Proposed Order — No. 2:21-cr-00580 (Dkt. 19, C.D. Cal.)

Summary

A defense counsel's motion to withdraw as counsel of record, with supporting declarations, an exhibit and a proposed order, Document 19, filed March 8, 2022 in United States v. Abdul-Malik McClain, No. 2:21-CR-00580-MWF, in the U.S. District Court for the Central District of California before Judge Michael W. Fitzgerald. Attorney Alex R. Kessel states that he moves to withdraw because of the client's financial inability to pay attorney fees and that the defendant is indigent. His declaration says an indictment issued on December 6, 2021 charging 12 counts, including mail fraud and aggravated identity theft under 18 U.S.C. §1028A(a)(1), that trial is set for October 25, 2022, and that discovery received in February 2022 includes over 50,000 pages. The motion asks the court to permit withdrawal and appoint new counsel. It is seven pages and is dated March 8, 2022.

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“Proposed Order — No. 2:21-cr-00580 (Dkt. 19, C.D. Cal.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/proposed-order-no-2-21-cr-00580-dkt-19-c-d-cal-e55da192d5/, SHA-256 32327dc1f7959f5f4de4cffbdd8e9e33236e7d14e0c92c40d385d7214cdc6f1f.

Full text

Case 2:21-cr-00580-MWF Document 19 Filed 03/08/22 Page 1 of 7 Page ID #:74

1 ALEX R. KESSEL, ESQ. (State Bar No. 110715)
LAW OFFICES OF ALEX R. KESSEL
2 15910 Ventura Blvd.
3 Suite 1030
Encino, California 91436
4 Telephone: (818) 995-1422
Facsimile: (818) 788-9408
5 Email: KesselLawFirm@gmail.com
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Attorney for Defendant
7 ABDUL-MALIK MCCLAIN
8
UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA, CASE NO.: 2:21-CR-00580-MWF
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Plaintiff, DEFENSE COUNSEL’S MOTION TO
12 WITHDRAW AS COUNSEL OF
vs.
13 RECORD: SUPPORTING
ABDUL-MALIK MCCLAIN, DECLARATIONS, EXHIBIT AND
14 PROPOSED ORDER
Defendant.
15 Courtroom: Honorable Michael W.
16 Fitzgerald

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TO THE HONORABLE MICHAEL W. FITZGERALD, UNITED STATES
18
19 DISTRICT COURT JUDGE:

20 Defense counsel Alex R. Kessel hereby moves this Honorable Court to permit him to
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withdraw as counsel of record for defendant ABDUL-MALIK McCLAIN.
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Defense counsel moves to withdraw based on the client’s financial inability to honor his
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24 obligation to pay reasonable attorney fees. Defendant is indigent and cannot afford private

25 counsel.
26 This Motion is based upon the attached Declarations, the attached Exhibit, the attached
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Memorandum of Points and Authorities, the pleadings, all reports on file in this action and on
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further oral and/or documentary evidence as may be presented at the hearing on this motion.

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Case 2:21-cr-00580-MWF Document 19 Filed 03/08/22 Page 2 of 7 Page ID #:75

1 Dated: March 8, 2022 Respectfully Submitted,
2 s/Alex R. Kessel
3 ALEX R. KESSEL
Attorney for Defendant,
4 ABDUL-MALIK MCCLAIN
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Case 2:21-cr-00580-MWF Document 19 Filed 03/08/22 Page 3 of 7 Page ID #:76

1 DECLARATION OF ALEX R. KESSEL
2 I, Alex R. Kessel, declare as follows:
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1) I am currently the attorney of record for defendant, ABDUL-MALIK McCLAIN, in
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Case No. 2:21-CR-00580-MWF.
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6 2) On December 6, 2021, an Indictment was issued charging defendant with a total of 12

7 counts which includes Mail Fraud [18 U.S.C. section 1341§] and Aggravated Identity
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Theft [18 U.S.C. §1028A(a)(1). On December 20, 2021, defendant was arraigned on
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the instant indictment. Trial in this matter is currently set for October 25, 2022.
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3) I was retained by the defendant on December 16, 2021.
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12 4) When first retained, I did not know the nature and scope of the discovery. I took a

13 small retainer from the defendant’s mother who agreed to future periodic payments of
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my entire fee.
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5) The case involves defendant, while a student at USC, allegedly conspiring with others
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17 to submit multiple false applications for unemployment benefits through the State of

18 California and the federal CARES Act and thereafter receiving cash benefits.
19 6) In February 2022, counsel received voluminous discovery from the Government
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which includes over 50,000 pages of documents, multiple financial records and
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multiple audio/video recordings.
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23 7) The case will involve hundreds of hours of case preparation including discovery

24 review, case investigation, motions preparation, pretrial hearings followed by a
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possible trial.
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8) On February 12, 2022, I was advised by the defendant that neither he nor his family
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can afford or pay the remaining attorney fees which is about 75% of the total fees.
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Case 2:21-cr-00580-MWF Document 19 Filed 03/08/22 Page 4 of 7 Page ID #:77

1 Also, defendant does not have the financial resources to pay for a private investigator
2 which is necessary in this case. At the current time, defendant is a college student
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without sufficient financial resources to cover the costs of private counsel. (See
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Defendant’s Financial Affidavit attached hereto as “Exhibit A”.) The defendant
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6 indicated he will have no future financial resources from which to pay the outstanding

7 attorney’s fees (See defendant’s signed declaration).
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9) The case is still at an early stage to allow new appointed counsel to review discovery
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and properly represent the defendant.
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10) I respectfully request to be relieved at this early stage based on the defendant’s
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12 financial inability to afford private counsel in a very complex fraud case.

13 11) Defendant consents to this request and would request the Court to appoint counsel for
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him from the CJA Panel. Counsel believes other defendants/witnesses are currently
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represented by the Federal Public Defender’s office.
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17 12) Without allowing counsel to withdraw, defense counsel will suffer an unreasonable

18 financial burden based on the massive time and effort needed to properly defend this
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I declare under penalty of perjury that the foregoing is true and correct. Executed this 8th
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day of March 2022, in Encino, California.
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24 s/ Alex R. Kessel
25 DECLARANT, ALEX R. KESSEL
Attorney for Defendant,
26 ABDUL-MALIK McCLAIN
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Case 2:21-cr-00580-MWF Document 19 Filed 03/08/22 Page 5 of 7 Page ID #:78

7th
Case 2:21-cr-00580-MWF Document 19 Filed 03/08/22 Page 6 of 7 Page ID #:79

1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I.
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LEGAL STANDARD FOR WITHDRAWING AS COUNSEL
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Local Civil Rule 83-2.3.2 provides in relevant part:
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6 An attorney may not withdraw as counsel except by leave of court. A
motion for leave to withdraw must be made upon written notice given
7 reasonably in advance to the client and to all other parties who have
appeared in the action. The motion for leave to withdraw must be
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supported by good cause.
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The Model Rules of Professional Conduct Rule 1.16 provides that an attorney may seek
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to withdraw from representation when:
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12 “(5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer's services and has been given reasonable warning
13 that the lawyer will withdraw unless the obligation is fulfilled;
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(6) the representation will result in an unreasonable financial burden on
15 the lawyer or has been rendered unreasonably difficult by the client."
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17 Additionally, Canon 44 of the American Bar Association recognizes that an attorney is

18 justified in withdrawing as counsel after notice to the client if the client ‘deliberately disregards
19 an agreement or obligation as to fees or expenses.”
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Defendant McClain cannot meet his financial obligations in a case involving voluminous
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discovery and the need to expend hundreds of hours of work by counsel. Defendant is a college
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23 student who recently advised counsel he cannot fulfill his obligations to pay attorney fees due to

24 his minimal income and the lack of any assets. The case is still in the early stages to allow
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appointed counsel to move forward. Accordingly, defense counsel request this Honorable Court
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to permit counsel to withdraw as attorney of record and appoint defendant new counsel.
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Case 2:21-cr-00580-MWF Document 19 Filed 03/08/22 Page 7 of 7 Page ID #:80

1 Dated: March 8, 2022 Respectfully Submitted,
2 s/Alex R. Kessel
3 ALEX R. KESSEL
Attorney for Defendant,
4 ABDUL-MALIK MCCLAIN
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