Professors Serving as Amicus and Counsel for SCOTUS Scholars’ Briefs

February 4th, 2015

In recent years, there has been a proliferation of “scholars’ briefs.” (I have joined several). On some of the briefs, a Law Professor has served in two capacities: as both counsel and amicus. On the one hand, the scholar lends his or her academic imprimatur to the brief, providing additional credibility to the legal arguments in the brief. In theory, at least, arguments made by a scholars should receive more weight than arguments made by a regular lawyer. On the other hand, the professor serves as an advocate with a duty of zealous representation. In most cases, the client is a group of law professors, or organizations whose interests are aligned with the amicus. But, the same rules of professional responsibility apply.

I see that these two roles may be inherently in tension. The role of the scholar and that of the advocate is different. I don’t know that I can do both simultaneously. As a scholar, I go out of my way to charitably describe both sides of an argument (as best as I can). As an advocate, this tact would be foolish, and possibly unethical to the extent that it impaired my client’s case. As a professor, I would be hesitant to make an argument that hasn’t been completely thought through, as it may impact my scholarly reputation. As an advocate, especially in litigation that is moving quickly, a much more lax standard would apply to provide the tribunal with the best arguments counsel can muster. As an advocate there are certain arguments I would not be comfortable making as a scholar, and vice versa.

Granted, a lot of scholarship (mine included) veers towards advocacy. Further, this is not to say that scholars cannot contribute to the briefs. They should–a big problem with the scholars’ briefs is that the professors sometimes blindly sign their names to them.

Formally at least, having separate parties as amicus and counsel helps to keep the roles distinct.

Is there any etiquette on this? I welcome your thoughts on this question.

Update: My good friend Steve Vladeck post a thoughtful reply at Prawfs. I think our biggest point of disagreement is this:

Otherwise, what Josh is suggesting is that academic experts either not involve themselves in drafting the brief that is ultimately on their behalf, or not include themselves as one of the experts whenever they have helped to draft the argument–even when their academic expertise and their legal drafting perfectly dovetail.

That isn’t at all what I think. I wrote in my post “this is not to say that scholars cannot contribute to the briefs. They should.” The sole focus was whether the same professor should both join the brief as amicus, and sign on as counsel. The duties as an advocate under the model rules of ethics differ from norms as a scholars. Even though Law Professors write briefs on behalf of other scholars, they are still bound by duties of zealous representation. Ask yourself: are there any arguments that you would make in a brief that you would not make in a law review article. If the answer is yes, then you recognize the differing roles of the advocate and the scholar. If the answer is no, then you are not serving as a zealous advocate for your client. It is possible, but potentially problematic for professors to have it both ways. Even where the client is a group of professors, the same obligations apply. To advance the interests of your client, the author of the brief may decide to make arguments that wouldn’t fly in a law review. But if the author of the brief is also an amicus, the author’s scholarly reputation would limit such decisions.

Here is an example. I was once asked to join a scholars’ amicus brief in a case. The brief was excellent, and I agreed with 99% of it. But there was one sentence that I did not agree with as a scholar, and went in a direction that was different from the tenor of the brief. As a matter of law, it was a perfectly valid argument to make, but I was not comfortable lending my name to it. I told the author of the brief (a lawyer at a firm) that I would not join the brief unless that sentence was deleted. After some wrangling, the lawyer agreed to delete that sentence, and I joined the brief as amicus. Were I not only the amicus, but also the counsel, I don’t know if I could have pulled a similar move, especially if the other amici agreed with that sentence.

My point is not that all briefs where a professor serves as counsel and amicus are wrong. Rather, my point is solely to identify that a tension may arise.

Steve raises a number of important points, which I take as fair. But I can still see where these tension may emerge.

Also, with permission, I repost these comments from Sam Bagenstos (Michigan):

Interesting topic. I’m not a big fan of law professors’ briefs generally (though I think I joined one or two in my early days in the academy). But I think that serving as counsel-and-client actually mitigates some of the problems with such briefs. One problem with a law professors’ brief is that the brief trades on the scholarly reputation of the clients, but there is no particular guarantee that the clients wrote or approved of any particular language in the brief. Indeed, you would expect that the brief would be written by counsel, not the client (as at least one large law firm partner is learning right now). Serving as counsel and client means that the professor has to take a greater responsibility for what is in the brief. For myself, I prefer to represent clients who have a non-academic interest in the matter before the Court. The brief can explain how that interest will be affected (which I think is typically the most important function of an amicus brief anyway), then make an argument that will stand or fall on its own merits, and not based on the scholarly reputation of the client.

Update 2: David Ziff posts another thoughtful reply to my post. Here is a snippet:

Which brings us back to Blackman’s point. In the hypothetical, he’s both the lawyer and the client. Though he may be personally torn between a strong desire for a particular outcome (say, the dismantling of the Affordable Care Act) and a strong desire for another outcome (say, retaining credibility as a legal scholar), that’s the same sort of internal debate clients have all the time. And its the client’s decision that governs.

There’s no ethical problem because the client wins. If Blackman the amicus decides that he doesn’t want to advance an argument because it would run counter to his role as a public scholar, then amicus Blackman can just tell lawyer Blackman not to make that argument. Lawyer Blackman should do what amicus Blackman says because lawyer Blackman’s duty is to his client not to winning the case.

I think I agree with everything except the last sentence. When you file a brief in support of a party, you aren’t just advancing your client’s interest, but you are supporting the petitioner or respondent. Here, I think the brief in support of neither party plays an important role. But to the extent that you are choosing sides, and backing the petitioner or respondent, you do have some interest in seeing your preferred party win the case.