Do we owe any zeal or duty to “the Cause?”
Yesterday I had a nice chat with a notorious civil rights attorney. We will call him “CRA” even though it won’t be hard for many of you to deduce his identity. We were discussing our mutual frustrations over the factual and procedural posture of a case pending before a Big Important Court. CRA was unhappy that a criminal defense attorney (whom we will call CDA) chose to advance a “Cutting Edge” Appellate Argument on direct appeal on behalf of a client who, shall we say, does not exactly elicit sympathy among the general public. More importantly for present purposes, the case does not present the Cutting Edge Appellate Argument as effectively as some others would, and this particular Big Important Court is unlikely to go out of their way to help out this client or the Cause.
This turned to a discussion of a certain kind of zeal among CDA-type appellate lawyers which causes us to blind ourselves to the rest of the world when evaluating potential appellate issues. I suspect this doesn’t come up very often with retained appellate lawyers because they are less likely to pursue almost-certain-to-lose claims and, if they bothered to take the case, they probably thought they had some colorable shot at winning the appeal on some well-established basis. Or else
their billing rate is too high they are too busy to chase waterfalls. But when you’re appointed on appeal, you have a constitutional and ethical duty to raise at least one non-frivolous legal issue, so long as you have one or more from which to choose.
But let’s leave aside the eccentricities of appointed representation on direct criminal appeal. (For those of you who are interested, I have a riveting CLE presentation on the ethics of Anders briefing I’d love to deliver at your next meeting.)
The broader question is what consideration, if any, should be given to “the Cause” when deciding which issues to press on behalf of a client?
CRA, like most attorneys involved primarily in issue advocacy, believes that an advocate should give careful consideration to the broader legal landscape and other plaintiffs/ criminal defendants/ immigrants / [other marginalized group] before raising a “longshot” issue. As my high school band director used to ask, “Are you helping or hurting?” CRA seems to believe that, where ultimate success is unlikely (for any number of reasons, such as bad forum, bad posture bad
client facts), an attorney has no business messing things up for everyone else. If you are not likely to help your client, then you should probably not do anything to hurt everyone else’s clients.
CDA, on the other hand, ignores the rest of the world when evaluating issues for a legal challenge, be it an appeal, pretrial motion, or petition for judicial review. The issues are typically limited to: (a) is this argument sanctionably frivolous? (b) is it possible that this argument would benefit my client? and (c) would raising this argument (in addition to others) distract attention from or use up pages which could be devoted to more promising arguments? If the answers are Yes, No, No, then CDA is going to raise the issue, come heck-or-high-water.
An unfortunate corollary to this approach is the most creative or cutting-edge legal arguments are raised for the first time in some of the worst cases. (Sorry Joel.)
From a utilitarian perspective, CRA seems to have the stronger argument. This is the view adopted by almost everyone who has any semblance of a Supreme Court practice, as well as most immigrants’ rights organizations whom I’ve petitioned at various times for amicus briefs. Indeed, one of the (many) advantages possessed by appellate prosecutors is that they typically have a single decisionmaker (Solicitor General or Attorney General) who can make strategic, screening decisions about which cases deserve an appellate push. There’s no ethical dilemma for a prosecutor or other “institutional” lawyer, because she represents the same client in each appeal. The “cause” is the “client.” So a decision to forego an argument (or an entire appeal) to save it for another day is consistent with both goals.
But what about the rest of us? Should we all work together to appoint a Solicitor General on behalf of the Little People?
I’m sure we all fall along a spectrum. Despite my comments above regarding maximum utility, my “gut” reaction is more consistent with CDA’s. What about you? How much consideration do you give to “the cause” when deciding which cases to take or which issues to argue? Do those considerations only come into play when the issue under consideration is a probable loser?
Note: This post was inspired in part by Mark Bennett’s post on zeal.Uncategorized