Scholarship Saturday: Do government-employed victims’ counsel have a duty to protect the accused?

By Isaac Kennen

Scholarship Editor
www.caaflog.org

Last week, Senior United States District Court Judge James L. Graham issued an order allowing part of a long-running civil rights test case, John Doe v. The Ohio State University, to go forward to a jury. John Doe is an expelled medical student who is suing Ohio State University Sexual Violence Support Coordinator, NatalieSpiert, in her personal capacity, for money damages, under 42 USC § 1983. His theory is that, as a public employee, Spiert had a duty to protect his Constitutional right to due process. John claims that Speirt violated that right when she allowed his disciplinary board to be misled by false testimony from her client, the person he is alleged to have sexually assaulted.

The alleged victim, Jane Roe, was also in medical school. She received notice from the school that she was going to be expelled for having failed her first year of medical school a second time. After receiving that notice, Jane met with Spiert and reported that John had sexually assaulted her. At Jane’s academic board hearing, Spiert was in attendance and spoke on Jane’s behalf. Spiert also witnessed Jane’s testimony before the board that her difficulties in school were a result of having been sexually assaulted by John.

The academic board then decided to let Jane have a third try at her first year of medical school. The board expressly asserted that Jane’s distress at having been sexually assaulted weighed heavily in its decision.

John’s disciplinary hearing came next. Spiert attended John’s hearing too, “as Jane Roe’s advisor.” She witnessed Jane testify at John’s hearing, falsely, that “[the academic board’s] decision to keep me in school and to allow me to continue next year in the fall was already decided before my decision to report this assault.” Spiert also witnessed Jane assert to the disciplinary board that “[reporting] doesn’t give me any benefit other than holding [John] responsible and meeting an ethical obligation – or responsibility, rather.”

At the time of the disciplinary board, John had not been provided any evidence which would have allowed him to rebut those assertions. As a result, one of the disciplinary board members asked John directly: “[T]here seems to be no motivation for Jane Roe to make this up. Why do you think she claims she doesn’t remember what happened?” John merely replied that he couldn’t speak for Jane. Spiert remained silent. John was expelled.

When the true facts concerning the timing of Jane’s report came to light, John filed suit against Spiert, asserting that she had a duty, as a public employee, to ensure that the disciplinary board hearing his case was not misled by evidence she knew to be false. Spiert moved to dismiss John’s suit under a qualified immunity theory.

Judge Graham’s order denies Spiert’s motion. The order finds qualified immunity must yield to the requirements of the Constitution. And, specifically, the court found that “[t]he Due Process Clause is flexible; it calls for such procedural protections as each particular situation demands.” Order at 14. Then, the Court held:

A reasonable jury could find that Natalie Spiert knew or should have known that Jane Roe lied or misled the disciplinary board. [T]he board might have reached a different conclusion on Jane Roe’s credibility if it had been presented with all the facts. . . . The motion for summary judgment is denied as to Natalie Spiert because there is a genuine issue of material fact.

Order at 15.

The idea that an advocate should have to alert a tribunal to their client’s misrepresentations is, of course, not novel. ABA Model Rule 3.3(b): Candor Toward the Tribunal requires:

A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

The Navy’s Rule of Professional Conduct 3.3, the Air Force’s Rule of Professional Conduct 3.3(b), and the Coast Guard’s Legal Rule of Professional Conduct 3.3(b) all track the ABA Model Rule nearly verbatim.

Army Rule of Professional Conduct 3.3(a)(2) applies a somewhat different standard. It appears to only require an attorney to disclose a fact that would undermine the client’s testimony if the fact is “material,” and then only when failing to disclose would “assist” the client in committing the fraud:

A lawyer shall not knowingly . . . fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.

But, whatever their differences, these military legal professionalism requirements for lawyers all differ in important ways from the order issued in John Doe. First, the military’s professional rules regarding attorney candor all use a full-knowledge standard. In contrast, John Doe found that the Constitution requires government-employed advocates to instead use a “knew or should have known” standard when deciding whether to correct a client’s misrepresentations to an adjudicative body. Order at 15. Thus, a government-employed victim’s counsel who should know that her client is lying on the stand, but doesn’t actually know that to be true, might be able to avoid professional sanction under the Rules of Professional Conduct; but she could still face monetary damages in her personal capacity under John Doe.

Second, the rules of candor have tended to be viewed as addressing the duties that a lawyer owes to our tribunals. The rules are focused on maintaining the integrity of the profession of law. By doing so, they serve society at large. But, John Doe‘s focus is very narrow. It instead focuses on the duties that a public-employed advocate participating in a public adjudicative proceeding owes to that particular accused in that particular situation. Unlike the rules of professional responsibility, John Doe’s order is not concerned with protecting the legal profession – it is concerned with supporting and defending the due process rights of a particular accused under the Constitution. That is a substantively different view, and purpose, altogether.

Of course, the Constitutional imperative in John Doe has more bite outside of the military, where Feres v. United States does not hold dominion. But, Feres should not be viewed as the impenetrable wall it is sometimes assumed to be. After all, the doctrine only bars suit “where the injuries arise out of or are in the course of activity incident to service.” Feres, 340 U.S. at 146.

Parsing what “incident to service” means is largely a matter of judicial discretion. In finding that injuries have not been “incident to service” courts have held:

When a soldier commits an act that would, in civilian life, make him liable to another, he should not be allowed to escape responsibility for his act just because those involved were wearing military uniforms at the time of the act.

Durant v. Neneman, 884 F.2d 1350, 1354 (10th Cir. 1989) (emphasis in original); Lutz v. Secretary of the Air Force, 944 F.2d 1477, 1487 (9th Cir. 1991).

With that precedent, a public-employed victims’ counsel in the military might not be as safe from civil suit as he or she would like or assume. The John Doe case suggests that the priority duty of any government-funded lawyer is to protect the Constitutional rights of a criminal accused, even if that government lawyer happens to be appointed to represent the interests of a victim in the same case. The rationale employed in cases like Durant and Lutz suggest that a special victims’ counsel that fails to perform that priority duty could find themselves facing personal civil liability through a Bivens action, notwithstanding Feres.

- Originally published on May 5, 2018 on www.caaflog.com. Preserved by archive.org, here. In the CAAFLog archive, without attribution, here.