Written by attorney Matthew Scott James

7 Common Myths: Hiring Civilian Defense Attorneys

The choice of a military defense lawyer is one of the most important choices a person can make when facing legal action. The military provides members with a free Government lawyer. Many military members believe this is their only option. Know your choices and make the right decision for you.

There are several common myths about civilian military defense lawyers. Below, I examine the ones I’ve encountered the most.

1. I can’t afford a civilian military defense lawyer.

False. Every single military member, from E-1 to Chief of Staff can afford a military defense lawyer. When most military members say they can’t afford a civilian military defense lawyer, what they mean is that they don’t want to pay for one.

When you are facing serious consequences, the cost to your life and career is much, much more than anything you spend on a civilian military defense lawyer. The effects of a military legal action can follow you for life and end up costing you thousands or even millions of dollars. If you are convicted or discharged, you will lose your job, your income, and future job opportunities. In some cases, military legal action can strip a member of veteran’s benefits and retirement.

2. I should hire a military defense lawyer in my local area.

False. Many military members limit their searches to their local area. In the civilian world, people typically hire local lawyers who know are licensed in their State and are experienced in working with local courts. However, military defense is not like civilian defense. Military judges and lawyers are always changing. It is not possible to become an expert in a local base. Further, the UCMJ applies to all military branches, anywhere in the world. Most military lawyers, civilian or active-duty, travel from base to base. Location is probably the least important factor to consider.

3. I can’t choose my military defense lawyer.

False. In most serious legal actions, you have the absolute right to choose your military defense lawyer. In a court-martial, the first thing the judge will do is tell you about your right to choose your lawyer. If you are assigned a trial defense counsel or ADC, you can always let them go. If you choose a civilian military defense lawyer, you can always choose another one. You need to be happy with your military defense lawyers.

4. My free Government lawyer has the time to handle my case.

False. Your free Government lawyer may not have the time to give you the best military defense possible. Government defense counsel are usually overworked and understaffed, like most military members. In addition to your case, your free Government lawyer most likely has hundreds or thousands of other cases and clients. They may not have the same amount of time and energy to commit to your case.

5. My free Government lawyer has an independent chain of command.

Partly false. Most services have a semi-independent defense counsel branch. However, every lawyer in the military is subject to military orders and every lawyer in the military has a chain-of-command. Military lawyers, including defense lawyers, fall under the control of the Judge Advocate General.

This means that your free Government lawyer is following policy made people in his/her chain-of-command. A civilian military defense lawyer typically has no chain of command.

The basic exception to this is when a civilian military defense lawyer is a junior attorney for a firm— then the policy is set by the partners. If you want to make sure your civilian military defense lawyer is independent, look at the name of the firm or ask if he/she is a senior partner.

6. My free Government lawyer has enough experience to handle my case.

False. Your free Government lawyer may or may not have a tried a single case in his/her life. An average military defense counsel will have 2-6 years of experience, many of those years doing non-criminal cases. The last time I spoke to a Navy defense lawyer, the Navy and Marines would often assign a brand new lawyer to their defense slots.

The law is a profession. When I was a civilian and military prosecutor, the general rule of thumb was that a trial or court-martial lawyer needed at least 20 fully litigated trials/courts under his/her belt before they knew their way around a courtroom. Further, anyone with less than 10 years of experience was considered a new attorney.

7. If I hire a civilian, I cannot or should not keep my free Government lawyer.

False. You can still have your free Government lawyer on your case. If your free Government lawyer is a good lawyer, then your civilian military defense lawyer will include him/her as a part of the defense. Instead of one lawyer, you now have a team of lawyers working together for you.

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