[Code of Federal Regulations]
[Title 32, Volume 5]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR776.29]

[Page 517-518]
 
                       TITLE 32--NATIONAL DEFENSE
 
                   CHAPTER VI--DEPARTMENT OF THE NAVY
 
PART 776_PROFESSIONAL CONDUCT OF ATTORNEYS PRACTICING UNDER THE 
 
                 Subpart B_Rules of Professional Conduct
 
Sec. 776.29  Imputed disqualification: General rule.

    (a) Imputed disqualification: General rule. Covered USG attorneys 
working in the same military law office are not automatically 
disqualified from representing a client because any of them practicing 
alone would be prohibited from doing so by Sec. 776.26, Sec. 776.27, 
Sec. 776.28, or Sec. 776.38 of this part. Covered non-USG attorneys 
must consult their

[[Page 518]]

federal, state, and local bar rules governing the representation of 
multiple or adverse clients within the same office before such 
representation is initiated, as such representation may expose them to 
disciplinary action under the rules established by their licensing 
authority.
    (b)(1) The circumstances of military (or Government) service may 
require representation of opposing sides by covered USG attorneys 
working in the same law office. Such representation is permissible so 
long as conflicts of interests are avoided and independent judgment, 
zealous representation, and protection of confidences are not 
compromised. Thus, the principle of imputed disqualification is not 
automatically controlling for covered USG attorneys. The knowledge, 
actions, and conflicts of interests of one covered USG attorney are not 
imputed to another simply because they operate from the same office. For 
example, the fact that a number of defense attorneys operate from one 
office and normally share clerical assistance would not prohibit them 
from representing co-accused at trial by court-martial. Imputed 
disqualification rules for non-USG attorneys are established by their 
individual licensing authorities and may well proscribe all attorneys 
from one law office from representing a co-accused, or a party with an 
adverse interest to an existing client, if any attorney in the same 
office were so prohibited.
    (2) Whether a covered USG attorney is disqualified requires a 
functional analysis of the facts in a specific situation. The analysis 
should include consideration of whether the following will be 
compromised: Preserving attorney-client confidentiality; maintaining 
independence of judgment; and avoiding positions adverse to a client. 
See, e.g., U.S. v. Stubbs, 23 M.J. 188 (CMA 1987).
    (3) Preserving confidentiality is a question of access to 
information. Access to information, in turn, is essentially a question 
of fact in a particular circumstance, aided by inferences, deductions, 
or working presumptions that reasonably may be made about the way in 
which covered USG attorneys work together. A covered USG attorney may 
have general access to files of all clients of a military law office 
(e.g., legal assistance attorney) and may regularly participate in 
discussions of their affairs; it may be inferred that such a covered USG 
attorney in fact is privy to all information about all the office's 
clients. In contrast, another covered USG attorney (e.g., military 
defense counsel) may have access to the files of only a limited number 
of clients and participate in discussion of the affairs of no other 
clients; in the absence of information to the contrary, it should be 
inferred that such a covered USG attorney in fact is privy to 
information about the clients actually served but not to information of 
other clients. Additionally, a covered USG attorney changing duty 
stations or changing assignments within a military office has a 
continuing duty to preserve confidentiality of information about a 
client formerly represented. See Sec. 776.25 and Sec. 776.28.7 of this 
part.
    (4) Maintaining independent judgment allows a covered USG attorney 
to consider, recommend, and carry out any appropriate course of action 
for a client without regard to the covered USG attorney's personal 
interests or the interests of another. When such independence is lacking 
or unlikely, representation cannot be zealous.
    (5) Another aspect of loyalty to a client is the general obligation 
of any attorney to decline subsequent representations involving 
positions adverse to a former client in substantially related matters. 
This obligation normally requires abstention from adverse representation 
by the individual covered attorney involved, but, in the military legal 
office, abstention is not required by other covered USG attorneys 
through imputed disqualification.