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Thursday, June 15, 2017

SCOTUS Symposium: Is it unethical to ghost-write a brief in opposition?

As we await the release of more opinions and orders next week, I wanted to write out an argument I've been developing for some time about the practice of ghost-writing briefs in opposition to certiorari. In short: although it is widespread, I think the practice is harder to defend than many think, and raises serious issues that I do not regularly hear acknowledged.

For the unfamiliar, the basic issue is this. Oftentimes a client will want to retain expert Supreme Court counsel at the petition stage, but would like to keep this a secret. In particular, the client wants the brief in opposition to be written by an expert, but doesn't want to "tip off" the Court that they've retained that expert—the theory being that the Court will be more likely to grant cert if they know an expert has been retained on the opposing side. So they have their expert write the brief in opposition, but deliberately omit her name from the filings, to try and trick the Court into believing (falsely) that the expert was not involved. The ideal outcome, from the client's point of view, is that the Court wrongly believes the expert was not involved and so denies cert when it would otherwise have granted, allowing the client to preserve a victory that would otherwise have been at risk had the Court been made aware of the facts.

I have a problem with this practice, because I have a problem with lawyers lying to courts. To be sure, this practice does not involve any outright misrepresentation, but of course it can also be a lie to deliberately omit information when the purpose is to cause a person to misunderstand the truth. That is why, for example, the ABA's model rules of professional conduct provide that "there are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation." And the stated purpose for omitting the name of the expert is precisely because the client does not want the Court to know the truth—indeed, the client's entire object is to create a false impression and so to influence the Court's decision-making process.

But fishermen worship sea gods, and the business of ghostwriting pays a lot of people's mortgages. As a result, my argument has not met with universal agreement. I have heard several genres of responses, which I will catalog and answer after the jump.

In general, the responses can be broken down into several species: (1) doing this helps one's client; (2) the Court does not care who the lawyers on a case are, so it does not matter if they are omitted; (3) the Court ought not care who the lawyers are, so it does not matter if they are omitted; (4) the rules do not require disclosure of this information, so it cannot possibly be unethical to omit it. I'll address each of these in order.

  1. But it's in the client's best interest. Least persuasive of all, to me, is the response that omitting this information is in the client's interest, and so it is acceptable. For the purposes of this argument, I will not dispute the premise: if one's client wants cert denied, it may well be in the client's best interest to conceal the fact that they have retained expert counsel. That, at least, is the premise for this particular ruse, and I am willing to grant that premise is believed in good faith.

    (As it happens, I am not entirely convinced that the premise is true. The Justices and their law clerks are not stupid, and if an expertly done BIO is said to be written by a first-time Supreme Court litigator who specializes in slips-and-falls in central Florida, no one is going to be fooled into thinking that he didn't have help. But: whatever. Let us assume that the client really will be served by this tactic.)

    The problem is that this proves absolutely nothing because lawyers are never permitted to deliberately mislead a court just because it would help their client. It would often help one's client to lie to a court. But the traditional understanding of a lawyer's obligations is that they do not simply run to the client, but to the court of which that lawyer is admitted to the bar: that is why, when Supreme Court lawyers are sworn in by the Clerk of Court, the Chief Justice extends to them a warm welcome as "officers of the court," not merely mercenaries who are given a certificate in exchange for two hundred bucks.

    In other words, if one agrees with my premise (that this is a deliberately misleading omission), then it is utterly insufficient to reply that it is one that is in the client's interest. Either one must deny the premise and argue that this is not a deliberately misleading omission or one must argue this is a circumstance in which a lawyer is permitted to mislead the court for some reason other than client interest.
  1. The court doesn't care who the lawyers are, so it's fine to omit this information. A more promising but still ultimately insufficient response is that this is not a material omission because the Supreme Court does not care who the lawyers are. After all, "quality of counsel" is not listed in Supreme Court Rule 10 as one of the considerations governing certiorari. The problem with this argument is twofold.

    First, the Supreme Court's rules explicitly provide that certiorari is a matter "of judicial discretion," and the factors listed in Rule 10 are not "controlling," nor do they "fully [measure] the Court's discretion." (I first saw this point made on Twitter by our co-symposiast Dan Epps.) To take another example, so-called "vehicle problems" (such as the presence of serious questions going to standing, or preservation of the issue below, or whatever) are also not listed in Rule 10, and yet it is understood perfectly well that the Court cares about such matters. Stern & Gressman have many, many pages on considerations going well beyond Rule 10.

    Second, and more important, the entire reason that lawyers conceal the presence of expert counsel is because they think the Court does care. The tactic would make no sense otherwise. I do not doubt that there may be reasons to omit a lawyer's name that are immaterial to the Court: perhaps, for example, the lawyer simply does not want herself associated with the client in public for professional reasons that the Court has no interest in. Fine. That is a different circumstance. I am arguing here only about a situation in which a lawyer is omitted because the client does not want to "draw the Court's attention" to the petition, in the hopes that it will be denied where it would otherwise have been granted. There, it is impossible to argue for immateriality.

    (A species of this argument is that it is routine not to list every lawyer who works on a filing—a junior associate, for example. I think such lawyers should be listed more often than they are, but at any rate, their omission is not deceptive because it is immaterial, and is not done to mislead the Court.)
  1. The court shouldn't care who the lawyers are, so it's fine to omit this information. A refined version of the argument above is that the Court ought not care who the lawyers in a given case are. On this view, the Court's preference for quality lawyering is simply illegitimate—and so concealment of this information is  justified on that ground. This argument makes headway by at least acknowledging that there is deception afoot, and attempting to justify it.

    I have no doubt that there are circumstances in which it is acceptable to lie to someone, and for lawyers to lie to a court. An example that I have heard several times: imagine the Court had members who were thoroughly anti-Semitic, and who did not want to grant cases on which Jewish lawyers had worked. Surely, it would be acceptable to lie about the presence of (say) a young Justice Ginsburg on the filings then. As to that, I agree. But again, there are two problems with this argument.

    First, it is far from obvious that a preference for experienced counsel is illegitimate. The nature of the Court's work is that if an issue is significant, the Court will have many chances to address it—so it is not obvious to me that having high-quality lawyering on both sides is prima facie illegitimate as an object. Certainly the structure of the United States government suggests otherwise: the Office of the Solicitor General specializes precisely because it is believed it will help the Court to have very good lawyers in the many cases in which the government is a party. Many states have made the same decision. Anyone maintaining this argument with an analogy like the one above would therefore carry a very heavy burden, and moreover would have to accept that they were lying for a justified reason. I would hope that the bar for acceptable reasons for a lawyer to lie to a court would be very, very high.

    Second and again more important, there is a one-sidedness to this argument that gives away the game. If it is unacceptable for the Court to consider the identity of the advocates when reading a brief in opposition, it must be equally so when reading a cert petition. Yet I have not heard anyone argue that it is unethical for prominent or expert Supreme Court advocates to include their names on a cert petition. (I am grateful to Jason Steed for raising this point.) That, however, is exactly what this argument would require—unless it is for some reason unacceptable for the Justices to consider the identity of counsel in a BIO but not on a petition, a strange position indeed.
  1. The rules don't require it. One final objection. Rule 34.1 provides that "the name of the attorney who is counsel of record" must be included on each filing, and there may only be one such person. The names of other attorneys "may be added." The argument goes that this explicitly permits the omission of anyone other than the person who is to be "counsel of record," which person need only be admitted to the bar.

    But although Rule 34.1 affords a measure of discretion on who to include, that discretion—like all such grants—can be abused. A classic way to abuse one's discretion to disclose information would be to exercise it in a way calculated to mislead. At most, all this argument establishes is that Rule 34.1 does not forbid ghostwriting, but I have never claimed that it does. Rule 34.1, like all rules, must be understood against a background requirement of good faith and honesty by lawyers practicing before the Court.

I am well aware that the practice of ghost-writing BIOs is common. But my argument is not that it is uncommon, but that it is calculated to mislead the Supreme Court, and that it is—for that reason—unethical. It may well be a form of deception that aids one's clients, but it is not a practice I think members of the bar should engage in, and it is something that I hope the Court will one day explicitly forbid.

Posted by Ian Samuel on June 15, 2017 at 07:05 PM in 2016-17 End of Term | Permalink

Comments

"[I]t is believed it will help the Court to have very good lawyers in the many cases in which the government is a party."

This is off-point but: What you say here is true. But it is ironic that the Chief in Perdue v. Kenny A openly questioned why lawyers should receive higher fees for exceptional work, since the balls and strikes just are, regardless of how well the attorney does.

Posted by: Howard Wasserman | Jun 15, 2017 8:32:29 PM

"[I]t is believed it will help the Court to have very good lawyers in the many cases in which the government is a party."

This is off-point but: What you say here is true. But it is ironic that the Chief in Perdue v. Kenny A openly questioned why lawyers should receive higher fees for exceptional work, since the balls and strikes just are, regardless of how well the attorney does.

Posted by: Howard Wasserman | Jun 15, 2017 8:32:32 PM

Just goes to show how out of touch I am with contemporary practice. I find it shocking that "the practice of ghost-writing BIOs is common." I regard it as deeply unethical for a legal academic to participate in the practice. It's at least on a par with the problematic practice of signing "expert" briefs on matters you know very little about -- something that Dick Fallon has rightly criticized.

Posted by: Mark Victor Tushnet | Jun 15, 2017 8:40:28 PM

Is it different when judges have their clerks ghost write their opinions? Maybe, but not much. Part of the point is to mislead the reader into believing the judge actually put in the hard work of thinking through the case in the way writing an opinion requires. Some judges think that's wrong, but most don't, and no one really thinks it's unethical.

Posted by: Brian | Jun 15, 2017 8:41:38 PM

Ian,

One difficulty with your argument is that it seems to assume a pretty specific understanding of what a name on a legal brief tells a court. If I understand you correctly, you believe that the list of names on a brief amounts to a statement to the court, "We wrote this and no one else did." But what if that isn't the understanding judges or justices have? If so, I don't see who is misled.

I'm not a regular practitioner, but my outsider sense is that judges know that what names appear on a brief is often a strategic or business decision. A big DC law firm will list the big-wig famous partner even though the brief was written by a junior associate. The state Attorney General will be listed on the brief even though he didn't even read the brief. Local counsel will be listed even though they long ago passed off the case to specialists. A brief that lists five names might actually have been written by one, edited by another, and not even skimmed by the other three.

At the Supreme Court level, the Supreme Court's Rules seem to make this understanding explicit. You note Rule 34.1, and I would add to that Rule 37.6. That rule states that an amicus brief "shall indicate whether counsel for a party authored the brief in whole or in part." If having a name on a brief tells the Court, "we wrote this and no one else did," then Rule 37.6 isn't necessary: There shouldn't be a need to say who wrote the brief because that statement is already made by the names on the front cover. The fact that the Court sees 37.6 as necessary seems to suggest that the Justices know and accept that some people are helping to write briefs and are not having their names on the briefs.

Granted, if I'm right on this, it doesn't address whether it might be better to move to the understanding you have of what the names on briefs signals. Maybe there should be a norm in which claims of authorship are directly made to the Court, perhaps with the first listed name being the primary author, the next name being the one who wrote the next amount, etc. But I'm skeptical that we are there now, which I think blunts concerns that ghostwriting is "lying to courts."


Posted by: Orin Kerr | Jun 15, 2017 9:08:39 PM

(Oh, and good post!)

Posted by: Orin Kerr | Jun 15, 2017 9:16:25 PM

(Oh, and good post!)

Posted by: Orin Kerr | Jun 15, 2017 9:16:30 PM

I think your divide-and-conquer approach to the opposing arguments makes something fall through the cracks. Of course, just because something is in the interests of a client doesn't make it OK. Of course, just because the rules don't expressly forbid something doesn't make it OK. And, as a pure moral argument, I'll grant the premise that if it is immoral FOR THE COURT to consider the identity of the advocate on the BIO, it is immoral for the Court to consider the identity of the advocate on the petition.

But it does not follow that clients are bound to help the court meet its moral obligation (to not consider the identity of the advocate). It seems to me that the other side's argument is rather that they have no obligation either way to help the court meet or skirt its own moral obligation. Whether they do it or not depends on their own tactical interest, and that is the implicit expectation of the adversarial system.

More generally, the adversarial system functions on a premise that clients are generally permitted to pursue their own self interest, unless there is some compelling reason to prevent them, and usually when we require someone to do something against their own self interest, we make explicit rules with explicit penalties for it (because the system functions with a backdrop expectation against such a requirement). It is not an universal rule with no exceptions, but it is the background presumption. And it creates this kind of asymmetry in disclosure obligations all the time between entities that are presumed-and-generally-permitted to act in self interest and entities that are not. It is unethical for the prosecution to withhold exculpating evidence from the defense, as well as bring a case when the prosecution believes the defendant is not in fact guilty. It is not unethical for the defendant to withhold incriminating evidence from the prosecution and the court, or to defend a case when the defendant knows he is in fact guilty. Indeed, defendants have a constitutional right to do both of those things called the Fifth Amendment.

Posted by: TJ | Jun 15, 2017 9:20:53 PM

I agree that this is a good post, but I think there's a plausible combination of arguments 2 and 3 that may be responsive: The Court does in fact care who the lawyers are, but it does not *want* to care, or think that it *should* care, and so it does not want to compel attorneys to disclose the names of all of the lawyers involved.

(An alternative version: the certpool writer cares who the lawyers are, but the Justices don't, or at least don't think the certpool writer has a right to use respondent-lawyer-quality as a proxy for certworthiness.)

Posted by: William Baude | Jun 15, 2017 10:22:45 PM

I agree that this is a good post, but I think there's a plausible combination of arguments 2 and 3 that may be responsive: The Court does in fact care who the lawyers are, but it does not *want* to care, or think that it *should* care, and so it does not want to compel attorneys to disclose the names of all of the lawyers involved.

(An alternative version: the certpool writer cares who the lawyers are, but the Justices don't, or at least don't think the certpool writer has a right to use respondent-lawyer-quality as a proxy for certworthiness.)

Posted by: William Baude | Jun 15, 2017 10:22:49 PM

I think I mostly agree with Orin's take. His "outsider sense" is consistent with my semi-insider experience. Signature blocks on briefs are the roughest of proxies for who did the work/who is responsible for the strategy, research, and advocacy, and all the examples he notes (e.g., long-since-out-of-the-picture local counsel) are things I've seen with some frequency.

More importantly, listing someone as "Counsel of Record" (or anywhere else in the signature block) is, in my view, a statement about responsibility, not necessarily authorship. The recent Sigram Schindler debacle is an illustration of what the Court expects from counsel of record. http://www.scotusblog.com/2015/03/the-howard-shipley-case-a-lesson-for-others/ I think signing a brief means "I'm responsible," not necessarily "I'm the author."

Because the court doesn't necessarily require a disclosure of *authorship* (except in the sense Orin notes with amicus briefs) in a manner analogous to academic writing, I don't think it's necessarily deceptive to omit the names of certain authors from briefs.

I take Ian's point, though, that this is at bottom a deception meant to gain an advantage in litigation. I think, though, that it's de minimis and in the category of lots of subtle things lawyers do in the name of advocacy that may look a lot like deception if examined closely. In jury trials, lawyers from out-of-town fancy firms pick their wardrobe to avoid looking like affluent out-of-towners, and often give local counsel a prominent role to appeal to the judge and jury's irrational prejudices. In some court hearings, parties pick people to sit in the gallery to send subtle signals to the court or jury. All of this is dishonest at some level, but for some reason I don't think any of these things are considered ethical violations. Lawyers have no obligation to disclose their personal finances or clothing choices, or to disclose whether the advocate at the lectern was selected for professional competence or to appeal to local prejudice, or to disclose whether the people in the gallery came entirely unprompted. (I suspect that there must be better analogous examples, but I'm not thinking of them right now) For similar reasons, I don't think there's a rule or a norm requiring Supreme Court BIO counsel to disclose *authorship.* If parties don't have to disclose authorship of briefs, then failing to do so either isn't a deception or it is but isn't a problematic deception.

Nonetheless, I'm troubled by Ian's core point that this is at bottom, at some level, a deception meant to gain an advantage in litigation. It may minor, or expected, but it is unavoidably a deception, and I hesitate very much to conclude that a deception by a lawyer to a court is somehow ok.

Finally, two asides:
1. This tactic can be dealt with. See here. https://twitter.com/danepps/status/813503077496004608 If expertise and sophistication shine through in the BIO in a way that did not in previous briefing, that can be highlighted in the cert reply.

2. Not quite the same point, but in recent Reuters article, some Justices were on record as saying that the quality of the advocacy (importantly, not the names on the signature block) can make a difference in whether a marginal petition gets granted. http://www.reuters.com/investigates/special-report/scotus/

(Apologies for the anonymity.)

Posted by: anonymous DC appellate person | Jun 15, 2017 11:25:07 PM

If authorship provides valuable information to the Court, why would Court Rules prohibit acknowledging the contributions of non-lawyers? You'll recall that a Foley & Lardner landed in some trouble for making an acknowledgement towards a brief to a non-lawyer: https://blogs.wsj.com/law/2014/12/11/attorney-faces-rare-sanction-from-nations-highest-court/

Posted by: CarterPage | Jun 15, 2017 11:45:05 PM

Ian,

Appreciate the condensed post highlighting your points. I still think your argument is wrong for for the reasons I identified earlier today. There's one further point for why your points on #2/#3 aren't valid. The Court has a duty to litigants not to care about the name on a brief. The duty stems from a number of sources. Not to try to steal Richard Re's day job, but I think the most clear source is the judicial oath. Each Justice swears to "administer justice without respect to persons." Seems that using what attorneys represent a client is discriminating with respect to a persons. The Court can still look for quality which should be evident from the briefing. But using a name as any sort of proxy can have a biasing effect that distorts the actual assessment of quality and would violate the oath.

If the Court has a duty not to consider attorney name's in judging the merits of a cert petition, then I can't see how a lawyer would ever have a duty to disclose her name. Doesn't mean she can't -- just that she doesn't have to.

Look forward to you developing your argument further.

Posted by: Bryan Gividen | Jun 15, 2017 11:51:38 PM

Ian,

Appreciate the condensed post highlighting your points. I still think your argument is wrong for for the reasons I identified earlier today. There's one further point for why your points on #2/#3 aren't valid. The Court has a duty to litigants not to care about the name on a brief. The duty stems from a number of sources. Not to try to steal Richard Re's day job, but I think the most clear source is the judicial oath. Each Justice swears to "administer justice without respect to persons." Seems that using what attorneys represent a client is discriminating with respect to a persons. The Court can still look for quality which should be evident from the briefing. But using a name as any sort of proxy can have a biasing effect that distorts the actual assessment of quality and would violate the oath.

If the Court has a duty not to consider attorney name's in judging the merits of a cert petition, then I can't see how a lawyer would ever have a duty to disclose her name. Doesn't mean she can't -- just that she doesn't have to.

Look forward to you developing your argument further.

Posted by: Bryan Gividen | Jun 15, 2017 11:51:39 PM

(Addendum: Saying your points on #2/3 aren't valid is an extraordinarily poor way for me to have put it. What I mean to say is that those points don't resolve the issue in light of Court's duty not to consider the identity of attorneys in deciding whether to grant cert.)

Posted by: Bryan Gividen | Jun 16, 2017 12:01:26 AM

Just one small, uninteresting cavil, which I guess goes to #2. Couldn't the Court very reasonably suppose that the respondent scrimped on fees for the BIO, deeming a grant unlikely, believing an expert won't make much difference, and perhaps not being chased by the Supreme Court bar, but that if the case is granted they'll reconsider, and will get solicited by the Supreme Court bar? Dan's story about Walden seems a case in point; to all the world, after cert was granted, respondent got Goldstein. Alternatively, if one reads a fine BIO by someone without a reputation, why not charitably assume that its author, if you believe counsel of record really wrote it, can also write a good brief? They're not perfectly correlated, but they're not too weakly correlated either.

Posted by: Asher Steinberg | Jun 16, 2017 12:33:32 AM

I will add that I actually do think it just might be unethical for prominent advocates to put their names on petitions. Suppose there are a fair number of decent cert candidates, on the merits, with weak counsel. Their petitions raise important issues of criminal justice and the like, real splits (which aren't optimally presented), and huge stakes for the individual petitioners. Then on the other hand, there are beautifully written petitions for corporate entities about rather small-bore issues that present real splits. If the latter disclose their prominent counsel, they will get an advantage over the criminal petitions on the bubble. A fair argument could be made that that advantage is justifiable; a fair argument could be made that it's not. If it's not, it seems wrong to take it. I think there's a stronger #3 argument that petitioners shouldn't use counsel's status to get access to the precious resource of Supreme Court review, for which others may (and probably do) have a greater need, than that respondents have a duty to conceal status in order to partially level the playing field between petitioners.

Posted by: Asher Steinberg | Jun 16, 2017 1:48:45 AM

The main post focuses on BIOs but some comments discuss petitions. Aren't the issues completely different? At the petitition stage, having a recognized advocate might incrementally suggest merit. On the BIO side, by contrast, it might signal concern. The post mentions that the practice of ghostwriting BIOs is profitable. No one discusses the ethical issue of whether clients should be advised about the waiver procedure. Particularly in civil cases where requests for response are so infrequent. Why should a client have to make economic decisions about its cert team when it should be advised to defer those fees until a request for a response demonstrates that the fees for a powerful BIO are warranted?

Posted by: George Kemsley | Jun 16, 2017 7:29:09 AM

Ian, what do you think would be appropriate discipline for this practice? In DC, sanctions for dishonesty range from informal admonition to disbarment, with various lengths of suspension inbetween.
Also, assuming that counsel's name could make the difference between a grant and a denial, wouldn't requiring disclosure effectively deny litigants their counsel of choice? A client would be a fool to take even pro bono help from the best lawyers.

Posted by: SCOTUSPlaces | Jun 16, 2017 10:34:50 AM

I wondered about the flip side of the question: Are there circumstances in which it is problematic for a lawyer who writes a BIO to include his name?

Here's a situation to ponder. A petition for cert is filed against a respondent who has weak local counsel and no money to hire good counsel. The petition accurately identifies a genuine split and there are no obvious vehicle problems, so it might get granted. A mad rush among members of the Supreme Court bar follows to try to become Supreme Court counsel for the respondent pro bono, as the case might get granted and everyone wants a merits case. A bigwig Supreme Court firm/practice gets picked as counsel for respondent pro bono and writes the BIO, and they don't really have any great points to make because the split is genuine and there are no obvious vehicle problems.

If the bigwig Supreme Court practice names are on the BIO, that increases the chances cert will be granted in three distinct ways. First, it signals to the Court that the Supreme Court bar identified the case as one with a real chance of being granted. (It's an obvious pro bono case: The bar is interested because it might go up.) Second, the fact that the bigwig lawyers aren't contesting the split or pointing to vehicle problems strongly suggests there's no serious flaws with the petition. Third, presence of bigwigs representing respondent promises good quality briefing if the Court grants.

The bigwig Supreme Court practice writes the best possible BIO they can, as of course they are obligated to do. In the end, though, they would prefer the case to get granted so they can get a Supreme Court argument. They also wouldn't mind the advertising of their practice being on a significant pending case. As a result, having their name on the BIO furthers the interest of the firm in a way directly contrary to the client's interest. Does that raise ethical issues?

Posted by: OTSomeYear | Jun 16, 2017 10:58:21 AM

OTSomeYear, this is worth reading
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2103187

Posted by: anonymous DC appellate person | Jun 16, 2017 11:01:57 AM

I think that briefs should be written by the attorneys who sign the briefs. I thought one reason for the signature was that attorneys know they are responsible for the contents of the brief. If there would be an inquiry about possible sanctions or other problems, how would the court determine which attorneys are responsible for the facts and arguments presented in the brief?

In addition, it is my understanding that attorneys should not ghostwrite 2255 motions for inmates. There is no right to counsel for 2255 motions, so attorneys may be tempted to help the inmates in writing the 2255 motion, even though the attorney's name will not appear on the motion. If ghostwriting 2255 motions is not a good idea, why is it acceptable (and perhaps encouraged) to ghostwrite briefs in opposition to certiorari?

Posted by: Elaine Mittleman | Aug 9, 2017 11:16:04 PM

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