Legal Commentary

Interesting story in The New York Times yesterday on the rise of Supreme Court specialist practices, including clinics associated with several top law schools, seeking out pro bono cases to bring before the Court. The piece points to several conflicts and problems this creates, including the divergence of interests between cause lawyer and client that I discussed earlier today.

But the article actually points out (unfortunately without fully elaborting) a different conflict--between causes lawyers representing and seeking to further different, often conflicting, causes. Many Supreme Court practices are interested in getting cases before the Court, not necessarily in moving the law in a particular direction. Of course, the goal is to win the case, which is not going to pit them against the particular clients they are taking on in that case, who similarly want to win and who often lost in the court of appeals and have no other options. Rather, the real conflict is with the specialist bar in a given substantive area, which has an interest in the shape of the law and which often wants only the "right" case to reach the Court at the right time.

The story centers around Humberto Fernandez-Vargas, the petitioner in Fernandez-Vargas v. Gonzales, as an illustration. After Fernandez-Vargas lost his immigration case in the Tenth Circuit, a lawyer from Mayer Brown stepped in to take the case and argue it before the Court. Certainly Fernandez-Vargas and his original lawyer were on board with having Mayer take the case, since Fernandez-Vargas had lost in the court of appeals and was going to be deported anyway--the "human stakes" in the case supported exhausting every last option. The disapproval came from the immigration bar, which feared (correctly it turned out) that the Court would use the case to create unfavorable national law, which is less palatable thanmaintaining a circuit split in which some circuits (notably, in this case, the Ninth) have more favorable law.

In other words, the purported bi-lateral conflict between cause lawyers and clients is too simplistic. There are a host of conflicts among different lawyers and types of lawyers and different clients and types of clients--often all in the same case.