Monday, August 17, 2020

Amplifying A Weekend Footnote: Sarah Fabian Is Arguably Now Required To Withdraw From Flores Case In LA...


It is rather astonishing that I will now need to mail this post to the DC Bar and the California Bar, as well as to the US District Court in Los Angeles. . . but I do intend to do so.

Under long-standing California child welfare rules, and federal ones, to boot -- lawyers who become aware of substantial dangers to the health, safety and welfare of minor children are automatically charged with heightened duties of diligence and disclosure. This is doubly true of all government lawyers -- as they are charged with representing the public's interest in among other things protecting children's welfare.

So it is that I have come to the conclusion that Sarah Fabian, based on her admissions in open court, on August 7, 2020 -- in the Flores matter, is aware that her client, the US government, is intentionally violating multiple laws and federal court orders, in its continued unlawful detention -- often in degradingly unsanitary, inhumane or torturous conditions of confinement -- of little children. As such, the rules of professional conduct, in Massachusetts (her jurisdiction of first bar admission), DC (where her current office is located), and California -- where she's admitted by leave of the able USDC Judge Dolly Gee, to litigate in the Flores matters, pro hac vice. . . all now would seem to require her withdrawal -- from this case.

In any setting where children are in danger, when any attorney represents any party -- it is incumbent on that attorney to make a report to the court (after advising her client of this duty of hers, and giving the client a short period to comply with the law), and then withdraw, if the lawyer knows actions of her client are causing substantial, intentional and unremediated injury to even one child's welfare (Sarah has repeatedly admitted these facts, before the Ninth Circuit, and before the able USDC Judge).

Here the court documents clearly establish that it is hundreds -- if not thousands -- of children. And because they are covered both by US treaties, and federal statutes (and now as clearly articulated by the express terms of prior litigation, i.e., the Flores consent decree) -- it is manifestly no excuse to argue "well they aren't citizens." The rights these children possess do not depend on the whim of Donald Trump, Bill Barr or Sarah Fabian. Sarah Fabian must withdraw, and if she will not -- Judge Gee ought to order her jailed for contempt.

It is vanishingly unusual to see government lawyers taking multiple appeals from orders for soap, blankets, bedding and toothbrushes for minors in US custody. But it is beyond the pale, and UNETHICAL -- for a government lawyer to further assist her client in thwarting clearly-written court orders on both providing these basics, and advising these children and their guardians of their rights, under US law. See:

. . . .[In California, applicable on her pro hac vice admission:] Rule 3-700 (B) Mandatory Withdrawal.

A member representing a client before a tribunal shall withdraw from employment with the permission of the tribunal, if required by its rules, and a member representing a client in other matters shall withdraw from employment, if:

(1) The member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or

(2) The member knows or should know that continued employment will result in violation of these rules or of the State Bar Act; or

[And, in Massachusetts:] A lawyer ordinarily must decline or withdraw from representation if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct or other law. . . .

[Finally, in DC (her current office location):] Rule 1.2(d). . . [8] When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1. . . .


Sarah Fabian ought to withdraw of her own accord, now -- or the court ought to order her to face contempt (and thus jail), if she refuses to do so. Out.

नमस्ते

5 comments:

Anonymous said...

Useful information.

Anonymous said...

Won't either of those outcomes (contempt or withdrawal) delay any favorable outcome? I see this as a tactic by the Trump administration to continue to draw this out. Now a new attorney would need to come in; ask for delay as they 'get up to speed' and then file 'new motions' on why the Executive branch is in the 'right.' Just paranoid, I guess~~~

condor said...

Thanks -- to both Anonymous commenters.

As to a "delay" -- I think not. Trump will flaunt court orders, with or without the services of Sarah Fabian. The next lawyer too will likely need to be threatened with jailing, to get movement.

I think the next lawyer could properly be immediately admonished by the judge, in writing, at the outset -- that he or she will also go directly to jail, if the ORR / ICE / DHS / HHS personnel are aided in any manner -- in evading these prior standing [and upheld on appeal] orders.

I think what may ultimately happen is that one or more court-supervised monitors (likely the ones now in "pure reporting" roles) will be given plenary authority to enforce the settlement, inside all facilities.

Much as happened in the federal school desegregation, busing and housing cases of the 1960s, independent court-ordered monitors will take over the decision-making from the ORR / ICE / DHS / HHS agencies -- if and when the lead US lawyer is forced to resign rather than go to jail, and be disbarred for professional misconduct.

That said, it is simply insane, that we have reached a point where US government agents would gleefully torture children -- a situation not even seen in the POW camps run by much harder men -- during the US Civil War.

And obviously, it will all end -- instantly -- when Trump is voted from office.

Biden/Harris will end it that very day.

Onward -- and to be certain, there must be concrete consequences for lawyers who -- as officers of the court -- inflict very substantial and intentional harm on children, with reckless abandon.

Namaste. . . .

Anonymous said...

See following:

https://www.washingtonpost.com/opinions/at-homeland-security-i-saw-firsthand-how-dangerous-trump-is-for-america/2020/08/17/f10bb92e-e0a3-11ea-b69b-64f7b0477ed4_story.html

Opinions
At Homeland Security, I saw firsthand how dangerous Trump is for America

Opinion by Miles Taylor
August 17, 2020 at 2:05 p.m. EDT

Miles Taylor served at the Department of Homeland Security from 2017 to 2019, including as chief of staff.

condor said...

Indeed!

Just saw it, around 6 pm today. Insane.

Trump’s own guy says Trump gave unlawful orders — to harm children at the border, by ripping them from their parents — all to terrorize asylum seeking families.

This is — of course — pattern felony conduct by the sitting president.

It needs to be highlighted as we wheel toward Election Day, in Lincoln Project and DNC ad buys.

Onward!