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Appellate Practice

Last Week You Saw Larry Tribe’s Name on US Supreme Court Brief, This Week You Don’t

Posted Feb 11, 2011 8:19 PM CDT
By Martha Neil

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Last week, a brief filed with the U.S. Supreme Court in an environmental case listed Laurence Tribe as counsel of record.

This week, a substitute brief filed in the same case omitted the renowned Harvard Law School professor's name but is substantively the same.

The unusual change was made at the request of the U.S. Department of Justice, because Tribe formerly worked for the DOJ, which represents a party in the case, according to a Greenwire article published in the New York Times.

Tribe declined to comment when contacted by Greenwire. However, another lawyer now listed on the brief as counsel of record says Tribe had been given to understand by the DOJ's ethics office that it would not be a problem to have his name on the brief.

Meanwhile, says attorney Tristan Duncan of Shook Hardy & Bacon, "my clients are very upset" because the DOJ, in effect, is "interfering with my clients' right to hire the counsel of their choosing."

But the DOJ says it made clear from the outset the need to comply with a statute restricting former employees from certain representations.

"When the Justice Department was contacted regarding Professor Tribe's participation in this case, he was advised that the post-employment statute barred him from being included as counsel of record in this matter, one in which the department represents a party," says a written statement provided to the ABA Journal by a DOJ spokeswoman. "This statutory restriction does not bar behind the scenes advice to a client."

Related coverage:

ABAJournal.com: "Laurence Tribe Leaves DOJ Job, Cites Symptoms of Brain Tumor"

Updated on Feb. 14 to include and accord with DOJ statement.

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