Can you delegate the briefwriting to your client?

Posted by Scott Stolley, Thompson & Knight

The obvious answer is "no." Although the client can certainly have input into the briefwriting, it is counsel's ultimate responsibility to file a brief that complies with the rules.

Despite this obvious answer, the U.S. Supreme Court actually had to reinforce the point recently. In December 2014, when denying a petition for writ of certiorari, the Court simultaneously issued a sua sponte order for petitioner's counsel to show cause why he should not be sanctioned for the petition he filed. (Click here to read the order.)

As reported in the media, the petition was impenetrable, jargon-packed, and very unconventional. (Click here to read a Law 360 story.) In response to the show-cause order, petitioner's counsel filed an impassioned plea for mercy, explaining that his client had "insisted on retaining primary control over the substance of the petition." (Click here to link to a SCOTUS blog story that links to the response filed by counsel.)

On March 23, 2015, the Court issued an order discharging the show-cause order, but reminding all members of the Supreme Court bar that "they are responsible -- as Officers of the Court -- for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated 'in plain terms,' and may not delegate that responsibility to the client." (Click here to find the order.)

So the Court has reminded the Bar that caving to a client's wishes can be perilous. We cannot delegate to the client the responsibility for complying with a court's briefing rules. This, of course, is consistent with ethics rules and standards of conduct, including the Texas Standards for Appellate Conduct.