U.S. v. Kinder, 14 C.M.R. 742 (1954)

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The California National Guard does not require that its attorneys be members of the California State Bar, a practice that appears by all accounts to be erroneous and illegal. These unlicensed militia attorneys perform a general counsel role, advising senior state government personnel on a broad range of state matters, including environmental compliance, privacy issues, and the use of force against California citizens. They also represent state militia employees accused of criminal misconduct and provide direct legal assistance to those who have personal legal problems, advising on everything from family law to landlord/tenant disputes to garden variety consumer law matters to state and federal tax problems. Yet, these unlicensed attorneys have not passed the California Bar Exam, cleared the State Bar's moral character evaluation, or registered with the State Bar.

The use of unlicensed attorneys providing legal advice to public officials and militia employees should stop. Only California attorneys should be allowed to serve in a state agency such as the Cal Guard. 

Read Dwight Stirling and Alex Lindren's article in the Western State University Law Review.

Defense attorneys in the California National Guard's JAG Corps jeopardize their clients rights by switching back and forth to government-side positions without proper ethical screening.  The result of this loose and informal "rotation process" to that client confidences are comprised and faith in California's legal corps is compromised.  More stringent measures should be implemented to preserve the integrity of the process. 

Read Dwight Stirling and Corey Lovato's article in Boston University Public Interest Law Journal.

With President Trump's use of state National Guard troops to deport illegal immigrants, it is essential to understand which rules, federal or state, govern National Guard personnel. The scenario raises the specter of a conflict of law situation. What if the President and a state governor issue differing orders? Which one is legally binding? The unequivocal answer is the governor’s. Pursuant to the power-sharing arrangement outlined in the Second Militia Clause, governors are the commanders-in-chief of guard personnel serving in a state status. Possessing the power to command, governors—along with state legislatures—possess the power to determine which rules bind the troops under their control, an auxiliary power. Presidential orders, therefore, are not automatically binding on state guard members; in fact, they have legal force only if the respective state authorities afford them such force. Absent state-level approval, instructions emanating from federal military sources are propositional, able to ignored without legal consequence. 

Read Dwight Stirling and Corey Lovato's article in the Texas Review of Law and Policy.