Short Take: Representing The Most Detested

Lawyers end up standing next to a wide array of clients, not because we necessarily like them, or even can tolerate them, but because we understand our duty to represent them. But that has limits.

An attorney representing President Trump in one of his dozens of lawsuits challenging the 2020 election moved to withdraw from the case on Thursday, telling a federal court that the president used him to “perpetrate a crime.”

Philadelphia-based attorney Jerome Marcus asked the court to allow him to withdraw, citing concerns over Pennsylvania’s professional conduct standards for lawyers.

Why did Jerome Marcus decide to take the case in the first place? Beats me. Maybe money, although his client has a sordid history of nonpayment. Maybe politics, because some lawyers are conservative. Maybe he just felt a sense of duty to provide representation to a client who was entitled to the opportunity to make his case, although most of us vet that issue before going to court so as not to waste our, the court’s or the client’s time. But let’s assume Marcus’ decision to take on the matter was in good faith.

Then this is inexcusable:

This is despicable. Not that Marcus wanted to withdraw. There’s nothing wrong with that. It happens in the normal course of litigation, and is easily handled with a representation to the court that the attorney believes an ethical conflict to exist that precludes his continued representation. That’s all that need be said, as judges are well aware of the attorney’s obligation to both withdraw upon the ascertainment of such a conflict and duty not to reveal client confidences. They get it.

But this?

[T]he 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.

There is only one circumstance in which a lawyer is permitted to reveal a client’s criminal engagement, and that’s when the client informs the lawyer of a prospective crime, and that is only for the purpose of preventing harm to befall a victim. This alleges a crime already committed, perhaps in the process of being committed.

Whether this is so remains to be determined, as it’s not up to lawyers to decide that their clients are perpetrating a crime. The attorney may believe so, and his belief may carry substantial weight because lawyers tend to know a bit about such matters, but it remains a question. Marcus didn’t write that there was a question, but that it was a crime.

Adding insult to injury, Marcus went on to express his personal feelings of repugnancy at the actions “demanded” of him by the client. So what? His feelings of repugnancy have absolutely nothing to do with his ethical duties or his motion to withdraw. If the action demanded of him is improper, he can love it or hate it, but it’s still improper. If it’s not improper, then his revulsion is his own problem, and he should have thought of that before he took on the case.

Could it be that Marcus decided that representing Trump wasn’t where he wanted to be and used his withdrawal application to let future clients know that he was no longer one of the baddies? Tough nuggies. We are not relieved from our ethical duty to protect client confidence, to not publicly reveal our client’s wrongful conduct, because it’s good for us.

This is true if our client is a mass murderer, a child molester or the President of the United States of America. Don’t do this.

25 thoughts on “Short Take: Representing The Most Detested

  1. B. McLeod

    Probably assuming he will get wokieness credit, plus a pass on the ethics rules, because it’s Trump. Sadly, he may not be mistaken.

    Reply
  2. CLS

    Ugh. Whether civil or criminal this is so distasteful. If you’re withdrawing from representation, don’t put your business or the client’s in writing. No one else gives a shit and it’s only hurting both of you if you air your grievances on filings.

    Is no one teaching lawyers these days the little touches like this, or did everyone stop caring?

    Reply
  3. Noel Erinjeri

    Marcus filed the motion to withdraw on Thursday morning, the day after Capitol Riot. This is speculation, but my guess is that he only signed up to help Trump subvert the election *in court;* and that Marcus was (genuinely) shocked, SHOCKED, when the “rigged election” narrative he had a hand in crafting led to a mob rampaging down Pennsylvania Avenue, and reacted accordingly.

    He still shouldn’t have said his client committed a crime, but I’m willing to consider the timing as a mitigating factor.

    Reply
  4. Jeffrey M Gamso

    “This is true if our client is a mass murderer, a child molester or the President of the United States of America.”

    I’ve never represented the Pres (or any of his predecessors), but I’ve taken on my share of those who’ve committed multiple murders and molested children (all allegedly, of course, all of my clients except the few who fessed up are factually innocent though some juries and judges have foolishly disagreed, but I digress).

    I’ve also withdrawn from some cases. What i’ve never done is ratted out a client.

    When I first saw the story about Marcus accusing 45 of perpetrating a crime, I figured it had to be a mistaken report. (You know, “Fake News” ™. ). What I didn’t do was track down the motion. Good God!

    Now I just wonder how he’ll respond to the bar complaint.

    Reply
      1. Jeffrey M Gamso

        Giuliani on his behalf? Hawley? The guy with the antlers? Is there a rule limiting the range of folks who can file them? (There’s no such rule in Ohio; in fact, our ethics rules say that any lawyer with unprivileged knowledge of an ethics violation is required to report it.)

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  5. Grant

    This is making my head spin because Mr. Marcus (a) has a partner, and (b) didn’t just graduate law school. If nothing else, he should know people who could have told him how to do this better.

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  6. Kathryn M Kase

    I wish noisy withdrawals like Marcus’ were unusual, but they’re not, nor is “wokeness” to blame. Noisy withdrawals are common in some corners of criminal litigation and it is rare that lawyer discipline follows, which in my experience is owed to the civil lawyers on disciplinary committees being unduly focused on whether the complaining client is innocent and, therefore, “worthy” of having his complaint redressed.

    Reply
    1. SHG Post author

      All the lawyers and judges here thank you for sharing your “experiences,” for they have none of their own and rely entirely on you.

      Reply
    2. Miles

      Much as I admire your tenacious defense of woke windmills, it was neither offered as a rationale nor excuse for this conduct. Yet, you raise it. Since you did, let’s get real: Had this lawyer done the same thing to a black defendant, would the woke universally adore him for it? Not likely.

      As for your persistent narcissism, because we lawyers surely need you to inform us of what happens in court because you’re brilliant and we’re all dummies who need you to tell us what we’ve done every day for 50 years, thank you. You are too kind to us little people.

      Reply
      1. SHG Post author

        I don’t know if KK doesn’t read replies or doesn’t care, but she would do well to recognize that her points might be sound, but her delivery is neither persuaive nor helpful. Talking to lawyers and judges, many of whom are far more knowledgeable and experienced, isn’t the same as lecturing a third grade class.

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    3. Michael

      I don’t know if you’re seing this, Kathryn, but Miles has a point. You’re not lecturing children, but people who know as much, if not more, than you. Show some humility.

      Reply
  7. Charles

    “His feelings of repugnancy have absolutely nothing to do with his ethical duties or his motion to withdraw.”

    While New York doesn’t care about lawyer feelz when withdrawing, Pennsylvania’s Rule 1.16(b)(4) provides that a lawyer may withdraw from representing a client if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”

    He’s just quoting the rule. And violating Rule 1.6 while doing so.

    Reply
  8. KeyserSoze

    I am not a lawyer and even I knew the general principle involved. This man chose his profession and knew the ethical requirements. If he did not want to obey them, he could have left the profession at any time.

    Set phasers to deep fat fry.

    Reply
  9. Jay

    Our predictable reaction as American lawyers- though it reminded me of an interview with the great french lawyer Jacques Vergès when he said he could defend anyone at all, except maybe President George W Bush. I never quite got why he said that, other than by the end he was more about attacking western nations and hypocrites than he was about law.

    Reply
    1. Jeffrey Gamso

      We’re not required to take every case or represent anyone who comes calling. Assuming that they can turn up someone willing and able to take the case, I can say and have said, “I don’t want to be your lawyer; go find someone who wants to put up with you or doesn’t hate everything about you.” (OK, I haven’t put it that way, but that’s been my thinking.)

      Reply
  10. Seth Kramer

    It may well have been a personal and/or business mistake to take Trump as a client in the first place. But the way the motion to be relieved is drafted is a bigger mistake. Any benefit he would have gotten in representing Trump is overshadowed by his ethical breach in the motion.

    Reply

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