After my post on September 24, Elizabeth Warren’s law license problem, one of the main defenses of Warren has been that she was not really practicing law “in Massachusetts” because she only worked on out of state cases.  It turned out that Warren had worked on a case in Massachusetts, but even so, Warren’s defenders are undeterred.

As I discussed in detail in later posts, the defense that Warren was not practicing “in Massachusetts” even though she was physically “in Massachusetts” made no logical or legal sense.

Well it turns out that in 2002 one of the most respected Judges in the Massachusetts federal court, then Chief Judge William G. Young, came to a similar conclusion in an analogous situation involving choice of law, and even made a Bar referral he was so concerned.  The case is Daynard v.  Ness, Motley, Loadholt, Richardson, 188 F. Supp. 2d 115 (D. Mass. 2002).  You may remember Judge Young from my post, Judge William Young sentencing the shoe bomber.

The case involved Northeastern University law professor Richard A. Daynard, who had an expertise in tobacco-related issues, and who provided legal consulting to the Ness Motley law firm, based in South Carolina.  Daynard sued to enforce an oral fee sharing agreement with regard to services rendered in numerous courts outside Massachusetts, for a share of Ness Motley’s $2 billion fee (yes, that’s “billion”) from the tobacco cases and settlements.

The issue before Judge Young was whether the law of Massachusetts, or the law of some other state, should apply to the services rendered.  In his analysis Judge Young noted that on a contract action, where the services took place would guide which state’s law would apply.

Judge Young reached the same conclusion as to Daynard that I reach as to Warren:  Legal services are rendered in the place the attorney performed the work.

In the Daynard case, some of Daynard’s work was utilized in Massachusetts cases, although those cases were not at issue in the fee sharing lawsuit.  In Warren’s case, her services were also utilized in at least one Massachusetts case.

Here is the key passage (emphasis mine):

Here, there is no genuine dispute about the fact that Daynard provided the vast bulk of his services to Ness Motley in Massachusetts. It is not clear that the contract required the services be performed in any particular location. The fact of the matter, however, is that the bulk of the services were provided in Massachusetts. No party has indicated that there was ever any consideration or discussion of Daynard permanently relocating to another state in order to render services. Whatever else can be said, all the parties knew Daynard was working in Massachusetts.

To be sure, Daynard’s work product — briefs, memoranda and the like — was, according to Daynard, used in litigation in a number of states. Id. ¶ 2. Daynard’s work product, however, was also utilized in litigation in Massachusetts. Id. [3] [footnote printed below]  Thus, even if litigation in other states benefitted from Daynard’s work product, the litigation in Massachusetts did as well. There is no indication in the record that Daynard performed substantially more work for litigation in other states than he did for Massachusetts litigation. The fact that Daynard’s work product was used in other states, therefore, does not provide a reason, on this record, to disturb the conclusion that Daynard performed the lion’s share of his obligation under the contract in Massachusetts. Absent a contrary indication in another section of the Restatement, therefore, Massachusetts law will govern the interpretation and enforceability of the alleged contract. [4][footnote 4 discussed below]

Footnote [3]:  Daynard does not seek to recover any portion of the defendants’ fees attributable to the Massachusetts settlement, Compl. at 16 n. 1, as he apparently was compensated by another firm for his work relating to the Massachusetts settlement. This fact, however, does not alter the reality that Ness Motley participated in the Massachusetts litigation and that the expertise and work product Daynard provided was used just as much in Massachusetts as it was in other states. That Daynard is foregoing enforcement of part of his contract is immaterial to ascertaining the scope of the contract.

The issue in the Daynard case was not the unlicensed practice of law, but rather, whether Massachusetts law applied to the contract dispute. Nonetheless, Judge Young had the same reaction to Daynard’s lack of a Massachusetts law license as I had to Warren.

Judge Young, without deciding the issue because Ness Motley was not defending on the ground that Daynard was unlicensed in Massachusetts, nonetheless raised the issue in a footnote and indicated he was notifiying the Massachusetts Board of Bar Overseers (emphasis mine):

[4]  Daynard is providing his consulting services in Massachusetts, and is claiming a share of a legal fee. The Court notes, however, that Daynard is not licensed to practice law in Massachusetts. While the Court expresses no opinion on the significance, if any, of this fact, and the parties have not addressed it, the Court will forward a certified copy of this opinion to the Massachusetts Board of Bar Overseers so that it may consider whether Daynard’s consulting services constitute the unauthorized practice of law in Massachusetts. Compare, e.g., Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1, 10 (1998) (refusing to permit a New York law firm to collect legal fees for legal services performed in California where no attorney was admitted to the California bar), and Peterson v. Anderson, 155 Ariz. 108, 745 P.2d 166, 169-71 (1987) (refusing to enforce a fee-splitting agreement between an Arizona lawyer and an Illinois lawyer for legal services rendered in Arizona because the Illinois lawyer was not admitted to the Arizona bar, and hence could not practice law in Arizona), with Dietrich Corp. v. King Res. Co., 596 F.2d 422, 425-27 (10th Cir.1979) (permitting law professor in Colorado who was not a member of the Colorado bar to share fees with Colorado law firm, because the services he provided to the Colorado firm did not constitute the “practice of law”), and Freeman v. Mayer, 95 F.3d 569, 574-76 (7th Cir.1996) (enforcing imperfect fee-splitting agreement between Illinois and Indiana attorneys); see also Restatement (Third) of Law Governing Lawyers § 3 cmt. e, reporter’s note (1998) (criticizing Birbrower). Given the number of prestigious law schools in Massachusetts, the extensive and varied consulting arrangements entered into by individual faculty members at these schools, and the traditional interest of the Massachusetts Supreme Judicial Court in regulating the practice of law in this Commonwealth, the matter should be of some moment to the Board of Bar Overseers.

I have been unable to confirm whether Judge Young sent a certified copy of his opinion to the Mass BBO, but he said he would so I assume he followed up.

There is no indication that the BBO followed up on it.  Daynard’s name does not appear in the list of disciplinary cases.  It may be that it was privately was resolved, or that the subject received the prosecutorial discretion to do nothing which BBO General Counsel Michael Fredrickson gave to Warren — a de facto law professor exception to the licensing rules.

But there is no law professor exception to the licensing rules, something Fredrickson has admitted.  The licensing rules apply to Elizabeth Warren practicing out of her Harvard Law School office just as much as they apply to anyone else.

Judge Young flagged the issue a decade ago of law professors providing legal services from their Massachusetts offices without being licensed in Massachusetts, and suggested that it “should be of some moment to the Board of Bar Overseers.”

Apparently it is not, and we need to find out why.