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.

2. 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.)

3. 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.

4. 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.