United States v. Ross

COOK, Senior Judge,

dissenting:

During the course of the post-trial interview1 appellant stated that he was not satisfied with his defense counsel. It is my considered belief that such a remark is a disavowal by the client of the attorney-client relationship which effectively terminates that relationship.2 Furthermore, I believe that in such a situation it is incumbent upon the staff judge advocate to take such steps as are necessary to ascertain the client’s desires concerning legal representation during the post-trial processing of his case.3

*882I am persuaded that appellant’s renunciation of his trial defense counsel occurred on or before 4 June 1976. Under the Dunlap4 90-day rule, the convening authority’s action need not have been taken prior to 24 August. This provided the staff judge advocate with ample time, irrespective of where the appellant was physically located, to ascertain his desires concerning counsel. As he did not do so, and substituted instead a counsel unknown to and unaccepted by the appellant,5 I would require a new review and action.6

. The record is ambiguous as to just when this interview took place. Appellant was tried in Korea on 26 May 1976. In a post-trial affidavit the staff judge advocate asserts that appellant was shipped to CONUS on 4 June 1976. On 1 July 1976 a copy of the authenticated record of trial was sent by certified mail to appellant addressed to the Disciplinary Barracks at Fort Leavenworth, Kansas. The post-trial review, however, states that the interview in question occurred on 17 August 1976. Unless it occurred at Fort Leavenworth, Kansas (which seems unlikely as the review is dated 18 August 1976) either the appellant was still in Korea or the date in the review of 17 August is in error. I believe the latter assumption is correct. It follows, therefore, that this interview occurred on or prior to 4 June 1976.

. “. . because of the peculiar nature of the relation of attorney and client, the law goes even further and permits the termination thereof in a manner not recognized with respect to other contracts. . The client has the absolute right to discharge the attorney and terminate the relationship at any time even without cause, no matter how arbitrary his action may seem . . . 7 C.J.S. Attorney and Client § 109 (1937).

. To do so does not in any way indicate that the staff judge advocate concurs in the client’s disparagement of his trial defense counsel. Nor should our opinion be so construed. The *882staff judge advocate’s only objective, as is ours, should be to insure that the client is served by an attorney in whom he has confidence and trust and not one whose professional ability he had impugned. Entitlement to further representation is mandated by the VI Amendment to the United States Constitution; Article 38, Uniform Code of Military Justice; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); and United States v. Palenius, 25 U.S.C.M.A. 222, 54 C.M.R. 549, 2 M.J. 86 (1977), which decision, in my opinion, obviates the reservations expressed in this particular by Justice Rehnquist in Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976).

. United States v. Franklin, 3 M.J. 785 (A.C.M.R. 15 June 1977).

. United States v. Slamski, 11 U.S.C.M.A. 74, 28 C.M.R. 298 (1959); United States v. Brady, 8 U.S.C.M.A. 456, 24 C.M.R. 266 (1957); United States v. Miller, 7 U.S.C.M.A. 23, 21 C.M.R. 149 (1956).

. Dunlap v. Convening Authority, 23 U.S.C.M.A. 135, 48 C.M.R. 751 (1974).