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With heavy ongoing deployments of active military members as well as the calling up of reservists from civilian life, there is an increasing need for military lawyers to be able to go into local courts to help service members with the myriad legal problems that brings, say current and retired military lawyers. But most states erect impractical or insurmountable barriers. Only about 10 states have moved in recent years to open their courthouse doors to military lawyers with out-of-state licenses and with neither the resources to pay hefty bar dues nor the time to take bar exams or qualifying training courses. “It’s a big problem,” said retired Marine Corps Gen. Earl E. Anderson, chair of the American Bar Association Standing Committee on Legal Assistance to Military Personnel. So big a problem is it that the three judge advocates general (JAG) of the military services and the staff judge advocate to the commandant of the Marine Corps recently wrote to state bar presidents urging them to support a model rule — known as ELAP — for “expanded legal assistance program” — authorizing military lawyers to handle civil matters in state courts. “The most powerful option available to an attorney is the ability to defend or enforce a right in court,” they wrote. “In jurisdictions where the local community knows that a judge advocate’s practice cannot extend beyond simply writing letters and requesting negotiations, servicemembers often find themselves unable to achieve a fair resolution of even the most frivolous legal issues.” When military lawyers have access to local courts, they added, it levels the playing field. GOING TO COURT Retired Navy Capt. Kevin Patrick Flood of the Law Office of Kevin Patrick Flood in Jacksonville, Fla., has lived the difference. Flood was instrumental in persuading The Florida Bar, and ultimately the Florida Supreme Court, to adopt an ELAP rule. From 1997 to 2004, he was regional director of the Navy’s legal assistance program in the Southeast United States, consisting of South Carolina, Georgia, Florida, Puerto Rico, the Caribbean and Guantánamo Bay. In that office, he managed what was widely considered the most successful ELAP in all of the services. “In the years that I ran this program, we would get a lot of service members coming in with paternity claims against them,” he said. “Somehow there were default judgments against them, and the service member was first aware of it when child support was garnished out of his check. “We ‘ELAPed’ 12 of those type of cases, and we wound up in each case opening the default judgment of paternity and getting DNA tests. Nine of the 12 were excluded as the father.” Without ELAP, he explained, his lawyers could not have filed the motions to open the default judgments — one of many tools authorized by the federal Servicemembers Civil Relief Act (SCRA) — and argued them to the judge. His lawyers also did much probate work for families of service members killed in the line of duty. “Every state has a procedure for simple estates, but you must go to court to do this,” said Flood. “Our being able to do this really took out a lot of anguish for the families.” All of the services provide legal assistance in civil matters without cost to military members and their families. Without the ability to go into court, these lawyers’ help is primarily limited to in-office consultations and preparation of documents, sometimes pleadings, but with the understanding that if a court appearance is required, the military member will proceed pro se. Many military members can’t afford private attorneys, pro bono programs are uneven across the states and, despite low pay, members’ military benefits often make them ineligible for free legal services, said Anderson. And, Flood said, “If you’re not in a town like Jacksonville with three Navy bases, most of the attorneys never run into military issues. “In all the years that the SCRA has been around, it is still not well understood by state trial judges and by the civilian bar.” IMPRACTICAL RULES In 2003, the American Bar Association adopted a model ELAP rule “in recognition of a pressing need” for JAG lawyers to go into state courts for their clients. But in a recent letter to local bars, President William Neukom and Anderson said that “too few” states have stepped forward to adopt that rule or similar rules. North Carolina and Texas, for example, have a strong military presence but no ELAP rule. Some states with ELAP rules have restrictions — such as bar dues and training courses — that make it impractical for these already licensed lawyers who will rotate out of a military legal assistance office in a year or less. California’s ELAP rule permits military lawyers to go into local courts only on SCRA-related matters. “The SCRA is great, but it’s not the only thing,” said one lawyer. “If there’s some sort of consumer action that the military lawyer wants to defend, he can’t do it.” Anderson suggested that the primary reason for state reluctance to admit military lawyers to their courts is fears of private attorneys that they will lose potential fees. Retired Army Col. Mark Sullivan of the Law Offices of Mark E. Sullivan in Raleigh, N.C., also said it is easier to get an ELAP rule adopted by a state supreme court, as was done in Florida, than by a state legislature, as required in North Carolina. And JAGs are being deployed to Iraq and elsewhere, so fewer are available to do this work, he said, adding, “So the real question is, if the two-star says this is great, will the two-star present the bodies to do it?” While some of the services were lukewarm in the past, “They’re all behind it now,” said Anderson, noting that Navy JAG Rear Adm. Bruce MacDonald was the driving force behind the American Bar Association’s recent action. “I think the climate is right. We’re going to push this very strongly and, hopefully, get more states involved to solve the problem.”

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