No, statements made by a service member to their defense counsel during an initial intake, or at any other time during their professional relationship, are not admissible as evidence against them. This communication is protected by the absolute and fundamental legal principle of attorney-client privilege. This privilege is one ofthe oldest and most important in the legal system, and it is recognized in the Military Rules of Evidence. It is essential for ensuring a person can speak with complete candor to their lawyer.
The privilege applies to any confidential communication made between the client and their attorney for the purpose of obtaining legal advice or representation. It does not matter if the intake was the very first meeting or if the soldier has not yet formally retained the attorney. As long as the soldier is seeking legal advice, the privilege attaches. The attorney has an ethical and legal duty to never disclose these confidential communications to anyone, including the command or the prosecution, without the client’s express consent.
The only recognized exception to this privilege is the “crime-fraud” exception. This applies if a client seeks an attorney’s advice for the purpose of committing a future crime or fraud. For example, if a client asks their lawyer how to successfully lie to investigators, that communication is not privileged. However, this exception is extremely narrow and does not apply to communications about past conduct. Therefore, a service member can be confident that their honest discussion of the facts of their case with their defense counsel will remain completely confidential and can never be used against them in court.