Accused’s rights to counsel

(a) In general. (1) Non-capital courts-martial. The accused has the right to be represented before a non-capital general court-martial or a special court-martial by civilian counsel if retained by the accused at no expense to the Government, and either by the military counsel detailed under Article 27 or military counsel of the accused’s own selection, if reasonably available. The accused is not entitled to be represented by more than one military counsel. (2) Capital courts-martial. In a case referred with a special instruction that the case is to be tried as capital, the accused may be represented by more than one counsel. To the greatest extent practicable, in any capital case, at least one defense counsel shall, as determined by the Judge Advocate General, be learned in the law applicable to such cases under R.C.M. 502(d)(2)(C). If necessary, this counsel may be a civilian, and if so, may be compensated in accordance with regulations prescribed by the Secretary of Defense. II-35 (b) Individual military counsel. (1) Reasonably available. Subject to this subsection, the Secretary concerned shall define “reasonably available.” While so assigned, the following persons are not reasonably available to serve as individual military counsel because of the nature of their duties or positions: (A) A general or flag officer; (B) A trial or appellate military judge; (C) A trial counsel; (D) An appellate defense or government counsel; (E) A principal legal advisor to a command, organization, or agency and, when such command, organization, or agency has general court-martial jurisdiction, the principal assistant of such an advisor; (F) An instructor or student at a Service school or academy: (G) A student at a college or university; (H) A member of the staff of the Judge Advocate General of the Army, Navy, Air Force, Coast Guard, or the Staff Judge Advocate to the Commandant of the Marine Corps. The Secretary concerned may determine other persons to be not reasonably available because of the nature or responsibilities of their assignments, geographic considerations, exigent circumstances, or military necessity. A person who is a member of an armed force different from that of which the accused is a member shall be reasonably available to serve as individual military counsel for such accused to the same extent as that person is available to serve as individual military counsel for an accused in the same armed force as the person requested. The Secretary concerned may prescribe circumstances under which exceptions may be made to the prohibitions in this subsection when merited by the existence of an attorney-client relationship regarding matters relating to a charge in question. However, if the attorney-client relationship arose solely because the counsel represented the accused on review under Article 70, this exception shall not apply. (2) Procedure. Subject to this subsection, the Secretary concerned shall prescribe procedures for determining whether a requested person is “reasonably available” to act as individual military counsel. Requests for an individual military counsel shall be made by the accused or the detailed defense counsel through trial counsel to the convening authority. If the requested person is among those not reasonably II-36 available under paragraph (b)(1) of this rule or under regulations of the Secretary concerned, the convening authority shall deny the request and notify the accused, unless the accused asserts that there is an existing attorney-client relationship regarding a charge in question or that the person requested will not, at the time of the trial or preliminary hearing for which requested, be among those so listed as not reasonably available. If the accused’s request makes such a claim, or if the person is not among those so listed as not reasonably available, the convening authority shall forward the request to the commander or head of the organization, activity, or agency to which the requested person is assigned. That authority shall make an administrative determination whether the requested person is reasonably available in accordance with the procedure prescribed by the Secretary concerned. This determination is a matter within the sole discretion of that authority. An adverse determination may be reviewed upon request of the accused through that authority to the next higher commander or level of supervision, but no administrative review may be made which requires action at the departmental or higher level. (3) Excusal of detailed counsel. If the accused is represented by individual military counsel, detailed defense counsel shall normally be excused. The authority who detailed defense counsel, as a matter of discretion, may approve a request from the accused that detailed defense counsel shall act as associate counsel. The action of the authority who detailed the counsel is subject to review only for abuse of discretion. (c) Excusal or withdrawal. Except as otherwise provided in R.C.M. 505(d)(2) and paragraph (b)(3) of this rule, defense counsel may be excused only with the express consent of the accused, or by the military judge upon application for withdrawal by defense counsel for good cause shown. (d) Waiver. The accused may expressly waive the right to be represented by counsel and may thereafter conduct the defense personally. Such waiver shall be accepted by the military judge only if the military judge finds that the accused is competent to understand the disadvantages of self-representation and that the waiver is voluntary and understanding. The military judge may require that a defense counsel remain present even if the accused waives counsel and conducts the defense personally. The right of the accused to conduct the defense personally may be revoked if the accused is disruptive or fails to follow basic rules of decorum and procedure. (e) Nonlawyer present. Subject to the discretion of the military judge, the accused may have present and seated at the counsel table for purpose of consultation persons not qualified to serve as counsel under R.C.M. 502. II-37 CHAPTER VI. REFERRAL, SERVICE, AMENDMENT, AND WITHDRAWAL OF CHARGES