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Penalty for False Affidavit

Section 200(2)

(50 U.S.C. App. § 520)

Any person who shall make or use an affidavit required under this section, or a statement, declaration, verification, or certificate certified or declared to be true under penalty of perjury permitted under subsection (1), knowing it to be false, shall be guilty of a misdemeanor and shall be punishable by imprisonment not to exceed one year or by fine not to exceed $1,000, or both.

Subsection 200(2) provides a criminal sanction for making or using a false affidavit under section 200(1). Filing a false affidavit can also result in attorney disciplinary action for lack of candor before a tribunal. In areas of the country where there are few military members residing, civil plaintiffs simply do not file SSCRA affidavits in default cases, avoiding the false affidavit problem. Despite the clear directive of the SSCRA, many courts routinely grant default judgments even when no affidavit has been filed. Service members generally do not bother to reopen default judgments because of the high cost of attorney representation. Plaintiff’s counsel who fail to file a SSCRA affidavit, , but clearly indicate that they are aware that the respondent is in military service, e.g., sending a dunning letter to the service member’s commander before initiating suit, violate their ethical obligation to inform the court of the material fact of the respondent’s military service, and could be subject to disciplinary action.

Court Appointed Attorney

Section 200(3)

(50 U.S.C. App. § 520)

In any action or proceeding in which a person in military service is a party if such party does not personally appear therein or is not represented by an authorized attorney, the court may appoint an attorney to represent him; and in such case a like bond may be required and an order made to protect the rights of such person. But no attorney appointed under this Act to protect a person in military service shall have power to waive any right of the person for whom he is appointed or bind him by his acts.

General. Subsection 200(3) provides for court appointment of an attorney to represent a service member who is a party to the action and who has not personally appeared therein or been represented by an authorized attorney. This subsection differs from the subsection 200(1) requirement in that this section says the court "may appoint" instead of "shall appoint." This is true because this subsection, 200(3), is not referring to a condition which must exist before a default judgment is entered, but is stating that the court may appoint an attorney at any time during the proceedings. Consequently, several questions have arisen concerning court appointed counsel.

Responsibilities of appointed attorney. When a plaintiff files an affidavit stating that the defendant is in military service or that the plaintiff cannot determine whether he/she is in military service and an attorney is appointed to represent this missing defendant, what does the attorney do? The attorney is charged by statute with representing the service member and protecting his/her interest. One author has noted that an "appointed attorney is under an obligation to exhaust every reasonable means of establishing contact with the service member prior to trial date so that some logical course of action can be agreed upon." Another writer has indicated that "local court rules . . . sometime provide that the appointed attorney shall inquire into defendant's military status and whether his ability to meet his debts has been materially affected and then report to the court." A New York court, in appointing such counsel, said it was for the purpose of obtaining facts as to whether the soldier's ability to comply with the terms of the obligation had been materially affected by his military service and to report to the court thereon or move for a stay in the soldier's behalf. In another case, the court stated that the purpose of the appointed counsel, either required or suggested, is to obtain a stay for the defendant. Of course, if the military defendant is geographically and militarily able, he/she may desire to cooperate fully in the defense. This would, then, constitute an appearance and would deprive him/her of the opportunity to apply to reopen the judgment under subsection 200(4). Unless the defendant is able to be present for trial and to testify and fully cooperate in the defense, the primary purpose of the appointed attorney should be to obtain a stay until the defendant can be present. The attorney can make this motion without depriving the defendant of the right to apply to reopen any default judgment that might result.

Compensation of appointed attorney. When a military defendant has defaulted and the court has appointed an attorney to represent him/her and protect his/her interest, the court must also address the amount of the attorney's fee and the source of payment. As noted above, this provision is often ignored by the courts since the statute does not provide an attorney fee payment mechanism. A New Jersey court opined that:

Ordinarily the services rendered by proctor and counsel so appointed are to be regarded as a patriotic duty for which no compensation would be expected by members of a profession deeply imbued by a sense of public responsibility. Certainly not as against a party in military service. However, in cases in which allowances are commonly made according to the usual probate practice, there seems no good reason why reasonable compensation should not be awarded.

Similarly, the Wisconsin Supreme Court held that the appointed attorney should be paid compensation allowed those in public service and fees ordinarily chargeable between attorney and client.

Acts not binding on defendant. Subsection 200(3) of the Act also provides that no attorney appointed by the court to represent defendant-service members has power to waive any of the service members' rights or to bind them by his/her acts. It was previously noted in chapter that nothing the guardian ad litem does personally can amount to an appearance on behalf of the service member insofar as the provisions of section 200 are concerned. In the Illinois case of Rutherford v. Bentz, the court stated that the acts of the guardian ad litem appointed to represent a defendant who was overseas in military service could not bind the defendant with respect to his right to a continuance.

Of course, once service members begin authorizing acts by their appointed attorneys, they will ordinarily be bound thereby. The Supreme Court of Washington has said:

It appears from the language of the Act that the protection afforded a service member from any waiver of his rights by legal counsel was intended to apply only where attorney acted under authority of the court, rather than authority of the service member. In each case a question of fact exists; i.e., whether service member has, himself, authorized the attorney to act for him. That the attorney was originally appointed under the act is no wise determinative of this question.

If defendants realize that they are unable to be present for trial and their chances of success are greatly decreased by their absence, they may wish to preserve their right to reopen default judgments under 200(4). In that case, they should not authorize any action by their court-appointed attorneys because the court may construe the action to be an appearance in the proceedings.

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Above Information Courtesy of United States Army JAG Corps