July 10, 2019 Practice Points

Withdrawal of Counsel Is Limited by the Needs of the Case

The outcome in the high-profile census citizenship question case drives home something all litigators should be aware of.

By Michael Roundy

It sometimes becomes necessary for counsel of record to withdraw his or her appearance in a case. Normally, this is permitted, without objection by opposing counsel, provided that substitute counsel appears in the withdrawing attorney’s place. However, withdrawal of counsel is subject to the oversight of the court, which typically has the discretion to prevent withdrawal of an attorney to prevent delay or prejudice. On July 9, 2019, the court presiding over a case involving the controversial census citizenship question (State of New York, et al. v. U.S. Dep’t of Commerce, et al., SDNY 18-cv-2921) denied a Department of Justice (DOJ) motion for leave to withdraw nine of eleven DOJ attorneys representing the Department of Commerce.

The case revolves around the Commerce Department’s decision to reinstate a question to the U.S. Census in 2020, asking whether the responding person is or is not a citizen of this country—a decision originally announced by the secretary of commerce, Wilbur Ross, in March 2018. The State of New York (and numerous other states and non-governmental organizations) sued to block the addition of the question to the census forms. Following a bench trial, the district court concluded that Secretary Ross’s action had been arbitrary and capricious, and was based on a pretextual rationale. The district court enjoined the secretary from reinstating the citizenship question. Appeal was taken to the U.S. Supreme Court. On June 27, 2019, the Supreme Court upheld the district court’s decision.

After the Supreme Court’s decision, the Trump administration announced that it would be replacing the DOJ legal team with a “new team of Civil Division lawyers” to take over the case and continue the fight to add the citizenship question to the census. On July 8, 2019, the Department of Commerce filed a motion to withdraw the appearances of 11 DOJ attorneys as counsel, stating that the defense would be represented by different attorneys going forward, and averring that the defendants “do not expect that withdrawal of current counsel will cause any disruption in this matter.” The plaintiffs opposed.

One day later, the court denied the motion to withdraw, except as to two attorneys who are no longer employed by the DOJ. The court applied SDNY Local Rule 1.4, which requires court approval for the withdrawal of any counsel of record, and restricts granting such approval only to instances where there are “satisfactory reasons” for withdrawal, and where the court determines that the prosecution of the suit will not be disrupted by the withdrawal.

The court held that the DOJ failed to provide any reasons, let alone satisfactory ones, for substitution of counsel at this stage of the litigation. In addition, the court noted that the defendants’ “mere expectation” that the withdrawal would not cause disruption of the case was not good enough, noting that the defendants’ opposition to a recent motion was due in just three days, and that their response to a pending motion for sanctions was due later in the month. The court also noted that if the defendants seek to add the citizenship question to the 2020 census based on a new rationale (that is, a rationale different from that found to have been pretextual), that time would be of the essence in any further litigation. Citing the urgency of the case and the need for efficient judicial proceedings, the court denied the motion to withdraw.

The court also ordered that any new motions to withdraw must state “satisfactory reasons” for the withdrawal, must confirm that the withdrawing counsel submits to the court’s jurisdiction with respect to the pending (or future) sanctions motions, and must include an affidavit of new counsel giving “unequivocal assurances” that the substitution will not delay litigation of the case.

The outcome in this high-profile case drives home what all litigators should be aware of: Once you appear in a case, it may not be easy to withdraw, particularly where the timing or other needs of the case are at issue.

Michael Roundy is a partner at Bulkley Richardson in Springfield, Massachusetts.

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