Ethical considerations

No, this isn’t about the President, but about one of his cases that leads us to consideration of attorney ethics when deciding to withdraw from a case.

Prof. Jonathan Turley has this critique of one of DJT’s attorney’s seeking to withdraw from litigation.

On January 7th, an attorney representing President Donald Trump filed a one-page motion of withdrawal from a case filed shortly after the election. That is hardly remarkable with attorneys entering and leaving cases every day in federal court. What is remarkable is the reason.  Philadelphia-based attorney Jerome Marcus told the United States District Court for the Eastern District of Pennsylvania that he was withdrawing because President Trump used him, and his election challenge, to “perpetuate a crime.”  The filing raises some troubling questions regarding the alleged criminal conduct as well as the necessity of making such an allegation in a simple motion to withdraw from representation.

I agree with Prof. Turley. We do have a situation arise from time to time where we withdraw or want to withdraw from representation. Depending on when that happens it is not too hard and I agree the stated reasons need to be as vanilla as possible and certainly shouldn’t be perceived as undercutting the client or the case.

It becomes harder in a criminal case (note Turley talks of a civil case) when you are close to trial or the client does not consent. Absent good cause, the military judge can deny the request to withdraw. In civilian courts a fee issue will allow withdrawal, but I have yet to see an appellate case where a military judge has denied withdrawal close to trial solely over a fee issue and then the client raises IAC on appeal. It is at this time when stronger reasons need to be stated while at the same time not prejudicing the client.

I have had to resolve this in one case where I thought the client had lied in an official situation and expressed a clear intent to lie at trial (and where we had a substantial disagreement about strategy). The judge let me out. A bit later I learned that the MJ thought it was over a fee issue, see infra.

In another situation the entire defense team asked to withdraw on the morning of trial based on events in the few days before trial. The MJ held a hearing and allowed all three of us to withdraw.


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