Ed Martin’s tenure as interim U.S. Attorney for the District of Columbia continues to provide fodder for law professors seeking future professional responsibility hypos. Using the office letterhead to write letters to X accusing government workers of vague, non-existent crimes and writing Chuck Schumer to threaten federal criminal action over pure political speech raised all sorts of ethical alarms, but Martin dug deep and came up with an ethical lapse even more stupid.
Martin—who riled up the January 6 crowd with election conspiracy chants—just signed off on dropping charges against January 6 rioter Joseph Padilla. Padilla’s defense lawyer? ED MARTIN.
To the disappointment of the aforementioned law professors, this doesn’t make for a good exam question because no one is actually dumb enough to do this. And yet here we are. In the best of circumstances, lawyers can’t even represent parties against former clients in different cases for some amount of time. Switching sides in the same case is a cartoonish ethical breach.
Reuters points out that “Missouri’s own state bar rules — where Martin is licensed — require written consent before any such involvement.” Presumably Padilla would’ve been all too excited to agree to having his defense lawyer take over the prosecution. But it doesn’t even appear as though Martin took this simple step.
On Wednesday, Martin sent an office-wide email seen by Reuters in which he said he had “stopped all involvement” in the cases more than a year and a half ago, that he had handled them pro bono, and said he was “under the impression that I was off the cases.”
He said the U.S. Attorney’s career ethics lawyer asked him about the cases last week and complained that it “immediately leaked to the media.” This leak, he said, was both “personally insulting” and professionally “unacceptable.”
Yeah, the leak isn’t really the unacceptable part.
It doesn’t matter if a lawyer thinks they’re “off the cases.” They’re privy to a wealth of client information. And while Martin’s role as U.S. Attorney is letting violent criminals go if they’re on Trump’s side, a normal prosecutor isn’t in that position. In the abstract, a prosecutor armed with a defendant’s confidential defense strategy is the definition of a conflict of interest — and that’s why we have a rule.
But it’s also amazing that he felt the need to add that it was pro bono as though that makes it a pretend conflict or something.
And note that he says the ethics lawyer asked him about the case last week, which would seem to confirm the Reuters reporting that Martin never sought advice from the office ethics lawyer in his office before thinking he could drop charges against his old client.
“I find it alarming that a lawyer who represented a client in private practice and who is now a public official would be using the powers of the new office for the benefit of his former private client,” said New York University law professor Stephen Gillers.
Somehow I doubt this is the last time Gillers is going to find something alarming about the new DOJ. Trump put a conspiracy theorist who represented January 6 rioters in charge of the office that prosecuted January 6 rioters and he fired all the career prosecutors who ran those cases and apparently started dropping charges against his own clients.
Theoretically the Justice Department’s Office of Professional Responsibility could hold him accountable for this. But they won’t because there’s nothing left over there but a pro-Trump cleanup crew. Or at least there won’t be after Elon Musk restaffs the whole department.
Top Trump prosecutor in DC dropped federal case against Capitol rioter he represented [Reuters]
Earlier: Turning Over U.S. Attorney’s Office To Conspiracy Theorist Working Out As Expected
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
