By Jeff Michalowski
In recent years, amicus briefing has played an increasingly significant role in appellate practice. This is true, of course, in blockbuster Supreme Court cases like Dobbs (in which 133 amici filed briefs) and Obergefell (in which 149 amici filed briefs). But amicus briefs consume more and more of practitioners’ time in the intermediate appellate courts as well, and occasionally in the trial courts, too. Consider Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (identifying 257 amicus briefs in same-sex marriage case). See also Allison Orr Larsen, “The Amicus Machine,” 102 Virginia Law Review 1901 (2016) (noting the increased use of amicus briefs, and increased citation to amicus briefs in opinions).
What ethical considerations apply when attorneys take on this unusual role — representing a non-party client’s interests, often in coordination with a non-client party, while also aspiring to serve as a genuine friend of the court?
Rule 3.3 — The Duty of Candor
Under Rule 3.3 of the California Rules of Professional Conduct, a lawyer shall not “knowingly make a false statement of fact or law to a tribunal …” In the context of amicus briefs, three unique issues arise under Rule 3.3.
Disclosure of Authorship
Under many courts’ rules, amicus briefs must include factual disclosures about whether any party authored or funded the brief. See, e.g., Sup. Ct. R. 37.6 (“[A] brief filed under this Rule shall indicate whether counsel for a party authored the brief in whole or in part and whether such counsel or a party made a monetary contribution intended to fund the preparation or submission of the brief, and shall identify every person or entity, other than the amicus curiae, its members, or its counsel, who made such a monetary contribution to the preparation or submission of the brief.”); see also Fed. R. App. Proc., R. 29(a)(4)(E) (requiring authorship and funding disclosures); Cal. R. Ct. 8.520(f)(4) (same). In turn, Rule 3.3 of the Rules of Professional Conduct requires that statements of fact, including the factual content of these required disclosures, may not be knowingly false.
In many cases, the rules are easy enough to follow. If a party’s counsel drafts the brief or pays for it, that must be disclosed. If amicus counsel acts alone, there is nothing to disclose.
But in practice, while outright ghostwriting is likely rare, coordination between amicus counsel and counsel to a party is common, and possibly even the norm. At what point, then, does coordination cross the line into “author[ing] the brief … in part,” such that the rules would require disclosure? Would a conversation about appellants’ high-level aspirations for amicus support cross the line? Almost certainly not. Would a set of narrative comments about a draft brief cross the line? That too, falls short of common understandings of “authorship.” What about line edits to phrases or grammar, a proposed sentence insertion, or addition of a proposed section — are these editorial tasks that fall short of authorship, or do they constitute “author[ing] the brief … in part? The rules do not provide a direct answer, but at this point in the continuum, both appellate practitioners and legal ethicists will certainly start to sound alarms.
Disclosure of Funding
The disclosure rules regarding funding would seem to be easy enough to apply. If an entity other than the amicus client pays amicus counsel for their work, either through hourly payment or a flat fee, then disclosure is required by court rule, and in turn, by the duty of candor. If the amicus client pays its own way, then there is nothing to disclose.
But the question of who actually “funds” a brief can sometimes be murky. While non-profit interest groups are often the entity appearing on the pleading, the entity’s funding can sometimes be derived from member companies, organizations, or individuals. Need they be disclosed? The rules do not say, but at a certain point — for example, when an entity contains an unusually small number of members —candor may counsel in favor of disclosure. No court or state bar appears to have addressed these issues directly, but as amicus practice becomes more established, discussion of the disclosure requirements has taken on greater urgency. For example, the Judicial Conference’s Advisory Committee on Appellate Rules, at its October 13, 2022 meeting, debated two working proposals for new disclosure requirements to the federal rules: (i) a requirement to disclose whether a party or its counsel has “a majority ownership interest” of a legal entity submitting the brief; and (ii) whether a party or its counsel has contributed 25% or more of the gross annual revenue of an amicus during the twelve-month period preceding the filing of the amicus brief. The committee’s discussions are ongoing.[1]
Assertions of Fact
Amicus counsel must also be cautious with the factual statements made in their briefs, too, as Rule 3.3 bars inclusion of knowingly false statements. It does not matter that amicus counsel is not representing a party to the action. Rule 3.3 bars counsel from making any knowingly false statements of fact “to a tribunal,” regardless of who counsel represents.
Indeed, the problem with false statements in amicus briefs is especially acute because the parties will have a limited ability to test amici’s factual assertions. While the record on an appeal will ordinarily consist of facts tested through discovery and the adversarial process, amicus briefs often present extra-record evidence that the parties and the trial court never had an opportunity to address.
This is not necessarily a bad thing. At their best, amicus briefs can do a great service. Consider “Justice Breyer Calls for Experts to Aid Courts in Complex Cases,” N.Y. Times, Feb. 17, 1998 (amicus briefs “play an important role in educating judges on potentially relevant technical matters, helping to make us not experts but educated lay persons and thereby helping to improve the quality of our decisions.”).[2] But at their worst, amicus briefs can introduce “factual” evidence that would never survive challenge under the rules of evidence. Consider Allison Orr Larsen, “The Trouble with Amicus Facts,” 100 Virginia Law Review 1757 (2014) (“In a digital world where factual information is exceedingly easy to access, more amici than ever before can call themselves experts and seek to ‘educate’ the Court on factual matters.”).
This presents unique opportunities for counsel for amici. Even after the close of evidence and briefing, and without the restrictions of the adversarial process and rules of evidence, they have an opportunity to present the Courts with new facts, scientific opinions, and scholarly conclusions. But this also imposes a weighty responsibility. Counsel who take their duty of candor seriously, as well as all counsel who wish to be taken seriously by the courts, should take pains to ensure that their factual assertions in amicus briefs are (i) truthful; and (ii) supported by citations to reliable sources.
Rule 3.1(a)(2) — Meritorious Claims and Contentions; Rule 3.3(a)(2) — Failure to Disclose Controlling Authority
Under Rule 3.1(a)(2), “a lawyer shall not … present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.”
Must counsel for amici comply with Rule 3.1? They arguably do not — amici do not assert “claims” or “defenses” in litigation. While amici may make arguments or present facts, assertions of “claims” and “defenses” is left to the litigants.
But attorneys who disregard Rule 3.1 in amicus briefing do so at their peril. Even if Rule 3.1 does not apply, counsel for amici who assert unfounded claims may run afoul of Rule 3.3(a)(2). Specifically, Rule 3.3(a)(2) provides that a lawyer shall not “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel …”
This is not to say that counsel for amicus should refrain from creative arguments, or that they should merely reiterate the parties’ briefs. Such an approach may add little value. See Ryan v. Commodity Futures Trading Com’n, 125 F.3d 1062, 1063 (7th Cir. 1997) (Posner, J.) (“The vast majority of amicus curiae briefs are filed by allies of litigants and duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief. Such amicus briefs should not be allowed. They are an abuse. The term “amicus curiae” means friend of the court, not friend of a party.”). But counsel must be mindful of Rule 3.3(a)(2), and ensure that if they are arguing for a change of law, they must first call out all controlling authority they seek to modify.
Conclusion
Amicus briefing presents a range of issues under the Rules of Professional Conduct that have not yet been elucidated by the courts or the state bar. These issues, however, may well receive further attention in years ahead, especially if amicus practice continues to play such an outsized role in appellate practice. The proliferation of amicus briefing shows no signs of slowing, and if anything, courts are considering rules that would decrease barriers to filing of amicus briefs. See Proposed Revisions to Rules of the Supreme Court of the United States (March 2022) (proposing elimination of rule requiring leave of court before filing amicus brief).[3] In the meantime, counsel for amici should take care to comply with the Rules of Professional Conduct, and should pay careful attention to the duty of candor, which has implications both with respect to the disclosure of authorship and funding, and also for the factual and legal content of the brief.
[1] See Advisory Committee on Appellate Rules, Meeting of October 13, 2022, pp. 105–113, available at: https://www.uscourts.gov/sites/default/files/appellate_agenda_book_october_2022_final.pdf.
[2] Available at https://www.nytimes.com/1998/02/17/us/justice-breyer-calls-for-experts-to-aid-courts-in-complex-cases.html.
[3] Available at https://www.supremecourt.gov/filingandrules/2021_Proposed_Rules_Changes-March_2022-redline_strikeout_version.pdf.