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.
Marcus was counsel in one of the earliest election challenges that focused on the exclusion of polling place observers. The effort was unsuccessful and it was not clear what still remained to litigate. Indeed, after the electoral votes were accepted by Congress, such cases would likely be viewed as moot. Thus, a dismissal was the most likely result awaiting the case.
Here is the entirety of the filing statement by Marcus:
The filing is breathtaking. Marcus does not state the criminal conspiracy engaged in by his client. He simply states “the client has used the lawyer’s services to perpetrate a crime and the client insists upon taking action that the lawyer considers repugnant and with which the lawyer has a fundamental disagreement.” The latter part of that statement is perfectly appropriate. I have withdrawn from representation over fundamental disagreements with clients. It is the statement that “the client has used the lawyer’s services to perpetuate a crime” that is so concerning.
In withdrawing from a case, an attorney is under a duty to take all possible steps to protect the client’s legal position and to avoid undermining his case. Here Marcus is accusing his client of a crime, an allegation that is entirely unnecessary to withdraw from the case since fundamental differences is alone sufficient for an action.
In fairness to Marcus, one of the grounds for withdrawal is a criminal enterprise. Rule 1.16 of the Pennsylvania Bar Code states:
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists.
Marcus is stating two grounds including the stated basis under subsection (3). However, the rule also states that “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests.” This raises a difficult issue for attorneys in what to disclosure or assert in a motion to withdrawal. Not only are we asked to minimize any harm to a client but the client may seek sanctions for allegations that are not supported or established. (In-court statements are generally treated as privileged from defamation actions under tort law).
Marcus and other attorneys have been subject to unfair and abusive attacks for their representation. He was one of the attorneys who stood his ground in defending his client. He has been placed in an extremely difficult position and refused to abandon his client. Moreover, Marcus may view this disclosure as ethically compelled under the rules to state the real reasons for his withdrawal. Given his history of standing by his client, I am very concerned about the allegation of criminal conduct that he has witnessed or come to discover in the course of his representation.
It is not clear what Marcus is alleging is the criminal enterprise or conspiracy. However, the filing comes after the rioting at the Capitol. If that is the basis for the filing, I have serious misgivings over the filing. Marcus has every right to withdrawal over fundamental differences. I have criticized many of these filings and opposed the challenge in Congress as unfounded. I also criticized Trump for his speech while he was still giving it. Yet, the speech itself was not a crime in my view. More importantly, an attorney should not publicly accuse a client of criminal conduct on a subjective or speculative basis.
Once again, I am not sure what Marcus is referencing in this line. He may have a separate basis for claiming that his services were used for a criminal purpose and the timing with the speech was purely coincidental. Again, I do not fault Marcus for this withdrawal but, as a criminal defense attorney, I was taken aback by the language of the motion. This type of accusation is clearly is inimical to the client and unnecessary for the purpose of withdrawal.
The question is whether state prosecutors could now seek further information on the alleged criminal conduct. There is a crime/fraud exception to attorney-client confidentiality and Marcus just publicly stated that he has knowledge of such criminal conduct. If that criminal conduct is the speech, I would have serious problems with the statement in the filing. If the criminal conduct concerns a separate demand or action in the case, prosecutors may want to know more about the underlying facts. Again, the question is why include the allegation when you have an unassailable basis to withdraw from a case that was likely to be dismissed in the days to come.
In the end, Marcus is stating a specific basis for withdrawal under the state bar code. As such, he can legitimately claim that he is acting within the express grounds of the code. This is a difficult and long-standing question for counsel in such cases.
Easy come, easy go.
You really don’t like it when anyone accuses Trump of anything, huh? Just interesting, that’s all. I mean, here our President is having a real time meltdown in front of the entire world, the clearly and openly attempted to incite a coup which everyone in the world sees apparently other than you, …the joint chiefs are talking 25th Amendment along with everyone else, and what does our nations foremost constitutional law scholar write about? Just more complaining about people being mean, to Donald J. Trump.
If President Trump is not sent to prison for perpetuating this “crime,” Jerome Marcus must be; after he is disbarred with extreme prejudice.
I have little doubt that CIA grifters like Brennan were behind all that Q nonsense that the poor Trump suckers drank like koolaid
and probably recruited some of the break and enter team too. well that was prolly fbi informants and tools on that one
Since all you have is belief but no evidence, you should have some doubts.
legal ethics is becoming a contradiction in terms
if you have seen these kinds of sausages made behind closed doors, you know it stinks like an abbatoir,
most of all, understand, big law firm lawyers are often the most sociopathic human snakes one can find outside of prison
a purge of lawyers is underway. kind of like communists sometimes purge the party, the USA’s powers that be, purge lawyers
Mostly by attorneys trusted and employed by Trump. He really knows how to pick ’em.
https://anncoulter.com/2021/01/06/the-election-is-over-heres-the-truth-about-trumpxxx/
Here there is nothing else to do. Trump needs to return as a Conservative Libertarian, and he will surely win. All of us have something of a libertarian and conservative, including even the most recalcitrant Democrats.
Will we ever see a return to carefully considered language? Will nuance regain an appreciative audience?
I see no hope for sustaining a free society under “the loudest voice rules”.
My hope is that serial exaggeration goes out of vogue at noon on Jan 20th, though I’m mindful that bad habits are hard to break.
I suggest a discreet “ahem” to remind the strident voice we’ve left the Trump era behind.
Ha ha ha. What’s changed is the mainstream media’s business model, which now consists of annexing the constituency of what we called ‘the Nutroots’ 15 years ago. Teh Crazy was firmly established in Democratic discourse when George W Bush (who made a point of not answering his detractors) was in office.
Nope. His attorney is simply using a verbatim quote from the statutory language. The attorney is solid. He’s betrayed no attorney/client privileged information. C’mon professor, I know you want to be a witness again at the new impeachment hearing, but give me a break.
He’s LYING. And in doing so he is falsely accusing his client of a crime while he has a fiduciary duty to him. I’d love to be Trump’s lawyer in the BFD suit.
He’s LYING
Prove it.
The attorney is solid.
In alleging criminal conduct in a settled case in an election law matter? Show your work.
He most likely can’t because it’s not his place to do so. But if he had to make that statement it may mean trump crossed a line that no attorney would accept. It means trump is desperate and delusional. Think how hitler was when Berlin was encircled by allied forces. He was lashing out at everyone.
Why did the attorney not accurately define the crime?
Why seems to be the left’s attacks and determination to ruin anyone that associated with Trump or anyone that voted for Trump. They are not happy their candidate won and seek to destroy anyone in opposition to their beliefs. .
Trump is incompetent and unfit for the office of POTUS. And has proven it over and over. 350,000+ dead from his lies. And his lies got people to storm the nations capital for no other reason but to stay illegally in a office that he lost legally. And the facts prove it.
Professor Turley writes:
I am perplexed by Speaker Pelosi’s suggestion that military officers can bar the Commander in Chief from exercising his constitutional authority under Article II.</i?
It's called sedition. Real sedition, just like that of Sally Yates four Januaries ago.
Those who breach attorney client confidences no matter the topic should be disbarred.
Turley’s objections are legitimate if we only look at whether Marcus needs to do the minimum to establish qualifications for withdrawal. But Marcus may not think that gives him enough protection, and the Pennsylvania Bar seems aware of that. Trump will undoubtedly face criminal prosecution for his role in the storming of the capitol, but will it be limited to that? Turley can’t say that it will, and that’s because he doesn’t know, and neither do we. At this point, Marcus is in a better position to know that, and he bets – I think correctly – that his representation of Trump – from the beginning – may be looked at as criminal participation. No investigating prosecutor would pull away from that at this stage. It means that Marcus will certainly be subpoenaed and, we can be sure, will invoke attorney-client privilege. Good luck to that. There is every reason to believe that Marcus feels vulnerable to a charge of criminal participation, and that the privilege will not hold for him. The record, even without his testimony, could well establish such participation, and that he should have been aware of that. The question of guilt may rest on the exact point in time when he should have known.The privilege would fail him, as well as his client. It’s not clear at what point Turley feels it would ever be OK for Marcus to withdraw.
You are out of your mind. Trump won’t be charged, and NO ONE (except thh craziest of crazies — i.e., you) imagines that Marcus could be criminally charged. Your disregard for the rule of law is profoundly disturbing.
Your reading comprehension is poor. Turley didn’t say it’s not okay for Marcus to withdraw. The problem is that Marcus falsified the basis for his withdrawal and in doing so breached his fiduciary duty to his client.
I remember a two year “investigation” of Trump, and that was only for talking to a Russian. A genuine insurrection will surely be investigated, and when congressional committees begin tripping over each other, an indie will be assigned to it. He or she will be relentless. Do you really think Marcus will be overlooked?
“Marcus falsified the basis for his withdrawal”
Prove it.
I already did. Pay attention.
No, you didn’t. You asserted it, but you did NOT prove that he falsified it.
I agree with what you wrote and with Turley that in the process of withdrawing an attorney should not throw the client under a bus, but I’m not sure that Marcus was referring to past criminal conduct. Turley assumes that this case is moot due to certification of Biden’s victory and will be dismissed, but perhaps Marcus was asked to do something going forward that he considered criminal. That makes more sense to me.