The debate last Thursday night between Scott Brown and Elizabeth Warren covered ground mostly known to voters.

But there was one subject most people watching probably did not know about, Elizabeth Warren’s private legal representation of The Travelers Insurance Company in an asbestos-related case.

Brown brought the point up late in the debate, and hammered it:

Warren attempted to deny her role, and referred to a Boston Globe article, but the Globe article supports Brown’s account.  The Globe article indicated the representation was for a period of three years and Warren was paid $212,000.  The case resulted in a Supreme Court victory for Travelers arising out of a bankruptcy case in New York.

Whatever the political implications of the exchange, Warren’s representation of Travelers raises another big potential problem for Warren.

Warren represented not just Travelers, but numerous other companies starting in the late 1990s working out of and using her Harvard Law School office in Cambridge, which she listed as her office of record on briefs filed with various courts.  Warren, however, never has been licensed to practice law in Massachusetts.

As detailed below, there are at least two provisions of Massachusetts law Warren may have violated.  First, on a regular and continuing basis she used her Cambridge office for the practice of law without being licensed in Massachusetts.  Second, in addition to operating an office for the practice of law without being licensed in Massachusetts, Warren actually practiced law in Massachusetts without being licensed.

Warren refused to disclose the full extent of her private law practice when asked by The Boston Globe.  If Warren denies that she has practiced law in Massachusetts without a license, Warren should disclose the full extent of her private law practice.  The public has a right to assess whether Warren has failed to comply with the most basic requirement imposed on others, the need to become a member of the Bar of the Commonwealth of Massachusetts in order to practice law in and from Massachusetts.

1. Warren Is Not Licensed To Practice Law In Massachusetts

Warren is not licensed to practice law in Massachusetts.  Warren’s name does not turn up on a search of the Board of Bar Overseers attorney search website (searches just by last name or using Elizabeth Herring also do not turn up any relevant entries).

I confirmed with the Massachusetts Board of Bar Overseers by telephone that Warren never has been admitted to practice in Massachusetts.  I had two conversations with the person responsible for verifying attorney status.  In the first conversation the person indicated she did not see any entry for Warren in the computer database, but she wanted to double check.  I spoke with her again several hours later, and she indicated she had checked their files and also had spoken with another person in the office, and there was no record of Warren ever having been admitted to practice in Massachusetts.

Warren’s own listing of her Bar admissions is consistent with not being licensed in Massachusetts.  In a June 25, 2008 CV  Warren listed only Texas and New Jersey.

Warren’s Texas Bar information indicates she is not eligible to be licensed in Texas, but does not indicate when she went on that inactive status.  Consistent with our finding that Warren was not admitted in Massachusetts, Warren listed only one other place of admission on her Texas record, New Jersey:

Warren became licensed in New Jersey in 1977.  She famously and speculatively claimed to be the “first nursing mother to take a Bar exam” in New Jersey.

Warren, however, is not currently licensed in New Jersey:

While the date of termination of her New Jersey license is not on the website, telephone inquiries to the New Jersey Board of Bar Examiners and the New Jersey Lawyers Fund For Client Protection indicated that Warren resigned her license on September 11, 2012 (one of the people remarked to me “that’s a memorable day”).  It’s odd that in the middle of a campaign Warren would take the time to resign her New Jersey Bar membership, particularly since she would have to retake the Bar exam to be readmitted.

Neither office in New Jersey could state whether her license was continuously active until her resignation because the computer only shows the current status, so I have made the request in writing as instructed.  By resigning her New Jersey license earlier this month, Warren made it more difficult for the public to determine her pre-resignation status.

By all available information, Warren never has been licensed in Massachusetts, but at varying times has had active law licenses in Texas and New Jersey, although currently she is not licensed in either jurisdiction.  It is unclear whether during the years she represented Travelers and others Warren was actively licensed anywhere.

I emailed the Warren campaign’s spokesperson, Alethea Harney, after the debate Thursday night requesting a list of all jurisdictions in which Warren was licensed to practice law.  I requested that the information be provided by Friday morning specifically so I could include the campaign’s response, but I received no response.

2. Warren Used Her Cambridge Office as Her Law Office

Regardless of where she was admitted, Warren consistently since the late 1990s has held herself out as having her professional address for legal representation at her Harvard Law School office in Cambridge, Massachusetts.

Warren was listed as “Of Counsel” on Travelers’ Supreme Court Brief, listing her Harvard Law School office as her office address:

Warren also used her Cambridge office address in other Supreme Court Briefs, such as Rousey v. Jacoway in 2004 where she represented AARP:

In 2003, Warren used her Cambridge address for another AARP Supreme Court Brief in Till v. SCS Credit Corp. (no public image available, but available in text form through Westlaw at 2003 WL 22070307) in which she appeared along with other counsel:

In the Till Brief,  a Harvard Law School student was thanked for helping with the Brief, a clear reflection that the work on the Brief was performed at least in part in Cambridge.

Similarly, in 2002 in  FCC v. Nextwave Communications, Warren filed a Brief for the Official Creditors Committee and filed a Brief (available Westlaw at  2002 WL 1379031 ) along with her Harvard Law School colleagues Laurence Tribe and Charles Fried (each of whom is licensed in Massachusetts) using her Cambridge address:

In 1998 Warren was on the Supreme Court Brief for the National Association of Credit Management (available Westlaw 1998 WL 536369), again using her Cambridge address:

Warren also has had other legal representations using Cambridge as the location of her law office, such as National Gypsum Co v. National Gypsum Trust, 219 F.3d 478 (5th Cir. 2000):

Additional court cases in which Warren used her Cambridge address include Matter of Cajun Elec. Power Co-op., Inc., 150 F.3d 503 (5th Cir. 199i8)(“Elizabeth Ann Warren, Harvard Law School, Cambridge, MA, for Southwestern Elec. Power Co.”) and Matter of P.A. Bergner & Co., 140 F.3d 1111 (7th Cir. 1998)(“Elizabeth Warren (argued), Harvard Law School, Cambridge, MA”).

The clear record shows that since the late 1990s Warren has held herself out as representing litigants using her Harvard Law School address, and there is every reason to believe the work was performed in Massachusetts, in some cases utilizing student help.

The listings above are not exhaustive, and there may be cases not reported in electronic databases, in which Warren has acted as counsel using her Cambridge address.  For example, if Warren rendered legal advice but did not appear on the Brief or enter a court appearance, there would be no record.  State court case briefs and appearances also are not captured by databases to the extent of federal cases.

What also is unknown is whether any of Warren’s representations involved Massachusetts clients or law, as Warren’s campaign has refused to disclose the full nature of her law practice when asked by The Boston Globe.

Warren’s office at Harvard Law School appears to have been her only office.  I can find no record of Warren using any other address for such filings and representations other than her Cambridge address.  That office not only was used in various cases listed above, it also is the office listed for her now inactive Texas law license:

3. Warren Was Practicing Law From Her Cambridge Office

There is no requirement that a law teacher be licensed to practice law in Massachusetts in order to teach or publish on topics related to law.  In fact, a law teacher need not even be a lawyer.  Once that law teacher starts acting a lawyer, however, the normal licensing rules apply.

The question becomes whether Warren was “practicing law” at her Cambridge address, or doing something that does not constitute the practice of law.

A person practicing law in Massachusetts needs to be licensed to do so.  Superadio Ltd. Partnership v. Winstar Radio Productions, LLC, 446 Mass. 330, 334, 844 N.E.2d 246, 250 (Mass. 2006)(“As a general proposition, an attorney practicing law in Massachusetts must be licensed, or authorized, to practice law here”).

While there is no single definition of what it means to “practice law,” the Massachusetts Supreme Judicial Court has held:

As general observations, we have noted that the practice of law involves applying legal judgment to address a client’s individualized needs … and that custom and practice may play a role in determining whether a particular activity is considered the practice of law …  More specifically, we have stated:

“[D]irecting and managing the enforcement of legal claims and the establishment of the legal rights of others, where it is necessary to form and to act upon opinions as to what those rights are and as to the legal methods which must be adopted to enforce them, the practice of giving or furnishing legal advice as to such rights and methods and the practice, as an occupation, of drafting documents by which such rights are created, modified, surrendered or secured are all aspects of the practice of law.”

Real Estate Bar Ass’n for Massachusetts, Inc. v. National Real Estate Information Services, 459 Mass. 512, 517-518, 946 N.E.2d 665, 674 (Mass. 2011)(citations omitted)(drafting real estate deeds for others constituted practice of law); see also Lindsey v. Ogden, 10 Mass.App.Ct. 142, 149-150, 406 N.E.2d 701, 709 (Mass.App., 1980)(person overseeing execution of will was not engaging in the practice of law where he “never held himself out as a Massachusetts lawyer, never drew any documents in Massachusetts, and never did anything else that could be considered as the practice of law in this State.  A Massachusetts domiciliary is free to consult a licensed New York attorney on the merits of her estate plan”);

Warren’s activities on behalf of Travelers and other parties in the cases listed above would seem to fall easily within this definition of practicing law.

Warren described herself as “Of Counsel” or counsel and clearly was rendering legal advice and services based upon her evaluation of the law:

Generally speaking, the practice of law can include, “the examination of statutes, judicial decisions, and departmental rulings, for the purpose of advising upon a question of law … and the rendering to a client of an opinion thereon.” See Lowell Bar Ass’n v. Loeb, 315 Mass. 176, 52 N.E.2d 27, 33 (1943).

In re Bonarrigo, 282 B.R. 101 D.Mass.,2002 (bankruptcy petition preparers engaged in practice of law).

4. If Warren Was Practicing Law From Her Cambridge Office,
She Violated Massachusetts Law

In order to practice law in Massachusetts, particularly from a Massachusetts office, one needs to be admitted to the Massachusetts Bar, which Warren never has been.  There is no general exception from licensing requirements for law professors.

Massachusetts General Laws, Chapter 221, Section 46A provides (emphasis mine):

Section 46A.  No individual, other than a member, in good standing, of the bar of this commonwealth shall practice law, or, by word, sign, letter, advertisement or otherwise, hold himself out as authorized, entitled, competent, qualified or able to practice law; provided, that a member of the bar, in good standing, of any other state may appear, by permission of the court, as attorney or counselor, in any case pending therein, if such other state grants like privileges to members of the bar, in good standing, of this commonwealth.

Massachusetts Rule of Professional Conduct 5.5 provides in pertinent part that the obligation to be licensed has some narrow exceptions.  [See footnote added 10-1-2012 at bottom of post.]  None of those exceptions apply to Warren (emphasis mine):

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(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;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

As the Rule makes clear, assuming Warren were licensed in another jurisdiction (which is unclear), Warren still could not maintain an office in Massachusetts for the practice of law, which she did, unless licensed in Massachusetts, which she was not.

Warren cannot invoke the “temporary basis” exception quoted above because she maintained the Cambridge office continuously and for a long period of time, and was not temporarily in Massachusetts ancillary to her practice in a jurisdiction where  she was licensed.  A Comment to the Rule provides:

[6] There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction, and may therefore be permissible under paragraph (c). Services may be “temporary” even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.

Whether the services were on a “temporary basis” would require a showing that Warren was actively licensed elsewhere (a fact her withdrawal from New Jersey makes more difficult to verify) and whether the services were in relation to her activities in the other jurisdiction.  Comment 14 provides in pertinent part:

[14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted….

Comment 10 also explains that temporary conduct in connection with a matter pending in a jurisdiction in which the attorney is licensed, such as interviewing a witness in Massachusetts or conducting a deposition in Massachusetts, is permitted.  That would seem inapplicable here, both because Warren’s office was in Massachusetts, and also because her representation of Travelers was not of such nature that her services were incidental to her representation of Travelers in a jurisdiction in which she was licensed.

Moreover, the Travelers case was not the only legal representation Warren has provided over the years, as demonstrated above.  According to The Boston Globe article about the Travelers case:

The extent of her legal practice, and the clients she has represented, is unclear.

Her campaign would not release a full list of cases she has been involved in. And, while some representation appears in scattered court records, much of her consulting can be done without placing her name on dockets as an attorney of record.

Her campaign detailed six Supreme Court cases in which she has filed so-called friend of the court briefs. They include two briefs on behalf of the AARP: one of which supports protecting individual retirement accounts in the event of a bankruptcy and another that fights to allow judges to lower consumers’ credit card interest rates in the event of personal bankruptcies.

Warren’s 2008 CV lists six Supreme Court Briefs in which she had participated (although two of them appear to be briefs filed on her behalf, not briefs filed by her as counsel), all of which predated the Travelers case:

Here, since Warren maintained her Cambridge office as her law office for well over a decade, it is hard to argue that it was either temporary or in connection with her practice in another jurisdiction.  Moreover, unlike the out of state attorney in the Lindsey case above, Warren practiced law from her office in Massachusetts.

This is unlike some cases in which unlicensed conduct in Massachusetts is excused if ancillary to the attorney’s practice in a state in which he or she is licensed.  In re Chimko, 444 Mass. 743, 831 N.E.2d 316 (Mass. 2005).  Here, even if she were licensed in New Jersey while representing Travelers (a fact we still are trying to confirm), that would not permit Warren to maintain a law practice in Massachusetts unless licensed in Massachusetts.

There is a Massachusetts Bar Association Ethics Opinion which seems on point.  Here is the official summary (emphasis mine):

Opinion No. 76-18

Summary: It is improper and misleading for an out-of-jurisdiction firm whose members and associates are not admitted to the Massachusetts bar to place a “Boston Office” address on its letterhead. In addition, the letterhead of such an out-of-jurisdiction law firm may not contain, without more, the names of Boston lawyers who are not associates or partners of that firm.

It is proper for an out-of-jurisdiction firm to have a local office indicated on its letterhead if (1) that office is operated by at least one member or associate of the firm who is admitted to the Massachusetts bar, and (2) any enumeration of lawyers on the firm letterhead makes clear which lawyers are not admitted to practice in Massachusetts and any other jurisdictional limitations.

Yet Warren, who was not and never was licensed to practice law in Massachusetts, has held her Cambridge office out to be her law office for the purpose of providing legal representation.

As noted above, we do not know the extent to which Warren has represented Massachusetts clients or offered advice as to Massachusetts law.  The American Bar Association has recognized the problem under Model Rule 5.5 for a lawyer who maintains an office in one jurisdiction but practices “virtually” in another jurisdiction.  While the ABA is working on solving such internet-age issues, there is no authority which exempts from the licensing requirements an attorney domiciled in Massachusetts using a Massachusetts office but who offers legal advice and services only to out-of-state clients and as to non-Massachusetts law.

5. Harvard Law School Warns Its Students Against The Unauthorized Practice of Law

My interpretation of Massachusetts law, and the broad scope of conduct which requires admission to the Massachusetts Bar, is consistent with the instructions Harvard Law School provides to law students who wish to participate in legal Clinics.

In Massachusetts, as in most states, students can provide services which otherwise would require a law license, providing that certain requirements, such as providing the services through a recognized law school clinic under the supervision of an attorney admitted to practice in Massachusetts, are met.

Here is what Harvard Law School cautions its students:

3. Standards of professional behavior for law students.

As future practicing lawyers, law students have standards of professional behavior and responsibilities expected of them. Please be advised that every state, including the Commonwealth of Massachusetts, has statutes and rules that prohibit the “unauthorized practice of law.” (See, e.g., Mass. Gen. Laws ch. 221 §41; Mass. Rules of Professional Conduct, Rule 5.5)

The practice of law is broadly defined and can include providing advice, in addition to direct representation. Just as one must get a license to practice medicine, one must be admitted to the bar in a particular state to be able to practice law. Law students are permitted to do legal work for clients as long as the student is working as an individual supervised by an attorney admitted to practice law in the relevant jurisdiction and that attorney takes responsibility for the legal work. Engaging in the unauthorized practice of law may result in criminal penalties, including fines and imprisonment. See: Massachusetts Conveyancers Ass’n, Inc. v. Colonial Title & Escrow, Inc., 2001 WL 669280 (Mass.Super. 2001) : whether a particular activity constitutes the practice of law is fact specific. Matter of Shoe Manufacturers Protective Association, 295 Mass. 369, 372 (1936). http://www.reba.net/images/UserFiles/File/amici/Darryl%20Chimko%20v%20Richard%20A.%20KingAmicus%20Brief.pdf; http://www.relanc.com/documents/REBA%20Brief%20to%20Massachusetts%20SJC%20re%20UPL%20Issue.pdf

HLS students are required to comply with rules regarding the practice of law and the Law School’s policies regarding engagement in the practice of law while enrolled at the Law School.  These rules ensure proper supervision and compliance with applicable legal requirements. Violation of the rules on the unauthorized practice of law may result in disciplinary proceedings before the Administrative Board, and may interfere with eligibility for admission to the bar.

None of these legal standards should come as a surprise to Warren.  If Harvard Law School expects its students not to engage in the unauthorized practice of law in Massachusetts, presumably it provides similar warning to its faculty.  Unfortunately, unlike many other Harvard schools, the law school faculty handbook is not available online or to the public.

While I have not checked every Harvard Law faculty member, several high profile professors who provide or have provided private legal services from their Harvard offices are licensed to practice law in Massachusetts, including Alan Dershowitz, Charles Fried, and Laurence Tribe.

What is odd is that Warren could have been admitted to the Massachusetts Bar on motion, since she was admitted elsewhere and had at least five years law teaching/practice experience (unless she had previously taken and failed the Mass Bar Exam).  I am not certain when this motion provision came into effect in Massachusetts.

6. Warren’s Possible Practice Of Law Without A License Requires Full Disclosure Prior To The Election

I detail above the facts and law which lead me to the conclusion that Warren has practiced law in Massachusetts without a license in violation of Massachusetts law for well over a decade.

I expect Warren will disagree, and I welcome a discussion of the facts and the law.

I doubt that will happen.  Instead, and similar to how her campaign tried to demonize me and the Cherokee women who questioned her supposed Native American ancestry, I expect Warren’s campaign will attempt to deflect these serious issues by attacking the messenger.

Warren should disclose the full scope of her private law practice.  Perhaps there are facts not publicly available which will demonstrate that Warren was not engaged in the practice of law in Massachusetts when she earned $212,000 from Travelers, plus other fees from others who sought out her legal expertise dating back to the 1990s.

The voters of Massachusetts are entitled to know, before they vote, whether one of the candidates for Senate has not been following the rules which apply to everyone else.

Update:  No, Mass. Board of Bar Overseers has not exonerated Elizabeth Warren and Elizabeth Warren represented Massachusetts client in Massachusetts.

Footnote added 10-1-2012: The multi-jurisdictional safe harbor provisions in Current Rule 5.5, did not come into effect in Massachusetts until January 1, 2007, and therefore would not aid Warren in defending her practice of law in Massachusetts prior to that date.  (See this case for description of prior rule.)