In an article about government lawyers, I described the phenomenon of what I called "runaway lawyers" -- government lawyers who define for themselves the objectives of their legal work rather than deferring to a client's objectives.
As described in this Wall Street Journal Law Blog piece, the Seventh Circuit may have thought that the U.S. Solicitor General (SG) Donald Verrilli was a “runaway lawyer.” Rather than relying exclusively on his representation of the government’s views, the court wanted to hear more directly from other government departments.
Here’s what happened:
In March, the Seventh Circuit ruled against Motorola in the company’s private antitrust case against foreign competitors. The court explained that a contrary ruling could "'creat[e] friction' with other nations."
In April, the Justice Department filed an amicus brief asking for en banc review of that decision. That brief expressed concern that the court’s March ruling could undermine the Justice Department’s "ability to prosecute foreign cartels."
In May, the Seventh Circuit asked the State and Commerce Departments to provide their views on the case.
On May 19, SG Verrilli sent the court a short letter explaining "that no such concern was warranted" because the government was not aware of "complaints from other countries about its price-fixing prosecutions of foreign manufacturers that were later sued by Motorola."
Three days later, the court ordered SG "Verrilli to 'identify by name the officials . . . that he consulted with, the nature of the consultation, and the meaning of the statement in the Solicitor General’s letter that the Solicitor General’s amicus curiae brief ‘reflects the views of the United States.’”
The following day, the court withdrew that order. Perhaps it ran across 28 USC § 516, the statute giving the Justice Department the authority to represent the government in court.