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2014 California Rules of Court

Rule 9.41. Appearances by military counsel

(a) Permission to appear

A judge advocate (as that term is defined at 10 United States Code section 801(13)) who is not a member of the State Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or of the highest court in any state, territory, or insular possession of the United States may, in the discretion of a court of this state, be permitted to appear in that court to represent a person in the military service in a particular cause pending before that court, under the Servicemembers Civil Relief Act, 50 United States Code Appendix section 501 et seq., if:

(1)The judge advocate has been made available by the cognizant Judge Advocate General (as that term is defined at 10 United States Code section 801(1)) or a duly designated representative; and

(2)The court finds that retaining civilian counsel likely would cause substantial hardship for the person in military service or that person's family; and

(3)The court appoints a judge advocate as attorney to represent the person in military service under the Servicemembers Civil Relief Act.

Under no circumstances is the determination of availability of a judge advocate to be made by any court within this state, or reviewed by any court of this state. In determining the likelihood of substantial hardship as a result of the retention of civilian counsel, the court may take judicial notice of the prevailing pay scales for persons in the military service.

(Subd (a) amended effective January 1, 2007.)

(b) Notice to parties

The clerk of the court considering appointment of a judge advocate under this rule must provide written notice of that fact to all parties who have appeared in the cause. A copy of the notice, together with proof of service by mail in accordance with Code of Civil Procedure section 1013a, must be filed by the clerk of the court. Any party who has appeared in the matter may file a written objection to the appointment within 10 days of the date on which notice was given unless the court has prescribed a shorter period. If the court determines to hold a hearing in relation to the appointment, notice of the hearing must be given at least 10 days before the date designated for the hearing unless the court has prescribed a shorter period.

(Subd (b) amended effective January 1, 2007.)

(c) Appearing judge advocate subject to court and State Bar jurisdiction

A judge advocate permitted to appear under this rule is subject to the jurisdiction of the courts of this state with respect to the law of this state governing the conduct of attorneys to the same extent as a member of the State Bar of California. The judge advocate must become familiar with and comply with the standards of professional conduct required of members of the State Bar of California and is subject to the disciplinary jurisdiction of the State Bar of California. Division 3, chapter 4, article 5 of the Business and Professions Code and the Rules of Procedure of the State Bar of California govern any investigation or proceeding conducted by the State Bar under this rule.

(Subd (c) amended effective January 1, 2007.)

(d) Appearing judge advocate subject to rights and obligations of State Bar members concerning professional privileges

A judge advocate permitted to appear under this rule is subject to the rights and obligations with respect to attorney-client privilege, work-product privilege, and other professional privileges to the same extent as a member of the State Bar of California.

(Subd (d) amended effective January 1, 2007.)

Rule 9.41 amended and renumbered effective January 1, 2007; adopted as rule 983.1 by the Supreme Court effective February 19, 1992; adopted by the Judicial Council effective February 21, 1992.

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