In 2005, then University of Chicago Law School Assistant Professor Lea Krivinskas (now at Loyola Univ. – Chicago Law), wrote a paper for the American Bankruptcy Law Journal, titled ’Don’t File!’: Rehabilitating Unauthorized Practice of Law-Based Policies in the Credit Counseling Industry (free download here). Prof. Krivinskas was a 2004 graduate of Harvard Law School.
In the paper, Prof. Krivinskas discussed whether credit counseling relating to bankruptcy could constitute the unauthorized practice of law.
Prof. Krivinskas summarized the issue as follows:
Despite states’ vague, often circular definitions of the “practice of law,” some bankruptcy-related activities have been held by courts to constitute the practice of law. These activities include recommending to a debtor which chapter of bankruptcy to file, preparing a debtor’s bankruptcy petition and schedules, and recommending to a debtor which exemptions to claim. Additionally, several courts have held that providing advice to a debtor about when he should file for bankruptcy constitutes the unauthorized practice of law. (at p. 67, footnote omitted)
Prof. Krivinskas’ findings on this point were unremarkable. Such advice as to the application of statutes and rules to a particular client clearly fell within the definitions of practicing law set forth in the Massachusetts cases cited in my original post.
As previously demonstrated, for a number of years Elizabeth Warren counseled clients on issues relating to bankruptcy filing, structuring and process. We don’t know for exactly how many years Warren engaged in this practice, because Warren has not disclosed her client and case load.
Warren did so from her Cambridge office, although some defenders still claim she was not practicing law “in Massachusetts” even though physically in Cambridge and only in Cambridge when she did so.
None of this law on the unauthorized practice of law should have come as a surprise to Warren, because Warren gave assistance to Prof. Krivinskas on the paper, as reflected in Prof. Krivinskas’ author bio on the paper (emphasis mine):
*J.D., Harvard University, 2004; A.B., Duke University, 2000. The author gratefully acknowledges the assistance of Professor Elizabeth Warren of Harvard Law School and Dainius Krivinskas and the everlasting support of Spencer Shepard IV, Aldona Krivinskas, Jolita Kavaliunas, Donna Krivinskas, and Michael Krivinskas.
This may be a good time to note, additionally, that I probably have been too favorable to Warren in my recitation of the law in my original post.
In that post I focused on current Massachusetts Code of Professional Conduct 5.5, which provides certain safe harbors for lawyers temporarily in Massachusetts, and who do not maintain an office for the practice of law or systematically or continuously practice law in Massachusetts. I focused on the wording of that Rule because the original focus was Warren’s handling of the Travelers case over a number of years including 2008, for which she was paid $212,000.
The adoption of the new Rule 5.5 was part of a larger national effort by the ABA and others to address and harmonize the problem of lawyers licensed in one jurisdiction who temporarily engage in conduct in other jurisdictions. A classic example would be a lawyer on vacation or someone temporarily taking a deposition in another state. As a practical matter, such conduct took place and never was prosecuted, but it made sense to include such practice in an actual rule.
The multi-jurisdictional safe harbor provisions in Current Rule 5.5, however, 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.)
At least some people are recognizing the reality that this issue is not going to go away for Warren, despite the pejorative manner in which her defenders have treated me.