[Code of Federal Regulations]
[Title 32, Volume 6]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR845.7]

[Page 131-132]
 
                        TITLE 32-NATIONAL DEFENSE
 
                CHAPTER VII--DEPARTMENT OF THE AIR FORCE
 
PART 845_COUNSEL FEES AND OTHER EXPENSES IN FOREIGN TRIBUNALS--Table of 
Contents
 
Sec. 845.7  Procedures for hiring counsel and obligating funds.

    (a) The selection of individual trial or appellate counsel will be 
made by the defendant. Such counsel shall represent the individual 
defendant and not the US Government. Selection shall be made from 
approved lists of attorneys who are qualified, competent and experienced 
in trial practice, and admitted for full practice, on their own account, 
before the courts of the foreign country involved. Normally, these lists 
will be coordinated with the local court or bar association, if any, and 
the appropriate US Diplomatic or Consular Mission and should include 
only those attorneys who are known or reputed, to comply with local 
attorney fee schedules or guides approved or suggested by local

[[Page 132]]

bar associations and should not exceed amounts paid under similar 
circumstances by nationals of the country where the trial is held. No 
fee may include any amount in payment for services other than those 
incident to representation before judicial and administrative agencies 
of the foreign country in the particular case for which the contract is 
made, and in no event may any contract include fees for representation 
in habeas corpus or related proceedings before tribunals of the United 
States. When appropriate and reasonable in the case, the payment of 
expenses, in addition to counsel fees, may include court costs, bail 
costs, charges for obtaining copies of records, printing and filing 
fees, interpreter fees, witness fees, and other necessary and reasonable 
expenses. Expenses will not include the payment of fines or civil 
damages, directly or indirectly.
    (b) Whenever possible, the officer responsible under Sec. 845.3 (or 
his designee), acting on behalf of the United States of America, shall 
enter into a written contract with the selected counsel. The contract 
will cover counsel fees, and, when appropriate, may cover other costs 
arising in defense of the case only in the court of first instance and 
will not include fees for representation on appeal. If the case is 
appealed to higher tribunals, supplemental agreements shall be executed 
for each appeal. A copy of the contractual agreement shall serve as the 
obligating document.
    (c) If, for example, because of unusual circumstances or local 
customs, it is not practicable to enter into a written contract as in 
paragraph (b) of this section, action will be taken to record the 
agreement reached between the officer responsible under Sec. 845.3 (or 
his designee) and the selected counsel. This requirement may be met by a 
letter of commission or letter of understanding, executed between the 
officer responsible under Sec. 845.3 (or his designee) and the selected 
counsel, or by a written request for legal services expressly or 
impliedly accepted by the selected counsel. Any such document shall 
contain, if possible, an agreed estimate of counsel fees and reasonable 
expenses and a statement that both fees and expenses will conform to 
those paid by local nationals under similar circumstances and will not 
exceed local fee schedules, if any. If this document does not include an 
agreed estimate of counsel fees and other reasonable expenses, an 
estimate will be provided by the contracting officer. A copy of the 
document, together with the estimate, will be furnished the accounting 
component and will serve as the commitment document for the reservation 
of funds.
    (d) The provision of counsel and payment of expenses under this part 
is not subject to the provisions of the Defense Acquisition Regulation 
(subchapter A, chapter I of this title). However, the contract clauses 
set forth in part 5, section VII, Defense Acquisition Regulation, may be 
used as a guide in contracting.
    (e) Because of the desirability of timely procedural action, it is 
suggested that there be designated, from among the judge advocates on 
the staffs of officers responsible under Sec. 845.3, contracting 
officers with contracting authority limited to agreements described in 
this section. The effect of this designation would be to combine within 
one office the duties of contracting officer and judge advocate.
    (f) Nothing in this part shall be construed as prohibiting the 
selection of qualified local counsel employed by the United States 
Government, if the serviceman freely selects such counsel.