The inherent conflict for lawyers who oppose Supreme Court review

By Alison Frankel
June 21, 2013

As usual, the U.S. Supreme Court has saved the big stuff for the last week of its term. Among the 11 cases the justices have yet to decide are the four that garnered the most public attention this year: Fisher v. University of Texas, which addresses affirmative action; the voting rights case Shelby County v. Holder; and the two gay marriage cases, Hollingsworth v. Perry, which stems from California’s ballot-proposition ban on gay marriage, and U.S. v. Windsor, which challenges the federal Defense of Marriage Act. You can reliably expect frenzied coverage at the court until rulings come down in all four of these hot-button cases.

With all eyes on the Supreme Court, I wanted to revisit an issue I mentioned glancingly in a post earlier this week: Do lawyers who write briefs opposing Supreme Court view have an ethical conflict if they’re secretly hoping for a chance to argue before the justices? I posed the question as an afterthought in a story about experienced Supreme Court litigators taking over certiorari briefing in a $350,000 dispute between a union pension fund and a landscaping company when it became clear that the otherwise undistinguished case had a shot at Supreme Court review. (And, indeed, the court granted certiorari on Monday.) A Twitter reader very thoughtfully directed me to a 2012 article in the Harvard Journal of Law & Public Policy that attempts to answer the question with some hard data.

In “The Ethics of Opposing Certiorari Before the SupremeCourt,” then Stanford Law student Aaron Tang posited the theory that as the Supreme Court’s docket shrinks and oral arguments become increasingly restricted to an elite appellate bar, “the value associated with each rare opportunity to argue before the court continues to rise.” One way to get before the justices is to prevail with a cert petition for clients seeking review of adverse rulings, Tang said, but the other, of course, is to write an unsuccessful cert opposition brief. “Attorneys who lose at the opposition stage might nevertheless enjoy a personal ‘win’ in the form of an opportunity to argue at the Supreme Court,” he wrote. “As a result, there is an ex ante ethical dilemma for attorneys tasked with opposing certiorari. This dilemma, in turn, might well have important downstream effects on clients who prevailed below and who, unlike their attorneys, would therefore prefer not to be in the Supreme Court at all.”

Tang, who wrote the paper in law school, then spent a year at the Supreme Court boutique Goldstein & Russell and is now a clerk for Judge Harvie Wilkinson on the 4th Circuit Court of Appeals, told me he became interested in the ethical dilemma of cert opposition briefs from hearing his law professors tell stories about cases in which they suspected opposition brief writers of “tanking” arguments in order to get before the court. Tang tried to come up with a way of quantifying anecdotal evidence of the phenomenon and hit on the idea of conducting a short, anonymous survey of lawyers with significant Supreme Court experience.

He sent the six-question survey to 273 lawyers and received responses from 116, or 42.5 percent. The first question asked respondents to quantify their Supreme Court experience and the last two were open-ended responses. Substantive data came from the three multiple-choice questions Tang asked: In a case with a strong chance of receiving Supreme Court review, do you perceive a conflict of interest between a lawyer’s duty to zealously represent the client and her personal desire to argue before the court if she has never made a Supreme Court appearance? What if the lawyer writing the opposition brief regularly appears before the court? And finally, have you encountered a situation in which you believe a client received less-than-zealous representation from a lawyer motivated in some part by the desire to argue before the justices? (I’ve paraphrased the questions slightly.)

Tang’s results – as well as the anecdotal responses he received to the open-ended questions – indicate that Supreme Court practitioners suspect a small number of lawyers may have conflicting interests when they write cert opposition briefs. Thirty-one percent of all respondents perceived a conflict when Supreme Court novices who want to appear before the court write opposition briefs. Twenty percent said the conflict remains when briefs are written by regular or heard Supreme Court practitioners, and 9.5 percent said they’d seen or heard evidence of such conflicts in the real world. Interestingly, Tang found that more experienced lawyers – those who’d argued before the justices in 25 or more cases – were significantly more inclined to perceive conflicts and to have seen evidence of them.

According to the study, the Supreme Court bar believes that the potential for a problem is highest when cases involve unsophisticated clients and inexperienced lawyers. Lawyers who aspire to a long and successful career before the Supreme Court have too much to lose from muffing a cert opposition brief, respondents told Tang, particularly when they’re working on behalf of corporate clients who value the defeat of a cert petition – or replace lawyers who lose at the petition stage with new counsel for arguments. “Reputational sanctions will ensure zealous cert opposition work by regular Supreme Court litigators, particularly where those litigators serve sophisticated clients at the cert stage,” Tang wrote. “In such cases, to softpedal a brief in opposition is to risk losing the sophisticated client’s future work, other future clients who care about the attorney’s track record, and also the case itself on the merits, which will matter more for established Supreme Court practices that count wins and losses.”

Interestingly, the best safeguards against cert opposition conflicts are also easier to implement on behalf of corporate clients than individuals. Sophisticated clients can build incentives into their contracts with counsel, either specifying that lawyers who write unsuccessful opposition briefs will not have the opportunity to argue or that counsel will be paid more to defeat cert than to continue with the case. Tang’s paper suggests some safeguards for all clients, such as requiring lawyers to obtain conflict waivers before they write cert opposition briefs or permitting the Supreme Court, at its discretion, to replace counsel for unsophisticated clients whose counsel messed up at the petition stage. Those seem like either disproportionate or illusory answers to what most surveyed lawyers regard as more of a theoretical than an actual problem.

I asked Tang what sort of responses he’d received after the paper was published last July. He said he’d heard from two different groups. “I received a fair number of emails from lawyers saying, ‘We’re glad someone did this, we’ve seen it happen,’” he said. “The other response was, ‘This is crazy, Tang is overstating things. No ethical attorney would throw a client under the bus.’” Tang said he hadn’t made a count to determine which was the majority view.

I suspect that lawyers’ yearning to play at least one game in the majors has such a subtle, even unconscious impact on cert opposition briefs that it’s almost impossible to discern. Nevertheless, given Tang’s finding that experienced Supreme Court practitioners perceive the potential for trouble, I hope someone else figures out a way to quantify an almost unquantifiable phenomenon.

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