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The Supreme Court's new rule on amicus briefs.

A rule that takes effect in May looks at who's behind amicus curiae briefs.

"Friend of the court," or amicus curiae, briefs by associations are becoming more common. Amicus briefs offer a no-risk vehicle for presenting an association's views before a court when the court is deciding a precedent-setting issue. Amicus briefs filed by associations are most appropriate at the federal or state appellate court or supreme court levels; these briefs are sometimes accepted by lower courts in special circumstances. Recently the U.S. Supreme Court addressed an issue that affects associations when filing amicus briefs in that court - disclosure of who is paying for or drafting the brief. In this article, Kevin Landy explains the significance of the rule.

- Jerald A. Jacobs, ASAE General Counsel

The U.S. Supreme Court recently issued a rule, effective May 1, 1997, that requires amici curiae to disclose whether an amicus brief is authored "in whole or in part" by counsel for a party. The rule also requires identification of "every person or entity, other than the amicus curiae, its members, or its counsel, who made a monetary contribution to the preparation or submission of the brief." The disclosure requirement does not apply to amicus briefs submitted on behalf of federal, state, or local governments.

A more expansive rule on amicus briefs, vaguely requiring disclosures of "any contribution, in money or services" and not clearly excepting members of an organization, was first proposed by the court's rule committee in March 1996. At that time, Jenner & Block and others submitted written comments on behalf of associations pointing out the proposed rule's ambiguity and excessive breadth. The narrower language of the final rule represents a significant improvement, although some issues are still open to interpretation.

Questions to resolve. It appears, for example, that the rule would permit a litigating party who is also a member of an association participating as amicus curiae to entirely fund the amicus brief without disclosing the party's contribution. However, this apparent exception may not have been intended by the court. The rule also raises questions about who are "members" of associations when those associations are submitting amicus briefs to the court.

In addition, the new Supreme Court rule fails to define when counsel for a party is considered to have "authored the brief in whole or in part." A sensible interpretation would allow counsel for a party to make editing suggestions without triggering the disclosure requirement, although it is hard to know at what point substantial editing and rewriting might be deemed "partial authorship."

The rule's reference to "counsel for a party" presumably means an attorney representing a party in the particular proceeding before the Supreme Court, although the rule could also be interpreted more expansively to sweep in attorneys who are representing that party in other matters.

As associations continue to file amicus curiae briefs before the U.S. Supreme Court with greater frequency, answers to these questions grow in importance. Clarification of the rule will be reported by ASAE as it becomes available.

Kevin J. Landy is an attorney and Jerald A. Jacobs is a partner with Jenner & Block, in Washington, D.C. Jacobs edits this column.
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Author:Landy, Kevin J.
Publication:Association Management
Date:Apr 1, 1997
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