24 Geo. J. Legal Ethics 659 (2011)
Ethical Duties of Expert Supreme Court Counsel

handle is hein.journals/geojlege24 and id is 667 raw text is: Ethical Duties of Expert Supreme Court Counsel
KIRSTiN LUSTILA*
INTRODUCTION
Although the Supreme Court has in recent years heard on average only eighty
cases per year,' much of the national news media attention directed at the
judiciary focuses on the Court and the cases that come before it. Members of a
fairly cohesive group-the expert2 attorneys who make up what has been
described as the professional Supreme Court bar-increasingly argue more and
more of the cases3 that go before the Court. Recent commentators have examined
this concentrated group of expertise and concluded that expert advocates are
more likely to prevail on petitions for certiorari4 (cert) at the Court than
non-experts.5 Because the Supreme Court has a limited number of spaces on its
docket, competition for cert-worthy cases is fierce.6 This competition extends
to pro bono as well as paying clients.
Yet the nearly automatic availability of expert Supreme Court assistance for
* J.D., Georgetown University Law Center (expected May 2012); B.A., George Washington University
(2006).
1. The Supreme Court's website lists ninety-two opinions for the October 2009 term, eighty-three opinions
for the October 2008 term, and seventy-three opinions for the October 2007 term. Opinions, SUPREME COURT OF
THE UNrrED STATEs, http://www.supremecourt.gov/opinions/opinions.aspx (last visited Mar. 6, 2011). The Court
had scheduled seventy-eight argument sessions for the October 2010 term at the time this Note was written.
Argument Calendars, SUPREME CoURr OF THE UNITED STATEs, http://www.supremecourt.gov/oral-arguments/
argument calendars.aspx (last visited Mar. 6, 2011).
2. This Note adopts the definition of expert developed by Professor Richard J. Lazarus:
an expert in Supreme Court advocacy is an attorney who has either him- or herself presented at least
five oral arguments before the Court or is affiliated with a law firm or other comparable organization
with attorneys who have, in the aggregate, argued at least ten times before the Court.
Richard J. Lazarus, Advocacy Matters Before and Within the Court: Transforming the Court by Transforming
the Bar, 96 GEO. L.J. 1487, 1502 (2008).
3. See infra notes 17-19.
4. A petition for certiorari is the document through which a party appeals a lower court decision to the
Supreme Court. The petition must detail the legal question(s) on review, the facts of the case, and the legal
argument for review. Sup. CT. R. 14. For more on the certiorari process, see Joseph W. Swanson, Experience
Matters: The Rise of a Supreme Court Bar and its Effect on Certiorari, 9 J. APP. PRAc. & PRocEss 175, 182-88
(2007).
5. See, e.g., Lazarus, supra note 2; Swanson, supra note 4.
6. See Nancy Morawetz, Counterbalancing Distorted Incentives in Supreme Court Pro Bono Practice:
Recommendations for the New Supreme Court Pro Bono Bar and Public Interest Practice Communities 10-11,
28 (N.Y.U. School of Law, Pub. L. Research Paper No. 10-71, 2010), available at http://ssrn.com/abstract=
1685513.
7. See Lazarus, supra note 2, at 1557.

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