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.