Lawyering suits pile up at High Court

From client advice to attorney fees to ineffective assistance of counsel, the U.S. Supreme Court decided an unusually large number of cases last term involving how lawyers do their jobs.

The justices took up 16 cases -- 10 of which were fully briefed and argued, and six of which were disposed of in per curiam -- unsigned -- decisions. In total, the lawyering cases amounted to nearly 20 percent of the Court's decision docket.

Professor Renee Knake of Michigan State University College of Law, who teaches professional responsibility and has been tracking the cases, said the large number of lawyering cases is "nothing short of a revolution" in the field of lawyers' ethics and something that all lawyers need to note. During a typical term, she said, the Court hears one to three cases addressing the role of attorneys or the practice of law. Since 1998, the high-water mark was five cases in the 2003 term.

"It's always a little bit sort of arrogant to try to infer simply from data points that there are any big substantive themes here. That being said, I think it is a remarkable number," said Stephen Vladeck of American University Washington College of Law, who was amicus counsel in one of the cases. "Even if it's a coincidence, it's noteworthy."

Two Categories

Knake sees the cases from last term falling into two broad categories: limits on legal representation and protection from bad lawyering. For Knake, the "most interesting group" of cases is the one involving access to lawyers. She puts six of the 16 cases into this category. "Of those decisions, five came down in ways not favorable to attorneys or clients in terms of encouraging access to legal advice and lawyers generally," said Knake. "One, where the Court found in favor of attorney fees, encourages and facilitates access to lawyers."

Milavetz v. U.S. and Holder v. Humanitarian Law Project, she said, involve federal statutes that can be understood to prohibit particular advice to clients. In Milavetz, the justices rejected a Minnesota law firm's First Amendment challenge to a provision of the federal bankruptcy reform act that bars lawyers from advising clients to incur additional debt if they are contemplating bankruptcy.

In the Holder case, the Humanitarian Law Project mounted an unsuccessful First Amendment challenge to the federal criminal law prohibiting "material support" to designated terrorist organizations. "The anti-terrorism statute can be fairly read to encompass advice a lawyer would give to an entity designated as a foreign terrorist organization," said Knake. "Although the Court's holding was very narrow, there is something to the concerns of the dissenters as to the chilling effect on a broad range of materials and acts that fall under this, including, as was said during oral argument, a lawyer's filing of an amicus brief on behalf of a terrorist organization."

The Court also decided three cases involving federal fee-shifting statutes: Perdue v. Kenny A; Hardt v. Reliance Standard Life Insurance Co.; and Astrue v. Ratliff.

In Kenny A, the justices reversed a fee enhancement awarded for extraordinary results by the lawyers in long-running, complicated and successful litigation against the state of Georgia. Writing for the 5-4 majority, Justice Samuel Alito Jr. set the bar high for enhancements for a lawyer's superior performance. He said they only would be available in "rare" and "extraordinary" circumstances and when the lodestar calculation does not adequately measure the attorney's true market value.

In an opinion by Justice Clarence Thomas, a unanimous Court in Astrue made it harder for attorneys to collect fee awards in Social Security benefit cases. The justices held that fee awards under the Equal Access to Justice Act are made to the client, not to the lawyer, and the federal government may offset awards to collect pre-existing debts.

Good News

But there was good news in Hardt, in which Thomas, writing again for the full Court, said that a party seeking to recover attorney fees and costs in an Employee Retirement Income Security Act case does not have to be a "prevailing party." Instead, the Court held that fees and costs may be awarded if the claimant has achieved "some degree of success on the merits."

Knake and business lawyers put into the "bad news" category the sixth case: Mohawk Industries v. Carpenter.

In this case, the Court decided whether a party -- here Mohawk -- could immediately appeal a discovery order to disclose materials that it claimed were covered by the attorney-client privilege. Justice Sonia Sotomayor, writing for a 9-0 Court, said discovery orders that appear to violate the attorney-client privilege cannot be appealed immediately under the collateral order doctrine. She said an appeal after trial and other review mechanisms were sufficient to protect the rights of the party claiming the privilege.

Mohawk drew support from the American Bar Association and the U.S. Chamber of Commerce.

"Justice Sotomayor said quite a lot about how important the privilege is, but at the end of the day, the Court declined to protect it through the collateral order doctrine," said Knake. "One of the consequences is the party involved is less likely to be forthright when seeking advice from an attorney for fear they would be exactly in this situation. In my mind, that goes to full advice from your lawyer. The Court didn't protect the privilege as fully as it could have."

Vladeck, who filed an amicus brief in Mohawk on behalf of former federal judges and law professors opposing the company, said, "People less optimistic than I can look and say, 'The Court didn't seem worried about the lawyers in Milavetz, or about the attorney-client privilege in Mohawk.'

"Some justices, looking from their own experience, are not in a position to empathize with lawyers bringing these kinds of cases," he said. "I don't know that we can take any big picture away, but there are a lot of ways in which lawyering matters in contemporary litigation and, for better or worse, the Supreme Court seems to be finally realizing that."

Bad Lawyering

Protection from bad lawyering -- particularly ineffective assistance of counsel -- was the largest category of attorney cases at the Court this term. "We can say we're seeing more error correction by the Court in this category than we used to see," said high court veteran litigator Roy Englert of Washington's Robbins, Russell, Englert, Orseck, Untereiner & Sauber. "Why is the tougher question."

He suggested the justices have decided that, for some reason, it is important for them to correct errors in both directions -- for and against the defendant. They may also have determined that the lower courts don't have enough guidance or are making too many egregious mistakes that cry out for correction by the Supreme Court.

The cases in this category involved standards for finding ineffective assistance in a variety of situations: defense lawyers who gave horribly poor closing arguments; offered wrong advice about the consequences of a guilty plea; were too inexperienced to handle a capital sentencing phase; and missed a critical filing deadline on a capital appeal. There also was a case on civil liability for prosecutors who sought and used false testimony at trial.

The results are a mixed bag for defendants. The prosecutor case -- Pottawattamie County v. McGhee -- settled after arguments. In two other argued cases, the defendants emerged victorious. In Padilla v. Kentucky, the Court ruled that lawyers must inform defendants weighing a guilty plea of the immigration consequences of such a plea. And in Holland v. Florida, in which a defense lawyer missed a critical filing deadline, the justices held that the habeas filing clock can be equitably tolled in certain circumstances.

Ineffective assistance of counsel claims did not succeed in Smith v. Spisak and Wood v. Allen, the closing argument and inexperienced counsel cases, respectively. But the Court, in per curiam rulings, handed success or a second chance to defendants alleging such claims in Porter v. McCollum and Sears v. Upton. Not so fortunate were the defendants in per curiam decisions in Bobby v. Van Hook, Wong v. Belmontes and Jefferson v. Upton.

Calling it "wild speculation on my part," Englert suggested that the Court's ineffective assistance of counsel precedent -- Strickland v. Washington -- provided an "abstract" set of standards. The justices may have learned, in the 26 years since Strickland was decided, that those standards are so abstract that they are easily malleable by the lower courts. To achieve consistency, they may now see that Strickland is not enough.

Like American University's Vladeck, Englert, who filed an amicus brief in Spisak supporting the defendant, said he resists the tendency to look for trends for the sake of trends.

But, he added, "I do think the number of cases was so remarkable this term, and the fact that the justices pushed in both directions does suggest some critical mass of the justices, consciously or subconsciously, embarked on a project."

(Published by – July 5, 2010)

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