At his blog, Josh Blackman has some thoughts about law professors taking on dual roles in amicus briefs: professor signing the brief as lawyer and professor signing onto the brief as client amicus. Blackman thinks these dual roles may be in tension. I think there may be a tension there, but not the ethical one Blackman discusses.
As a lawyer and scholar, Blackman notes the following problem:
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.
This supposed dilemma illustrates the illusory nature of the problem. It reminds me of a hearing I saw while clerking in district court. I forget most of the details, but the issue involved a minor plaintiff in a litigation who had a guardian ad litem and then a lawyer representing the GAL. The parties were arguing about the appointment of another GAL (or something) and the child’s lawyer kept talking about needing someone to represent the child’s interest as the plaintiff in this litigation.
Judge Lynch (correctly, in my view!) rejected this line of argument. The child does not have an interest in the litigation separate from the child’s general interest. It may be in the child’s interest to voluntarily dismiss the litigation, or settle for less than full value, or refuse to assert different claims. But the child has an interest and the litigation is just part of that. The fact that there are competing factors in that decision does not mean the child needs different representatives to zealously advocate for each factor.
Another example: Saks Fifth Avenue’s recent argument that Title VII does not prohibit discrimination against trans folks. Sure, that’s a defensible legal argument, and a “zealous” advocate whose only interest is winning the litigation would certainly make it. But the lawyer’s client (Saks) has interests other than just winning the litigation. Asserting that trans people are not covered by workplace discrimination laws might be against that interest.
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 it’s 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.
Now, that’s the case of Blackman as sole amicus writing on his own behalf. Things get a bit more interesting if (in his second example) there’s a group of scholars and they are all signing on to a single brief. What if Blackman disagrees with a line in the brief? He provides such an example, and notes that he was able to pressure the author to remove the line by giving an “It’s either me or that line” ultimatum.
He asks whether he “could have pulled a similar move” if he was both amicus and counsel for the group. I’m not sure why that raises a separate question. Blackman still could have told the group he was going to remove his name as amicus “client” if that sentence stayed. And if the group decided the sentence was going to stay, Blackman would be free to leave as client. The question then: Does he stay on as lawyer now that he disagrees with a portion of the brief. My sense is that, consistent with his ethical obligations, he could choose to withdraw if that’s what he wanted to do. Or he could stay on as long as he continued to zealously advocate for the amici’s views, despite his disagreement with that one line.
The tricky issue here seems to be more about multi-client groups and the need for the group to come to some consensus about litigation strategy. That problem is not unique to amicus briefs: groups of clients come together all the time as defense groups or plaintiff groups, whatever. Sure, there is a possibility of tension there, but each individual client has competing internal interests: stay in the group and maintain the efficiency gains, the bigger stage, the better lawyer, etc., or leave the group and foot your own bill while getting to say exactly what you want. (I wrote previously about this “problem” in the context of state attorneys general and the original ACA case here, here, and here. Preview: I defend Washington’s former AG, Republican Rob McKenna, against charges of lying to Washington voters.)
But again, I don’t see that as a problem. The lone scholar amicus in a group has to weigh, in her own mind, the cost/benefit of staying in the group vs. not participating at all vs. participating on her own. Whatever decision she makes is fine for her. And regardless of what that individual decides, the lawyer for the amici has to represent the will of the group.