N.Y. Attorneys from Same Firm Sometimes Can Take Opposite Sides

Oct. 15, 2019, 8:55 PM

New York attorneys at the same firm can submit friend-of-the-court briefs on both sides of an issue if they’re acting in their individual capacities, the New York State Bar Association’s ethics committee advised.

But they can’t submit the briefs if the firm is representing a client on one side of the issue, the Oct. 15 opinion said.

An attorney at a New York law firm posed the question after it asked for attorneys to work pro bono on a brief to be submitted to the U.S. Supreme Court.

Some attorneys preferred one side of the issue, while others wished to take the opposing view, the committee noted. So the firm “proposed creating two mutually exclusive teams to work on their respective positions, with each group submitting its own amicus brief,” it said.

If a firm is representing a client on an issue, even if it’s on a volunteer basis, such a scenario would violate several professional conduct rules, the opinion said.

A firm’s loyalty might be questioned because of the potential conflict of interest, it said.

But the committee said 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.”

The firm should, however, consider disclosing to the Supreme Court that the attorneys working pro se on opposing sides are affiliated with the firm, it said.

The opinion is is N.Y.S. Bar Ass’n Comm. on Prof’l Ethics, Op. 1174, 10/15/19.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Rebekah Mintzer at rmintzer@bloomberglaw.com

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