Can lawyers at the same firm file amicus briefs on opposite sides of the same issue before the same court?

Plain-English summary

A law firm circulated a proposal for attorneys to volunteer pro bono on an amicus brief to the U.S. Supreme Court. The associates split, with some favoring one side of the issue and others the opposing view, so the firm proposed forming two mutually exclusive teams, each preparing its own amicus brief for its side. The inquirer asked whether lawyers from a single firm may submit amicus briefs on opposing sides of the same issue before the same court.

The opinion explains that submitting an amicus brief is normally legal work done for a client, not work the lawyer does on the lawyer's own behalf, so once an attorney-client relationship forms the full set of Rules applies. The conflict rules in 1.7, 1.8, and 1.9 are imputed to all lawyers in the firm under Rule 1.10(a). Building on N.Y. State 968 (2013), the committee resolves the question that opinion left open: Rule 1.7(b)(3) bars a lawyer from representing clients on both sides of the same litigation or proceeding, and that prohibition reflects not just the clients' interests but the interests of the public and judiciary in the adversary system functioning as it should.

Applying that, the committee holds the firm may not submit amicus briefs on opposing sides where it has one or more clients asking it to do so, and that this is true whether the clients are outside clients or lawyers within the firm. A firm can form an attorney-client relationship with its own lawyers (N.Y. State 789 (2005)), and if it does so to file an amicus brief, the same prohibition applies as for an outside client. The committee distinguishes the second scenario from N.Y. State 968: lawyers are as free as anyone to pursue legal remedies and may serve as their own clients (N.Y. State 527 (1980)), so the committee sees no ethical bar to firm lawyers appearing pro se, in their own names rather than the firm's, on opposite sides of the question. The committee adds that the firm should consider whether the Supreme Court would expect lawyers appearing pro se on opposite sides to disclose their shared firm affiliation, since that affiliation could affect the Court's evaluation of the competing briefs.

In practice

Under this opinion, if a firm's lawyers are representing clients (including other firm lawyers treated as clients), the firm may not file amicus briefs for both sides of an issue before the same court; Rule 1.7(b)(3) makes that a non-consentable conflict imputed across the firm. The opinion holds that lawyers may instead appear pro se in their individual capacities on opposing sides, because a lawyer acting only for himself is not representing a client. The committee notes the court may expect those pro se lawyers to disclose their common firm affiliation.

Common questions

Q: Can two teams at one firm file amicus briefs for opposite sides of the same case?

A: Per the opinion, no, not when the lawyers are doing the work for clients. Rule 1.7(b)(3) bars a firm from being on both sides of the same proceeding, and Rule 1.10(a) imputes that bar to every lawyer in the firm.

Q: Does it matter that the "clients" are the firm's own lawyers rather than outside clients?

A: Per the opinion, no. A firm can form an attorney-client relationship with its own lawyers (N.Y. State 789), and if it does so to file an amicus brief the same prohibition applies as for an outside client.

Q: Is there any way firm lawyers can take opposing positions in the same matter?

A: Per the opinion, yes, by appearing pro se in their individual names rather than the firm's. A lawyer serving as the lawyer's own client is not representing a client, so Rule 1.7(b)(3) does not bar it.

Q: Do the pro se lawyers have to disclose they work at the same firm?

A: The committee suggests the firm consider whether the court would expect that disclosure, because the shared affiliation could affect how the court weighs the competing briefs; it does not impose disclosure as a rule requirement.

Background and rules framework

The opinion turns on New York Rule 1.7(b)(3), which makes it a non-consentable conflict for a lawyer to represent clients on both sides of the same litigation or proceeding before a tribunal, together with Rule 1.10(a), which imputes one lawyer's conflicts under Rules 1.7, 1.8, and 1.9 to all lawyers in the firm. Rule 1.2(a) (client controls the objectives of the representation) frames the amicus work as client-directed legal work. These correspond to ABA Model Rules 1.7, 1.10, and 1.2. The opinion builds on and resolves a question expressly left open in N.Y. State 968 (2013).

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.2(a) (and Comment [1]); 1.7; 1.7(a)(2); 1.7(b)(3); 1.8; 1.9; 1.10(a)
• ABA Model Rules 1.7, 1.10, 1.2 (analogues)

Cases:

• The opinion concerns amicus practice before the Supreme Court of the United States (no decided case is cited as authority)

Other opinions cited:

• N.Y. State 968 (2013): firm lawyers adverse to one another; question of opposing-side representation left open and resolved here
• N.Y. State 789 (2005): a firm may form an attorney-client relationship with its own lawyer
• N.Y. State 527 (1980): a lawyer may serve as the lawyer's own client

See also

• NY State Bar Op. 1185: Conflict in Defending Two Clients in Related Prosecutions
• NY State Bar Op. 1186: Legal Aid Society Screening and Separate Law Firms

Source

• Landing page: https://nysba.org/ethics-opinion-1174/