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Wednesday, February 04, 2015

With Amici Like These...: A Response to Josh Blackman on Law Professor-Authored Amicus Briefs

Over at his eponymous blog, Josh Blackman wonders out loud about the ethical propriety of a law professor co-authoring an amicus brief when they are one of the listed amici--that is, of being both one of the parties to an amicus brief and one of its authors, hearkening back to the old line about the lawyer who represents himself having a fool for a client. As Josh writes,

The role of the scholar and that of the advocate is different. I don’t know that I can do both simultaneously. As a scholar, I go out of my way to charitably describe both sides of an argument (as best as I can). As an advocate, this tact would be foolish, and possibly unethical to the extent that it impaired my client’s case. As a professor, I would be hesitant to make an argument that hasn’t been completely thought through, as it may impact my scholarly reputation. As an advocate, especially in litigation that is moving quickly, a much more lax standard would apply to provide the tribunal with the best arguments counsel can muster. As an advocate there are certain arguments I would not be comfortable making as a scholar, and vice versa.

Admittedly, I have a dog in this fight, as I have written a number of amicus briefs over the years, many (but not most) of which have been on behalf of groups of law professors that included me. So folks should take my (negative) reaction with a significant grain of salt. That said, I have two principal critiques of Josh's reaction--one that goes to how he frames the problem, and one that goes to the role of amicus briefs, more generally.

First, with regard to Josh's framing of the distinction between the advocate and the scholar, this is, in many ways, just a retread of Dick Fallon's more famous attack on scholarly amicus briefs from a few years back. On the merits, though, it's worth emphasizing that, although counsel on an amicus brief do have ethical obligations, those obligations are to their clients (i.e., the amici), and not to the party (if any) in whose behalf the brief is filed. Thus, the advocate's job is is to zealously describe the amici's position--and not necessarily to take sides as between the parties.

Indeed, some of the most effective law professor amicus briefs are those filed in support of neither party--where the brief is meant simply to educate the court about the particular expertise of the amici. In those contexts, I just don't see the tension Josh identifies--unless, as Fallon worried three years ago, law professors are signing (and co-authoring) briefs they haven't thought through. That's definitely a problem, but it's not an indictment of law professor briefs, writ large. Indeed, it's both my practice and my experience that folks who sign onto the briefs in which I'm involved only do so when they have thought through the issues and when they agree with the underlying position taken by the brief. So long as that's true, what's the ethical difference between a professor who associates herself with that position (by signing the brief) and involving herself in explicating that position (by co-authoring it)? 

Second, as a practical matter, I've always viewed the purpose (and best practices) of law professor amicus briefs to be to illuminate relevant aspects of the case that are beyond either the interest or the experience of the parties--and to do so in a way that does not come across like a party's brief, but that rather takes more of an academic high road. (Indeed, various court rules require amicus briefs to offer arguments not made by the parties.) If we agree that at least most law professor amicus briefs should aspire to this model, then it's usually quite beneficial, if not essential, to have an academic lawyer who is also one of the substantive experts involved in the drafting--since she may often have a better handle on the academic position(s) the brief is designed to take than practicing lawyers who spend their lives in the litigation trenches. In other words, it's not just that I see no ethical problem with academics co-authoring academic amicus briefs; it's that I think it redounds only to the benefit of those briefs--and of their likelihood of at once (1) accurately conveying the amici's position; (2) in a manner likely to be considered a "true" amicus brief. Otherwise, what Josh is suggesting is that academic experts either not involve themselves in drafting the brief that is ultimately on their behalf, or not include themselves as one of the experts whenever they have helped to draft the argument--even when their academic expertise and their legal drafting perfectly dovetail.

Don't get me wrong: I agree, and always have agreed, with Fallon's central charge that too many law professors sign too many amicus briefs without thinking carefully about the position the brief is taking or how that position is both (1) one on which the signing scholar has relevant expertise; and (2) something the scholar completely supports. But there are plenty of law professor amicus briefs to the contrary that take narrow and academic positions on specific substantive issues not adequately briefed by the parties. In those cases, not only do I not see a problem with those professors involved in writing the brief also signing on as amici if they have the relevant expertise; it's my experience that such bookended involvement only tends to make the brief more useful to the courts, and, therefore, more effective.


Posted by Steve Vladeck on February 4, 2015 at 12:07 PM in Steve Vladeck | Permalink


Steve, thank you for the thoughtful reply. I think we agree on the second point. I wrote in my post "this is not to say that scholars cannot contribute to the briefs. They should." The sole focus was whether the same professor should both join the brief as amicus, and sign on as counsel. Your post doesn't reflect this aspect. Also, I link to the Fallon article in my first sentence.

Posted by: Josh Blackman | Feb 4, 2015 12:21:51 PM

Josh -- I don't know what you mean when you write that my "post doesn't reflect this aspect." The whole point of my first point is that I disagree with you about the ethical tension you identify, largely because I think you've misstated the ethical obligations of those who serve as counsel to amicus briefs.

As for scholars contributing to the brief, would you rather they (1) co-author a brief but not take credit so that they can be one of the experts on whose behalf the brief is filed (which is itself ethically troubling); or (2) co-author a brief but not identify themselves as one of the experts on whose behalf the brief is filed? Indeed, aren't they _most_ likely to associate themselves strongly with the position taken in the brief since they authored it?

Posted by: Steve Vladeck | Feb 4, 2015 12:26:09 PM

Josh, I don't understand the ethical tension. Let's say I write an amicus brief solely on behalf of myself: I am both the author and the sole client. How can there be a tension between the interests of the author and the interests of the client if they are the same person?

Posted by: Orin Kerr | Feb 4, 2015 2:35:46 PM

Ditto to what Professor Kerr said.

Posted by: Blondie | Feb 4, 2015 2:45:11 PM

I think I get what he is saying, but it is confusing and not very persuasive. On the blog he suggests that "the author’s scholarly reputation would limit ... decisions" to go for broke on behalf of a client. I can see why academics might be ill-advised to write briefs, if they lack the skills or objectivity or are inclined to qualify everything and sweat insignificant details; the problem is that this would mean that academics shouldn't write briefs, not that they should refrain from writing briefs on their own behalf. Academic reputation will inhibit their performance as advocates regardless. I'm not sure why that's necessarily a bad thing for amicus briefs, or why it isn't something the client is knowingly permitting, but still.

He also gives the example of his ability to insist (as client, to a law firm lawyer) on a change, and doubts that would be true if he were both counsel and client . . . especially, but I think solely, if other amici disagreed with him. The general idea that identity of lawyer and client inhibits representation is at least counterintuitive. The real problem is that there's a group client whose internal preferences aren't all aligned, and an unusually high potential for the lawyer to favor the views of just one of those clients (himself or herself). It isn't clear, though, why the more important takeaway is not for academics to be wary of group efforts, rather than wary of representing themselves, or at most that they should be wary of agreeing to be represented by a lawyer who's excessively inclined toward the views of one of the clients. If drafting were a group exercise, or a solo effort by a single amicus, academic client, no problem.

Misgivings about fidelity to the academic role (Fallon's objection) remain.

Posted by: Ed | Feb 4, 2015 4:36:57 PM

Ed -- I think you've hit the nail on the head; the problem Josh is identifying is one of academic professionalism, not legal ethics. But that leads to two observations that, if anything, further underscore my basic objection to Josh's post:

First, the stakeholder here is the academic qua signatory, not the academic qua brief-drafter. As you say, "The real problem is that there's a group client whose internal preferences aren't all aligned, and an unusually high potential for the lawyer to favor the views of just one of those clients (himself or herself)." And so if there's someone acting in a manner that should give us pause, it strikes me as far more likely to be the scholar who signs a brief with which s/he disagrees, as opposed to the scholar who signs a brief s/he authored (and therefore almost certainly endorses).

Second, and related, this exact group-preference problem _does_ in fact arise all the time in amicus briefs I'm involved with: The brief will take a position on something (e.g., the holding of a specific case or the scope of a particular rule) with which one of the potential amici is uncomfortable. In my experience, one of three things happens at that point: First, if the position at issue isn't material to the brief, the brief is modified to _not_ take a position on that point--and, often, to note that amici actually disagree over that immaterial point. But if the position at issue _is_ material, I usually then have a conversation with the person who has expressed concerns to explain why I think that position is correct. That usually culminates with them either (2) being convinced and signing on; or (3) declining to sign on because of their misgivings.

Josh (and Dick) are both certainly right that fidelity to the academic role should always be on the minds of all of us when asked to sign amicus briefs. I just don't think that such fidelity is called into question in any unique way by the fact that one of the signatory amici participated in the brief's drafting, as well--the concern that animated Josh's post.

Posted by: Steve Vladeck | Feb 4, 2015 5:04:12 PM

I can imagine two ways of writing a group brief. In Way 1, a bunch of people get together and identify a set of arguments they want to make on some issue. In Way 2, Prof. X writes a brief and then circulates it and people sign on to become amici if they agree.

Way 1 could lead to the tension Josh identifies. The problem is that I think very few people follow Way 1, or if they do, they avoid the tensions by either coming to agreement, or dropping out as amici and/or counsel. Suppose under the Way 1 model the group of amici can't agree on what to say. Prof. X, who wields the pen and is serving as counsel of record, says, "The heck with them. Here's what *I* want to say," writes it, and submits it on behalf of the group without getting further approval. That would be consistent with Prof. X's academic views, but not professional obligations. Or alternatively there's a consensus that Prof. X (who's agreed to serve as counsel of record) doesn't agree with personally, but he/she writes it up anyway and files it as both counsel and amicus. Inconsistent with academic views, but consistent with professional obligations. But again, I'd be surprised if either happens more than extremely rarely.

Posted by: Bruce Boyden | Feb 4, 2015 6:39:30 PM

Well, I had a comment, but it appears to have been eaten.

Posted by: Bruce Boyden | Feb 4, 2015 6:42:46 PM

I think I understand the source of the disagreement. In his response to Dave Ziff, Josh takes the view that when an amicus brief announces that it is in favor of one side winning, the lawyer for the amicus takes on an ethical obligation to help thats side win. That is, the obligation is no longer to the lawyer's client, but rather to the client of the party that the amicus wants to win. Josh writes:

***** When you file a brief in support of a party, you aren’t just advancing your client’s interest, but you are supporting the petitioner or respondent. Here, I think the brief in support of neither party plays an important role. But to the extent that you are choosing sides, and backing the petitioner or respondent, you do have some interest in seeing your preferred party win the case.

Thus, Josh's view is that a lawyer for an amicus has an ethical obligation to say what is necessary to help the party-litigant win, even if it is contrary to the interests of the lawyer's own client. The client might want to be careful and balanced, but the lawyer might have to be reckless and unbalanced in order to serve the interests of the party that the amicus favors.That's the ethical tension Josh has in mind.

If I am understanding Josh's view correctly, I think it's just wrong. Your obligation as a lawyer for a friend of the court is solely to represent your client, the friend of the court. You have no duty to the side that the brief says it wants to win.

Posted by: Orin Kerr | Feb 4, 2015 8:23:51 PM

There are lots of ways to discuss this issue (e.g., the Fallon/Frost dialogue), but if we were going to use the ethics rules, we’d probably start with MR 1.2 which says that competent clients choose the lawful objectives, lawyers abide by the client’s choice of objectives, and lawyers consult with the client about the tactics to be used. The rule and comments also say that the scope of the representation, the objectives to be sought, and the tactics to be used can be limited by the client or by the attorney (if proper client consent is obtained, the limitation is reasonable, etc.). The comments to MR 1.3 allude to those passages and state the corollary, “A lawyer is not bound, however, to press for every advantage that might be realized for a client.” That framework should give amicus counsel all the flexibility needed to ethically navigate a variety of scenarios. I’m not sure that Josh Blackman’s statement of the problem maps onto the Model Rules but perhaps I’ve misunderstood his post or perhaps he wasn’t making an argument based upon the ethics rules.

Posted by: John Steele | Feb 5, 2015 2:30:43 PM

Let me suggest another factor that might weigh into the mix: academic institution treatment of amicus brief authorship. At my school, at least, a SCOTUS amicus brief is treated as basically equivalent to scholarship; at our annual scholarship luncheon faculty members display their SCOTUS amicus briefs just like articles. I find this wacky, and it might reflect a particularly Georgetown obession with (and glorification of) Supreme Court litigation, but it's been the only consideration I've been weighing in deciding whether to be counsel for myself as an amicus: if I'm going to contribute most of the substance, I might as well get credit with my Dean.

Posted by: Adam Levitin | Feb 7, 2015 7:05:18 PM

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