Careers

Diversity, Equity & Inclusion

Experience

Innovation

Interactive Maps

Locations

About

Pages

Meet our team of innovators
Ask us how we do it

Professionals

Insights

Services

Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

Home | Thompson Hine LLP

Atlanta

Chicago

Cincinnati

Cleveland

Columbus

Dayton

Los Angeles

Minneapolis

New York

Silicon Valley

Washington, D.C.

<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4631" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/10/Courthouse-columns-227x300.jpg" alt="" width="227" height="300">It&rsquo;s been <a href="http://www.virginialawreview.org/volumes/content/amicus-machine">dubbed &ldquo;the Amicus Machine&rdquo;</a> &mdash; the seemingly limitless wave of amicus curiae filings in the nation&rsquo;s highest court.&nbsp; <a href="https://www.law.columbia.edu/news/2019/01/supreme-court-amicus-curiae-briefs">Statistics</a> from&nbsp;the Supreme Court&rsquo;s 2017-18 term reflect amicus briefs filed in every one of the&nbsp;63 argued cases, averaging&nbsp;14+ briefs per case.&nbsp;&nbsp;For the current term, it is <a href="https://www.scotusblog.com/2019/09/empirical-scotus-a-new-term-with-plenty-of-hype/">reported</a> 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:&nbsp; can the same law firm file amicus briefs on both sides of&nbsp;a Supreme Court case?
Be a real friend of the court
As an ethics <a href="https://www.merriam-webster.com/dictionary/wonk">wonk</a>, I admit I enjoy reading&nbsp;ethics opinions, and one of the side-pleasures is the little peek they sometimes offer on&nbsp;the inner workings of firms that pose ethics questions to their state bar ethics committees.
As&nbsp;<a href="http://www.nysba.org/CustomTemplates/SecondaryStandard.aspx?id=97104&amp;css=print">Opinion 1174</a>&nbsp;describes, a law firm circulated a proposal for its lawyers to&nbsp;provide pro bono services in support of&nbsp;a specific position in a Supreme Court case by preparing an amicus brief for filing with the Court.&nbsp;&nbsp;&ldquo;The response of the attorneys at the firm was mixed,&rdquo; the opinion reports.&nbsp; &ldquo;Some associates favored one side of the issue before the Court, while others wished to take the opposing view.&rdquo;&nbsp; Surprise!&nbsp; (Not.)
I can just picture the controversy at the firm&nbsp;and the e-mails flying back and forth while billable hours and productivity plummeted.
The firm&rsquo;s proposed solution, once it had stirred up&nbsp;this hornet&rsquo;s nest of dissension:&nbsp; Create two separate teams to work on their respective positions, with each group submitting its own amicus brief.&nbsp; That idea brought the firm to the door of&nbsp;the NYSBA Committee, asking:&nbsp; Can lawyers at the same firm file&nbsp;amicus briefs on opposing sides of the same issue before the same court?
Non-consentable conflict?&nbsp; Or what?
It depends, said the Ethics Committee.&nbsp; In a scenario where one or more clients have asked the firm&nbsp;to submit amicus briefs on opposing sides of an issue, the answer is &ldquo;No.&rdquo;&nbsp; New York&rsquo;s Rule 1.7, like <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_7_conflict_of_interest_current_clients/">Model Rule 1.7(b)(3),</a> bars a lawyer from representing clients on both sides of the same litigation or other proceeding before a tribunal.&nbsp; That would be the case under that scenario, and the conflict raised is not consentable, the Committee said.
Comment [17] explains that consent can&rsquo;t cure such a conflict &ldquo;because of the institutional interest in vigorous development of each client&rsquo;s position when the clients are aligned directly against each other in the same litigation.&rdquo;
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.&nbsp; Lawyers &ldquo;are as free as anyone else&rdquo;&nbsp;to represent themselves in litigation, reasoned the Committee, and it saw &ldquo;no ethical reason why attorneys may not appear in their own name (rather than in the name&nbsp;of the firm) as pro se amici on opposing sides of a question before the Court.&rdquo;
One caution, added the Committee:&nbsp; 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 &mdash; that information could affect the Court&rsquo;s evaluation of the competing amicus briefs.
Being part of the &ldquo;Amicus Machine&rdquo; can be&nbsp;a valuable opportunity for a firm or an individual lawyer, but as the law firm inquirer in Opinion 1174 learned, it can raise complications.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Can a law firm be on both sides as an amicus curiae?  New York weighs in