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.”
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.”