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‘Repugnant’ Conduct Allows Bannon Lawyer to Quit, Rules Say

Nov. 9, 2020, 10:30 PM

The move by Steve Bannon’s lawyer to drop him after the ex-Trump strategist suggested Anthony Fauci’s beheading isn’t the first withdrawal of its kind after a client’s shocking behavior, and follows a string of high profile defendants who parted ways with their attorneys.

Ethics rules allow lawyers to terminate their representation for several reasons. These include when a client “insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”

The concept of repugnance exits to protect the client, said Arthur D. Burger, chair of Jackson & Campbell’s Professional Responsibility Practice Group in Washington.

Lawyers don’t have to love their clients and many “hold their noses in order to fight the good fight,” Burger said before adding that it’s for the client’s benefit to withdraw if they can no longer do that.

Quinn Emanuel partner William A. Burck asked Nov. 6 to quit the Bannon criminal fraud case in the U.S. District Court for the Southern District of New York. That occurred after Bannon said on his online show that Fauci and FBI Director Christopher Wray should be fired if Trump were to be reelected, and their heads put on pikes “as a warning to federal bureaucrats.”

The former federal prosecutor who previously represented Bannon and other former Trump administration officials in various aspects of the Russia investigation didn’t publicly state his reasons for wanting off the case. But his public silence could involve the duty of client confidentiality.

“Burck won’t say unless (U.S. District Judge Analisa Torres) asks him for a reason, which is improbable once another lawyer is retained. And even if she does ask, whatever Burck says will not be public,” said Stephen Gillers, a legal ethics professor at New York University’s law school.

But Torres also had warned both sides in the criminal case not to comment publicly or on social media.

While neither Fauci nor Wray are linked to Bannon’s case involving an alleged fraud relating to a fundraising effort for building a wall along the U.S. border with Mexico, judges take comments about violence against public officials seriously, Bloomberg reported.

An example of unacceptable behavior that did influence attorney representation in a high profile case involved lawyers for accused white supremacists in a Charlottesville, Va., lawsuit who withdrew in 2019 after their client engaged in conduct they found “repugnant,” said Kathleen Clark, who teaches legal ethics at Washington University in St. Louis School of Law.

Usually, “lawyers say something like a difference in defense strategies, as happened when Ben Brafman withdrew from representing” former media mogul Harvey Weinstein in his sex assault trial in New York, Gillers said. “But even there, one might surmise that contributing to the split were Weinstein’s public statements or statements he inspired.”

Other notable cases where attorneys for public figures have parted ways include former Trump National Security Adviser Michael Flynn and Bill Cosby, Gillers noted.

Flynn fired his first set of lawyers from Covington & Burling LLP in his ongoing legal saga in Washington. Cosby let his legal team go prior to sentencing in 2018 for sex assault.

Quinn Emanuel declined comment on the Burck matter.

To contact the reporter on this story: Melissa Heelan in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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