All lawyers have an obligation to advocate zealously on behalf of their clients. At the Supreme Court, however, a number of factors can complicate what we traditionally conceive of as “zealous client advocacy.” The effects of these unique circumstances can be positive. For example, unlike in most areas of the law, competition for pro bono work can be fierce in the Supreme Court arena. The prestige attached to Supreme Court cases provides an incentive for private firms to maximize their involvement in otherwise unprofitable projects. On the other hand, but relatedly, the insular nature of the appellate bar (the group of attorneys who regularly practice at the Supreme Court and in other appellate courts) enhances competition for cases, occasionally creating distorted incentives and often bringing cause-based and client-based models of advocacy into conflict.
Take, for example, a case appealed to the Court last term, Fox v. Fox. The petition seeking review described the case as raising an important issue for victims of domestic violence: Whether victims who flee across state lines may sue in their new home state for an abuse protection order when the abuser remains in the first state. The petition argued that the lower-court decision, by preventing victims from obtaining protection from courts in other states, made it more difficult for domestic violence victims to seek necessary legal protection.
However, a closer investigation of the briefs in Fox reveals that Supreme Court review was unlikely to help the vast majority of domestic violence victims and may have resulted in a decision that was contrary to their cause. As the opposition observed, the case in Fox involved a single physical altercation between an uncle and a nephew of similar age (not a traditional case of domestic abuse). Given these unusual facts, an outcome in favor of the uncle, the alleged victim, would likely not have applied to the majority of victims of such abuse because the protection orders in those cases implicate other laws that more seriously burden the defendant’s rights. Specifically, the Violence Against Women Act provides that anyone subject to an order of protection involving an “intimate partner” may no longer legally possess a firearm (an important restriction that the court would need to address in any case involving “intimate partners” — the vast majority of domestic violence cases, though not the Fox case). In other words, a Supreme Court victory for the plaintiff in Fox was unlikely to help the vast majority of domestic violence victims, but a loss may have prevented them from accessing courts in states where the defendant lacked a personal connection.
The Supreme Court ultimately declined to hear the case, but it raises the question of whether the decision to appeal was appropriate. For the particular client, the uncle, a Supreme Court appeal may have been his last opportunity to seek the protection order he desired. It could thus be argued that this was a quintessential example of zealous client advocacy—whether or not an adverse ruling would be harmful to future plaintiffs, a win in the Supreme Court would have helped Mr. Fox (the client in the case at hand). Another possibility is that the lawyers were enticed by the desire to maintain a well-functioning Supreme Court practice — an area of law that many lawyers find inherently prestigious and appealing. But for domestic violence victims generally, whose interests were also at stake, the appeal may have been a step too far.
Layered atop these complex considerations are the interests of yet another party: the lawyers. Mr. Fox was well represented in his Supreme Court appeal by an elite D.C. law firm, one of the select firms with Supreme Court specialists who compete over opportunities to appear before the Court. These attorneys arguably have an interest in maximizing their exposure at the Court.
Such competition can be positive. For example, unlike in most areas of the law, competition for pro bono work can be fierce in potential Supreme Court cases. The prestige that attaches to Supreme Court cases provides an incentive for private firms to provide indigent clients with quality representation at the highest levels of the law. This is particularly important because studies suggest that “litigants, in the aggregate, have considerably higher odds of success when they have Supreme Court specialists as their counsel.” In other words, advocacy matters. Thus, the incentives for experts to take on clients who are otherwise unable to garner highly skilled legal representation would appear to be a positive outgrowth of the prestige associated with appellate cases.
On the other hand, such competition occasionally creates distorted incentives for lawyers seeking their moment in the Supreme Court spotlight. Most litigators would jump at the opportunity to argue a case, any case, before the Supreme Court. As Nancy Morawetz, a Professor at NYU School of Law, put it: “[t]here are just too many lawyers chasing too few arguments.” In the most general sense, lawyers have an incentive to force cases up the appellate ladder, and this may not be in the best interest of either the client or the public. This hectic and competitive market can prevent lawyers from fully vetting a case or exploring alternative non-litigation-based options, such as settlement.
Even more distressingly, the allure of an appellate opportunity could incentivize lawyers to “throw” cases at the lower level to ensure that they have an opportunity to brief (or argue) at the higher court. While this extreme behavior is unlikely to occur very often (and certainly did not happen in Fox where the advocates only came into the case at the Supreme Court level), it is not uncommon to see attorneys ignore offers of pro bono assistance from more experienced advocates in order to preserve an oral argument for themselves. This practice is particularly problematic in high-stakes criminal litigation because ethical rules prohibit outside attorneys from contacting represented clients directly, and it is not always clear that attorneys make their clients aware of these opportunities.
In addition, the allure of an appellate argument and the client’s natural allegiance to their original attorney can cause all parties to forget the possible negative impact that an adverse ruling could have on similarly-situated individuals. This is particularly true at the Supreme Court, where rulings often have important implications outside of the case at hand.
In fact, tension of this sort often vexes relations between pro bono attorneys and cause-leaders who fear that prestige-hungry legal advocates will usurp their nuanced political strategies. On the flip side, litigants often feel that their individual rights have been usurped by a “movement” that has provided little support or personal recourse. For example, this issue arose in recent cases raising housing discrimination claims because cause-leaders felt that the cases were likely to generate negative rulings. Although the outcome ended up favoring the cause (in a 5-4 decision), at the time, many feared that the opposite outcome would functionally invalidate housing discrimination laws across the nation. Former civil legal attorney Andrew Scherer expressed this sentiment in a recent interview, stating “I do believe a decision going the other way would have essentially rendered housing discrimination laws meaningless. I have to say, I’m relieved.”
In many ways, Fox v. Fox is emblematic of these issues. By examining the complex issues in the case, we have a window into the convoluted realm of Supreme Court practice where personal prestige, high stakes public interest factors, and a concern for client welfare all press in differing directions. Thus, while there are many praiseworthy aspects of appellate practice, it is important for all advocates to remember that the legal process is “not purely a private good,” but “also an important public good.”
Brittany Jones is the president of the Stanford Law Review. Alex Twinem is one of the Stanford Law Review’s managing editors. Michael Qian is one of the Stanford Law Review’s executive editors. Danny Kane is one of the Stanford Law Review’s senior editors. Contact them at bjones2 ‘at’ stanford.edu, atwinem ‘at’ stanford.edu, mfqian ‘at’ stanford.edu and dkane ‘at’ stanford.edu.