The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The census citizenship question case (New York et al. v Dep't of Commerce, back in the SDNY after remand from the Supreme Court in June) has taken a strange new turn. On Monday, the DOJ submitted a motion to withdraw en masse the DOJ lawyers who had been working on the case over the past year and to substitute other DOJ lawyers in their stead.
It might surprise people who are not lawyers (as it surprised me, when I first learned about it in my law school "Professional Responsibility" class) that a lawyer can't simply drop a client whom he/she has been representing in court, the way an ordinary business can decide not to do any further business with a client. SDNY's Local Rule 1.4 (typical of the genre), a lawyer "who has appeared as attorney of record for a party … may not withdraw from a case without leave of the Court," which shall be granted only if the lawyer (a) provides "satisfactory reasons for withdrawal" and (b) explains "the impact of the withdrawal on the timing of the proceeding."
The DOJ's motion provided neither (a) nor (b), and yesterday—unsurprisingly, and correctly—Judge Furman denied the motion.
Defendants' motion is patently deficient. Defendants provide no reasons, let alone "satisfactory reasons," for the substitution of counsel. And as to the second factor, Defendants' mere "expect[ation] that withdrawal of current counsel will [not] cause any disruption" is not good enough, particularly given the circumstances of this case: Defendants' opposition to Plaintiffs' most recent motion is due in just three days; Defendants' opposition to Plaintiffs' anticipated motion for sanctions is due later this month; and, in the event that Defendants seek to add the citizenship question to the 2020 census questionnaire based upon a "new rationale," time would plainly be of the essence in any further litigation relating to that decision. As this Court observed many months ago, this case has been litigated on the premise — based "in no small part" on Defendants' own "insist[ence]" — that the speedy resolution of Plaintiffs' claims is a matter of great private and public importance.
[Judge Furman did grant the motion to withdraw with respect to two DOJ lawyers who did have a "satisfactory reason" for withdrawal, having recently left the DOJ].
What happens now**? It's an interesting question. For the moment, at least, the original team from DOJ continues to represent the Commerce Department in the case. Judge Furman's denial of the DOJ's motion was "without prejudice," meaning that the DOJ can resubmit its motion for withdrawal/substitution, but the Court specifically noted that "any new motions to withdraw shall be supported by a signed and sworn affidavit from each counsel seeking to withdraw stating 'satisfactory reasons' for withdrawing at this stage of the litigation," along with "unequivocal assurances … that the substitution of counsel will not delay further litigation of this case."
So this could get interesting. One possibility: The government could resubmit the withdrawal motion and provide the hitherto-unrevealed reasons for withdrawal.
Whether the DOJ takes this route may depend on what those reasons are. Why are these attorneys—the entire team that worked on the case!—being withdrawn, and will the DOJ be willing to set those reasons out in writing?
I don't know the answers to those questions, but here's my guess. The attorneys involved in the case made representations to the district court and the Supreme Court about the need for "expeditious resolution"—in particular, that June 30 was the drop-dead date for including a citizenship question with the other census questions. If they were to come into court now bearing a request for the court to examine the government's "new rationale" for the citizenship question, the court is going to stop them and look them in the eye and ask: "Didn't you tell me—in a court filing that you signed—that June 30 was the drop dead date? Wasn't that how you got me, and the Supreme Court, to hear this case on an expedited schedule? You weren't lying to the courts about that, were you?"
A second possibility is that the government foregoes this route, drops its request to substitute new counsel, and simply continues to use the same lawyers it has been using—ordering them, as DOJ employees, to keep working on the case. But if I'm right about their reasons for seeking withdrawal, that puts the lawyers in a very, very difficult spot; courts understandably don't like to be intentionally misled by attorneys appearing before them, and there are potentially serious sanctions that can be applied to those who do so.
The third possibility—and I think this exhausts the list of possibilities—is that the government could throw up its hands and agree to comply with the Supreme Court's decision and eliminate the citizenship question.
An interesting and unusual denouement, whichever one of the three directions it goes.
** We should not pass over President Trump's response to this decision—a tweet in which he asserted that "the Obama appointed judge on the Census case … won't let the Justice Department use the lawyers that it wants to use." Though we have grown used to Trump's references to "Obama appointed judge[s]," we should not let that become the new normal, and we should renew our outrage each time he does it. It is part of the campaign to peck away, tweet by tweet, at the legitimacy of the federal courts; it is straight out of the Authoritarian's Playbook and needs to be resisted at all costs. Chief Justice Roberts took the very unusual step last year of publicly admonishing Trump for these attacks—"We do not have Obama judges or Trump judges, Bush judges or Clinton judges"—and I, for one, continue to find them appalling and destructive. And it is a particularly pathetic response in this case—a case in which the governing Rule requires presentation of "satisfactory reasons for withdrawal" and where the DOJ actually submitted no reasons at all, and where it's hard to imagine any judge in his/her right mind who could possibly have ruled any differently.