Was it ethical for a lawyer to inject himself into a pending case as amicus curiae, and to seek or solicit work as an amicus?

Plain-English summary

The inquiry posed five questions about amicus curiae practice: whether a stranger to a long-pending Supreme Court case could inject himself as an amicus and file a brief without notice to counsel of record; whether undiscovered evils could arise from tolerating the practice; whether an amicus might become a proponent sought by one of the litigants; what the amicus's paramount motives and disclosed interest should be; and whether it is ethical to seek and solicit practice as an amicus.

Answering questions 1 through 4, the Board explained that "amicus curiae" implies the friendly intervention of counsel to remind the court of some matter it might otherwise overlook, and is sometimes applied to counsel heard because interested in a similar case. Because an amicus appears only by the court's permission, whether at the court's own motion or on the amicus's application, the court has ample power to prevent abuses. An amicus interested in a similar case should disclose that fact, and like candor should attend a voluntary intervention. Once permitted to appear, the amicus must present his views fairly and honestly, becoming not the proponent of any party but the proponent of the principles of law he believes applicable. Professional courtesy would call for serving copies of briefs on all counsel, but because such appearances rest in the court's discretion, only the court may decide whether and how notice is given.

Answering question 5, the Board concluded that it is not ethical for a member of the bar to solicit "practice" as an amicus curiae.

Currency note

This opinion was issued in 1934, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The broad prohibition on solicitation it applied was later narrowed by constitutional decisions. Subsequent rule amendments and case law may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer file an amicus brief in a pending case without notice to the parties' counsel?

A: The opinion explained that an amicus appears only by the court's permission, and that because the appearance rests in the court's discretion, the court alone decides whether and how notice of the intervention is given.

Q: Must an amicus who is interested in a similar case disclose that interest?

A: Yes. The opinion stated that an amicus interested in a similar case should disclose that fact, and that like candor should prevail on a voluntary intervention.

Q: Could a lawyer solicit work as an amicus curiae?

A: No. The opinion concluded that it is not ethical for a member of the bar to solicit "practice" as an amicus curiae.

Background and rules framework

The opinion did not cite a numbered Rule of Professional Conduct; it applied the canon-era understanding of the amicus curiae role, the duty of candor to the court, and the prohibition on solicitation of business, all drawn from the ABA Canons of Professional Ethics. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

The opinion cited no rules, statutes, or cases by number.

See also

• Okla. Bar Ethics Op. 74: Lawyer business cards in a newspaper column
• Okla. Bar Ethics Op. 75: Title examiner soliciting the owner to quiet title

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-79/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted September 21, 1934

The Board is in receipt of the following request for an advisory opinion:

"Question 1."

"After a case has been pending for a period of three years in the Supreme Court, and the attorneys of record have filed their briefs, and reply briefs, is it ethical practice for a stranger to the case to inject himself in the case as an Amicus Curiae, and prepare to file a brief, without having given attorneys of record notice of same?"

"Question 2."

"May not many undiscovered evils arise and grow out of such practice if tolerated?"

"Question 3."

"If the practice be tolerated as above suggested, may not the Amicus Curiae lawyer become the proponent who will be sought for by one or other of the litigants?"

"Question 4."

"What should be the paramount motives of a lawyer, who asks the court for permission to appear as an Amicus Curiae and what interest, if any, should be manifest in his advice to the court?"

"Question 5."

"Is it ethical for a lawyer, to seek and solicit practice as an Amicus Curiae?"

In response to questions 1, 2, 3, and 4:

The phrase "Amicus Curiae" implies the friendly intervention of counsel to remind the court of some matter which might otherwise escape its notice and in regard to which it might commit error; the term is sometimes applied to counsel heard in a cause because interested in a similar case.

The assistance of an Amicus Curiae may be requested by the court of its own motion, or it voluntarily may be offered in an application for permission to appear as Amicus Curiae. Inasmuch as in either case the Amicus Curiae appears only by the permission of the court it is thought that the court has ample power to prevent abuses.

If appointed by the court the Amicus Curiae, if interested in a similar case, should disclose that fact to the court; like candor should prevail upon the voluntary intervention of the proposed Amicus Curiae.

Once permitted to appear, it is the duty of the Amicus Curiae to present his view to the court fairly and honestly. It is but natural that he becomes, not the proponent of any of the parties in interest, but the proponent of those principles of law which he believes to be applicable to the case.

Proper professional courtesy would require the Amicus Curiae to serve copies of briefs or suggestions upon counsel for all interested parties. Inasmuch, however, as appearances by Amici Curiae are allowed only in the discretion of the court, it alone has the power to determine whether notice of the intervention of an Amicus Curiae should be given and, if so, how.

In response to question 5:

It is not ethical for a member of the bar to solicit "practice" as an Amicus Curiae.