When a lawyer believes that representing a client is something that he or she cannot do effectively, either because of a deep personal bias against the client, another conflict of interest, a reasonable belief that the client is untrustworthy or unmanageable, or some other good reason, his duty is to withdraw from the representation. Believing or even knowing that the client is guilty is not a good reason. Guilty clients have rights, the system demands a competent defense, and sometimes—rarely, but it happens—a lawyer can be surprised to find out that his “guilty” client isn’t guilty after all.
Withdrawal from a representation is appropriate and allowed in the circumstances defined by ABA Rule 1.16:
Rule 1.16 Declining Or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law;
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
There is an important caveat, however, embodied in b(1): withdrawal must be accomplished “without material adverse effect on the interests of the client.” In a criminal case, that means that the withdrawal can’t make the client look guilty, or expose any privileged of confidential information that the lawyer is obligated to protect, even after he or she has withdrawn.
This ethical obligation seems to have escaped Charleston, S.C. attorney David Aylor, who originally agreed to represent Michael Slager, the North Charleston police officer charged with murdering Walter Scott. Aylor withdrew from representing Slager when the infamous video was released, showing Slager shooting Scott eight times as he tried to flee.
The ethical approach, protecting Slager’s rights, would have been to withdraw and shut up. Aylor, however, could not resist his 15 minutes of fame, and gave an interview to the Daily Beast. While repeatedly saying that he couldn’t reveal details, he said enough to make his client look bad. Even though Slager looks horrible already thanks to the video, a lawyer cannot and must not do anything to make him look worse.
Here are some of his comments:
“I can’t specifically state what is the reason why or what isn’t the reason why I’m no longer his lawyer. All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately.”
That’s too much already. Why did the video make his lawyer withdraw? There are only two possible reasons: It was so damning that he didn’t want to represent such a guilty client, or it proved that his client lied to him. ( “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement”) Neither reflects well on Slager; either suggests that he is guilty.
The lawyer should not have mentioned or suggested that the video prompted his withdrawal.
In answer to the question, “When you were representing Slager, you said, “I believe once the community hears all the facts of this shooting, they’ll have a better understanding of the circumstances surrounding this investigation,” Aylor says,
“That was my belief at the time, that’s why I made that statement.”
Implication: “Now that the video is out, the community already understands what happened. It was a cold blooded killing.”
Then he is asked, “Now that the video is out, it seems the community has a much better understanding about what actually happened, and not necessarily in the officer’s favor. What’s your take on that new information?” The lawyer’s answer:
I think that there’s been a release of information that was not public information at the time, or not discovered at the time at least to any knowledge of mine or anyone else publicly— at least the video. I can’t comment on the specifics of what I think the video says. I’m not going to analyze the video, but again … the video came out and within the hours of the video coming out, I withdrew my representation of the client.
We get it: the video proves Slager is guilty, and his lawyer wants nothing to do with him. Then the lawyer ends with this:
“Not so much as his former attorney, just as someone in the community, I feel that it’s a tragic situation that occurred. I feel for all of those who are affected by the incident and of course the loss of life. At no point, not specific to this case, just generally speaking, is anybody above the law. And I think that’s why we have process and court systems and everybody deserves their day in court, but I won’t be participating in anything related to this case moving forward in that regard.”
Reprehensible. He is the former attorney, and everything he says has to be consistent with his ethical obligations in that professional role. “At no point, not specific to this case, just generally speaking, is anybody above the law,” he says. Gee, I wonder who he’s referring to? This isn’t something one would say about any defendant: it’s something you would say about a law enforcement official, specifically a police officer. ” Not specific to this case, just generally speaking” is cover, a lie. Not only is he saying things that undermine his former client, he knows that’s what he’s doing, and does it anyway, saying that he isn’t doing it, and fooling no one.
Pointer: Legal Ethics Forum
Facts: The Daily Beast