[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: 32CFR776.32]

[Page 520-521]
 
                       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. 776.32  Department of the Navy as client.

    (a) Department of Navy as client:
    (1) Except when representing an individual client pursuant to 
paragraph (a)(6) of this section, a covered USG attorney represents the 
DON (or the Executive agency to which assigned) acting through its 
authorized officials. These officials include the heads of 
organizational elements within the Naval service, such as the commanders 
of fleets, divisions, ships and other heads of activities. When a 
covered USG attorney is assigned to such an organizational element and 
designated to provide legal services to the head of the organization, an 
attorney-client relationship exists between the covered attorney and the 
DON as represented by the head of the organization as to matters within 
the scope of the official business of the organization. The head of the 
organization may not invoke the attorney-client privilege or the rule of 
confidentiality for the head of the organization's own benefit but may 
invoke either for the benefit of the DON. In invoking either the 
attorney-client privilege or attorney-client confidentiality on behalf 
of the DON, the head of the organization is subject to being overruled 
by higher authority.
    (2) If a covered USG attorney knows that an officer, employee, or 
other member associated with the organizational client is engaged in 
action, intends to act or refuses to act in a matter related to the 
representation that is either adverse to the legal interests or 
obligations of the DON or a violation of law which reasonably might be 
imputed to the Department, the covered USG attorney shall proceed as is 
reasonably necessary in the best interest of the Naval service. In 
determining how to proceed, the covered USG attorney shall give due 
consideration to the seriousness of the violation and its consequences, 
the scope and nature of the covered USG attorney's representation, the 
responsibility in the Naval service and the apparent motivation of the 
person involved, the policies of the Naval service concerning such 
matters, and any other relevant considerations. Any measures taken shall 
be designed to minimize prejudice to the interests of the Naval service 
and the risk of revealing information relating to the representation to 
persons outside the service. Such measures shall include among others:
    (i) Asking for reconsideration of the matter by the acting official;
    (ii) Advising that a separate legal opinion on the matter be sought 
for presentation to appropriate authority in the Naval service;
    (iii) Referring the matter to, or seeking guidance from, higher 
authority in the chain of command including, if warranted by the 
seriousness of the matter, referral to the supervisory attorney assigned 
to the staff of the acting official's next superior in the chain of 
command; or
    (iv) Advising the acting official that his or her personal legal 
interests are at risk and that he or she should consult counsel as there 
may exist a conflict of interests for the covered USG attorney, and the 
covered USG attorney's responsibility is to the organization.
    (3) If, despite the covered USG attorney's efforts per paragraph 
(a)(2) of this section, the highest authority that can act concerning 
the matter insists upon action or refuses to act, in clear violation of 
law, the covered USG attorney shall terminate representation with 
respect to the matter in question. In no event shall the attorney 
participate or assist in the illegal activity. In this case, a covered 
USG attorney shall report such termination of representation to the 
attorney's supervisory attorney or attorney representing the next 
superior in the chain of command.
    (4) In dealing with the officers, employees, or members of the Naval 
service a covered USG attorney shall explain the identity of the client 
when it is apparent that the Naval service's interests are adverse to 
those of the officer, employee, or member.
    (5) A covered USG attorney representing the Naval service may also 
represent any of its officers, employees, or members, subject to the 
provisions of Sec. 776.26 of this part and other applicable authority. 
If the DON's consent to dual representation is required by Sec. 776.26 
of this part, the consent shall be given by an appropriate official of 
the DON other than the individual who is to be represented.

[[Page 521]]

    (6) A covered USG attorney who has been duly assigned to represent 
an individual who is subject to disciplinary action or administrative 
proceedings, or to provide legal assistance to an individual, has, for 
those purposes, an attorney-client relationship with that individual.
    (b) [Reserved]