It’s been dubbed “the Amicus Machine” — the seemingly limitless wave of amicus curiae filings in the nation’s highest court.  Statistics from the Supreme Court’s 2017-18 term reflect amicus briefs filed in every one of the 63 argued cases, averaging 14+ briefs per case.  For the current term, it is reported that groups have already filed over 260 amicus briefs on the merits.

And this week brought a New York State Bar Association ethics opinion on an interesting issue:  can the same law firm file amicus briefs on both sides of a Supreme Court case?

Be a real friend of the court

As an ethics wonk, I admit I enjoy reading ethics opinions, and one of the side-pleasures is the little peek they sometimes offer on the inner workings of firms that pose ethics questions to their state bar ethics committees.

As Opinion 1174 describes, a law firm circulated a proposal for its lawyers to provide pro bono services in support of a specific position in a Supreme Court case by preparing an amicus brief for filing with the Court.  “The response of the attorneys at the firm was mixed,” the opinion reports.  “Some associates favored one side of the issue before the Court, while others wished to take the opposing view.”  Surprise!  (Not.)

I can just picture the controversy at the firm and the e-mails flying back and forth while billable hours and productivity plummeted.

The firm’s proposed solution, once it had stirred up this hornet’s nest of dissension:  Create two separate teams to work on their respective positions, with each group submitting its own amicus brief.  That idea brought the firm to the door of the NYSBA Committee, asking:  Can lawyers at the same firm file amicus briefs on opposing sides of the same issue before the same court?

Non-consentable conflict?  Or what?

It depends, said the Ethics Committee.  In a scenario where one or more clients have asked the firm to submit amicus briefs on opposing sides of an issue, the answer is “No.”  New York’s Rule 1.7, like Model Rule 1.7(b)(3), bars a lawyer from representing clients on both sides of the same litigation or other proceeding before a tribunal.  That would be the case under that scenario, and the conflict raised is not consentable, the Committee said.

Comment [17] explains that consent can’t cure such a conflict “because of the institutional interest in vigorous development of each client’s position when the clients are aligned directly against each other in the same litigation.”

But the result is otherwise, the Committee said, in a scenario where the lawyers in the firm only propose to appear pro se, and not on behalf of any client.  Lawyers “are as free as anyone else” to represent themselves in litigation, reasoned the Committee, and it saw “no ethical reason why attorneys may not appear in their own name (rather than in the name of the firm) as pro se amici on opposing sides of a question before the Court.”

One caution, added the Committee:  the firm should consider whether the Supreme Court would expect lawyers appearing pro se on opposite sides of an issue to disclose their affiliation with the same firm — that information could affect the Court’s evaluation of the competing amicus briefs.

Being part of the “Amicus Machine” can be a valuable opportunity for a firm or an individual lawyer, but as the law firm inquirer in Opinion 1174 learned, it can raise complications.