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Monday, October 11, 2010

Cause lawyering and conflicting causes

Interesting story in The New York Times yesterday on the rise of Supreme Court specialist practices, including clinics associated with several top law schools, seeking out pro bono cases to bring before the Court. The piece points to several conflicts and problems this creates, including the divergence of interests between cause lawyer and client that I discussed earlier today.

But the article actually points out (unfortunately without fully elaborting) a different conflict--between causes lawyers representing and seeking to further different, often conflicting, causes. Many Supreme Court practices are interested in getting cases before the Court, not necessarily in moving the law in a particular direction. Of course, the goal is to win the case, which is not going to pit them against the particular clients they are taking on in that case, who similarly want to win and who often lost in the court of appeals and have no other options. Rather, the real conflict is with the specialist bar in a given substantive area, which has an interest in the shape of the law and which often wants only the "right" case to reach the Court at the right time.

The story centers around Humberto Fernandez-Vargas, the petitioner in Fernandez-Vargas v. Gonzales, as an illustration. After Fernandez-Vargas lost his immigration case in the Tenth Circuit, a lawyer from Mayer Brown stepped in to take the case and argue it before the Court. Certainly Fernandez-Vargas and his original lawyer were on board with having Mayer take the case, since Fernandez-Vargas had lost in the court of appeals and was going to be deported anyway--the "human stakes" in the case supported exhausting every last option. The disapproval came from the immigration bar, which feared (correctly it turned out) that the Court would use the case to create unfavorable national law, which is less palatable thanmaintaining a circuit split in which some circuits (notably, in this case, the Ninth) have more favorable law.

In other words, the purported bi-lateral conflict between cause lawyers and clients is too simplistic. There are a host of conflicts among different lawyers and types of lawyers and different clients and types of clients--often all in the same case.

Posted by Howard Wasserman on October 11, 2010 at 12:15 PM in Howard Wasserman, Law and Politics | Permalink


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I agree that the lawyer could conceivably have a conflict with the client's best interests. I've known lawyers who were more interested in making important new law than in protecting the client (by, for example, settling). I also wonder about the agreement mentioned in the article -- that the client agrees that the lawyer gets to do the oral argument. Given the largely unfettered right of the client to select counsel, fire counsel, hire new counsel, etc., are such clauses enforceable? If their not enforceable, should a lawyer include them in the agreement? If anyone has an exemplar of such a clause, it would be interesting to read. I imagine that the clause uses the threat of having to pay fees as the means for incenting the client to live up to the agreement that the lawyer gets the oral argument.

Posted by: John Steele | Oct 11, 2010 12:39:45 PM

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