Saturday, January 24, 2009
Posted by Jeff Lipshaw
Well, in a rare moment of being "on topic," I was wondering about the somewhat "noisy" withdrawal by Rod Blagojevich's lawyer, Ed Genson, in which he was quoted as saying, "I never require a client to do what I say but I do require them to at least listen to what I say. ... I wish the governor good luck and godspeed." I wondered what ABA Model Rule of Professional Responsibility 1.16 had to say on this subject.
Genson would have had to withdraw if his representation would have resulted in a violation of the rules of professional responsibility or other law, but this is pretty clearly a permissive, rather than a mandatory, withdrawal. Permissive withdrawals are covered under Rule 1.16(b) as follows:
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
It seems pretty clear that this withdrawal fails under sub (4), and it wouldn't surprise me that Genson disagrees with the strategy of simply not showing up to defend in the impeachment trial. All in all, the statement may well be the best he could have done under the circumstances, because it does make it clear that it's not a mandatory withdrawal, and it's vanilla enough not to have much other impact than the fact of the withdrawal itself. Plus, it's no surprise that Blago doesn't listen to his lawyer much.