United States v. Dorman

UNITED STATES, Appellee

v.

Phillip C. DORMAN, Airman
U.S. Air Force, Appellant

No. 02-0884

Crim. App. No. 34237

United States Court of Appeals for the Armed Forces

Argued March 11, 2003
Decided June 13, 2003

CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined

Counsel

For Appellant: Mr. Philip D. Cave, Esq. (argued); Colonel
Beverly B. Knott, Major Maria A. Fried, Major Karen L. Hecker,
and Major Terry L. McElyea (on brief).

For Appellee: Captain C. Taylor Smith (argued); Colonel LeEllen
Coacher, Lieutenant Colonel Lance B. Sigmon, and Major John D.
Douglas (on brief); Colonel Anthony P. Datillo and Major Eric D.
Placke.

Military Judge: Mark R. Ruppert

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Dorman, No. 02-0884/AF

Chief Judge CRAWFORD delivered the opinion of the Court.

On August 3, 2000, Appellant was tried by a military judge

sitting alone as a general court-martial convened at Beale Air

Force Base (AFB), California. Pursuant to his pleas, Appellant

was convicted of one specification of attempted wrongful use of

a controlled substance, three specifications of wrongful use of

a controlled substance, and one specification of wrongful

distribution of a controlled substance, in violation of Articles

80 and 112a, Uniform Code of Military Justice [hereinafter

UCMJ], 10 U.S.C. §§ 880, 912a (2000). Appellant was sentenced

to a bad-conduct discharge, confinement for ten months, total

forfeiture of pay and allowances, and reduction to E-1. On

September 13, 2000, the convening authority reduced Appellant’s

confinement to eight months and approved the remainder of the

sentence as adjudged. On June 28, 2002, the Air Force Court of

Criminal Appeals affirmed the findings and sentence. United

States v. Dorman, 57 M.J. 539, 546 (A.F. Ct. Crim. App. 2002).

Thereafter, on November 26, 2002, we granted review of the

following issue:

WHETHER THE COURT BELOW ERRED BY REFUSING TO PROVIDE
APPELLATE DEFENSE COUNSEL WITH ACCESS TO THE CASE
FILE OF THE TRIAL DEFENSE COUNSEL, IN DIRECT
VIOLATION OF THIS COURT'S CLEAR PRECEDENTS AND BY
NOW REQUIRING APPELLATE DEFENSE COUNSEL TO VIOLATE
THE RULES OF PROFESSIONAL CONDUCT AND THE STANDARDS
FOR CRIMINAL JUSTICE BEFORE BEING GRANTED SUCH
ACCESS TO THE FILE AND BY ALSO FAILING TO CONSIDER

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THE TRIAL DEFENSE COUNSEL'S ETHICAL OBLIGATION TO
TURN OVER HER FILE UNDER HER STATE BAR RULES.

We hold that the court below erred by refusing to provide

appellate defense counsel with access to trial defense counsel’s

case file. However, appellate defense counsel has since had

access to the requested information, but to this date has failed

to demonstrate prejudice. Thus, we affirm the decision below.

FACTS

Appellant was a 19-year-old Airman First Class with

approximately 11 months of service at the time of his earliest

offense. Appellant reported to Beale AFB in January 1999.

Roughly seven months later, after a period of temporary duty in

Saudi Arabia, he became involved in the drug scene in and around

Beale AFB and the nearby civilian community of Yuba City,

California.

Appellant's first drug experience occurred on July 7, 1999,

when he ingested methamphetamine and smoked marijuana at a party

in Yuba City. During the weeks that followed, Appellant

continued his drug use on a series of occasions: smoking

marijuana in a truck parked in his dormitory parking lot;

inhaling methamphetamine in his dormitory room (but becoming ill

and flushing the remainder down the toilet); possessing

psilocybin mushrooms and eating them with pasta; and purchasing,

using, and selling ecstasy pills. On October 26, 1999,

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Appellant used marijuana one final time with an airman at a

party in Yuba City.

Upon questioning by the Office of Special Investigations

(OSI) on October 31, 1999, Appellant gave a full confession and

agreed to be an informant for both the OSI and civilian police.

His efforts were instrumental in the apprehension of several

drug suppliers in the Yuba City/Beale AFB area. Appellant’s

then-girlfriend and current wife, Airman Nicole Ferranti, was

also court-martialed for her involvement in the crimes.

Appellant was represented at trial by military defense

counsel A, an area defense counsel, and military defense counsel

B, a circuit defense counsel. Military defense counsel B also

participated in the defense of Appellant's wife. Recognizing

the possibility of a conflict of interest, the military judge

questioned Appellant at length concerning Appellant's

understanding of his right to obtain different, conflict-free

counsel. The judge ultimately concluded that Appellant

understood his right to conflict-free representation and

voluntarily waived that right.

After Appellant’s record of trial was docketed at the Court

of Criminal Appeals, he retained civilian appellate counsel to

work on the appellate defense team. In the course of his

preparation, civilian appellate counsel asked military defense

counsel A for her trial file regarding Appellant's case.

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Military defense counsel A asked precisely what information

civilian appellate counsel sought, and he responded that he had

a release from Appellant to review the entire file. Despite her

initial hint at cooperation, military defense counsel A

eventually refused the request, a refusal sustained by the court

below.

After civilian appellate counsel filed a motion in this

Court to compel production of the requested information,

military defense counsel turned over all of the requested

information. As a result, the motion was withdrawn. United

States v. Dorman, 57 M.J. 466 (C.A.A.F. 2002).

DISCUSSION

In United States v. Dupas, 14 M.J. 28 (C.M.A. 1982), this

Court held that when a client raises a claim of ineffective

assistance of counsel, trial defense counsel must provide

appellate defense counsel with reasonable access to the case

file. In the present case, we consider whether trial defense

counsel must grant appellate defense counsel access to the case

file upon request, regardless of whether there is a claim of

ineffective assistance of counsel. This is a question of law

that we review de novo. United States v. McElhaney, 54 M.J.

120, 125 (C.A.A.F. 2000).

Two concepts of law are at issue. First, individuals

accused of crime shall have the assistance of counsel for their

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defense through completion of their appeal. Art. 70(c), UCMJ,

10 U.S.C. § 870(c) (2000); Rule for Courts-Martial 1202(b)(2);

United States v. Palenius, 2 M.J. 86, 89 (C.M.A. 1977)(citing

Faretta v. California, 422 U.S. 806 (1975); Argersinger v.

Hamlin, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335

(1963); Powell v. Alabama, 287 U.S. 45 (1932)). This right

includes the right to the effective assistance of counsel on

appeal. See United States v. Hullum, 15 M.J. 261, 267 (C.M.A.

1983); Palenius, 2 M.J. at 90. Second, trial defense counsel

maintains a duty of loyalty to an appellant during appellate

review. As we stated in United States v. Schreck, 10 M.J. 226,

228 (C.M.A. 1981), “[t]he loyalty of defense counsel to his

client - before, during, and after trial - is a cornerstone of

military justice.” Thus, even after trial, “the trial defense

attorney should and can with honor be of much more assistance to

his client and to the court.” Palenius, 2 M.J. at 93.

In short, trial defense counsel maintains a continuing

obligation to the client beyond the trial’s conclusion, which

includes providing reasonable assistance where permitted and

refraining from acting in a manner inconsistent with the

client’s right to effective assistance of counsel on appeal.

Implicit in both the right to appeal and counsel’s duty of

loyalty is the understanding that trial defense counsel will not

interfere with appellate defense counsel’s representation, and

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to the extent necessary and possible, will assist appellate

defense counsel in preparing the appeal.

That said, trial defense counsel’s post-trial obligations

must be consistent with the ethical duty of confidentiality.1

“A lawyer shall not reveal information relating to the

representation of a client unless the client gives informed

consent, the disclosure is impliedly authorized in order to

carry out the representation or the disclosure [is otherwise

permitted by this rule].” Model Rules of Prof’l Conduct R.

1.6(a) (2003)(emphasis added).2 “A fundamental principle in the

client-lawyer relationship is that, in the absence of the

client’s informed consent, the lawyer must not reveal

1
Although our discussion focuses on the ethical duty of confidentiality, our
analysis also applies to the related evidentiary concept of attorney-client
privilege. The attorney-client privilege, which includes the work product
doctrine, is an evidentiary concept that may be invoked “in judicial and
other proceedings in which a lawyer may be called as a witness or otherwise
required to produce evidence concerning a client.” Model Rules of Prof’l
Conduct R. 1.6 cmt. 3 (2003). By contrast, attorney-client confidentiality
“applies in situations other than those where evidence is sought from the
lawyer through compulsion of law,” and “applies not only to matters
communicated in confidence by the client but also to all information relating
to the representation, whatever its source.” Id.
2
The Army, Air Force, and Navy have each adopted the American Bar Association
Model Rules of Prof’l Conduct R. 1.6. (2003). See Dep’t of the Army,
Regulation No. 27-26, Rules of Professional Conduct for Lawyers Rule 1.6, at
App. B (May 1, 1992); Dep’t of the Navy, JAGINST 5803.1B, Professional
Conduct of Attorneys Practicing Under the Cognizance and Supervision of the
Judge Advocate General Rule 1.6, at encl. B (February 11, 2000); Dep’t of the
Air Force, TJAG Policy No. 26, Rules of Professional Conduct Rule 1.6, at
Attachment 1 (February 4, 1998). The Coast Guard has indicated that “[a]s
far as practicable and when not inconsistent with law, the MCM, Coast Guard
Regulations, COMDTINST M5000.3 (series), and [sic] the American Bar
Association Model Rules of Professional Conduct . . . apply to Coast Guard
courts-martial.” Coast Guard Military Justice Manual, COMDTINST M5810.1D
Art. 6.C.1 (August 17, 2000).

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information relating to the representation.” Id. cmt. (emphasis

added).

Pursuant to trial defense counsel’s continuing obligation

to the client and the corresponding duty of confidentiality, we

hold that trial defense counsel must, upon request, supply

appellate defense counsel with the case file, but only after

receiving the client’s written release.3 If trial defense

counsel believes that disclosure of particular information from

the file would entail a material risk to the client, counsel

should provide an “explanation [to the client] about the

material risks of and reasonably available alternatives to the

proposed course of conduct.” Model Rules of Prof’l Conduct R.

1.0(e) (2003). This protocol supports trial defense counsel’s

continuing obligation to the client by providing appellate

defense counsel with information counsel may need to be an

effective appellate advocate. See Anders v. California, 386

U.S. 738, 744 (1967)(noting that appellate counsel’s “role as

advocate requires that he support his client's appeal to the

3
Various state rules and opinions implement a similar protocol. See, e.g.,
Arizona Ethical Rule 1.16(d)(requiring attorney to provide client with a copy
of file if failing to do so would prejudice client’s interests); California
Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. No. 1994-134
(1994)(requiring attorney to make file available to client or successor
counsel on demand, with limited exceptions); Supreme Court of Georgia, Formal
Op. No. 87-5 (1988)(establishing a duty to release client files and papers,
including work product created during billable time); Iowa Supreme Court
Board of Prof’l Ethics and Conduct, Formal Op. No. 87-21 (1988)(noting that
files belong to client, who has the right to direct where they are sent);

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best of his ability”). At the same time, the duty of

confidentiality is preserved, as the client must authorize the

case file’s release.

To be sure, there are exceptions to this general rule which

may require withholding the release of some information. For

example, “if information has been provided to a lawyer on the

promise that it will be kept in confidence - even with respect

to his client - the confidentiality of that information must be

maintained.” Dupas, 14 M.J. at 31. Moreover, to the extent

that a statute or court order limits access to specific persons

or entities in a manner that has the effect of excluding

appellate defense counsel, trial defense counsel is subject to

the limitations and procedures governing access under the

statute or order. Such information might include matter

designated by the government as classified and documents

governed by protective orders. In such a situation, appellate

defense counsel must obtain access through the procedures

established by the statute or court order.

Finally, “[i]f for some reason, cost to the attorney is

involved in reproducing documents or providing access, the

client must provide for reimbursement of those costs.” Id.

For these reasons, we find that the court below erred by

refusing to require trial defense counsel to turn over her case

State Bar of Michigan, Informal Op. No. CI-926 (1983)(requiring counsel to

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file to appellate defense counsel. Nevertheless, after

receiving all the requested information, Appellant has failed to

demonstrate that the error resulted in any material prejudice to

his substantial rights. Thus, the error was harmless. See

Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2000).

The decision of the United States Air Force Court of

Criminal Appeals is affirmed.

assist client or new counsel with material of legal significance).

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