Amicus Briefs

Guidelines

APRL will consider filing an amicus curiae brief in an appropriate case under the following guidelines:

Any request for APRL to appear amicus curiae will be forwarded to the Public Statements Committee (“PSC”) who will review the briefs and other relevant material in the case and make a recommendation to the Board. The Board will consider the PSC’s recommendation and make the final determination whether an amicus curiae brief by APRL is appropriate and advisable.

In deciding whether an amicus appearance by APRL is appropriate and advisable, the PSC and the Board shall consider the following factors and any other factors they consider pertinent:

  • Whether the case presents an important issue of professional responsibility;
  • Whether there is a resolution of the issue that is consistent with and would advance the interests of APRL and its members;
  • Whether participation by APRL would likely contribute to an improvement in the law or to improved understanding or articulation of the law;
  • Whether the proposed position is consistent with past APRL public statements touching the same issue and, if not, whether there have been factual or legal developments or other good reasons that support a departure from prior APRL statements;
  • Whether APRL members represent parties or other amici curiae already involved in the case;
  • Whether appearing in the case amicus curiae would further APRL’s mission and APRL’s goal of enhancing appreciation of and respect for the core values of the legal profession among lawyers and members of the public alike; and
  • Whether one or more APRL member lawyers are available and willing to write the amicus brief.

 

January 2017

APRL filed an amicus in support of a petition for certiorari challenging New York Judiciary Law §470. The law prevents non-resident lawyers from practicing in New York if they do not maintain a physical office for the transaction of law business within the state. Currently, there are more than 134,000 non-resident New York lawyers.

Attorney Ekaterina Schoenefeld, who practices in New Jersey and is a member of the New York bar, challenged §470 as a violation of the Privileges and Immunities Clause under the U.S. Constitution. A judge of the United States District Court for the Northern District of New York found the law to be unconstitutional in a 2008 decision but a divided U.S. Court of Appeals for the Second Circuit subsequently overturned this decision in 2016, ruling that Schoenefeld had not proved that §470 was “enacted for a protectionist purpose.” Schoenefeld then petitioned the U.S. Supreme Court for review.

At stake in the Schoenefeld case is the ever-expanding population of lawyers who live and practice outside their states of admission, and whether States can burden these lawyers by requiring them to maintain a costly physical office that does not contribute to their practice or clients. Under the law as it now stands, New York admitted lawyers who reside within the state, and lawyers in many states who maintain multijurisdictional practices, are ethically permitted to operate “virtual law offices,” often from their homes, and can take advantage of modern advances in telecommunications and information sharing in order to efficiently and effectively serve their clients. But §470 creates the anomaly for New York admitted lawyers who are not resident in New York that they must maintain a physical office within the state.

APRL’s brief was drafted and filed by the law firm of Hinshaw & Culbertson attorneys Joel Bertocchi and Anthony Davis, together with Ron Minkoff and Tyler Maulsby of Frankfurt Kurnit Klein & Selz, P.C.,  Mr. Davis , Mr. Minkoff are both long time APRL members and past Presidents.  The organization thanks them and their firms for the excellent work.  The brief is available here: SCHOENEFELD APRL amicus FINAL

July 11, 2013
On July 11, 2013, the Supreme Court of Georgia addressed the same issue decided the day before by the Supreme Judicial Court of Massachusetts regarding the availability of of the attorney-client privilege for communications between lawyers and their law firm’s in-house counsel. In St. Simons Waterfront, LLC v. Hunter, MacLean, Exley & Dunn, P.C., Case No. S12G1924, the court reached the same result, holding that the privilege is available in those situations. The APRL amicus brief can be downloaded or viewed below.

View or download the full opinion [pdf]

July 10, 2013
On July 10, 2013, the Supreme Judicial Court of Massachusetts issued a decision in RFF Family Partnership, LP v. Burns & Levinson, LLP, Case No. SJC-11371, that recognized the availability of the attorney-client privilege for communications between lawyers and their law firm’s in-house counsel provided the following four conditions are satisfied: “(1) the law firm has designated an attorney or attorneys within the firm to represent the firm as in-house counsel, (2) the in-house counsel has not performed any work on the client matter at issue or a substantially related matter, (3) the time spent by the attorneys in these communications with in-house counsel is not billed to a client, and (4) the communications are made in confidence and kept confidential.” In issuing its decision, the court acknowledged the amicus briefs of APRL, the American Bar Association; the Attorneys’ Liability Assurance Society, Inc.; and the Boston Bar Association. The APRL amicus brief can be downloaded or viewed below.

View or download the full opinion

February 25, 2013
The Brief Amicus Curiae in RFF Family Partnership, LP v. Burns & Levinson, LLP, Case No. SCJ11371, before the Supreme Judicial Court of Massachusetts.

Download pdf

January 24, 2013
The Brief Amicus Curiae in St. Simons Waterfront, LLC v. Hunter, MacLean, Exley & Dunn, P.C., Case No. S12G1924, before the Supreme Court of Georgia.

Download pdf

May 7, 2012
The Brief Amicus Curiae in Support of Petitioner in Rubashkin v. United States, Case No. 11-1203, before the United States Supreme Court.

Download pdf

May 9, 2007
The Brief Amici Curiae in Support of Petitioners’ Motion in Bismullah v. Gates, et al., Case Nos. 06-1197 and 06-1397, before the United States Circuit Court of Appeals for the D.C. Circuit. APRL was one of seven Amici.

Download pdf