Wednesday, May 25, 2005
Of Amici, Ethics, and Blogging
So I was talking to Julian Ku yesterday. He's a foreign relations law expert at Hofstra and blogs about international law and the like at Opinion Juris. Of late, he has spent a lot of time blogging about the Supreme Court's Medellin case. His various views can be found, e.g., here, here, and here.
When the case was before the Supreme Court, he also submitted an amicus brief in the case, along with other law professors (see it here). I got to thinking about what ethical responsibilities an amicus author might have to his "client," whomever he/she/it may be. Say I submit or sign an amicus brief on behalf of the American Society for International Law to the Supreme Court. Are there ethical duties that may prevent me from freely blogging about my thoughts on the case? Julian: can you ask Monroe or other legal ethicists? Can someone write in with the answer?
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It would seem to me that the predicate of being an amicus in the first place is having a personal/organizational interest in the case sufficient to convince the court to permit one to file a brief.
The extent of said interest would logically seem to be the extent of counsel's obligation.
Posted by: Paul Gowder | May 25, 2005 10:47:23 PM
Ethan, this is interesting issue. I in fact faced it also. I was amicus counsel to law professors seeking the overturn of the 9th Cir. decision in Gementera, the case which permitted a shaming punishment as part of a supervised release condition. I also wrote about the matter in the public domain and I suppose the only tension would arise if one wrote an amicus brief that took positions you couldn't stand behind on your blog...
happily for me, there was no such conflict.
Sadly, I found out the Ninth Circuit last week decided not to rehear en banc the Gementera case. Which reminds me I need to share that news with my (former?) clients, the law profs...
Posted by: Dan Markel | May 26, 2005 5:57:32 AM
What about an ethical responsibility to tell the client that amicus briefs have almost no bang for the buck? They are mostly ignored and very rarely have any impact.
Posted by: David Giacalone | May 26, 2005 1:04:36 PM
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