Guidelines for Requests that APRL Participate in a Case by Filing an Amicus Brief
The Public Statements Committee (PSC) reviews requests for the Association of Professional Responsibility Lawyers (APRL) to file amicus briefs. The PSC makes its recommendation to the APRL Board on whether a request should be accepted. The Board considers, but is not bound by, the PSC’s recommendation.
A request shall be submitted to the Chair of the PSC
Contents of a Request. All requests made for APRL to file an amicus brief must contain:
- The name of the person or organization making the request, with the name, phone number and email address of at least one contact person for the requestor.
- The complete caption of the case and attach copies or links to any briefs that have been filed, including where applicable, the petition for writ of certiorari and the response.
- The complete caption of the case from which the appeal is taken.
- A list, by complete captions, of any known related cases that are also pending before the court.
- The date by which the amicus brief must be filed. The PSC is likely to deny last minute requests.
- Are you aware of any APRL members willing and able to draft or supervise the drafting of the proposed amicus brief? if so, please identify them.
- A statement of the questions presented. The questions presented must raise important and substantial issues of legal ethics, lawyer regulation or professional responsibility that are critical to the outcome of the case. The mere existence of a legal ethics issue in insufficient. If the dispute turns primarily upon disputed questions of fact or procedural issues, the PSC is likely to deny the request.
- A brief statement of the position the requestor wants asserted in the amicus brief. The requestor must include any research or work product the requestor has collected to support the position.
- A summary of the facts that are relevant to the position to be asserted.
- A brief statement of why APRL’s participation as an amicus is important and how APRL’s participation would make a significant contribution to the court’s consideration of the questions presented.
- Absent extraordinary circumstances, APRL will only consider submitting amicus briefs to the highest relevant court after development of a full record.
Required Attachments. Please include copies of the relevant court opinions, briefings and, unless included in the opinions or briefs, copies of any statute, rule or caselaw central to the legal ethics question at issue.
March 10, 2023
Amendments to Model Rules of Professional Conduct Concerning Lawyers’ Client Due Diligence Obligations
APRL endorses the revision to the Model Rules of Professional Conduct proposed in the January 23, 2023, memorandum of the ABA Standing Committee on Ethics and Professional Responsibility and Standing Committee on Professional Regulation. APRL applauds the care with which the two Committees have crafted their proposal to clarify a lawyer’s client intake obligations to ensure the lawyer’s services are not being used to facilitate money laundering crimes.
Download: Model Rules of PSA – 03-10-23 Letter to N. Vera
November 21, 2022
Supreme Court of the United States in In re Grand Jury, No. 21-1397.
At issue in the case is how to apply attorney-client privilege to dual (or multi) purpose communications between lawyers and clients (for some background on the case, see here, here, here, here, or here). I’m sure many of you have been following this, but it is the most consequential privilege case the Court will have taken up in several decades. There is currently a circuit split between the Seventh Circuit, the Ninth Circuit, and the DC Circuit with respect to the test used to determine how privilege will be applied to such communications. The Seventh Circuit has previously held that any dual purpose communications made in connection with tax return preparations are never privileged regardless of how significant the legal purpose is. The Ninth Circuit has adopted the “primary purpose test,” which considers whether the primary purpose of the communication is to give or receive legal advice, and protects communications where a legal purpose is at least as significant as any non-legal purpose. Conversely, the DC Circuit has previously held that dual purpose communications are privileged where one significant purpose is to obtain or provide legal advice.
APRL has instead urged the Court to adopt a fourth approach, which furthers the goal of strengthening the protections of attorney/client privilege and allows lawyers and clients more certainty when making communications. APRL has suggested instead that the Court adopt a test that provides privilege protections to dual purpose communications where any purpose of the communication is to seek or receive legal advice. Effectively, APRL argues that the modifier “significant” should be dropped from the DC Circuit’s test, as it invites uncertainty.
Download: 21-1397 in GRAND JURY
November 1, 2022
2022 Comment in response to the Notice of Proposed Rulemaking entitled Changes to the Representation of Others Before the United States Patent and Trademark Office
Comments in response to the Notice of Proposed Rulemaking entitled:
Changes to the Representation of Others Before the United States
Patent and Trademark Office (Vol. 87, No. 173 Federal Register,
Thursday, Sept. 8, 2022, Proposed Rules) Docket No.: PTO-C-2021-
Download: USPTO Letter from APRL
In the Matter of Karina Lucid, APRL filed an amicus brief with the New Jersey Supreme Court on September 22, 2021, addressing the mandatory permanent disbarment imposed in New Jersey for any intentional misappropriation of trust funds, regardless of circumstances, under the prevailing precedent known as the “Wilson Rule.” APRL argued that other less draconian measures sufficiently protected the public and preserved confidence in the legal profession, and that the Court should clarify the intentionality requirement under Wilson. The State Disciplinary Review Board had voted to disbar the respondent attorney by a slim margin. Its decision was accompanied by a concurrence questioning the Wilson Rule as well as a dissent. Without issuing an opinion, the Supreme Court imposed a Censure on respondent Lucid after considering the amici briefs and hearing oral argument from counsel for the respondent and the Office of Attorney Ethics. Lucid Amicus Brief, MATTER OF LUCID (Court Order)
In October 2016 and September 2017, APRL filed amicus briefs in the United States Supreme Court in support of petitions for certiorari in two cases on requirements for admission to a federal district court’s bar. These cases involved rules in the District of Maryland and the District of Columbia. Each district’s rules discriminated in admission to the district court’s bar against lawyers not locally admitted in the jurisdiction where the district court sat. Each case was brought by lawyers admitted elsewhere desiring admission to the district court’s bar. Each was dismissed based, in relevant part, on the equal protection rational basis test. APRL argued that this was the wrong standard, and that the courts should have applied a more demanding standard established in the exercise of the Supreme Court’s supervisory power in Frazier v. Heebe, 482 U.S. 641, 649 (1987). You can view the briefs here, NAAMP v. Lynch and NAAMP v. Howell.
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.
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.
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.
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.