) If an individual client designates civilian counsel as chief counsel, the detailed DON attorney must defer to civilian counsel in any conflict over trial tactics. If, however, counsel have "co-counsel" status, then conflict in proposed trial tactics requires the client to be consulted to resolve the conflict.

(c) If civilian counsel has, in the opinion of the DON attorney, acted contrary to the requirements of subpart B of this part, the matter should first be discussed with civilian counsel. If not resolved between counsel, the client must be informed of the matter by the DON attorney. If, after being apprised of possible misconduct, the client approves of the questioned conduct, the judge advocate shall attempt to withdraw from the case in accordance with §776.35. The client shall be informed of such intent to withdraw prior to action by the judge advocate.

PARTS 777-799 [RESERVED]