OBA Ethics Counsel
Ethics Opinion No. 79
Adopted September 21, 1934
The Board is in receipt of the following request for an advisory opinion:
"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?"
"May not many undiscovered evils arise and grow out of such practice if tolerated?"
"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?"
"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?"
"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.