In my last post, I discussed potential conflicts of interest arising in the multiple representation of witnesses in the ongoing investigations concerning the allegations of collusion between the Trump campaign and Russia to throw the 2016 U.S. presidential election and President Trump’s interference with this investigation. Apropos of that discussion, we now learn that three high-flying former prosecutors defending Rick Gates – a former Trump campaign aide – have moved to withdraw for reasons unknown. Speculation has it that counsel are seeking to withdraw because their client wishes to cooperate with U.S. Special Counsel, Robert Mueller. The reasons behind the two-page request to withdraw will be filed confidentially, so all we can do is speculate. Be that as it may, the conjecture on the request to withdraw serves as an exquisite springboard to our further discussion on counsel’s ethical obligations to loyally, zealously, and diligently represent clients.
First, some background.
After the election, Gates continued working for President-Elect Trump as part of his transition team. His partner, Paul Manafort, was briefly – though not inconsequentially – Trump’s campaign manager. Manafort and Gates have long-standing professional ties in Russia and Ukraine – primarily as political strategists and influence-peddlers (see here, here, and here). Both Manafort and Gates have been indicted by a Grand Jury in the District of Columbia on 12 counts, including conspiracy against the U.S., conspiracy to launder money, and making false statements. The trial is scheduled for September 2018.
The current charges are most likely Mueller’s opening salvo. Presumably, Mueller would not have sought an indictment against Manafort and Gates unless he was virtually certain of a conviction. Mueller is about as tough and smart as they come, having been both a federal prosecutor and the head of the FBI. He also has put together a formidable team. Undoubtedly, Mueller is banking on one of the two cracking under pressure of the inescapable realization that prison awaits them and that it is in their best interests to cut their losses by fully cooperating. Mueller is not after a simple guilty plea on these charges. He is interested in knowing what these two know about anything and everything that may, in any conceivable way, assist him in his investigation. Whoever cooperates first gets the better deal. But names must be named, documents must be turned over, and true, accurate, and complete testimony under oath in all relevant future proceedings must be had. And in the process if either of these two or any other cooperating suspect or accused can deliver more – even on incidental matters (e.g., information on any shady and unlawful business dealing by Trump and his associates with Russian oligarchs connected to Russian President Vladimir Putin) – all the better.
Manafort seems to be hunkering down, having recently filed a lawsuit against the U.S. Department of Justice challenging Special Counsel Mueller’s authority and credibility. I seriously question this strategy or tactic (not sure which of the two it is), considering that all is fair game in these sorts of investigations. If, for example, there is credible proof that Manafort and Gates were involved in money laundering (something that at least the Grand Jury seems to think), is Mueller supposed to turn a blind eye – especially when there may be some linkage, however tangential, to the overarching purpose of the investigation? Anyway, as bold a move the lawsuit challenging Mueller’s remit may be, Manafort may be forced into a strategic re-think if his erstwhile partner Gates opts to cooperate and sing like a canary – and sing he will if he cuts a deal.
And this brings us to the essence of this post.
According to POLITICO, it is speculated that Gates’ counsel wish to withdraw from the case because Gates is potentially thinking of or has already begun cooperating with Mueller. Just how ethical is it to seek to withdraw from a case on the basis that the client wishes to plead guilty and cooperate, as opposed to fight the charges? It is almost the exact opposite of what we saw in one of my posts, where in the case of McCoy v. Louisiana, counsel effectively pleaded his client’s guilt over the client’s objections.
Hard to fathom how Shanlon Wu, Walter Mack, and Annemarie McAvoy would move to withdraw simply because they disagree with their client’s decision to cooperate with the Special Counsel. As former prosecutors, they were in the business of squeezing suspects and accused to plead guilty and give evidence against others. No doubt as prosecutors – as is the norm in the U.S. – they overcharged or threatened to add charges or seek harsh mandatory sentences to get suspects or accused to cooperate (or in the vernacular of some of my clients, rat on their cohorts). And I have no doubt that all three – now as defense counsel – parade their clients on a regular basis before U.S. federal and state prosecutors, sometimes rushing to them, to secure a deal before another suspect or co-accused beats them to the punch. So, I find it hard to reconcile that somehow these three talented and high-priced legal operators suddenly find plea bargaining and turning an accused into a prosecution witness intolerable or unprofitable, or contrary to a client’s interest – even if an acquittal is well within the realm of probabilities.
Equally hard to fathom that a federal judge would allow counsel in a criminal case to withdraw on these grounds. In the U.S., once counsel files an entry of appearance, judges are reluctant to grant a request to withdraw from the case simply because the client wants to exercise his right to waive certain constitutional rights for the sake of receiving a reduction of charges or a more lenient sentence. Indeed, it is part and parcel of counsel’s ethical responsibility to provide the best possible legal representation he or she can – even if counsel may disagree with the client’s intended course of action.
Counsel can advise, but at the end of the day, the rights belong to the client, and so do the decisions on whether to waive the right to remain silent, the right to have the prosecutor prove the charges beyond a reasonable doubt, the right to appeal, etc. – all of which are part of the deal-making process. Where counsel earn their keep in these instances is in advising clients on how to carefully proceed without digging themselves into a deeper hole (say by committing perjury when giving evidence as part of a plea agreement), and by working out the best possible outcome for the client. It may sound easy and rudimentary, but to my mind, it takes talent, smarts, and experience to do the client right. And, presumably (at least for some clients, especially white-collar ones), who better than former prosecutors would know the drill and the personalities on the opposite side of the negotiating table to advise clients of the pros and cons of cooperating.
It is peculiar that all three counsel – who are well-regarded and highly-experienced – wish to withdraw en masse. Speculation abound, but here are some plausible reasons:
- Maybe Gates is simply not heeding their professional advice;
- Maybe Gates is not paying his fees or is running out of money – not an unlikely possibility given his recent defense fund-raising efforts, which nearly cost him his provisional release – though this is hardly an acceptable reason for a trial judge to allow counsel to withdraw once an entry of appearance is filed;
- Maybe Gates is not entirely satisfied with the current legal representation he is receiving and looking to clear the decks and start with a fresh team;
- Maybe Gates has placed his counsel in the unenviable position of an ethical dilemma, making it impossible for them to continue representing Gates;
- Maybe by cooperating and pleading out, Gates deprives these counsel from taking on any other potential client related to this case;
- Maybe based on any mutual defense agreement entered with the Manafort defense, counsel cannot in good faith represent Gates as he is about to dump on Manafort (counsel may have been exposed to confidential information from their cooperation with Manafort’s counsel as part of a joint defense agreement);
- Maybe counsel have been consulting other persons that may become of interest to Mueller and Gates’ cooperation creates conflicts of interest; or
- Maybe counsel see their interests aligned with President Trump and his coterie (cause or issue oriented) and would thus prefer not to be Gates’ facilitators in providing Mueller with any information that could potentially have serious consequences for, or even implicate, President Trump, his son Jr., the son-in-law Jared Kushner, and others associated with the Trump campaign and Trump administration. Were this the reason, I venture to say that it does not pass the professional ethics test, since the only interests counsel should exclusively be looking after are his or her clients’. Suffice it to say, if indeed this is the reason, assuredly it will not be revealed in the confidential reasoning to the request to withdraw.
It is hard to read the tea leaves on this case. I suspect there is a breakdown of the counsel-client relationship to such a degree that the client or counsel or both want out. Perhaps the disagreement is over strategy. But even here, unless the client is asking counsel to violate their professional responsibilities, taking your toys and going home because the client wishes to pursue a different strategy hardly passes the test for withdrawal – especially when a case is slated for trial.
But what if the client is so difficult and so unrealistic in his or her expectations, or if the counsel-client relationship is on the rocks? Should it not be in everyone’s best interest – especially the client’s – for counsel to seek to withdraw from the case? Generally, yes.
Usually, at least in the U.S., it has been my experience that if counsel is court-appointed and receiving legal aid to represent indigent clients, judges are not likely to just go along with the withdrawal request. Indigent court-assigned clients cannot be choosers (at least in the U.S.). Occasionally, they can be exceptionally taxing and stubbornly unreasonable. It goes with the territory; just ask any state or federal defender in the U.S. Since succeeding appointed counsel is likely to suffer the same challenges, judges are generally unmoved by appointed counsel’s protestations. Requests to withdraw because the client is difficult, or heavens forbid will not heed counsel’s advice (now that’s a novelty), are routinely denied. Counsel are expected to soldier on and provide a zealous defense in the finest tradition of the legal profession.
The international(ized) criminal tribunals and courts seem much more permissive. Judges are willing to accede to counsel’s requests to withdraw (usually at the behest of the accused), even when the reasons do not seem to merit the withdrawal and when doing so is likely to impact the proceedings. It matters not that the international community or donors are paying for the representation. As I see it, acceding to an accused’s demands to replace court-financed counsel for spurious reasons is taking Article 14(3)(d) of the International Covenant on Civil and Political Rights – the accused’s right of counsel of his or her own choosing – to the extreme. Indeed, by so readily replacing court-financed counsel, the international(ized) criminal tribunals and courts end up reinforcing and fostering bad behavior. For a stark example of an accused holding himself hostage to tie up the process, read the decision of the Registrar replacing counsel in Prosecutor v. Milan Lukić.
The International Criminal Court (ICC) seems – at least on paper – less accommodating, requiring more than just counsel’s fancy to withdraw. Article 18(1) of the ICC Code of Professional Conduct for Counsel permits counsel to withdraw with the Chamber’s consent if “[t]he client insists on pursuing an objective that counsel considers repugnant” or “[t]he client fails to fulfil an obligation to counsel regarding counsel’s services and has been given reasonable warning that counsel will withdraw unless the obligation is fulfilled.”
In any event, Gates is funding his own defense. The likelihood of allowing the withdrawal seems highly probable – especially if Gates and his likely replacement counsel Tom Green (a high-profile white-collar defense attorney) give assurances to the trial judge that no delays will occur and no requests for extensions or postponements will be made. And if Gates is about to cut a deal and save the court the time and resources of conducting a lengthy trial, and all it takes is the changing of counsel at Gates’ expense, I would bet on an immediate decision in favor of the withdrawal and replacement of counsel.
The details are unlikely to come out – at least any time soon. Whatever the outcome, this episode in the Manafort-Gates case serves as a good example in thinking about our professional obligations when undertaking to represent clients – whether just a co-accused in a multiple-accused case or one of multiple witnesses or accused in the same case, as we saw in the previous post.
Moving or having to move to withdraw from representing a client can be unpleasant and may at times feel painfully unfair. But at times it is a must. Just as at times it is a must to reject on offer to represent a potential client.