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 excusable:

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.