Thursday, September 28, 2023

Withdrawal To Care For Ailing Mother Denied

The United States Court of Appeals for the Fourth Circuit affirmed a denied motion to withdraw as counsel

Elizabeth Peiffer, one of two lead attorneys representing David Runyon in this habeas proceeding, filed a motion to withdraw as counsel for Runyon on the ground that her mother was diagnosed with cancer and caring for her would distract from an appropriate representation of Runyon. The district court denied Peiffer’s motion, finding that it was “in the interests of justice for Ms. Peiffer to remain as counsel for” Runyon. Peiffer then filed this appeal. Because we cannot, in the circumstances presented, conclude that the district court abused its discretion, we affirm.

The trial court

Shortly after the hearing, the court issued a written order dated June 20, 2023, confirming its denial of Peiffer’s motion to withdraw. In its order, the court stated that even though Peiffer’s personal circumstances provided some difficulties, her withdrawal from the representation of Runyon “would not be in the ‘interests of justice.’” (Quoting Martel v. Clair, 565 U.S. 648, 652 (2012)). In particular, the court explained again that it was concerned with the prejudice to Runyon associated with the loss of institutional knowledge should Peiffer be permitted to withdraw. Peiffer was the only member of the defense team who had been present throughout the entire discovery process on the remanded claim. The court also noted prejudice to the United States, as the request came at the “eleventh hour” in the proceedings. In conclusion, at the hearing and as confirmed in its order, the court noted that Peiffer could “certainly take a lesser role” — she did not “have to do all the substantive work” and could proceed on “a limited basis.” But the interests of justice, nonetheless, required that she remain in the case for “continuity” purposes.

At the hearing and in its order, the court also expressed its intent not to grant pro hac vice admission to the six Covington & Burling lawyers, but it did not expressly rule on  this issue, as such motions for admission had not been filed. It explained that to admit six attorneys from Covington & Burling would “put the hearing out of control.” Nonetheless, it noted that the Covington & Burling attorneys were welcome to provide their time pro bono to assist Peiffer and Ali. 


In view of the district court’s careful consideration of all of the factors, we cannot conclude that it abused its discretion in the circumstances. See Martel, 565 U.S. at 66364 (“Because a trial court’s decision on substitution is so fact-specific, it deserves deference; a reviewing court may overturn it only for an abuse of discretion”).

On appeal, Peiffer presses the argument that her continued representation of Runyon violates the Virginia Rules of Professional Conduct because her personal obligations present a conflict of interest that prevents her from fully discharging her duties to Runyon and that the conflict requires reversal. In so arguing, however, she presents withdrawal as an “all-or-nothing” proposition — either she must be able to act as Runyon’s sole and fulltime counsel of record in the matter or she must recuse herself. But those are not the only alternatives in the circumstances of this case, and the district court specifically addressed Peiffer’s concern by noting that she was free to divide up responsibilities with Ali in the way she sees fit.


We note importantly that this is not a case where there is a threat that Runyon will be inadequately represented as a result of the district court’s order. Runyon has two counsel of record and six additional counsel assisting pro bono. While it is true that the district court indicated that it was unlikely to grant the six pro bono attorneys pro hac vice admission to the case if that were requested, the court nonetheless welcomed their assistance.

That last comment cuts two ways. (Mike Frisch)

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