by Paul Simmerly
Query: Is it legal malpractice for an attorney to fail to advise his/her client to offer payment or gifts to the U.S. Supreme Court Justices hearing their case?
On February 13, 2016, United States Supreme Court Justice Antonin Scalia died at a remote, ultra-exclusive, luxury West Texas hunting lodge, while staying there for free. The hunting lodge was owned by a businessman whose company had recently had a matter before the Supreme Court. The businessman’s company prevailed in the matter. See the New York Times article written by Eric Lipton which was reprinted by the Seattle Times: http://www.seattletimes.com/nation-world/scalia-took-the-most-expense-paid-trips-on-the-court/
According to the article: “Among the court’s members, (Scalia) was the most frequent traveler, to spots around the globe, on trips paid for by private sponsors…Though that trip has brought new attention to the justice’s penchant for travel, it was in addition to the 258 subsidized trips that he took from 2004 to 2014. Scalia went on at least 23 privately funded trips in 2014 alone to such places as Hawaii, Ireland and Switzerland, giving speeches, participating in moot-court events or teaching classes. A few weeks before his death, he was in Singapore and Hong Kong.”
There is no evidence that Justice Scalia was participating in any moot-court events or teaching any classes while staying at the resort.
Many experts in legal ethics, who teach legal ethics in law school to future lawyers, find nothing wrong with this practice.
Organizations opposed to these practices include the Center for Responsive Politics, Fix the Court and Common Cause.
Congresswoman Louise Slaughter, D-N.Y., and U.S. Senator Chris Murphy (D-Conn) re-introduced the Supreme Court Ethics Reform Bill in April, 2015 to force the Supreme Court to adopt a code of ethics for Supreme Court Justices. The same bill was originally introduced in 2013. As Congresswoman Slaughter states on her website:
“The questionable activities of some of our Supreme Court justices have been well documented – participating in political functions, failing to report family income from political groups, and attending fundraisers. It doesn’t make sense that members of the highest court in the land are the only federal judges exempt from the code of conduct. Our bill, the Supreme Court Ethics Act would, for the first time, make sure the justices adhere to the federal code of conduct and are accountable for these types of ethically dubious activities. Perhaps more importantly, the bill would help repair the public’s trust in the Court, the final arbiter of justice in America.”
“In 2012, 212 legal scholars jointly urged the Supreme Court to adopt the Code of Conduct for U.S. Judges. To date (April, 2015), more than 130,000 Americans have signed a petition to Chief Justice John Roberts asking him to adopt a code of ethics for the court.”
There were 127 co-sponsors of the Supreme Court Ethics Reform Bill – all Democrats.
To date, no legislation has been passed and no code of conduct has been adopted.
Since Congress, many legal ethics professors and the Supreme Court itself say that gift giving and payments to Justices are acceptable, and since it is obviously a very common practice, is it fair to say that gifts and payments are encouraged? Is this the standard of care in legal practice? Therefore, should attorneys and their clients with cases before the Court be encouraged to offer gifts and payments to Supreme Court Justices? Stated another way, is it legal malpractice for an attorney to fail to advise his/her client to offer such gifts or payments?
About the Author: Paul E. Simmerly is a freelance journalist and blogger writing about legal, judicial, political, governmental, corporate and pharmaceutical industry corruption and misconduct.