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 I have withdrawn from representation over fundamental disagreements with clients.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.