How to Select a Civilian Military Attorney: A Step-by-Step Guide

A service member facing investigation or court-martial charges already has a right to military defense counsel. The decision is whether to add a civilian attorney, how that attorney would work with military counsel, and how to evaluate a civilian attorney for this specific system. Since the military justice reforms that created special trial counsel, the answer also depends on whether the alleged offense is one of the “covered offenses” those prosecutors handle. Those points are set by the Uniform Code of Military Justice (UCMJ), and they shape each step of comparing civilian attorneys.

Step 1: Understand the Counsel You Already Have

Article 38 of the UCMJ describes the accused’s counsel rights. The accused “may be represented by civilian counsel if provided by him,” and “may be represented … by military counsel detailed under section 827 of this title (article 27); or … by military counsel of his own selection if that counsel is reasonably available” (10 U.S.C. § 838).

Three practical points follow from that text.

Detailed military counsel is part of the system. Military defense counsel is detailed under Article 27. For a general court-martial, detailed defense counsel “must be a judge advocate who is qualified under section 806(a)(1)” and “must be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member,” and the same qualifications apply to detailed defense counsel at a special court-martial (10 U.S.C. § 827). A civilian attorney is an addition the accused provides, not a replacement for a qualified lawyer the system lacks.

You may request a particular military counsel, with a trade-off. The statute allows representation by “military counsel of his own selection if that counsel is reasonably available,” as determined under regulations the statute refers to. If that request is granted, “any military counsel detailed under paragraph (3)(A) shall be excused,” subject to the exception in paragraph (6), because “the accused is not entitled to be represented by more than one military counsel.” Under paragraph (6), the official who details counsel may, “in his sole discretion,” detail additional military counsel as assistant defense counsel or approve a request that detailed counsel remain as associate defense counsel (§ 838(b)(5)-(6)). If you know of a military defense counsel you want, ask how a request is made in your service, and ask your current detailed counsel what happens to that relationship if the request is granted.

Civilian and military counsel can work together. Under § 838(b)(4), “if the accused is represented by civilian counsel, military counsel detailed or selected under paragraph (3) shall act as associate counsel unless excused at the request of the accused.” Adding a civilian attorney does not have to mean losing military counsel.

For selection, this means you are not choosing between a civilian attorney and nothing. You are deciding whether a civilian attorney adds something to the defense team you already have, and what that addition would be.

What this step does not decide: whether to hire civilian counsel at all. That depends on your case, your goals, and what each attorney can show you when you compare them.

If the matter may be handled under Article 15

Not every allegation goes to court-martial. Nonjudicial punishment under Article 15 is a separate process, and it carries a choice that is easy to make too quickly. Under Article 15, “except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment” (10 U.S.C. § 815).

Accepting Article 15 proceedings and demanding a court-martial lead to different processes with different consequences, and the statute ties the demand to the time before punishment is imposed. Ask your detailed counsel, and any civilian attorney you consult, what each path would mean for your career and record on your facts. A discussion of only one path leaves the comparison undone, so ask for both.

Step 2: Find Out Whether the Offense Is a “Covered Offense”

The UCMJ now assigns certain serious offenses to specially qualified prosecutors. Article 1 defines “covered offense” to include offenses under a list of articles, among them Article 117a, Article 118, Article 119, Article 119a, Article 120, Article 120a, Article 120b, Article 120c, Article 125, Article 128b, Article 130, Article 132, the standalone offense of child pornography under Article 134, and the standalone offense of sexual harassment under Article 134 in the circumstances the statute describes (10 U.S.C. § 801).

For covered offenses, Article 24a provides that a “special trial counsel shall have exclusive authority to determine if a reported offense is a covered offense and shall exercise authority over any such offense in accordance with this chapter” (10 U.S.C. § 824a). The statute adds that a determination “to prefer or refer charges shall not act to disqualify the special trial counsel as an accuser.”

For selection, the covered-offense question changes what you ask a civilian attorney:

Who makes the charging decision in your case? If the offense is covered, special trial counsel exercises authority over it. Experience built before this structure is still experience, but ask how it has been adapted.
What can be done before charges are referred? Ask how the attorney engages with special trial counsel in a covered case, and what the attorney would do differently in a case that is not covered.

Ask each attorney whether your alleged offense is covered, and how the attorney reached that answer.

Step 3: Know Where the Preliminary Hearing Fits

Article 32 requires a preliminary hearing before a case is referred to a general court-martial; the statute’s own heading, as amended, reads “preliminary hearing required before referral to general court-martial” (10 U.S.C. § 832).

The statute limits what the hearing decides. Its purpose is “limited to determining” whether the specification alleges an offense, “whether or not there is probable cause to believe that the accused committed the offense charged,” whether the convening authority has court-martial jurisdiction, and a recommendation on disposition. It is conducted by “an impartial hearing officer,” and the hearing need not be held if the accused submits a written waiver and the convening authority, or special trial counsel in a covered case, determines that a hearing is not required (§ 832(a)).

Two choices follow, and both belong in the selection conversation. A waiver gives up a stage, so ask any attorney who suggests one what the defense would gain by it. And because the hearing is limited to probable cause and a recommendation, ask what the attorney would aim to accomplish there on your facts: testing a weak specification, building a record, or shaping the disposition recommendation.

For selection, the Article 32 hearing is a stage at which the defense can engage with the government’s case before referral to a general court-martial. Ask each civilian attorney how many preliminary hearings he or she has handled, in what role, and what he or she actually did at them, and how the work at the hearing would be divided with your military counsel. A description of the hearing as a stage to test the government’s case treats it as more than a formality.

Step 4: Decide What the Civilian Attorney Would Add

Civilian counsel can add different things depending on the case. Some candidates for that added value, each of which you can test with a question:

Time and focus. Ask how many active court-martial cases the attorney is handling and how much time the attorney expects to spend on yours.
Specific experience. Ask about the attorney’s experience with the offense you are accused of, and with the forum your case is in.
Investigation resources. Ask whether the attorney would use investigators or experts, who would pay for them, and whether they would be available before charges are referred.
Continuity. Ask your detailed counsel whether a change of assignment during your case is possible, and ask whether the civilian attorney would stay with the case through trial, sentencing, and any post-trial matters.

What a civilian attorney adds depends on what your military counsel already provides. Ask your military counsel what support the defense team has, then ask each civilian attorney how the attorney would add to it.

Step 5: Settle Who the Client Is

The service member is the accused. Family members may help find and pay for civilian counsel, but the client is the person facing the case. The engagement letter should name the service member as the client, say what will be shared with family members who are paying or helping, and confirm that the accused decides on a plea, a forum choice, and whether to testify. It should also say who will be lead counsel. Because military counsel acts as associate counsel when civilian counsel is retained, the division of work should be settled before trial preparation starts, not discovered during it.

Step 6: Check Bar Admission and Prior Military Roles

Bar admission

Ask each civilian attorney where he or she is licensed, and look the attorney up in that jurisdiction’s bar directory. The listing confirms a license and its status, and nothing about military justice experience.

Military background

If an attorney describes prior service as a judge advocate, ask what roles he or she held, in which positions, and for how long. A prosecutor’s or judge’s seat brings familiarity with the system from that side; it is not the same as defense experience or trial results.

Reading a defense firm’s website

Before a consultation, a defense firm’s website can tell you how the firm presents its court-martial work. Joseph L. Jordan, Attorney at Law, for example, publishes a site on military defense. Read how a firm describes its practice, then use the meeting for what a site cannot show: who would appear at your Article 32 hearing, and how that attorney’s work would fit alongside your detailed military counsel.

Step 7: Test Each Attorney on Your Case

Begin with the structure. Ask whether your alleged offense is a covered offense and how that changes the attorney’s approach; an answer framed in terms of special trial counsel reflects the current system. Then ask what he or she would do in the first two weeks, before any charges are referred, which shows whether there is a plan for the investigation stage.

Next, experience and presence. Ask how many courts-martial involving this offense the attorney has tried and in what role, since leading a trial and assisting at one are different experience, and whether he or she will personally appear at the Article 32 hearing and at trial.

Finally, the team and the aftermath. Ask how the attorney will communicate with your military counsel and with you, and how often; what happens after trial if there is a conviction, and whether sentencing and post-trial matters are in the engagement; and whether an administrative action, such as a separation proceeding running alongside the criminal case, would be handled and is within the fee. That last answer tells you whether the engagement matches every proceeding that could affect your career.

Step 8: Read the Fee Agreement for Stages and Travel

Civilian military defense fees are set by agreement. Compare agreements on scope rather than on the total alone:

Stages covered. Does the fee cover the investigation stage, the Article 32 hearing, trial, sentencing, and post-trial matters, or only some of them?
Travel. Your case may be heard far from the attorney’s office. Ask whether travel time and expenses are included or billed separately.
Experts and investigators. Who pays, and must you approve the expense first?
Changes in the case. If charges are withdrawn, the case is moved, or a different forum is chosen, how does the fee change?
Ending the relationship. If you end the engagement, what part of the fee is refunded?

Ask for the scope in writing and compare it against what your military counsel will handle.

Step 9: Take Care Before You Hire

Article 31 of the UCMJ addresses questioning. No person subject to the UCMJ may interrogate or request a statement from “an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial” (10 U.S.C. § 831).

For selection, an Article 31 advisement is the point at which counsel matters right away. If you have been advised under Article 31, or expect to be, tell every attorney you consult when and by whom, and whether you made any statement. Those facts shape what the defense can do from the start.

Until you have spoken with counsel:

Ask for counsel before answering questions from investigators about the allegation.
Do not discuss the facts with members of your unit, on social media, or in messages. Those communications can become evidence.
Ask before deleting posts, messages, or files that relate to the allegation.
Keep every document you receive, including any notice of investigation, orders, or no-contact orders, and bring them to each consultation.

Your detailed military counsel can advise you on these points as soon as counsel is assigned. Ask how to reach your detailed counsel if one has not contacted you.

Step 10: Bring the Same Papers, and Compare What Each Attorney Would Add

Bring any notice of investigation, charge sheet, or notification of nonjudicial punishment; the date and circumstances of any Article 31 advisement, and whether you made a statement; any orders affecting you, such as no-contact orders, restriction, or a change of duty; the name and contact information of your detailed military counsel; and a dated outline of events, written for your attorney only. With the same papers in hand, each attorney can tell you whether the offense is covered and what he or she would do before referral.

Then compare the answers on the same points: whether each identified your offense as covered and what that means; what each would do before referral; how each would work with your military counsel; what Article 32 and trial experience each has, and in what role; and what each fee agreement covers, including travel. Two gaps matter most in a court-martial case: silence about whether the offense is covered, which decides who makes the charging decision, and no plan for working with military counsel, who remains as associate counsel unless excused. A promised acquittal is a promise no attorney can keep. And a fee agreement that does not say which stages it covers cannot be compared with the others. Travel is a real cost here rather than a preference, because cases can be heard far from a civilian attorney’s office; compare how each agreement handles it.

The decision itself is a team question. Write down what your detailed counsel provides, then what each civilian attorney would add to it, whether your offense is covered, who would lead the team, and what each engagement covers. If a candidate’s addition is hard to state in one sentence, that is the follow-up question.

Legal disclaimer: This guide provides general information about counsel rights and procedure under the Uniform Code of Military Justice and about selecting a civilian attorney. It is not legal advice. Military justice rules change; speak with your detailed military counsel and a licensed attorney about your situation.