Service Member Attorney Volunteers

Background to the Servicemembers Civil Relief Act (SCRA)

The main purposes of the SCRA are to:

  • enable service members of the United States to devote their energy to the defense of the nation; and
  • to temporarily suspend judicial and administrative proceedings and transactions that may adversely affect the civil rights of service members.

The U.S. Supreme Court has said that the Act should be read "with an eye friendly to those who dropped their affairs to answer their country's call." Le Maistre v. Leffers, 331 U.S. 1, 6 (1948).

The Soldiers' and Sailors' Civil Relief Act (SSCRA) was enacted by Congress in 1940. In 2003, the Servicemembers Civil Relief Act (SCRA) was enacted to clarify the language of the SSCRA, to incorporate decades of court interpretation of the SSCRA, and to reflect new developments in American life since 1940.

The current law is found at 50 U.S.C. §3901 et seq.

 

Who are Service Members?

The SCRA defines service members in 50 U.S.C. § 3911. A service member is covered by the SCRA even if absent from active duty because of sickness, wounds, or other lawful cause.

Some SCRA sections protect:

  • a service member's spouse and children; and
  • a service member's "dependent" (defined as someone for whom the service member has provided over half of the person's support for 180 days immediately preceding an application for relief under the Act).

 

Courts Covered by the SCRA

50 U.S.C. § 3911(5) provides that any court or administrative agency of the United States, a state, or a political subdivision is covered by the SCRA. This means that all federal, state, and local courts are covered as are all administrative agencies.

The SCRA applies to civil proceedings only; criminal proceedings are excluded.

 

Significant Protections and Provisions of the SCRA

The SCRA provides a variety of procedural and financial protections to service members. The following is a list of some of the protections.

Waiver

The service member may waive the protection of the SCRA. The waiver must be in writing in 12 point type and must be made during or after the period of service. 50 U.S.C. § 3918. For more information and forms about waiving the right to stay a civil case, see our webpage on Lawsuits Involving Military Service Personnel.

Legal Representative

A legal representative may be an attorney acting on the behalf of a service member or an individual with a power of attorney executed by the service member. A legal representative can take the same actions as the service member. 50 U.S.C. § 3920.

Stay of Proceedings

The SCRA requires the court to grant at least a 90-day stay if requested by the service member. Additional stays can be granted at the discretion of the judge or hearing official. If an additional stay is denied, the court must appoint counsel to represent the service member. 50 U.S.C. App. § 3932. For more information and forms about asking to stay a civil case, see our webpage on Lawsuits Involving Military Service Personnel.

Stay of Execution of Orders or Judgments

The court must stay execution of any judgment or order entered against the service member if the service member shows that their military duties materially affect their ability to comply with the order. 50 U.S.C. App. § 3934.

Statutes of Limitation

The period of military service may not be included in computing any limitation period for filing suit, either by or against the service member. 50 U.S.C. App. § 3936.

Reduction of Interest to 6%

Interest exceeding 6% per year, even on loans and obligations entered into before military service, must be forgiven. 50 U.S.C. § 3937(a)(2). The service member must request this reduction in writing and include a copy of their orders. 50 U.S.C. App. § 3937(b)(1). Once the creditor receives notice, they must reduce the interest to 6% and recalculate the amount of the periodic payment that the service member is required to make effective on the date the service member is called to active duty. 50 U.S.C. App. § 3937(b)(2). The creditor may challenge the rate reduction it they can show that the service member's military service has not materially affected their ability to pay. 50 U.S.C. App. § 3937(c).

Eviction

Without a court order, eviction of a service member is prohibited if the monthly rent does not exceed $2,400 (in 2003). The Act provides a formula to calculate the rent ceiling for subsequent years. 50 U.S.C. App. § 3951(a).

Mortgage Foreclosure

If certain conditions are met, a court may stay foreclosure proceedings until the service member can answer, extend the mortgage maturity date to allow reduced monthly payments, grant foreclosure subject to being reopened if challenged by the service member, or extend the period of redemption by a period equal to the service member's military service. 50 U.S.C. App. § 3953.

Right to Terminate Real Property Leases

A service member moving for 90 days or more pursuant to change-of-station orders or deployment orders may terminate a lease, even without a military termination clause in the lease. 50 U.S.C. App. § 3955.

Right to Terminate Other Leases and Contracts

Pre-service automobile leases and service contracts, such as telephone contracts, may be cancelled if the service member receives orders to active duty for 180 days or more. Leases and contracts entered into while the service member is on active duty may be terminated if the service member receives permanent change-of-station orders to a location outside the continental U.S. or deployment orders for 180 days or more. 50 U.S.C. App. § 3955.

Professional Liability Insurance

The SCRA provides for suspension of existing professional liability insurance for designated professionals during active duty. It provides for subsequent reinstatement at pre-existing rates. 50 U.S.C. App. § 4023.

 

Stay of Judicial Proceedings

 

When the Service Member Has Not Entered an Appearance

50 U.S.C. App. § 3931 applies only if the service member has not appeared and is meant to provide protection against default judgments being entered against a service member on active duty. Before entering a default judgment in any civil case, the court must require the plaintiff to provide an affidavit or declaration stating whether the service member is in the military and showing facts to support the conclusion. A person who knowingly makes a false claim about a party's military service can be fined or imprisoned or both.

If unable to determine the service member's military status, the court may require the plaintiff to post a bond in an amount approved by the court. If the service member is later found to be in military service, the bond must be available to protect the service member against any loss the service member may suffer by reason of the judgment, if the judgment is set aside in whole or in part.

The court cannot enter a default judgment against a service member until an attorney is appointed to represent the service member. The court need not appoint an attorney if the service member already has one. "Default judgment" means any order, ruling or decree which is adverse to the service member's interest and does not refer only to a final judgment. The court must stay the proceedings for at least 90 days upon application or on the court's own motion.

The attorney (retained or appointed) must use due diligence to try to locate and contact the service member. If the attorney cannot locate and contact the service member, the attorney must notify the court. If the attorney does locate the service member, the attorney must try to determine the service member's wishes.

In certain circumstances, the court must vacate a judgment entered against a service member if the motion to vacate is filed within 90 days after the end of military service.

When the Service Member has Received Notice of the Action or Proceeding

50 U.S.C. App. § 3932 provides benefits to service members whose military service affects their ability to appear in court, such as those who are in the middle of litigation but are called to mobilize. The SCRA contains several stay provisions but 50 U.S.C. App. § 3932 is broadly applicable to civil and administrative proceedings.

The court must stay the case for at least 90 days and, further, until the date when the service member can appear. The service member must move for the stay and show that military service materially affects their ability to appear. The motion must include a statement from the service member's commanding officer that military service prevents an appearance, and that leave is not authorized.

A motion for a stay under § 3932 is not an appearance for jurisdictional purposes and does not waive any defense.

The service member may move for additional stays if military service continues to materially affect their ability to appear. If the court does not grant the additional stay, it must appoint counsel to represent the service member.

Role of Court-Appointed Attorney

Attorneys who participate in the court-based Service Member Attorney Volunteers (SMAV) program volunteer to provide limited legal help to service members in default in a civil case, and their names are placed on a roster. If the military service declaration filed by the other party shows that the defaulting party is in military service, the judge will stay the case for 120 days.

Court staff will contact the Pro Bono Coordinator at the Utah State Bar of the need to appoint an attorney. The Pro Bono Coordinator will contact the attorney whose name is at the top of the roster, confirm the attorney's availability, and notify the court. The judge will issue an order appointing the attorney to provide limited legal help to the service member.

Once appointed, the attorney should take these steps:

  • File a Notice of Limited Appearance.
  • Use due diligence to try to locate the service member.
  • If unable to locate, file a Notice of Inability to Locate or Contact Service Member. (If the attorney cannot locate the service member, the actions of the attorney do not waive any defense of the service member or otherwise bind them.)
  • If able to locate and communicate with service member, the attorney should:
    • advise the service member of the lawsuit,
    • verify active duty status;
    • verify that the service member was served with the complaint and summons;
    • advise the service member of SCRA protections,
    • advise the service member of the possibility of entry of a default judgment and the consequences of such a judgment,
    • confirm whether the service member's ability to appear and defend their legal interests is materially affected by military service and whether the service member has a meritorious defense,
    • at the direction of the service member, file a motion to stay the case or file a waiver of the service member's rights;
    • appear at any hearings about the stay; and
    • depending on the circumstances, file a new Notice of Limited Appearance, a Notice of Appearance or a Notice of Withdrawal.

 

Verifying Military Service

To verify an individual's military service status, you can go to the Servicemember Civil Relief Act website website, and follow the instructions for identifying the person you are inquiring about.

 

Locating a Service Member

The most important piece of information you need to locate a service member is their Social Security number. However, while military personnel may have a service member's contact information they may be prohibited from releasing that information because of Privacy Act restrictions, 5 U.S.C. § 552a, and military regulations. Since 9/11, the Department of Defense has issued guidelines to the armed services on restricting access to the location of military personnel, so even if the individual's military service status is verified, you will have to use other resources to actually locate the service member.

If you cannot easily obtain the service member's Social Security number, then there are a number of approaches to try. When contacting most of these sources, the attorney should have a copy of the appointment order to facilitate the process of locating and contacting the service member.

  • Contact the Legal Assistance Attorney (LAA) who is a judge advocate general's officer assigned to help service members and their family members with civil legal problems. The LAA may be able to verify the service member's current duty station and convey messages through the service member's chain of command. For more information about all armed forces in Utah contact the LAA at Hill Air Force Base.
  • For service members in the Utah National Guard (Army or Air), call the JAG office at 801-432-4408.
  • For service members active in the Air Force, call the Hill AFB JAG office at 801-777-6756.
  • For service members in the Marine Reserve, call the Marine Reserve Center at Camp Williams in Riverton, Utah at 801-878-5889.
  • For service members active in the Coast Guard, call the JAG office in Alameda, California at 510-437-3330.
  • For service members active in the Navy, call the JAG office in San Diego, California at 619-556-1663.
  • Check with the military locator service of each service branch to determine the duty address of service members.
  • Check with your local armed forces recruiter who has a DKO (Defense Knowledge Online) account which allows access to the military personnel locator.
  • Check with the service member's family members, who may also obtain a DKO account through which they can access the military locator.
  • You may be able to obtain a service member's forwarding address or their military unit's address by contacting the service member's commanding officer at their previous installation. Contact the "base locator" at the last installation where the service member was stationed. The installation's information operator can provide the base locator's phone number.
  • The Red Cross may be able to help relay messages to a service member in emergency situations. To find the closest branch office, contact the Red Cross.
  • You may be able to find a service member who has children by contacting the local Child Support Enforcement Agency to access the Federal Parent Locator Service. In Utah, contact the Office of Recovery Services.
  • A service member may be on active duty but not deployed or overseas and may be contacted at a current address and telephone number. For ideas about finding a current address or phone number, see our webpage on Finding People for Service of Process.

 

Ethical Considerations and Limited Representation Issues

Competence, diligence, and communication with the client and court are important aspects of any attorney-client relationship. In the context of a court-appointed attorney with limited scope representation, these ethical obligations remain essential. This guide outlines some of the ethical issues that might arise when handling such a case.

"A lawyer should not accept representation in a matter unless it can be performed competently, promptly, without improper conflict of interest and to completion. Ordinarily, a representation in a matter is completed when the agreed upon assistance has been concluded. See Rules 1.2(c) and 6.5. See also Rule 1.3, Comment 4." Rule of Professional Conduct 1.16, comment [1]. Thus, the court-appointed attorney should, after clearly establishing the limited scope of representation with the client, continue to represent the client until the limits of the representation are fulfilled or until the attorney terminates representation as required by RPC 1.2 and RPC 1.16, and by URCP 74 and URCP 75.

  • RPC 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.
  • RPC 1.3. Diligence.
  • RPC 1.16. Declining or Terminating Representation.
  • RPC 6.5. Nonprofit and Court-Annexed Limited Legal Services Programs.
  • URCP 74. Withdrawal of Counsel.
  • URCP 75. Limited Appearance.

Conflicts

When the volunteer attorney is contacted by the court to accept appointment, the attorney should check for any potential conflicts of interest before accepting appointment to represent the service member. Absent any conflict of interest or justification to avoid appointment by a court, the attorney should accept the court's appointment.

  • RPC 1.7. Conflict of Interest: Current Clients.
  • RPC 1.8. Conflict of Interest: Current Clients: Specific Rules.
  • RPC 1.9. Duties to Former Clients.
  • RPC 1.10. Imputation of Conflicts of Interest: General Rule.
  • RPC 1.11. Special Conflicts of Interest for Former and Current Government Employees.
  • RPC 6.2. Accepting Appointments.

Scope

Under this volunteer program, the court appoints an attorney to provide limited legal help to a service member who has defaulted in a civil case. The limited scope of representation is completed upon a court order to stay the case or waiver of rights by the service member. The volunteer attorney is not expected to represent the service member on the merits of the case. The Notice of Limited Appearance form describes this limited scope. An attorney may limit the scope of representation if the limitations are reasonable under the circumstances and the client gives informed consent.

In representing a service member for the limited purpose of locating the client to determine whether the client wishes to invoke or waive the procedural protections of the Servicemembers Civil Relief Act (SCRA), the attorney should have knowledge of the SCRA, Utah Service Members' Civil Relief Act, and use due diligence to try to locate and communicate with the service member.

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." Dwan V. Kerig, The Absent Defendant and the Federal Soldiers' and Sailors' Civil Relief Act, 33 N.Y.U. L. Rev. 975, 980 (1958).

There is some guidance from case law on attorney's obligations. The court in In re Ehlke's Estate, 27 N.W.2d 754 (Wis. 1947), at 757, stated that "[w]e perceive no need and no authority under the [Soldiers' and Sailors' Civil Relief Act] for [the attorney] to do anything further for [the servicemember] than to apply for a stay of proceedings in his behalf."

The Supreme Court of Alaska outlined the following list of duties for appointed attorneys:

  • Contact the defendant and assure that the defendant has actual notice of the lawsuit;
  • Advise defendant of the protections of the Soldiers' and Sailors' Civil Relief Act;
  • Advise defendant of the possibility of entry of default judgment and of the consequences of such a judgment;
  • Ascertain whether defendant's ability to appear and defend his or her legal interests is affected in any way by defendant's military status, and
  • If the defendant wishes, move for a stay of the proceedings to enable defendant to obtain counsel or prepare a defense on the merits of the case.

State ex. Rel. Dew v. Superior Court, 907 P.2d 14 (Alaska 1995), at 15, n.2.

This volunteer program describes similar obligations in the Notice of Limited Appearance form.

If the service member asks the volunteer attorney to expand the scope of representation, the attorney should prepare and obtain the client's informed consent to a new agreement. If the volunteer attorney and client now agree to a fee arrangement for the expanded scope, the attorney should follow the rules governing fees.

  • RPC 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer.
  • RPC 1.5. Fees.
  • RPC 1.8. Conflict of Interest: Current Clients: Specific Rules. See comments [11] and [12].

Competence

"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." RPC 1.1.

A competent volunteer attorney will be familiar with the SCRA and the various ways in which to find a service member. Competence is also essential to communicating the protections of the SCRA to the client, establishing the limits of representation under the circumstances, and reporting back to the tribunal.

Information about locating a service member is found in the above section, "Locating a Service Member".

Diligence

"A lawyer shall act with reasonable diligence and promptness in representing a client." Rule 1.3.

"A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf." RPC 1.3, comment [1].

In representing a military service member facing a possible default judgment, the attorney should use diligence and promptness to try to do those things represented in the Notice of Limited Appearance. It is not enough for the attorney to simply try to locate the service member at a last known address.

Communication

The lawyer must promptly inform the client of any decision or circumstance that requires the client's informed consent. The lawyer must reasonably consult with the client about the means by which the client's objectives are to be accomplished. The lawyer must keep the client reasonably informed about the status of the matter and promptly comply with reasonable requests for information.

Communication, once the service member is located, may be difficult, given the circumstances. Nonetheless, the lawyer must explain any matter to the extent reasonably necessary to permit the client to make informed decisions. In most cases, this will mean that the volunteer attorney must explain as clearly as possible the procedural protections of the SCRA, the meaning of a stay in the proceeding, the requirements for requesting a stay under the SCRA, and the consequences of the client invoking a waiver of the protections.

 

Resources for Court-Appointed Attorneys

 

Articles

  • Kevin R. Anderson & David K. Armstrong, Soldiers' and Sailors' Civil Relief Act: A Legal Shield for Military Personnel, Utah B.J. (Apr. 1991), at 8
  • Roger M. Baron, The Staying Power of the Soldiers' and Sailors' Civil Relief Act, 32 Santa Clara L. Rev. 137 (1992)
  • Matthew T. Besmer, Appointment Practice Under the Servicemembers Civil Relief Act: the Duties of Court-Appointed Counsel, 43 Clearinghouse Rev. 208 (Sept.-Oct. 2009)
  • Mari Cheney, Researching the Servicemembers Civil Relief Act, Utah B.J. (Sep./Oct. 2009), at 28.
  • Dwan V. Kerig, The Absent Defendant and the Federal Soldiers' and Sailors' Civil Relief Act, 33 N.Y.U. L. Rev. 975 (1958).

Books

  • Mark E. Sullivan, The Military Divorce Handbook: A Practical Guide to Representing Military Personnel and Their Families (2006)
  • The Judge Advocate General's School Guide to the Servicemembers Civil Relief Act (2007)

Cases

  • Boone v. Lightner, 319 U.S. 561 (1943)
  • Garramone v. Romo, 94 F.3d 1446 (10th Cir. 1996)
  • In re Ehlke's Estate, 27 N.W.2d 754 (Wis. 1947)
  • Hanson v. Crown Toyota Motors, Inc., 572 P.2d 380 (Utah 1977)
  • Hawkins v. Hawkins, 999 S.W.2d 171 (Tex. App. 1999)
  • Rutherford v. Bentz, 104 N.E.2d 343 (Ill. App. 1952)
  • State ex. Rel. Dew v. Superior Court, 907 P.2d 14 (Alaska 1995).

Online

 

How to volunteer for appointment

Visit the Utah State Bar's Pro Bono Opportunities page for information about volunteering to provide limited legal help to a service member in default. For more information, contact the Pro Bono Coordinator at 801-297-7027, or probono@utahbar.org.

 

Forms

  • 1130XX
  • 1131XX
  • 1132XX
  • 1133XX
  • 1134XX
  • 1135XX
  • 1136XX
  • 1137XX

 

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