Sometimes Clients Really Do Come First

As an appellate criminal defense lawyer, I spend an awful lot of my time trying to convince higher courts to find faults with a lower court and grant some relief to my clients. As a result, I’ve never been faced with the dilemma laid out in an interesting new law review article by Aaron Tang of Stanford University. In “The Ethics of Opposing Certiorari Before the Supreme Court” (published in the Harvard Journal of Law & Public Policy and also available here), Tang argues that in some cases attorneys who won a lower court judgment may take a dive in the Supreme Court certiorari process in order to have the honor of arguing before the high court.

A quick word on Supreme Court procedure – when a lower court (either one of the federal Courts of Appeals or a state supreme court) has made a ruling in a case, the next step is to seek review from the Supreme Court. Unlike most mid-level appellate courts, SCOTUS has nearly complete control over its docket. A losing party below has to petition the Court to issue a writ of certiorari and agree to review the case. The winning party below may file a response in opposition (although it doesn’t always do so), arguing that the Court should not take the case. Very few cert petitions are granted, which means very few cases actually get the full argument treatment from the Court.

With that in mind, back to the ethical dilemma that Tang has identified, which is more succinctly summed up, on the trial level, by noted legal philosopher Lionel Hutz:

I'll be defending you on the charge of... Murder One! Wow! Even if I lose, I'll be famous!

In other words, some attorneys will let their own self interest – to argue before the Supreme Court –trump their client’s best interest – to preserve their victory from the court below. The idea has some argumentative appeal. After all, a date with the Supremes is a plum assignment in the legal field. Who would want to turn it down when they knew it was a possibility?

So, it’s a problem in theory, but does it exist in the real world? Aside from one misread anecdote, Tang doesn’t really provide any evidence that it is. Instead, he surveys a number of regular SCOTUS practitioners who agree that it could be a problem.

But not for them, of course. Tang theorizes that the dilemma is more likely to crop up among those that might be called Supreme Court “amateurs,”* rather than the experts who make a living appearing before the Court, because the amateurs are more likely to want to grasp their one chance to appear before the Court, whereas the experts have a reputation to maintain in pursuit of further SCOTUS business.

In doing so, I think Tang frames the dilemma incorrectly. He assumes (as do many of those surveyed ) that attorneys are motivated only by how best to burnish their reputation, specifically the reputation of being a specialist or a “winner” in a particular field. That motivation overrides any others, including the one that should be at the forefront of any lawyer’s mind – the best interests of her client. That focus seems to come from one anecdote in the article:

In September 1999, the Court granted certiorari in Weisgram v. Marley Co., a case concerning the circumstances in which an appellate court y properly issue a judgment as a matter of law that effectively reverses the trial court’s verdict. One of the attorneys who would argue the case before the Supreme Court was a local North Dakota practitioner named Christine Hogan. After the argument, Hogan published an essay in the American Bar Association’s Journal describing the entire experience, her first in the Court. Reflecting on the moment the case was granted, Hogan wrote, ‘[M]y excitement level on the day I received the call from the office of the Clerk of the Supreme Court informing me that certiorari had been granted . . . ranks right up there with my wedding day and the births of my children. I was stunned.’

Tang is right that “stunned” was a good reaction, as the Court turns down about 99 of every 100 petitions it receives. Yet from this rather slim reed, he detects the possibility of conflict because Hogan puts the fact she got to argue in the Supreme Court in the same category of “good news” as her wedding and her children. I don’t think she really means what Tang wants her to mean. Let me use an example from my own practice as an example.

Last year, I won a case in the Fourth Circuit, which is a rare enough occurrence. In this particular case, we** got a bit more than that, convincing the court to go against all the other Courts of Appeals that had dealt with the issue and come out the other way. In other words, we created a circuit split, one of those rare things that really raises the possibility of the Supreme Court taking the case on cert, particularly when the Government is asking for review. I’ll admit that, after the initial high of winning wore off, I was excited about the possibility of the Government pushing the case forward and maybe having a chance to argue it before the Supremes.

Ultimately, the Government decided to let it slide, so the Court wasn’t asked to take the case. If it had come to that, I don’t think I would have had a conflict inside me about what I had to do – it was in the client’s best interests for the Fourth Circuit judgment to stand. I would have argued against the Court taking the case as best I could. The polestar of my work at that point would be the client’s best interests, not mine. That’s Legal Ethics 101 kind of stuff.

That being said, had it gone further and the Court had decided to take the case, of course I would have been excited. I don’t have kids and I’m not married (yet), so I don’t know where it would rank against those comparisons, but it probably would have been more exciting than, say, my two trips to SCCA Solo Tour events or the first time I saw Marillion live. Tang’s mistake is that he takes the emotions from one time and tries to retroactively graft them onto a prior time. Whether someone is excited about the reality of arguing before the Court is a whole different situation than whether they had a secret desire to fuck over their client in the process.

My major beef with Tang’s thesis is that (a) he bolsters it with a self-serving survey of the people who most need to project the image that they would be able to rise above such a conflict of interest and (b) he throws everybody else – including, specifically, public defenders – under the bus without any similar reaching out. Why not ask us about whether we labor under such conflicts of interest?

In my experience, most public defenders – at least those who hang around long enough to potentially have a case in position to be reviewed by the Supremes – are a pretty dedicated bunch. They put their clients’ best interests first, without question. Could I cobble together a scenario where one might sandbag a bit to get to go play in the big leagues? Sure. But it would be the same scenario that applied to any other attorney, even one of the vaunted specialists consulted by Tang, when they let their ego overrun their ethical obligations.

Is it really so hard to believe that, sometimes, the interests of the clients really do come first? If it is, the problem lies not with those who put their clients first every day, but with those who think they could be so easily disregarded.

* My term, not Tang’s.

** My colleague in the trial court set the issue up perfectly. I just headed the slick cross into the goal.