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

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