Rudy Giuliani's lawyers call it quits

 Well that took longer than I expected but it is not surprising.  Rudy Giuliani's lawyers have been trying to cover for his obvious attempts to avoid complying with court orders for a while and now that the judge finally threatened issuing an order for contempt of court, the lawyers apparently decided it was not worth to stick their necks out for their delinquent client.  

The specific reason or reasons for the two lawyers’ requested withdrawals aren’t fully clear because the court filing asking for withdrawal is partially redacted, but the lawyer's cited a rule equivalent to Model Rule 1.16(b)(4) which states that a lawyer may withdraw when the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement and another local rule that states that the lawyer can withdraw when the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively.  

I assume these allegations are based on the fact that Giuliani tried to hide assets and kept avoiding complying with court orders. And let's not forget that he lost the defamation case because he refused to comply with discovery in the first place...

You can read more about the adventure it is to represent a client like Rudy and why it is better to step away from him here: 

The Hill

Law & Crime

MSNBC

Above the Law

By the end of the week, Giuliani had found a new lawyer and relinquished some of his property as obligated by the court's order.  The Guardian has that part of the story here.

ABA issues new opinion on duty to investigate circumstances related to the representation

 Yesterday - August 23, 2024 - the ABA’s Standing Committee on Ethics and Professional Responsibility issued a new Formal Ethics Opinion (number 513) on an attorney’s duty to inquire into and assess the facts and circumstances of the representation.  The summary reads as follows

As recently revised, Model Rule 1.16(a) provides that: “A lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation.” To reduce the risk of counseling or assisting a crime or fraud, some level of inquiry and assessment is required before undertaking each representation. Further inquiry and assessment is required when the lawyer becomes aware of a change in the facts and circumstances relating to the representation that raises questions about whether the client is using the lawyer’s services to commit or further a crime or fraud.  The lawyer’s inquiry and assessment will be informed by the nature and extent of the risk that the current or prospective client seeks to use, or persists in using, the lawyer’s services to commit or further a crime or fraud. If after having conducted a reasonable, risk-based inquiry, the lawyer determines that the representation is unlikely to involve assisting in a crime or fraud, the lawyer may undertake or continue the representation. If the lawyer has “actual knowledge” that the lawyer’s services will be used to commit or further criminal or fraudulent activity, the lawyer must decline or withdraw from the representation.  When the lawyer’s initial inquiry leaves the lawyer with unresolved questions of fact about whether the current or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, the lawyer must make additional efforts to resolve those questions through further reasonable inquiry before accepting or continuing the representation. The lawyer need not resolve all doubts. Rather, if some doubt remains even after the lawyer has conducted a reasonable inquiry, the lawyer may proceed with the representation as long as the lawyer concludes that doing so is unlikely to involve assisting or furthering a crime or fraud. 

You can read the full opinion here.

Another comment on the lawsuit by firm against departing lawyer for compensation because clients left with the lawyer

 About a week ago, I posted a link to a comment on whether employment agreements that require a departing lawyer to compensate the firm for clients that follow the lawyer would violate the Rules of Professional Conduct.  The article related to a case in which a firm sued a departing lawyer seeking compensation because a bunch of clients left with the lawyer.

Faughnan on Ethics now has added to the discussion with a post on the case. 

Do employment agreements that require a departing lawyer to compensate the firm for clients that follow the lawyer violate the Rules of Professional Conduct?

 Michael Kennedy, over at Ethical Grounds, discusses the issue here.

Things keep getting worse and worse for Rudy Giuliani: two of his lawyers withdraw (or try to) from his representation in Georgia

Oct 4, 2023

If you have been following the news, or this blog, you know that things are getting pretty desperate for Rudy Giuliani, (see here, and here, for example) and they just got worse in the past few days.  Here is the latest:

Last month, Giuliani's former lawyers in one of his many ongoing cases sued him for nearly $1.4 million for outstanding legal bills.  See here.

Last week, the judge overseeing the RICO case in Georgia in which Giuliani is one of 19 defendants, granted a motion to withdraw filed by one of Giuliani's lawyers.

Yesterday, a second lawyer representing Giuliani in that case filed a motion to withdraw.  See here.  If that motion is granted, the Giuliani will be left without a Georgia based lawyer in the case.  The only lawyer left would be a New York-based lawyer.  I don't know if there is a requirement that a defendant must have local counsel to "sponsor" the out of state lawyer.  If so, it is possible the judge will deny the motion to withdraw.  We'll have to wait and see.

It was also reported this week that Hunter Biden has sued Giuliani.  See here and here.

But Giuliani is fighting back.  He denies that he has a drinking problem.  See here and here.  And he has filed a defamation lawsuit against President Joe Biden for calling him a “Russian pawn” during a presidential debate nearly three years ago.  See here and here.   Given everything else, this strikes me as a desperate move, which I predict will be dismissed promptly because the court will find that the statement is political speech, and rhetorical hyperbole or a statement of opinion.  The more interesting question is whether the court will also find that the claim is frivolous and impose sanctions, which will, again, make things even worse for Giuliani.  Someone should remind him he is already in a big hole, and should stop digging.

UPDATE 10-5-23:  MSNBC has a short comment on the most recent news here.

Breaking news: ABA House of Delegates approves changes to Model Rule 1.16

Last February, the ABA House of Delegates, which is comprised of 597 delegates from ABA entities and state, local and specialty bar associations, adopted a measure that updates the ABA’s policy that endorsed for the first time “reasonable and appropriate” federal government efforts aimed at combating money laundering. The policy seeks to balance the longstanding attorney-client privilege with the demands of governmental entities seeking access to information on criminal activities.

Following this policy, yesterday, the HoD adopted an amendment to Model Rule 1.16 "to protect lawyers from unwittingly becoming involved in a client’s or prospective client’s criminal and fraudulent activities."

Reportedly, there was a lengthy debate on the proposal but it was eventually approved by a vote of 216-102.

The amendment creates a duty to "inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation" and adds a new (a fourth) case in which lawyers are obligated to refuse to represent a client or to withdraw from representing a current client.  

This section of the amendment states that the a lawyer shall not accept the representation or shall withdraw from representation if "the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s discussion pursuant to Rules 1.2(d) and 1.4(a)(5) regarding the limitations on the lawyer assisting with the proposed conduct.

As you probably know, Model Rule 1.16(a) lists the circumstances when a lawyer is required to withdraw, while 1.16(b) lists the circumstances in which a lawyer may withdraw.  Model Rule 1.16(b)(2) states that a lawyer may withdraw if "the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent."

The original proposal before the House of Delegates eliminated this discretionary duty and essentially converted it to an obligation.  But, at some point in the process it was decided to keep section 1.16(b)(2), so now we have a mandatory duty related to a client's intent to engage in fraud, etc, and a separate discretionary duty.  

That can be confusing so we will have to wait and see how they are interpreted.

You can read the Resolution that was approved and its full report here.

How to leave a firm ...

 In a recent post, Michael Kennedy (Ethical Grounds) reviews issues related to lawyers leaving firms.  If you need a quick reminder of some of the ethical issues involved, you can read it here.

Meanwhile, over at Above the Law, another recent article discusses the key trends shaping today’s lateral moves landscape.

ABA asks for comments on possible amendments to Model Rules

 The ABA Standing Committee on Ethics and Professional Responsibility and ABA Standing Committee on Professional Regulation is seeking comments on the Committees’ Third Discussion Draft of possible amendments to the ABA Model Rules of Professional Conduct (Model Rules). 

The Third Discussion Draft addresses possible amendments to ABA Model Rule 1.16 (Declining or Terminating Representation) relating to lawyers’ client due diligence obligations. Your comments will assist the Committees in determining how to proceed with a Resolution for the 2023 ABA Annual Meeting.

You can access the discussion drafts and other information here.

Pleases submit written comments to Natalia Vera, ABA Center for Professional Responsibility Senior Paralegal at natalia.vera@americanbar.org by March 3, 2023. All written comments may be posted online.

The Committees will hold a Zoom public roundtable on the Third Discussion Draft on February 28, 2023. Those wishing to present comments will be allotted five minutes for their presentation. The Committees would appreciate if speakers also submit written comments by March 3, 2023. To register to attend, please contact Ms. Vera at natalia.vera@americanbar.org by February 17, 2023.

How not to practice law: lie to your client and to the court to try to get out of representing a client

 Here is another installment on the "how not to practice law" series...

In today's story, the lawyer lied to the client and the court claiming to be suffering from cancer in order to have the court agree to let the lawyer withdraw from representation.  

And for this the lawyer is now agreeing to getting disbarred.

Moral of the story:  don't lie.  And especially, don't lie to the court.  Simple.  

Leaving your firm?

 Leaving your firm?  My friend Michael Kennedy has some advice for you on what not to do here.

More news on why Trump's lawyers quit over the weekend: money

As I am sure you know by now, the five lawyers who had originally agreed to represent Trump in his upcoming impeachment trial quit over the weekend.  (See here.)  Initial reports indicated that they did so because they disagreed with what Trump asked them to do (argue the case based on allegations of voter fraud and that the election was "stolen" from him).  But new reports claim that this disagreement was not the only reason for the attorneys' withdrawal.

Axios is reporting today that Trump argued with one of the leading lawyers over fees, which Trump thought were too high.  In all fairness, this is a common complaint among clients, so it is not an unusual claim.  But it is a little unusual that the lawyers had already agreed to represent the client before finalizing the agreement about fees.  Business Insider has a little more on the story.

According to the report, Trump was initially open to paying $250,000 individually to the lawyer in question but balked after being presented with a total price — including "more lawyers, researchers, and other legal fees" — of $3 million.  Reportedly the parties agreed to lower the fee to $1 million, but evidently that did not prevent the lawyers from walking away.

Trump quickly announced had obtained a new team of lawyers (see here) and now I am curious how much he is paying them.

Breaking news: Trump's legal team quits just days before impeachment trial! -- UPDATED

 January 30, 2021

Just days before his impeachment trial is set to begin, Donald Trump's entire new legal team has withdrawn from his representation.  According to one report, they left because Trump “wanted the attorneys to argue there was mass election fraud and it was stolen from him rather than focus on proposed arguments about constitutionality.”  Whether the lawyers objected to this specifically because they thought the arguments are frivolous is not clear, but, evidently, they felt the disagreement was important enough to withdraw from representation.  

Given that so many other lawyers and law firms withdrew from representing Trump in litigation over the elections after it was clear that the cases had no merit, the news of a new group of lawyers withdrawing is not entirely surprising.  

Trump now has a little over a week to find a new legal team to build a defense.  One report suggested Trump thinks the case is "simple" and that he could represent himself, which apparently is something that Steve Bannon is suggesting he should do.  Others have denied that Trump is considering representing himself. Stay tuned!

For more on the story, including quotes from the reporters who interviewed the original sources, and from the lawyers involved go to Law & Crime, Politico. Yahoo! News and the New York Times.

Interestingly, it is not clear who disclosed that the reason for withdrawing was a disagreement over what to argue as part of the defense strategy.  If it was the lawyers, it raises a question as to whether they have violated their duty of confidentiality which depends on whether they had consent to disclose the information.  Lawyers do not have to explain their reason to withdraw, unless they are seeking permission from the court to do so (which is not the case here), and even in that case, lawyers should not disclose more information than reasonably necessary.  

But when it comes to Trump, some lawyers want to distance themselves from the client so much that they suddenly feel the need to explain themselves on the way out.  For another example of this, remember the lawyer who filed a motion to withdraw stating in the motion that Trump had committed a crime.  See here.

UPDATE, Sunday 1/31/21:  Trump has announced a new team of two attorneys who will represent him in the impeachment trial.  For more, see Courthouse News, Law & Crime, NPR, the New York Times and Politico.

UPDATE, 2/1/21:  Above the Law has a comment on the withdrawal of the original team here.

Quick reminder on how to withdraw without violating the duty of confidentiality

 Over at Ethical Grounds, Michael Kennedy reminds us of the proper way to withdraw from representation without violating the duty of confidentiality.  Go read his comment here.

Can a lawyer withdraw from representation for fear of contracting Covid-19?

Over at The Law for Lawyers Today, Karen Rubin has published a comment on a recent ethics opinion on whether an attorney can withdraw from representing a client based on alleged fear of contracting COVID-19 as a result of some aspect of the representation.

In the opinion, the New York State Bar Association answers yes, provided that the lawyer gets permission from a tribunal.  

You should read the comment here.

New opinion by the ABA Standing Committee on Ethics addresses obligations related to lawyers changing firms -- UPDATED

Original post: December 8, 2019

The ABA Standing Committee on Ethics and Professional Responsibility has issued ABA Formal Ethics Opinion 489 - Obligations Related to Notice When Lawyers Change Firms.  You can read it here. Here is the summary:

Lawyers have the right to leave a firm and practice at another firm. Likewise, clients have the right to switch lawyers or law firms, subject to approval of a tribunal, when applicable (and conflicts of interest). The ethics rules do not allow non-competition clauses in partnership, member, shareholder, or employment agreements. Lawyers and law firm management have ethical obligations to assure the orderly transition of client matters when lawyers notify a firm they intend to move to a new firm. Firms may require some period of advance notice of an intended departure. The period of time should be the minimum necessary, under the circumstances, for clients to make decisions about who will represent them, assemble files, adjust staffing at the firm if the firm is to continue as counsel on matters previously handled by the departing attorney, and secure firm property in the departing lawyer’s possession. Firm notification requirements, however, cannot be so rigid that they restrict or interfere with a client’s choice of counsel or the client’s choice of when to transition a matter. Firms also cannot restrict a lawyer’s ability to represent a client competently during such notification periods by restricting the lawyer’s access to firm resources necessary to represent the clients during the notification period. The departing lawyer may be required, pre- or post-departure, to assist the firm in assembling files, transitioning matters that remain with the firm, or in the billings of pre-departure matters.


UPDATES:

UPDATE (12/8/2019):  Ethical Grounds has a comment on the Opinion here.

UPDATE (12/23/2019): Bloomberg law has a comment here.

UPDATE (1/1/2020):  Louisiana Legal Ethics has a comment here.

UPDATE (2/9/2020):  The Legal Ethics Reporter has a comment here.

How not to practice law: steal files from your firm when departing

The ABA Journal is reporting that a St. Louis lawyer was held in contempt, jailed for two days and ordered to pay more than $775,000 to her law firm for expenses incurred in its lawsuit to gain return of electronic files that the attorney was accused of taking before her resignation.  For more details go here.

What if a client asks lawyer to destroy the client's file or some of its contents?

Over at Ethical Grounds (the unofficial blog of Vermont's bar counsel), Michael Kennedy discusses a recent NY opinion on whether an attorney has to destroy the client's file upon request.

As Michael explains, ordinarily, upon the termination of a representation, Rule 1.16(d) requires a lawyer to surrender to the client all papers and property to which the client is entitled, which, of course, includes the client's file.  But, the lawyer is also entitled to keep a copy of the file, which, in fact, the lawyer may be required to do according to the lawyer’s malpractice.

The interesting question then becomes, what to do if a client directs a lawyer not to keep to a copy of a the file?

You can read the comment here.

How not to practice law: Continue representing a client after the court disqualifies you

Continuing our long-running list of obviously dumb things lawyers do, here is the latest:

Faughnan on Ethics is reporting on a recent case in which a lawyer was disbarred for disregarding a court's order that disqualified him from representing a client.  But it is worse than that.

First, the lawyer did not recognize that the representation constituted a conflict of interest to begin with (which was pretty obvious).  That means he violated two rules: the rule against conflicts and the rule on competence.  Then he was disqualified, but continued the representation.  Then he was suspended, but, you guessed it, continued the representation while suspended.  At this point I wonder if the attorney is still practicing while disbarred.

You can read the details of the case here.

The ethics of switching firms

This is an important topic since the vast majority of lawyers will not end their careers in the same firm they start it.  Here is a recent summary of some of the issues involved...

Bar Standards Board of England and Wales amends rule regarding duty to provide representation

The Bar Standards Board that regulates barristers in England and Wales recently approved a proposal from to change an existing rule which says, in essence, that barristers are required to accept clients who request their services. Barristers are now allowed to refuse to represent clients under certain circumstances. For more information, go here.

The English approach to the duty to provide representation, even as amended recently, is very different than the American approach which is reflected in the ABA Model Rules. The only mandatory ABA Model Rule that contains a “duty to accept” cases is found in ABA Model Rule 6.2 regarding court appointments, and even then, Rule 1.16 recognizes a number of reasons that would justify refusing to accept the appointment.