Why Top Advocates Are Ghostwriting SCOTUS Briefs

, Supreme Court Brief

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The practice of ghostwriting briefs in opposition to a grant of certiorari has been getting some attention this summer. We took an informal poll to see how common it is for lawyers to omit their names from briefs—and to ask if the long-standing practice is ethical.

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What's being said

  • John Donson

    I think that Mr. Samuel may be conflating issues when he states “I have a problem with this [ghostwriting] practice, because I have a problem with lawyers lying to courts." On the one hand is a case where a lawyer writes a brief (in whole or in part) for a party that claims to be appearing pro se, and the lawyer‘s name does not appear on the brief. Courts have rejected this "ghostwriting" practice as misleading. Lawyers who are caught doing it face discipline (e.g. Patton v. West, 276 F. App’x 756, 757 n. 1 (10th Cir. 2008)). On the other hand is a case where a lawyer writes a brief (in whole or in part) for a client, but her name is not included on the brief with other lawyer(s)‘s names who (a) also represent the client, and (b) is responsible for the brief. This is common and accepted practice in firms consisting of several partners and associates, and with clients lucky(?) enough to have multiple firms on one case. The signature block hardly ever contains the name of every associate and partner who contributed "in whole or in part" to the brief. That is no more misleading or deceitful than if a denizen of the SCOTUS bar contributed to the brief instead of an anonymous associate or partner(s). Anonymous associates and partners are capable of making persuasive arguments too. This was a fun 7 minute exercise.

  • Martin

    Would these folks be against use of pen names as well? Surely the substance of what is said plays a much larger role than who claims credit for it. You not only have to get someone‘s attention with a "big name," you have to keep it. Mr. Samuel, there is no lying involved.

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