The ethics of opposing certiorari before the Supreme Court.

• Author: Tang, Aaron
• Position: II. Evidence of the Ethical Dilemma in Opposing Certiorari A. Supreme Court Experts Discuss the Conflict. 3. Survey: Question Four through Conclusion, with footnotes and survey results, p. 963-990

3. Survey: Question Four

Where Questions Two and Three asked respondents to provide an answer in hypothetical scenarios, Question Four asked attorneys to respond whether they had any experiences with cases where a respondent's counsel might have intentionally rigged a brief in opposition to increase their chances of arguing in the Court. The advantage of this question, of course, is that it asks directly what the hypothetical questions Two and Three seek to ascertain indirectly. The disadvantage is that asking attorneys about their personal experiences with such cases implicates the full-on problems of self-reporting bias: An attorney who has in fact seen a colleague or some other attorney soft-pedal an opposition to certiorari or who has done so himself may well be reluctant to admit to it even on an anonymous survey. (105)

Nevertheless, the results from the question are instructive. When asked whether they had ever come across a case in which an attorney provided less-than-zealous advocacy in opposing certiorari on behalf of a client because of the attorney's personal desire to argue in the Court, the survey respondents gave markedly different answers depending on their level of previous experience in the Court. None of the respondents who had handled between one and ten matters in the Court reported encountering such a situation, and among the responding attorneys who had been involved in between eleven and twenty-five cases, just three of thirty-five, or 8.6%, responded in the affirmative. (106) Yet among the survey participants with greater first-hand experience in the Court, those who had handled twenty-five or more cases, a far larger proportion--17.4%--reported knowledge of a case where an attorney compromised the quality of his representation for his client at the cert opposition stage because of a personal desire to argue in the Court. By way of comparison, respondents who handled more than twenty-five Supreme Court matters were more than four times more likely to have encountered an instance of improper attorney conduct than respondents with less than twenty-five matters (17.4% compared with 4.3%). Table 5 gives the data broken down by participant expertise level.

There are two primary explanations as to why survey participants who have been a part of more than twenty-five cases in the Court are so much more likely than the novice or intermediate experts to have encountered actual cases where a respondent's counsel has succumbed to a conflict of interests and improperly "thrown" a brief in opposition. First, to the extent that an attorney's selfish motivations in rigging an opposition brief are somehow revealed to other attorneys--whether to fellow lawyers in the attorney's firm, to amici, or to opposing counsel--it is possible that the most senior attorneys involved in the case (that is, those who have already handled a large number of cases in the Court) are more likely to be in a position to learn of the ethical misstep. Additionally, these seasoned Supreme Court veterans may, from experience working on briefs, be better at ascertaining when an attorney is providing less than zealous representation on a brief.

Second, survey participants who have handled more Supreme Court matters might be more likely to report knowledge of such conflicts simply because they have had more chances to encounter an attorney succumbing to the temptation, whether blatantly or more covertly. To the extent that it might be difficult to ascertain whether an attorney is truly not providing fully zealous representation, the finding that 17.4% of experienced Supreme Court attorneys report firsthand evidence of the conflict in action may only scratch the surface; it is conceivable that other cases of wrongful, self interested attorney action might exist where attorneys rigged their briefs in opposition without telling anyone or otherwise getting caught by another attorney.

In any event, the primary lesson to be gleaned from the responses to Question Four seems fairly straight-forward: the ethical dilemma is real and it is happening, albeit not in overwhelming numbers--ninety percent of the surveyed attorneys have not yet witnessed a case where the conflict adversely affected an attorney's ability to represent her client. (107) Survey respondents flagged two chief explanations for why such actual encounters with attorneys guilty of misconduct at the opposition stage may be so rare. The first explanation was that perhaps attorneys will find it fruitless to intentionally rig a brief in opposition because even if certiorari is granted, they might ultimately be replaced by a more experienced advocate for oral argument. As one respondent explained, the attorney who "does a poor job in hopes that cert will be granted against [the] client's interest" is one who "runs the risk of not being the attorney who argues the case in the end." (108) Second, respondents noted that counsel might prefer to challenge the cert petition zealously because if the Court grants, there is a substantial chance (nearly two-thirds) that the Court will reverse the decision below. (109)

Yet both of these constraints are more likely to check the regular Supreme Court practitioner than the attorney who seeks a once-in-a-lifetime opportunity to argue in the Court. First, the one-time attorney is less likely to represent a sophisticated client who will know whether to tire him if the cert opposition fails. Criminal defendants, for instance, often stick with their court-appointed lawyers and public defenders even after cert is granted. (110) Second, repeat players might care about win-loss records in the Court and thus prefer not to argue a case bottom-side, (111) but a one-time-only attorney might not. It might well be the simple act of getting to the Court, and not the result at the Court, that will impress the one-time-only attorney's peers and future clients the most. (112)

Ultimately, the responses to Question Four suggest that there is not a large number of cases in the Court that are so riddled with conflicts of interest that representation at the opposition stage is inescapably compromised. But we should be cautious to infer too much from the positive results. As one survey respondent emphasized, the conflict is not merely theoretical: "Several years ago I represented an amicus in a case in which the respondent's counsel confessed that she was pleased when cert was granted because of the opportunity to argue and hinted that she had not gone all-out on the cert opp." (113) In cases like this, however occasional they may be, there is a real risk of harm to the client, to judicial efficiency in the Supreme Court, and to the development of the law itself. (114)

2. Analyzing Actual Failed Briefs in Opposition to Certiorari

   Apart from survey data, an additional source of evidence exists concerning the ethical conflict in opposing certiorari: the briefings from Supreme Court cases in which an attorney's personal desire to argue at the Court might have had an actual adverse impact on the zealousness of the attorney's advocacy at the opposition stage. That is to say, where self-reported data can provide one angle of evidence on whether attorneys act against their client's best interests when opposing certiorari, an altogether different angle can be taken by examining actual opposition briefs to see the various ways in which an attorney might stealthily write an unpersuasive brief and undermine the client's chances for getting cert denied.

   It should be mentioned as a preliminary matter, however, that unlike the risk of false negatives in the survey data, where respondents were likely to understate the severity and frequency of the conflict because of self-reporting bias, the risk in looking at individual briefs in opposition as evidence of the conflict is a risk of false positives. There are two sensible explanations for why a brief in opposition to certiorari may have missed an important argument. The culpable explanation is that the attorney drafting the brief intentionally ignored a strong argument for why cert should be denied to increase his chances of arguing in the Court. But the innocent explanation is that the attorney simply missed the argument for lack of knowledge or expertise in Supreme Court practice. Thus, the following discussion of particular opposition briefs is not intended to suggest that intentional oversights occurred in any of the underlying cases, but rather to demonstrate that, for the respondent's attorney who is set on arguing before the Court, there are ways to write an ineffective brief in opposition without creating suspicion regarding the attorney's motives.

   Perhaps the easiest way to write an unpersuasive opposition brief is to concede a circuit split in a case where the circuit court of appeals below reached a result that might have been in conflict with that of another circuit. (115) Rule 10 of the Supreme Court Rules lists conflict among the circuit courts as its first consideration in deciding whether to grant certiorari review, and so naturally if an advocate concedes that such a split exists, that concession will have a profound effect on the Supreme Court's decision whether to grant certiorari. (116) This is what occurred in Weisgram v. Marley, where the petition for a writ of certiorari argued extensively that the decision of the Eighth Circuit below was in conflict with the established law in four other courts of appeals--the Fifth, Sixth, Ninth, and Eleventh circuits. (117) After citing relevant decisions from each of these conflicting circuits, the petition asked the Supreme Court to "grant the present petition for certiorari" to "maintain and secure the uniformity of decisions and to resolve conflicts between the Circuits" on the issue in question. (118)

   In light of the petitioners" argument that certiorari should be granted to resolve a conflict among the circuit courts of appeals, one might expect that...