The New York State Bar Association advised that lawyers within the same firm may submit opposing amicus briefs to the Supreme Court of the United States if they act individuals rather than under the firm’s name.
In Ethics Opinion 1174, the New York Bar Association answered a question posed by a lawyer in a law firm. Namely, could lawyers at the same firm submit opposing amicus briefs regarding the same pro bono matter? The New York Bar Association answered in the affirmative.
New York Rule of Professional Conduct 1.7 mirrors Model Rule of Professional Conduct 1.7 and prohibits a lawyer from representing a client whose “representation will be directly adverse to another client.” The ethics opinion acknowledged that once a firm establishes an attorney-client relationship, “the Rules governing conflict . . . [are] imputed to all lawyers in the firm” under Rule 1.10. Therefore, if the firm’s clients ask the firm to submit opposing amicus briefs, the firm would be prohibited from doing so because the attorney-client relationship has been established.
However, the advisory committee found the above scenario different from the question presented. When lawyers submit amicus briefs pro se—under their own names instead of under the firm’s name—they are acting in their own capacity. No attorney-client relationship exists, so they are not restrained by rule 1.7. As the committee noted, “we see 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.”
Read the full opinion here.
