In my last post<\/a>, 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\u2019s interference with this investigation. Apropos of that discussion, we now learn that three high-flying former prosecutors defending Rick Gates \u2013 a former Trump campaign aide \u2013 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<\/a>. The reasons behind the two-page request to withdraw<\/a> 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\u2019s ethical obligations to loyally, zealously, and diligently represent clients.<\/p>\n First, some background.<\/p>\n After the election, Gates continued working for President-Elect Trump as part of his transition team. His partner, Paul Manafort, was briefly \u2013 though not inconsequentially \u2013 Trump\u2019s campaign manager. Manafort and Gates have long-standing professional ties in Russia and Ukraine \u2013 primarily as political strategists and influence-peddlers (see <\/em>here, here, and here). Both Manafort and Gates have been indicted<\/a> 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.<\/p>\n The current charges are most likely Mueller\u2019s opening salvo. Presumably, Mueller would not have sought an indictment against Manafort and Gates unless he was virtually certain of a conviction. Mueller<\/a> 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 \u2013 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) \u2013 all the better.<\/p>\n And this brings us to the essence of this post.<\/p>\n According to POLITICO<\/a>, it is speculated that Gates\u2019 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<\/a>, where in the case of McCoy v. Louisiana<\/em><\/a>, counsel effectively pleaded his client\u2019s guilt over the client\u2019s objections.<\/p>\n Hard to fathom how Shanlon Wu<\/a>, Walter Mack<\/a>, and Annemarie McAvoy<\/a> would move to withdraw simply because they disagree with their client\u2019s 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 \u2013 as is the norm in the U.S. \u2013 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<\/em> on<\/em> their cohorts). And I have no doubt that all three \u2013 now as defense counsel \u2013 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\u2019s interest \u2013 even if an acquittal is well within the realm of probabilities.<\/p>\n 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\u2019s ethical responsibility to provide the best possible legal representation he or she can \u2013 even if counsel may disagree with the client\u2019s intended course of action.<\/p>\n 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. \u2013 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.<\/p>\n It is peculiar that all three counsel \u2013 who are well-regarded and highly-experienced \u2013 wish to withdraw en masse<\/em>. Speculation abound, but here are some plausible reasons:<\/p>\n 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 \u2013 especially when a case is slated for trial.<\/p>\n 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\u2019s best interest \u2013 especially the client\u2019s \u2013 for counsel to seek to withdraw from the case? Generally, yes.<\/p>\n 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\u2019s protestations. Requests to withdraw because the client is difficult, or heavens forbid will not heed counsel\u2019s advice (now that\u2019s a novelty), are routinely denied. Counsel are expected to soldier on and provide a zealous defense in the finest tradition of the legal profession.<\/p>\n The international(ized) criminal tribunals and courts seem much more permissive. Judges are willing to accede to counsel\u2019s 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\u2019s demands to replace court-financed counsel for spurious reasons is taking Article 14(3)(d) of the International Covenant on Civil and Political Rights<\/a> \u2013 the accused\u2019s right of counsel of his or her own choosing \u2013 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<\/a> replacing counsel in Prosecutor v. Milan Luki\u0107<\/em>.<\/p>\n The International Criminal Court (ICC) seems \u2013 at least on paper \u2013 less accommodating, requiring more than just counsel\u2019s fancy to withdraw. Article 18(1) of the ICC Code of Professional Conduct for Counsel<\/a> permits counsel to withdraw with the Chamber\u2019s consent if \u201c[t]he client insists on pursuing an objective that counsel considers repugnant\u201d or \u201c[t]he client fails to fulfil an obligation to counsel regarding counsel\u2019s services and has been given reasonable warning that counsel will withdraw unless the obligation is fulfilled.\u201d<\/p>\n In any event, Gates is funding his own defense. The likelihood of allowing the withdrawal seems highly probable \u2013 especially if Gates and his likely replacement counsel Tom Green<\/a> (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\u2019 expense, I would bet on an immediate decision in favor of the withdrawal and replacement of counsel.<\/p>\n The details are unlikely to come out \u2013 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 \u2013 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<\/a>.<\/p>\n 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.<\/p>\n![\"\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2018\/02\/ManafortGates.jpeg?resize=300%2C168&ssl=1\")
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<\/a>Manafort seems to be hunkering down, having recently filed a lawsuit<\/a> against the U.S. Department of Justice challenging Special Counsel Mueller\u2019s 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 \u2013 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\u2019s 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 \u2013 and sing he will if he cuts a deal.<\/p>\n\n
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