Ethics of Amicus Counsel?

Over at Prawfsblawg, Ethan Leib has asked about the ethics duties that apply to counsel who file amicus briefs.  I've never run across that topic myself.  Any helpful suggestion on where to find an answer?

Comments

[David Giacalone]

John, what about an ethical responsibility to tell the client that amicus briefs have almost no bang for the buck? They are mostly ignored and very rarely have any impact.

[John Steele]

David:

I have always wondered about their effectiveness. The issue popped after the recent affirmative action cases came down, and people realized that a small number of amicus briefs were critical in swaying the swing vote -- but as I recall that was considered very unusual. I have been aware of many amicus briefs that I believed were done solely for the therapeutic value of the amicus. But I think that someone familiar with appellate chambers would have to weigh in, because I have very little empirical knowledge of the issue.

[David Giacalone]

Here are the first two paragraphs from a Law.com article dated April 15, 2005:

"U.S. Supreme Court Justice Ruth Bader Ginsburg had a confession to make recently: She does not read all the amicus curiae briefs filed in connection with cases before the Court.

"At a panel discussion sponsored by the National Association of Women Lawyers, Ginsburg said she has her law clerks arrange the briefs into three piles: must-read briefs; those she could skim or read selected pages from; and then, the "skip" pile that she does not need to read at all. The first pile, she said pointedly, is "very thin." The largest pile, she said sheepishly, is the "skip" pile."

From "Bench Pressed: A pair of high court justices offer advocates advice about the proliferation of amicus briefs." The rest of the article is very much worth reading at http://www.law.com/jsp/article.jsp?id=1113296708400

[John Steele]

Great stuff, thanks. That's what I always suspected.

[David Giacalone]

I'm not letting you off that easy, John. Shouldn't a lawyer make sure a client is fully aware of this situation, even if the client initiates the idea of using an amicus brief? What else whould giving independent advice, free of self-interest, and putting the client's interests first, mean?

[John Steele]

David:

I agree that the lawyer should educate the client about the efficacy. But the educated client can do what he or she wants. They may want to make a statement, or they may want to warn the court about a possibly unforseen consequence of certain rulings.

[David Giacalone]

You're right, John. As I replied to a Comment by Carolyn Elefant at my weblog: "Once the lawyer gives a full, frank disclosure, with good-faith estimate of the likely impact of an amicus brief, of the value of 'face time' and 'showing the flag,' etc., and of cost, it should certainly be up to the client to decide whether to file."

I also added: "Let's also remember that amicus briefs impose 'costs' on courts and the other parties. Perhaps we should be asking when it is frivolous to suggest that a court's deliberations would be aided in any colorable way by a particular amicus brief."

[John Steele]

It imposes costs, but it is a form of First Amendment speech (petitioning). As Madison said about a different First Amendment activity, "Some degree of abuse is inseparable from the proper use of every thing ...." 4 J. Elliot, Debates on the Federal Constitution of 1787, p. 571 (1876).

[David Giacalone]

Non-parties all have the right to tell a court how to decide a case before it? Interesting.

[John Steele]

Do non-parties have a right to tell an appellate court how to decide a case before it? Sure. It's called an amicus brief. (We've now come full circle, right?)

[David Hricik]

I authored one amicus brief once, for an IP association, and the Texas Supreme Court vacated its earlier opinion as a result of our brief. They do get read by some courts, or at least I can swear it happened once.

On the broader issue, though, it seems to me that a lawyer has an obligation to advise a client that the impact of any path might be nil, whether it's writing an amicus brief, or filing a motion for summary judgment. Is there really any difference?