The Department of Justice tried to change the legal team that has been arguing to allow the Commerce Department to add a question on the census relating to citizenship. According to the article below, those who were challenging the Government’s plan to add the question went to the judge to ask that the change in attorneys not be allowed, and the judge agreed.
My question is NOT about the census question, it is NOT about the Trump Administration, it is NOT about the prior Supreme Court ruling, and it is NOT about suspicions on why the previous team wanted out of the case/was told not to continue their efforts.
I would simply like to know why the DOJ would have to show “satisfactory reasons” to change the attorneys who had been arguing this case. Why can’t a litigant in this case, or any other case, just change their lawyers willy-nilly? Why are there any rules regarding substitution of counsel?
Permission of the court is required to substitute counsel in a pending case. A court has inherent supervisory powers over its docket and has an interest in keeping things running smoothly. That being said, judges do understand that forced labor is generally frowned upon in the country.
Before allowing withdrawal and substitution of counsel the judge wants to make sure that, among other things, the case will proceed normally, what the lawyer’s reason for withdrawing is, that the client has been informed and is either okay with the switch or has been adequately acquainted with new counsel, etc.
As long as everything is done in good faith, these motions are granted as a matter of course. However, imagine on the morning of a criminal trial when the jury is ready, the witnesses are ready, and everyone is prepared, an attorney tells the judge that he wants to quit because his client hasn’t paid him. That attorney may very well wind up working the trial for free (or better stated, having a bill to present to a client that will never get paid) because it was the attorney’s duty to the court and the justice system to bring that up at an earlier time.
That would be an extreme example, but the most common time when an attorney has to stay on is when another attorney wants to substitute for a motion hearing. One attorney researched the issue, wrote the brief, has the background knowledge about the case and then an attorney wants to substitute to argue the motion and he/she stammers around every question from the court with a meek “I don’t know, judge, I’m just filling in.” Then the judge gets very angry.
This being GQ and not knowing enough about what the current status of the census case is, the judge just may be asking, “Why am I getting a new team when we litigated this extensively, all the way to the Supreme Court? Shouldn’t the previous team stay on since they are more familiar?”
Aaaah. So I’m looking at this through the lens of how a client wishes to represent himself in a case through his attorney, but it sounds like the principle is more like the duty of attorneys to serve the courts? Is that a better way of putting it?
Every court I’ve ever appeared in has required the court’s permission to substitute counsel, although I’ve never seen it denied except where it would leave the party unrepresented.
I think the standard rationale is to protect the client’s interests (you often have to certify the client knows about the switch) and to avoid delay (new counsel often need time to get up to speed and will immediately start asking for continuances). I don’t think the first rationale really applies with government cases. But the article suggests that the judge’s stated concern was the latter: would this delay the case unnecessarily.
If you read the actual order denying the substitute counsel, the judge states that no reasons whatsoever were given for the substitution (except in the case of two lawyers who’ve switched employment, whose withdrawal he granted). It was this failure to provide a reason that seemed the primary reason for the denial. The judge also noted with regards to scheduling that the motion to change counsel stated only that the government was confident the schedule wouldn’t be impacted with no further specificity, which the judge found implausible citing various upcoming deadlines for motions he didn’t believe substitute counsel could meet, especially after the government has been stressing the need to expedite things in the case.
One item I heard relates to the arguments presented. The first set of attorneys spent their time arguing one set of assertions, including the claim that time’s a-wasting, cannot include the question if the case is not decided immediately. Now along comes a different group who will it seems argue a different set of “facts”. I assume there’s a basic principle in the court that the attorneys, when they make assertions, not stray too far from the truth and not rely on “I was mistaken, your honor”.
Plus, AFAIK they all work for the Justice Department (or Census? Are they all in-house counsel?) so it’s not like one group was fired and another hired, they were all there before and after - so why the need for substitution? And having asked to substitute, the judge has apparently asked the departing lawyers to present affidavits (“open to sanctions later”) declaring why they are leaving the case. Presumably they gave pretty flimsy excuses and the judge wanted them to take those flimsy assertions and make them under oath.
I assume it boils down to - there’s not good reason to switch lawyers, don’t lie to the court about why, and be sure that one set of lawyers isn’t allowed to contradict the previous set.
Indeed. Attorneys are “officers of the court.” That’s one of the reasons an attorney can issue a subpoena to someone without getting a judge’s signature, and it’s just as valid as if a judge issued it (at least, in California). Goes back to how English common law court systems worked.