Power-conscious Professional Responsibility: Justice Black’s Unpublished Dissent and a Lost Alternative Approach to the Ethics of Cause Lawyering

Power-Conscious Professional Responsibility:

Justice Black’s Unpublished Dissent and a Lost

Alternative Approach to the Ethics of Cause

Lawyering

NOAH A. ROSENBLUM*

ABSTRACT

Public interest impact litigation as currently practiced raises signif‌icant legal

ethics concerns. This Article excavates the historical foundations of two of these

diff‌iculties and, on the basis of original archival research, uncovers a way

around them.

The Article focuses on two modern ethical dilemmas posed by impact litiga-

tion: conf‌licts of interest and the use of litigation for policy-making. It argues

that, as a historical and doctrinal matter, these ethical puzzles trace back to

Justice Brennan’s decision to set cause lawyering on a putatively neutral First

Amendment basis in NAACP v. Button. That rationale, however, was not the

case’s original ratio decidendi. In fact, the egalitarian neutralism Brennan

embraced had initially provided a reason for f‌inding impact litigation improper.

Only a pair of dramatic, unexpected resignations transformed it into a founda-

tion for cause lawyering. Meanwhile, an unpublished draft opinion would have

grounded impact litigation in Equal Protection and Carolene Products-type

considerations. This race- and power-conscious alternative, championed by

Justice Black, provided a competing ethical foundation for public interest

impact litigation that would have better addressed our contemporary legal

ethics concerns.

This Article elucidates Justice Black’s argument for the f‌irst time. It recon-

structs the complicated dynamics that led to the abandonment of his dissent and

its transformation into Justice Brennan’s majority opinion. In telling this story,

* Samuel I. Golieb Fellow, NYU School of Law; Ph.D. Candidate (history), Columbia University; J.D.

Yale Law School, 2017; A.B. Harvard College, 2008; A.A. Deep Springs College, 2005. For helpful comments

and conversation, thanks to Judge Guido Calabresi, Susan Carle, Blake Emerson, Dan Ernst, Catherine Fisk,

Harold Forsythe, Bob Gordon, Andrea Katz, Deborah Malamud, Daniel Markovits, Sam Moyn, Bill Nelson,

Nick Parrillo, Robert Post, Judge Jenny Rivera, Mindy Roseman, Mark Tushnet, Laura Weinrib, John Witt, and

participants in the NYU Law Legal History Colloquium and the Yale Law School Legal History works-in-pro-

gress lunch series. Special thanks to Olivia O’Hea, Megan Lipsky, Chance Cochran, and the rest of the team at

the Georgetown Journal of Legal Ethics for excellent editing. This Article received the Fred C. Zacharias

Memorial Prize for outstanding scholarship in legal ethics from the American Association of Law Schools

Section on Professional Responsibility. It was originally scheduled for publication in 2020. © 2021, Noah A.

Rosenblum.

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the Article denaturalizes the ethical regime that governs impact litigation today

by showing how nearly it was radically different. The Article’s contributions

are descriptive and normative. On the descriptive level, it offers a revised

account of NAACP v. Button on the basis of new archival f‌inds. Normatively, it

seeks to champion Black’s race- and power-consciousness against Brennan’s

neutralism, showing what Black’s approach might have to offer legal ethics

today.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127

I. THE ETHICAL DILEMMAS OF PUBLIC INTEREST IMPACT

LITIGATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130

A. THE CONCEPT OF CAUSE LAWYERING . . . . . . . . . . . . . . . 131

B. CAUSE LAWYERING ETHICS: A HISTORICAL PROBLEM . . 132

1. EARLY PRECEDENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

2. ORIGINS OF MODERN LEGAL ETHICS. . . . . . . . . . . . . . . . . . 133

3. CAUSE LAWYERING PRACTICES IN COURT AND COMMISSION . . 137

C. CAUSE LAWYERING ETHICS: A CONCEPTUAL PROBLEM . 142

1. PROBLEM 1: CONFLICTS OF INTEREST . . . . . . . . . . . . . . . . . 143

2. PROBLEM 2: POLICY LITIGATION . . . . . . . . . . . . . . . . . . . . 145

II. THE REGIME OF NAACP V. BUTTON. . . . . . . . . . . . . . . . . . . . . 147

A. BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

B. BUTTON AND EGALITARIAN NEUTRALIST CAUSE

LAWYERING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

C. THE BUTTON REGIME: PROSPECTS AND PROBLEMS . . . . . 154

1. BUTTON’S RECEPTION AND ELABORATION . . . . . . . . . . . . . . 154

2. BUTTON’S INADEQUACIES . . . . . . . . . . . . . . . . . . . . . . . . . 159

a. The Absence of a Fee Does Not Obviate Conf‌licts of

Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

b. Button Did Not Resolve the Ethical Problems of

Policy Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

126 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 34:125

III. BLACK’S FORGOTTEN DISSENT . . . . . . . . . . . . . . . . . . . . . . . . 166

A. THE SAGA OF BUTTON. . . . . . . . . . . . . . . . . . . . . . . . . . . . 167

B. FRANKFURTER AND BLACK . . . . . . . . . . . . . . . . . . . . . . . 170

1. FRANKFURTER’S GRAY MAJORITY . . . . . . . . . . . . . . . . . . . . 171

2. BLACK’S GRAY DISSENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

C. FROM BLACK TO BRENNAN . . . . . . . . . . . . . . . . . . . . . . . 177

IV. THE BLACK ALTERNATIVE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

A. PROLEGOMENON: COUNTERFACTUAL HISTORY . . . . . . . 182

B. RACE- AND POWER-CONSCIOUS REASONING . . . . . . . . . . 183

1. CONFLICTS OF INTEREST IN LAWYER-CLIENT RELATIONSHIPS. . 184

2. CABINING POLICY LITIGATION BASED ON RELATIVE POWER . . 185

C. BLACK’S APPROACH IN (IMAGINED) PRACTICE . . . . . . . . 186

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

INTRODUCTION

Public interest impact litigation raises signif‌icant ethical dilemmas.

1

Scholars

have long examined the roots of these diff‌iculties and pursued avenues for resolv-

ing them. This Article takes a historical approach to these same problems. It

traces a pair of legal-ethics concerns back to the Supreme Court case of NAACP

v. Button, which laid the ethical foundation for modern cause lawyering.

2

The

Article argues that some of our ethics problems came from the frame that Justice

Brennan adopted in his majority opinion. Although Brennan was aware of the

legal ethics diff‌iculties public interest impact litigation presented, he hoped his

opinion would preempt them. It did not. This Article shows how that failure was

a result of tactical decisions Brennan made to create his majority. It proposes

that, from the perspective of legal ethics, an alternative approach, championed by

Justice Black, would have been more appealing.

The Article’s contributions are descriptive and historical as well as normative.

It reconstructs, on the basis of original archival research in the unpublished

papers of the Justices, how the Button regime emerged from the case of NAACP

v. Gray. As we will see, only the most extreme historical accident led Button to

come out as it did. As initially decided, the case looked very different.

3

There is a

1. See infra, Part I.

2. 371 U.S. 415 (1963).

3. See infra, Part III, “The Saga of Button.”

2021] POWER-CONSCIOUS PROFESSIONAL RESPONSIBILITY 127