How not to raise legal ethics issues as to a candidate

How not to raise legal ethics issues as to a candidate

Starting with my post Elizabeth Warren’s law license problem last Monday and continuing through the week, I have laid out the facts and documents regarding Elizabeth Warren’s practice of law from her Cambridge office over the course of a decade.

I also have noted that Warren refuses to disclose the full extent of her practice, so what we know is limited to what we have been able to dig out of public records.   I wish we had more from the Warren campaign, but any additional facts almost certainly will make the situation worse for Warren as such facts will reveal more cases and more legal practice.

A number of critics have disagreed with my legal conclusions from these facts, although some of them are coming around to recognize the seriousness of Warren’s predicament.

But not a single critic has been able to show that any of the facts I presented are incorrect.  Nor could they, because I presented the documents.

Contrast my fact-based, document-driven presentation with the way in which Georgetown Law Professor Adam Levitin raised ethical issues with regard to Scott Brown’s practice of law at the Credit Slips blog, Did Scott Brown Facilitate Predatory Loans?

In that blog post, which has been linked and cited as authority by Huffington Post, Levitin suggested that Brown may have ethical problems, without presenting any evidence.

Instead, Levitin just threw out a bunch of questions wondering whether Brown facilitated predatory lending because one of the mortgage companies for which he did title work in local house closings owned a separate company which was accused of predatory lending.

That’s right, the only facts cited by Levitin were that Brown did title work for a company which itself did nothing wrong, but which owned a separate entity which allegedly did something wrong.  No facts were presented as to what Brown himself allegedly did wrong.

From that sparse and tangential (at best) relationship, Levitin wrote, in part (emphasis mine):

But at the very least, Brown’s association raises a host of questions. Who were those “mortgage companies” that he worked for?  It’s nice that Brown named a bunch of local banks, but I wonder what lies under the “mortgage company” label?  What did Scott Brown understand about the mortgage market he was facilitating? Did he recognize that there was a bubble?  (He was a town property assessor at one point, so one would think he’d notice this sort of thing.) If not, what does that say?  And if so, what does that say? How many predatory loans did Scott Brown facilitate?  How many of the loans where he handled the closing resulted in foreclosure?  What would he say to those families that lost their homes to predatory loans?

I suspect that Brown’s reply to these questions would be “Aw shucks, I’m just a guy with a pickup truck with 238,000 miles on it who was helping people out by doing the paperwork on their real estate closings.”  That’s not good enough. Either Brown was so inept that he didn’t see that the loans he was closing were becoming untenable or Brown saw the problem and didn’t do anything. As long as the music’s playing, the guy’s gotta earn a living, right?

I have highlighted the sentence in question because it suggests that loans Brown closed became “untenable” and that there were problems “Brown saw … and didn’t do anything” about.  Where is the evidence of that?  Where is the public record of loans Brown closed which were predatory?  Where is the evidence that such loans resulted in an inordinate number of foreclosures?

Levitin also doesn’t present any law as to how, assuming some of the loans Brown closed were “predatory,” Brown violated any ethical obligations by acting as the closing attorney.   Indeed, Levitin conceded there were no legal ethics issues:

Obviously as a legal matter, the attorney handling a real estate closing has no duty to shield people from making a bad business decision (particularly if he’s representing the bank).

There is no evidence and no law to suggest that Brown had ethical issues.  Instead, Levitin just threw out hypothetical questions which, by the way in which they were asked, presumed that Brown did something wrong.

From that, Levitin concluded:

At the very least, it looks like Scott Brown was riding the mortgage bubble, serving as a cog in the machine.

It is irresponsible law professor blog posts like Levitin’s which make it harder for serious issues, such as Warren’s law license problem, to be taken seriously.

When there are law professors who just throw ethical accusations with reckless abandon, it besmirches those of us who do take the time to present the evidence and the law, and to raise issues the mainstream media doesn’t understand or willfully ignores.

Update:  This is interesting:

“She expects a lot,” said Adam Levitin, a professor at Georgetown Law School who was a student of Warren’s at Harvard between 2002 and 2005. But, he said, Warren also gives a lot.

“She prepares assiduously and takes the teaching very seriously as part of her job. No one doesn’t think they’ve gotten their money’s worth out of the class,” Levitin said.

I’m sure if I dug deeper, I’d find more connection. But I’m too busy digging for facts as to Warren’s practice of law.

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