Elizabeth Warren defender: “With this bombshell, I would no longer view the case against her as weak”
Soon after my original post, Elizabeth Warren’s law license problem, Mark Thompson at The League of Ordinary Gentlemen wrote a post taking an opposite view, No, Elizabeth Warren Did Not Engage in the Unauthorized Practice of Law.
That post by Thompson was cited far and wide, including at Memeorandum as well as at friendly conservative blogs which wanted to present the case for Warren to provide balance.
In light of my post this morning that Warren represented a Massachusetts client in Massachusetts on an issue related to Massachusetts law, Thompson has concluded in a new post today:
Professor Jacobson has uncovered this morning a case in which Elizabeth Warren entered an appearance in a federal appellate court as a representative of a Massachusetts client in a case that appears to have clearly implicated Massachusetts law. Although this is still a federal appellate court, because we’re dealing with a Massachusetts client and issues of Massachusetts law, this looks really, really bad for Professor Warren. With this bombshell, I would no longer view the case against her as weak.
Thompson also has updated his original post:
UPDATE 4 9/27: Professor Jacobson has uncovered new facts that I view as a gamechanger. Although I stand by my above analysis as applied to the facts known at the time, Professor Jacobson’s discovery this morning answers my objections to his arguments.
Making progress.
More to come.
Update: Thompson emails, for attribution:
Professor Jacobson:
I couldn’t figure out how to leave this as a comment at your site, but I wanted to let you know ASAP that I concede that your discovery this morning answers all of my arguments and is a gamechanger. Your diligence in investigating this matter is commendable.
Regards,
Mark Thompson
Jack Marshall at Ethics Alarms adds:
Prof Jacobson, on his blog Legal Insurrection, is in line for an Ethics Hero award with his tenacity regarding Elizabeth Warren’s dubious qualifications to engage in the practice of law in Massachusetts. The overwhelming reaction by his colleagues in legal academia, and mine in the legal ethics community, has been to airily dismiss his arguments as trivial, far-fetched and thinly disguised political warfare, since Jacobson is an unapologetic conservative blogger (and a distinguished one.) Meanwhile, the mainstream media has, I think it is fair to say, completely ignored the story….
The rude brush off Prof. Jacobson is getting in this wagon-circling exercise is wrong in every way, and does injustice to every person and institution involved, including the Massachusetts legal establishment, the legal profession, ethical lawyers (which, believe it or not, the vast majority of them are), Senator Brown, the U.S. Senate, Massachusetts voters, and the American public….
Comments
So this blogger can’t read on to the next subparagraph of the Massachusetts rules, which say that “(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; ”
Do you have any cases where she was the only attorney? Even one where she was the attorney of record? I don’t see any – all list her as “of counsel” or similar language. Unless you have a case where she’s the only attorney listed, I don’t see how she runs afoul of anything. Her services were temporary in each case (no long-standing relationship with a firm or client), and she was not the only attorney handling any of them.
I agree with Conrad above – Does she hang out a shingle? Does she advertise? Who pays for the “office” you claim is a law practice? Who pays the electric bill? Who pays the secretary? The copying charges? The Westlaw bill? Does she accept clients off the street? Has she ever stated she has a license to practice in Mass? Is this her main job? What does it say on her business card?
Take off your “I hate liburrralls” hat for a minute and use some common sense. Sheesh. If this is what passes for “clinical” legal education at Cornell, I’m glad I went to Buffalo.
And before the inevitable attacks: I’m a libertarian, not affiliated with either Democrats or Republicans, and live in NY, so I have no interest in this race at all.
“I’m a libertarian, not affiliated with either Democrats or Republicans, and live in NY, so I have no interest in this race at all” — We have been flooded with concern trolls (look it up) since my story broke Monday. Bye-bye.
If it walks like a duck, looks like a duck, and quacks like a duck — it is a duck!
And Warren ducks!
LOL… So I make a post which asks you several direct questions, none of which you can apparently answer, and preemptively explain that I really do not have strong feelings about this race.
You declare me a “troll” and ban me from posting.
Can you give me a case where EW acted as the sole attorney, or not? Can you answer any of the other questions, or not? UPL is a fact-based inquiry, and you seem dramatically short on these highly relevant facts, not to mention having failed to read the very next subparagraph in the Massachusetts rules, apparently.
Of course, you won’t answer, you’ll simply ban me again, probably delete this post, and this exchange will be nothing more than a funny story at our law school anniversary gala tonight. But in those actions, you’ve exposed all anyone needs to know about the veracity of your claims versus your political predisposition.
When someone new shows up, starts out by hurling insults, shows that they have not read my prior post (where I addressed in great detail the “temporary” exception you claim I never read) and then ends with concern troll language, they are banned not because they disagree (read the comments, there is plenty of disagreement) but because they fit the definition of a concern troll. Enjoy your gala.
Someone who moonlights in a licensed trade/profession doesn’t need to concern themselves with rules governing provision of those services only those who pursue it as their principal employment? Really?
Word of mouth, garage base, appendectomy service here I come!
I agree. I think the Professor is mistaken. I am concerned that he will get pissed off and ban those of us who disagree with him
No, we will mock you.
Nice try concern troll. But you have a (self described) Consumer Advocate candidate Elizabeth Warren who helps insurance companies dismiss asbestos claims from injured union workers. She gets paid $675 an hour for doing so. And she may not have been legal to do it.
The hypocrisy of Elizabeth Warren alone should make you choke.
Sorry, not buying for a minute that you have no interest in this race at all. Otherwise, I doubt you would have commented and attacked liberals.
So now we have someone who admits to being a law school graduate? Kindly elucidate the meaning of the word “may” in the statute you cited. The permissive use of words in legal language (the word “shall” being the most discussed and problematic in English — se for yourself in the Corpus Juris Secundum)are not an absolute protection in law from a superior or well established legal obligation. If Warren acted by mistake, or in an emergency to practice law without a license, she would have a legal defense, not an absolute protection. It is within the discretion of the judge to stop or move forward with a case, if errors occur. Among them, out-of time motions, improper appearances, etc.
The long and the short is there are too many cut rate lawyers leasing shingles. Figure that since the MA provisions deal with out of state lawyers, this is a nod to the difficulties of one state suing another, or otherwise opening cans of worms across state lines. And since this is a federal case, what are Warren’s habits on registering as a federal appellate lawyer?
Of course Warren hopes that her prestige will shield her from all. But you say you are a libertarian, and don’t have a dog in this election betweeen Brown and Warren? Well I would think that since you have a Senate that can’t pass a budget but entertains amending the First Amendment, and have a president who rules by fiat and omission on such matters as DOMA and amnesty for under 30-ish Mexican undocs, you might have a Chihauha at least.
“Of course Warren hopes that her prestige will shield her from all.”
Prestige?
She’s a 3rd rate Marxist law professor who sincerely believes that the purpose of government is the enslavement of productive individuals for the benefit and enablement of the unproductive.
She got hired at Harvard because she’s a she instead of a he, and because she was willing to fraudulently claim genetic descent from a group of people the left likes to pretend are inferior and therefore cannot compete on equal footing with everyone else.
With prestige like that, who needs infamy.
Right 10 years must be temporarily permanent
Here’s the Randy Barnett appearance, btw.
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/03-1454.htm
Also, it occurred to me that while Warren was one of (I think) four attorneys listed as representing Schlichtmann in that 1st Circuit case, and while the CASE involved application of Mass. law, there’s no particular reason to think that EW’s contributions to the brief had anything to do with the Mass. state law issue(s). She might have been –in fact, presumably was — in on the case for her supposed bankruptcy expertise. Again, I still don’t see why she shouldn’t have been admitted pro hac vice in order to have an appearance in that case, but as far as the UPL issue is concerned, the fact that she was only one of four lawyers on the brief and apparently on it for purposes of the bankruptcu stuff doesn’t make this the smoking gun everyone thinks it is.
You’ve convinced me.
Randy Barnett is not getting my vote for senate.
Nor is Waren getting mine. Now, do you think they should both be incarcerated for engaging in UPL or not, because that’s what the discussion is about.
Since when are tu quoque arguments probative of anything?
Incarcerated, no. Fined maybe. Sanctioned perhaps. Oh wait, not being members of the Massachusetts bar the bar can’t sanction them. See how that works. If you let long time residents flout your regulatory regime you lose control of the system. And sometimes regulatory regimes really do have good reason for being.
Barnett also filed amicus curiae briefs in Lawrence v Taylor, Thomas More Law Center v Obama and a brief in the national federation of business v sebilius to the court of appeals.
,
Barnett also filed amicus curiae briefs in Lawrence v Taylor, Thomas More Law Center v Obama and a brief in the national federation of business v sebilius to the court of appeals.
,
War.
{Breitbart smiles}
Would it be fair to say The Perfesser got Lizzy’s scalp?
I have the sneaking suspicion that practicing law without a licence is not a disqualifier for a Democrat in Massachusetts. After all, Barack Obama has been posing as a president for four years and he is certain to win big in Massachusetts.
You want a bombshell? http://www.ma-appellatecourts.org/display_docket.php?dno=1997-P-2193
and
http://masslawyersweekly.com/fulltext-opinions/1990/01/01/walker-v-warren-et-al/
Warren AND her husband contracted to represent their architect for their residence in Cambridge, he sought to vacate order for attorney fees, went all the way to MA Appeals Court.
Looks to me that she and her husband sued or were sued by their architect. You can represent yourself in a case
false alarm
Want to know what’s worse about this? Someone deliberately changed the title of the case. The Mass App site says Walker v. Warren & Elizabeth. She doesn’t show up in a party search. This is exactly why she and her campaign have been quiet as mice. Meanwhile, I don’t think this type of representation falls under her SCOTUS bar admissions. Maybe.
It looks like she and her husband were the parties in that case, and they were represented by outside counsel. Even if they weren’t represented by a third party, people are generally free to represent themselves in court (“pro se”) even if they aren’t lawyers. I’d say IF a lawyer represents himself in court, they would probably be subject to bar discipline for running afoul of ethicals proscriptions (e.g., lying to the court); but they wouldn’t be doing anything wrong simply by representing themselves in a court that sits in a state where they aren’t a member of the bar.
You’re right. I assumed that they represented themselves, and I know pro se is allowed. So how they would get attorney fees other than having outside counsel is beyond me, unless they billed themselves, which seems absurd, but who knows. I failed.
What I have learned from this whole thing is what I would tell Scot Brown to put into an ad –
Lie about being a native american and you too can earn $675 an hour practicing as an unlicensed lawyer in the state of Massachusetts. Yes, that is right, $675 an hour … again … $675 AN HOUR as an unlicensed lawyer just by claiming your mom said you have high cheek bones just like an alleged native american in your family tree! I am Scot Brown, and I approve of this message of truth which is that liars should never get to gain from their lies and deceit.
I’m wrong. Rushed to read the case. Misread it.
It appears to be a misdemeanor:
MASSACHUSETTS LAWS
Section 41 Unauthorized practice of law; solicitation of business; penalty
http://www.malegislature.gov/Laws/GeneralLaws/PartIII/TitleI/Chapter221/Section41
Section 41. Whoever has been so removed and continues thereafter to practice law or to receive any fee for his services as an attorney at law rendered after such removal, or who holds himself out, or who represents or advertises himself as an attorney or counsellor at law, or whoever, not having been lawfully admitted to practice as an attorney at law, represents himself to be an attorney or counsellor at law, or to be lawfully qualified to practice in the courts of the commonwealth, by means of a sign, business card, letter head or otherwise, or holds himself out or represents or advertises himself as having authority or power in behalf of persons who have claims for damages to procure settlements of such claims for damages either to person or property, or whoever, not being an attorney at law, solicits or procures from any such person or his representative, either for himself or another, the management or control of any such claim, or authority to adjust or bring suit to recover for the same, or solicits for himself or another from a person accused of crime or his representative the right to defend the accused person, shall be punished for a first offence by a fine of not more than one hundred dollars or by imprisonment for not more than six months, and for a subsequent offence by a fine of not more than five hundred dollars or by imprisonment for not more than one year.
1. According to Mark Thompson:
I agree, and I note that he does not say the case is foregone.
Afaic you have first and goal at the one-yard line.
2. This is Massachusetts. I can picture the following sequence: Warren gets elected. The bar association and the state cannot avoid acting against her. Warren is unable to set foot in the state because of warrants against her. Warren gets reelected.
Like I said, this is Massachusetts.
3. I continue to suspect that the political knockout blow is in Warren’s client list. The licensing matter is significant in itself, but it should also be used to attract attention to the undisclosed client list.
4. I hope that LI commenters like Conrad, HDarrow and others will address Bill’s new results.
Oops, Conrad has responded higher in the thread. Thank you, C.
As a juror in a preponderance-of-evidence situation, yesterday I’d have sided with Conrad. Today I’d side with Jacobson.
It’s nice to know someone is interested in what I have to say, even if we disagree.
To be clear, as I stated above, I’m at a loss to understand how EW got to enter an appearance in the Schlictmann case sans at least pro hac vice admission to the 1st Circuit. I’m wondering if someone in the clerk’s office either didn’t check to see if she was admitted OR if they simply assumed it wasn’t relevant because there were (I think) three others attorneys on the brief, perhaps all of whom were member of the Mass. bar. However, I DON’T think this amounts to a breach of ethics (unless there was some conscious misrepresentation involved). It seems clear that she COULD have been admitted pro hac vice as a matter of routine had anyone seen the necessity for it.
All of that said, I don’t think the Schlictmann disclosure makes any difference to the overall analysis of her situation. She perhaps shouldn’t have done THAT, but doing THAT doesn’t prove, or even add to, the claim that the other stuff she was doing was against the rules.
If and when we learn that EW had a regular, ongoing Massachusetts-oriented law practice going on, then of course she should be found to have committed UPL in Massachusetts. Again, I think the basic elements, in general, lay terms, would consist of (1) a systematic effort to provide legal services to Mass. citizens in the courts of Massachusetts (including federal courts, btw); and/or (2) making a regular practice of advising or representing people in regard to Massachusetts law. Note: The Schlictmann case doesn’t SEEM to present the second element, because (although I’m inferring this to some extent), even tho the CASE involved Mass. law, I doubt that her role in the case was to analyze state law. TO the contrary, all of her professional background seems to be in bankruptcy and “consumer law,” so I reckon she was on the brief to share her brilliance on the federal issues involved.
Spoken like a man of sense, and like a pro with the prudence not to goad an opponent into becoming an enemy. The blogosphere could use more of that attitude.
Excellent work, Professor. Being from Michigan you could argue that I don’t have a dog in this fight, but somehow she just epitomizes everything liberal–”laws are for thee, not me” and she needs to come clean before the electorate. At the rate you’re going she won’t have any dirt left by election day as you will have her scrubbed clean by then….
In that we hope to establish a GOP majority in the US Senate, and given the power the US Senate has over issues and policies that affect the entire country, everybody in America has a dog in this fight.
Great work Professor J! But perhaps whether you are practicing without a license in Massachusetts has to do with Warren’s state of mind. It’s like being a Native American. If you believe you are, then you are. So, if Warren felt she was a Massachusetts lawyer, she is one. Let’s not get technical about what the records at the MA Bar say.
In fact, Warren’s family members told her she has cheek bones just like Oliver Wendall Holmes. Now clearly Holmes was a member of the MA Bar. So Warren is too! Stop attacking her family!!
Yes, asking about Warren’s state of mind is an excellent question. I am starting to wonder if all her talk about the need for increased government regulation isn’t just an elaborate form of projection.
Here is a comment from CatoRenasci on the Ordinary Gentleman blog that sums up the inexplicable aspect of Warren’s behavior:
“What is especially astonishing, and damning, is the simple fact that Professor Warren could easily have been admitted in Massachusetts on motion if she’d been admitted and in good standing in any state and had been practicing or teaching law for 5 of the 7 years preceding her motion for admission.
Why, Elizabeth? Why?”
Why indeed.
as a practicing attorney in cornfield hell Illinois, who has been admitted in fed courts in other states, it is not easy to do, but requires that certain procedures be followed. And, contrary to what one of the posters has implied, being admitted to the US Supreme Court bar does not mean ANYTHING in any other court. It only means that you can appear in the SC. As an example, when I represented a local Illinois man in a Michigan criminal case, I filed a pro hoc vice petition. The chief judge, rather that grant that, had me apply for full admission to the district bar, which required another form, a certificate of good standing from IL, and a petition from a local counsel, which I was able to accomplish with the help of a co-defendant’s counsel. All of that is public record, as is the order admitting me. But I am a nobody, and they were really happy not to have to pay a public defender. Had the same experience in doing a Kentucky state case. It really is a normal procedure.
I’m not a lawyer, but I get this whole issue.
Warren wasn’t licensed to practice in MA, her defenders say so what, she represented cases at the federal level, and she is licensed in TX and NJ. She never represented cases in MA, at a state level. Fair enough. I got that, and even agreed with it.
Now, the information comes out, that she did practice cases in MA, without a MA law license.
I know for doctors, they cannot practice in a state without a state license, so here we have Warren representing MA cases, at the state level, yet she has no law license to practice in MA.
If a doctor did this, he would be charged criminally. So will Warren be charged? Or are the laws of MA only for the little people??
Important to note that she has been “inactive” in TX since 1992 or all the time she’s been at Harvard in Mass.
That leaves the New Jersey Bar that she resigned to last week -a very suspicious move by the way.
It is very possible that she had been inactive in NJ for years – this may be why she resigned: to hide that fact and delay its discovery for as long as possible.
So forget the lack of a Massachusetts license, it is also possible that some of those $675/hour gigs were performed without ANY law license.
John Nolte of Breitbart.com unequivocally said you, Professor, deserved a Pulitzer. I wholeheartedly agree.
I absolutely agree, I learn from this website and the professor’s work more than I ever did from the liberal lying LSM.
But from what I understand the Pultizer prize is only reserved for lefties, so not sure how that will work out.
[...] [...]
[...] and his reporting on the Elizabeth Warren law license problem. His top notch reporting on the issue got this comment from an initial Warren defender: …I wanted to let you know ASAP that I concede that your discovery this morning answers all [...]
Kudos. You are doing great work! Yay, Professor!! You deserve all the positive recognition and respect! (And may the leftist drones, trolls and h8ers eat your dust! Ha!)
….oh, and you seem to be enjoying it!
Good on ya!
(BTW-I commented in the tips comments on a great mini-documentary on Obama’s betrayal of Israel (my words). Via The Right Scoop; it’s called Perilous Times. As Scoop says, it NEEDS to go viral!)
I know you are quite busy, but I also know Israel is one of your special subjects you focus upon……… Perilous, indeed.
[...] UNAUTHORIZED PRACTICE: Elizabeth Warren defender: “With this bombshell, I would no longer view the case against her as we… [...]
Return of the Pretendian.
I have a question that is about Senate rules more than Mass law. In the (hopefully unlikely) event that Ms. Warren was to be elected, and was found to have broken the law, what would happen then? Would she be censored? Would she be expelled?
“Ugh. My people live on this land long before paleface come from across Big Water; we practice jurisprudence according to word of Great Spirit, not recognize stains on big white leaf that Paleface call his ‘laws’. – Liz “Sitting Bull” Warren
Hey Professor maybe Lizzie is licensed to practice Tribal law???
Besides I’m sure Lizzie Warren will be around shortly to tell us that her mommy told her she passed the bar exam and it’s part of her “Heritage”
[...] Elizabeth Warren defender: “With this bombshell, I would no longer view the case against her as we… [...]
How does a non-lawyer, get to practice law in a Mass. courtroom? Where has the courts procedures failed to prevent this from happening?
my brother-in-law is a lawyer in Illinois, I live in Indiana. He won’t give me the tiniest bit of legal advice because he doesn’t have a license to practice in Indiana. Even if it is a very broad based question, he won’t budge which can be aggravating at times.
WHAM!
[...] But it is nice to see it coming from some not on the Right. [...]
Good job following this issue back to its den and burrowing it out.
Is it too much to ask that we have politicians who don’t have to parse and contort and waiver and excuse in order to their job?
Instead of all these people perusing the laws and standards and interpreting the circumstances, why didn’t she just get a damn license to practice in Massachusetts? She lives there for goshsakes!
If she had just put down her race correctly she wouldn’t be engaged in this raindance trying to justify her minority/non-minority status.
With this much fudgery going on, there’s tons more hidden away.
[...] that’s not even touching on the Law License business Share this:TwitterPrintRedditDiggStumbleUponEmailFacebookLinkedIn opinions powered by [...]
[...] Elizabeth Warren defender: “With this bombshell, I would no longer view the case against her as we… [...]
[...] there needs to be an exception to the regulation. An example of this is liberals’ curious insistence that left-wing law professor Elizabeth Warren did not need to comply with Massachusetts bar [...]