In the military justice system, a victim of certain offenses, especially sex-related offenses, may be represented by an attorney known in the Army, National Guard, and Coast Guard as a Special Victims’ Counsel, in the Navy and Marine Corps as a Victims’ Legal Counsel, and in the Air Force as a Victims’ Counsel. That attorney represents the victim, not the government and not the accused. After charges are referred to a court-martial, trial counsel, the military prosecutor, often needs to coordinate with the victim about testimony, scheduling, and the victim’s statutory rights. The question is whether the prosecutor may meet privately with the victim’s lawyer once the case is referred. The answer is yes. A prosecutor not only may, but ordinarily should, deal with a represented victim through that victim’s counsel, and a private meeting between the two attorneys is a normal and proper part of trial preparation.
The victim’s counsel is a real lawyer with a real client
The relationship between victims’ counsel and the victim is a genuine attorney-client relationship, complete with the protections of the attorney-client privilege. The victim is the client; the prosecutor is not. That framing answers most of the question. When the government wants to communicate with a represented person about the matter, the natural and professionally correct route is to go through that person’s lawyer, exactly as in civilian practice.
This is the opposite of an ethical problem. The rule that creates friction is the rule against contacting a represented person directly, not the rule about talking to that person’s attorney. Communicating with the victim’s counsel is the safe channel, not the prohibited one.
The no-contact rule points toward, not away from, the victim’s lawyer
Each service’s rules of professional conduct contain a rule, patterned on Model Rule of Professional Conduct 4.2, that prohibits a lawyer from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer, unless that other lawyer consents or the communication is authorized by law. The Army’s version appears in its rules of professional conduct for lawyers.
For trial counsel after referral, that rule cuts in a specific direction. Once the victim is represented and charges have been referred, the prosecutor’s cleanest course is to arrange contact with the victim through the victim’s counsel. Meeting privately with that counsel to discuss the victim’s anticipated testimony, availability, concerns, and rights is precisely what the rule contemplates. Reaching around counsel to contact the victim directly is the conduct that raises ethical risk, and that risk is sharpest after referral, when the prosecutor’s investigative latitude has narrowed. The exception that allows certain government communications as authorized by law is generally tied to the investigative phase before charges are preferred, so a prosecutor cannot rely on it to justify going around victims’ counsel once a case has been referred to trial.
What the private meeting can and cannot accomplish
A post-referral meeting between trial counsel and victims’ counsel typically covers logistics and substance: when and where the victim will testify, what topics the direct examination will cover, the victim’s statutory and Manual-based rights, the availability of accommodations, and the victim’s wishes about disposition or sentencing input. None of this is improper. Coordinating a represented witness’s participation through counsel is ordinary advocacy.
There are limits, and they flow from the nature of the representation. Victims’ counsel represents the victim’s interests, which are not identical to the government’s. The victim is not the prosecutor’s client and cannot be directed by the prosecutor. The privilege between the victim and the victim’s counsel remains intact; the prosecutor is not entitled to the victim’s confidential communications with that lawyer simply because the two attorneys are cooperating. And the prosecutor’s discovery and disclosure obligations to the defense do not disappear because information arrives through victims’ counsel. If the government learns of evidence favorable to the accused during these discussions, its disclosure duties still apply.
The meeting also cannot be used to script or improperly influence testimony. Preparing a witness is permitted; coaching a witness to alter the substance of truthful testimony is not. That boundary applies whether the prosecutor speaks to the victim directly or through counsel.
The defense perspective and the accused’s protections
From the defense side, the fact that the prosecutor and victims’ counsel confer privately is not, by itself, a basis for complaint. It is expected. The accused’s protections lie elsewhere: in the right to confront and cross-examine the victim at trial, in the government’s obligation to disclose favorable evidence, and in the rules that prevent improper influence on testimony. Defense counsel should be alert to whether any agreements affecting the victim’s testimony or cooperation have been made, because those may be discoverable and may bear on the victim’s credibility. But the existence of attorney-to-attorney coordination is a feature of the system, not a defect.
It is also worth noting that victims’ counsel themselves operate under the represented-person rule. They cannot use the investigative exception to reach around the accused’s counsel, and they cannot direct others to do what they may not do themselves. The rule applies symmetrically across the courtroom.
Conclusion
Military prosecutors are permitted to meet privately with a victim’s legal counsel after referral, and doing so is the professionally proper way to coordinate with a represented victim. The relationship between victims’ counsel and the victim is a true attorney-client relationship protected by privilege, and the rules of professional conduct steer the prosecutor toward communicating through that counsel rather than contacting the victim directly. The proper limits on these meetings concern substance, not the meetings themselves: the prosecutor may not invade the victim’s privilege, may not treat the victim as the government’s client, must continue to meet discovery and disclosure obligations to the defense, and may not coach testimony. Within those boundaries, private coordination between trial counsel and victims’ counsel post-referral is both allowed and routine.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
For these reasons, no reader should act or decline to act based on this content without first consulting a licensed attorney experienced in military justice about their own situation. The author and publisher make no warranty, express or implied, as to the accuracy, completeness, timeliness, or current applicability of the information provided, and disclaim any liability for any action taken or not taken in reliance on it. If you are facing investigation, charges, or an adverse administrative action, time limits may apply, and you should seek qualified counsel promptly.