The ethics of opposing certiorari before the Supreme Court.

• Author: Tang, Aaron
• Position: Introduction through II. Evidence of the Ethical Dilemma in Opposing Certiorari A. Supreme Court Experts Discuss the Conflict 2. Survey: Questions Two and Three, p. 933-963

1. THE UNIQUE ETHICAL DILEMMA OF OPPOSING CERTIORARI II. EVIDENCE OF THE ETHICAL DILEMMA IN OPPOSING CERTIORARI A. Supreme Court Experts Discuss the Conflict 1. Survey: Question One 2. Survey: Questions Two and Three 3. Survey: Question Four B. Analyzing Actual Failed Briefs in Opposition to Certiorari III. THE HARMFUL EFFECTS OF THE ETHICAL DILEMMA IN OPPOSING CERTIORARI A. Harm to the Client B. Harm to the Judiciary IV. POSSIBLE SOLUTIONS TO THE ETHICAL DILEMMA IN OPPOSING CERTIORARI CONCLUSION INTRODUCTION

   Of all the pursuits one might undertake to attain distinction in the American bar, perhaps none is quite so exalted as arguing a case before the Supreme Court of the United States. Kannon Shanmugam, a partner at the D.C. law firm Williams & Connolly, who has argued before the Court eleven times, describes the experience as "exhilarating" and "humbling." (1) Mayer Brown special counsel Charles Rothfeld, who has argued twenty-five cases in the Court, characterizes Supreme Court oral arguments as "extraordinary" and a highly "sought-after commodity," especially given that the Court hears only eighty of so cases each year. (2) Indeed, it might fairly be said that the chance to argue before the Court is so highly esteemed that its value is beyond quantification, opening doors to high-paying opportunities in private practice (3) and offering a unique opportunity to litigate issues of national significance. (4) To stand at the podium in our nation's highest court is to share in a distinction held by giants in our nation's legal history--figures such as Daniel Webster, Robert Jackson, and Thurgood Marshall.

   As the Supreme Court's docket grows smaller and an emerging class of "Supreme Court experts" snags a greater portion of that docket with every passing year, (5) the value associated with each rare opportunity to argue before the Court continues to rise. The rising value has driven the legal academy to pay greater attention to the arduous process of persuading the Court to take on a case through its certiorari review. (6) Elite Supreme Court practices have focused on the certiorari process as well, because the number of merits cases to which they will have access--and substantial fees--ride on the success of the petitions for certiorari they file. (7) The Stakes have gotten so high with respect to the Court's decisions on "cert" petitions that the popular website SCOTUSblog now has a regular "petitions to watch" column discussing certiorari petitions with a high chance of being granted (8) and conducts live chats on mornings when the Court issues orders to provide instant analysis on newly granted cases. (9)

   Persuading the Court to grant a petition for certiorari, however, is not the only way for an advocate to land an elusive Supreme Court oral argument. After all, the attorneys who prevail at the petition for certiorari stage take on only half of the sum total of oral arguments available. The other half belongs to the attorneys who lose at the petition stage and who, as a result, will be called before the Court to defend the merits of the judgment below. (10) This Article's core premise is that greater attention must be paid to this set of Supreme Court oral advocates and the incentives they face. Attorneys who lose at the opposition stage might nevertheless enjoy a personal "win" in the form of an opportunity to argue at the Supreme Court; as a result, there is an ex ante ethical dilemma for attorneys tasked with opposing certiorari. This dilemma, in turn, might well have important downstream effects on clients who prevailed below and who, unlike their attorneys, would therefore prefer not to be in the Supreme Court at all.

   An example may serve to highlight the significance of this dilemma. In September 1999, the Court granted certiorari in Weisgram v. Marley Co., a case concerning the circumstances in which an appellate court may properly issue a judgment asa matter of law that effectively reverses the trial court's verdict. (11) One of the attorneys who would argue the case before the Supreme Court was a local North Dakota practitioner named Christine Hogan. (12) After the argument, Hogan published an essay in the American Bar Association's Journal describing the entire experience, her first in the Court. (13) 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." (14)

   Of course, it was fair for Hogan to be stunned: the Court's decision to grant was statistically unlikely, in that the odds of cert being granted in any given case are less than 1%. (15) It might have been inappropriate, however, for Hogan to be so excited as to rank the Court's decision to grant certiorari as "right up there" with good news like her wedding day and births of her children. That is because Hogan's client, a manufacturing company named Marley Co., had prevailed in the court below. The Supreme Court's decision to grant certiorari could thus lead only to bad news for her client: at worst the Court would reverse the decision below and reinstate a $600,000 damages award against the client, (16) while at best it would affirm the decision below after the client had forked over substantial attorneys' fees to Hogan for her additional work.

   Hogan's declaration of excitement is particularly perplexing given that her client was likely to lose in the Supreme Court: when the Court takes up a case, it reverses the decision below nearly two-thirds of the time. (17) In other words, the expected value of the Court's decision to grant the case was a loss of at least $400,000 for her client. (18) Viewed in that light, it is difficult to understand Hogan's elated response; surely she would not have had the same reaction had a jury returned an initial verdict of $400,000 against her client at trial. (19)

   So why was Hogan so excited about the Court's decision to grant certiorari? Hogan herself provides the answer: like so many other attorneys across the country, she wanted to argue before the Supreme Court. She describes herself as a "Supreme Court junkie" who had long wondered "what it would be like to stand at the lectern before the Supreme Court." (20) After the reality set in that she would have the chance to do so, she characterized the occasion as "a once-in-a-lifetime opportunity that I only had dreamed would happen to me." (21) It cannot be said that Hogan is unique in this regard--many appellate attorneys would similarly relish an opportunity to argue at the Court. (22)

   Yet, this raises a pressing dilemma. For attorneys like Hogan who would cherish the chance to argue before the Supreme Court, the personal benefit that will be enjoyed by losing at the certiorari stage--that is, the benefit of becoming one of the few, esteemed attorneys to appear before the Court (23)--might be diametrically opposite to what is best for the client who has prevailed below and who obviously would prefer to win at the certiorari stage and never have counsel set foot in the U.S. Supreme Court Building at all. Our system of discretionary Supreme Court review thus appears to lay the groundwork for an inevitable conflict of interests between a client and her attorney when it comes to opposing certiorari. This Article addresses that conflict.

   The Article proceeds in four parts. Using the basic principal-agent framework, Part I examines the conflict inherent in opposing certiorari. As is the case in any agency relationship, the attorney often will entertain and act on personal incentives that diverge from those of the client. Common examples include disputes over attorneys' fees and settlement offers. (24) Such disagreements, although often distasteful, generally are understood to be a part of the game, perhaps a necessary tradeoff for the benefits that may accrue from employing an attorney. (25) But these ordinary examples of client-attorney agency problems are different in kind from the divergence of interests between the client and her attorney in opposing certiorari. In the fee and settlement context, there is no question that the attorney still wants to win for her client; the question is instead how she will win--perhaps by charging more hours than warranted of by pressing the client to take a less than ideal settlement. By contrast, the attorney opposing certiorari is driven to do exactly what the client would not have him do: lose. Part I draws out the unique contours of this conflict and the ways in which it differs from typical client-attorney ethical disputes. Part I also considers how other aspects of an attorney's motivations, such as reputational concerns, might mitigate the severity of the conflict in certain contexts.

   Part II turns from theoretical to experiential. I begin by presenting the results of an informal survey of 116 attorneys who work in the Supreme Court practice groups of major D.C. law firms, many of whom have prior experience in the Solicitor General's office. Although the respondents do not reach a consensus on whether the ethical problem inherent in opposing certiorari can be said to rise to the level of a "conflict of interest," many believe the answer is yes--including a majority of the thirty-four respondents who have handled more than fifty matters before the Supreme Court. (26) Indeed, eight of the forty-six respondents (17.4%) who have handled more than twenty-five matters before the Court report having knowledge of a case where an attorney provided a "less than zealous representation on a brief in opposition to certiorari due in part to a personal desire to argue before the Court." (27) Survey respondents also suggest that the conflict of interest has a greater effect on attorneys who are first-time players in the Supreme...