Friday, August 25, 2017

Ghostwriting Oppositions to Cert. Petitions: Common? Ethical?

It is a common practice for esteemed lawyers to ghostwrite briefs in opposition to cert. From the National Law Journal:

Top U.S. Supreme Court advocates are not known for hiding their talents. But some of them hide their names, in a little-known but long-standing practice that has gotten renewed attention and criticism this summer.

We’re talking about lawyers leaving their names off a “brief in opposition”—the brief that is filed by appellees to urge the high court not to grant certiorari in a case they won below. These briefs generally counter the cert petition by arguing that there is no circuit split or that the case is unimportant or a poor vehicle for resolving the issue that the petition raises.

To underscore their “move along, nothing to look at here” assertions, top Supreme Court advocates who write these briefs in opposition sometimes omit their names from the brief, instead listing the lawyer who handled the case below as the counsel of record. The rationale is that if justices or their clerks see “big name” lawyers on the brief, they may think that in fact the case is important, will be well-argued, and should be granted review—a result that would be against the client’s interest.

According to a reporter’s survey of prominent lawyers, there is nothing unethical about the practice. You can read more here.


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