In response to my post yesterday, Elizabeth Warren’s law license problem, Michael Fredrickson, General Counsel of the Massachusetts Board of Bar Overseers, gave an interview with Massachusetts Lawyers Weekly (MLW) which widely is being cited as exonerating Warren.
League of Ordinary Gentlemen and Above The Law have cited Fredrickson’s statement for that purpose, as have Warren supporters on Twitter.
Here’s Fredrickson’s statement from the MLW article titled Warren law license matter called non-issue:
Michael Fredrickson, general counsel for the BBO, says he does not believe a law professor would be considered to have “a continuous presence” or “an office practicing law.”
“If they actually practice here – as some part-time law professors at some of the smaller schools do – they might,” Fredrickson says. “But being a professor at one of the large schools, their office is a professor’s office, and the fact that they tend to dabble in the practice of law doesn’t run afoul of our rule. I don’t think Elizabeth Warren would fall within that, such that she would have to register here.”
The statement seemed at odds with a plain reading of the statute and rules, as explained in my prior post. It also struck me as strange that the Board of Bar Overseers would issue such a casual determination without an investigation, particularly since Warren has refused media requests for full disclosure of the nature of her law practice.
So I called Fredrickson this morning to better understand his position and on whose behalf he was commenting.
Fredrickson was perfectly pleasant, although he did express both at the start and the end that he did not want to be dragged into a political issue.
Fredrickson confirmed that he did make the comments attributed to him in MLW, but also made clear that he was not speaking on behalf of the BBO.
Fredrickson said it was his “personal reading” of the law, and that he was “not speaking on behalf of the Board of Bar Overseers.”
Fredrickson also stated, in response to my question, that he was not speaking on behalf of the Bar Counsel, the office vested with investigatory and prosecutorial function at the BBO. Fredrickson did indicate, though, that as a practical matter registration issues usually are referred to him.
Fredrickson stated that he did not purport to determine whether Warren violated the applicable law. He said he was just “speaking hypothetically” and not specifically as to Warren because “I know so little about Elizabeth Warren and her practice.”
I then explored various legal positions expressed in the MLW interview. Fredrickson said he did not mean to suggest that there was any different standard for law professors, or that maintaining an “office for the practice of law” under the Rule 5.5(b)(1) required that it be an office exclusively or primarily for the practice of law.
In short, Fredrickson’s opinion in no way could be deemed the position of the Board of Bar Overseers or a determination as to whether Warren herself complied with Massachusetts law.
Update 2:45 p.m: Mass Lawyers Weekly has not yet responded to multiple requests that it add a clarification to its story to make clear to readers that Fredrickson was not speaking on behalf of the BBO and was not expressing a conclusion as to Warren. The Fredrickson comments are being cited far and wide as representing the view of the BBO.
And, some commenters (all new) are touting the supposedly brilliant analysis at League of Ordinary Gentlemen. Since it now is getting attention in the blogosphere, and at risk of creating a never-ending blog post circle, I’ll dispatch with that blog post quickly:
- First, LOG skips over the first of my two main points, that Warren maintained an “office for the practice of law” and had a “systematic and continuous presence” practicing law in violation of Rule 5.5(b). She had an office in Cambridge, she practiced law in it for 15+ years continuously earning large fees in numerous cases, and she used it as her office address for her law practice in court filings. There’s nothing real complicated about it.
- LOG asserts that preparing legal briefs from an office in Massachusetts is not practicing law in Massachusetts if it involved federal law, but LOG cites zero authority for that. You can’t just make stuff up and call it a legal argument. Not even on a blog. In fact, as cited in my original post, preparing legal briefs clearly is within the definition of practicing law under Massachusetts case law. See Section 3 of my prior post. It’s what lawyers do.
- The LOG claim that Rule 5.5(d) saves Warren, which LOG says is the most important point, is wrong. The subsection in question, 5.5(d)(2) says “(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: … (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.” This does not apply to Warren because there is no claim that there was a federal law or other law which permitted her to practice in Massachusetts. If a federal court somewhere granted her the right to appear in that court, it only would cover that court and would not usurp state Bar licensing requirements. No one is claiming, for example, that Warren violated Supreme Court admission rules, but nothing in her Supreme Court admission gave her the right to maintain a law office or practice law in Massachusetts. This is a distinction a lot of people commenting on Warren have confused. Ed Whelan notes this distinction over at NRO.
- Continuing with Rule 5.5(d)(2), you can’t have it both ways, and say she was not practicing law in Massachusetts, but then saying there was a federal or other law (which you don’t cite) which says she can practice in Massachusetts.
- LOG also makes a strawman argument about Warren not violating advertising rules. I make no such claim.
- None of this legal analysis is particularly complicated. It’s made complicated only because of how much Warren defenders have to spin in order to claim that representing numerous corporate clients from an office in Massachusetts for 15+ years earning hundreds of thousands of dollars is not practicing law in Massachusetts.
(added) Good to see John Hinderaker is on the case picking apart the baseless argument at LOG:
So the question is, what “federal law or other law of this jurisdiction” would allow Warren to practice law in Massachusetts, even though she doesn’t have a Massachusetts law license? Neither she nor her supporters have suggested any such law that might apply.
Update 9-27-2012 – Elizabeth Warren represented Massachusetts client in Massachusetts
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Comments
Being ignorant of how this works (as I am) I wonder how much practice of law is required by the BBO before they determine the statute is violated? If it isn’t an either/or standard, what is it?
That would depend on whether the positions advocated by the offending individual forward the diverse needs of a socially and economically just society. If so, it never violates the statute.
Professional licensure laws do not include such wafty and meaningless phrases as forward the diverse needs of a socially and economically just society. Such laws have explicit requirements for obtaining and maintaining their licenses, and pleading this ‘diverse needs’ tripe as a defense will not advance the cause of the transgressor.
The enforcement of rules and laws is often at the discretion of an individual or individuals who are willing to look the other way if the “offender” is sympatico. Much as we would like it to be otherwise, we should not blind to history and current events.
Have you ever been to Massachusetts? They can just see angels and demons there and they know how to deal with them. Trust them.
Well the law does not allow the Obamacare mandate but that did not stop five people from voting it through as a tax.
There is one set of rules for the left and another for everyone else. This is due to the fact that the left largely occupies the positions that make these decisions. If you want a textual reading of the law you will have to plead before a conservative… at least one who hasn’t “grown” in office yet.
Otherwise the needs of a diverse community or whatever other drivel is in vogue will be very much a factor.
She still has no press release or statement about this. Why? She is scrambling to come up with an answer. Nothing in press releases and nothing on her blog (other than some platitudes about Scott Brown being mean to her family (?))
Elizabeth Warren is in a pickle: She may be in trouble with the bar if these repeated efforts constitute the practice of law. Especially if she was inactive in Texas and New Jersey at the time.
But she also faces the political hypocrisy of helping an insurance company prevail over working class union members making asbestos claims because of exposure while on the job. If Scott Brown did this, he would be finished. But Elizabeth Warren, the consumer advocate queen doing it? How is this not a huge problem for her base.
When actually did Liz Warren resign her law license from New Jersey?
I think I read it was Sept 12, 2012. That is mighty dang recent. Something to hide?
It sure is suspicious.
Every state seems to be different in how strict it is about UPL. But I would think that “how much” UPL goes more to the penalty rather than to whether there was a violation of the law.
The best venue for a formal complaint would be either in Texas or New Jersey. The question is did Warren misuse their state’s law licenses for the purpose to solely engage in legal work here in Massachusetts over a significant length period of time? That is a determination for those Bars, not Massachusetts.
It is easier for Texas or New Jersey to investigate, then Massachusetts.
Fredrickson, whose generous salary is paid for by the compulsory dues paid by Mass. attorneys over which the BBO rides herd, is quite skilled in the fine art of Hemmin’ ‘n’ Hawin’.
Like most of his ilk, he seems rather adept at avoiding any definitive statements, while allowing each particular audience to hear what they want to hear.
Jello, nail, wall.
I see Fredrickson and his/her “partner” (he’s in MA after all!) registered their negatives.
LOL !
It is dispiriting that the low-information voters will not be influenced by excellent analysis, such as done by Prof Jacobson, but will go with the liberal sound bite.
Sorry I couldn’t resist. Mentioning low information voters when you haven’t bothered to click through and read the links that challenge the original post is at least a little ironic.
There is nothing here that should alarm anyone (other than Prof. Jacobson’s sloppy legal analysis). It now seems clear that Warren had a active NJ license (see my links at the end of the comment thread), which would allow her to practice on a temporary basis in federal court. The only real question is whether her address on an official court filing is ‘legal solicitation of the public’, which the case cited by Prof. Jacobson does not touch. Which, it should be noted, is very unlikely.
“Fredrickson did not want to be dragged into a political issue.”
This is not a political issue; this is a legal [potentially criminal] issue. I already know who Fredrickson is voting for …
“Fredrickson was perfectly pleasant, although he did express both at the start and the end that he did not want to be dragged into a political issue.”
WTF…!!! Too late, idiot!!! The BBO needs a WHOLE lot smarter general counsel.
In fact, depending on their ethics code, he may have violated the rules by throwing off this comment.
It’s only a violation if it helps a conservative! Here, like in the NBA–no autopsy, no foul.
So, he did not mean to say exactly what he said? Oh, of course. How could anyone be fooled into thinking that he meant the words that came out of his mouth?
And a lawyer, too.
If any HLS graduates are reading this:
What are the implications of HLS doing nothing in the face of Warren’s trespass?
Is HLS so big and powerful that it can afford to have its reputation sullied by the likes of Warren?
If HLS Profs Tribe, Wilkins, and Ogletree (and others) are in the tank for Warren does her lack of professional decorum mean nothing, nothing at all?
Does anything count at HLS?
What are standards?
Is the vacillation in response to this latest revelation akin to the left’s destruction of America’s Constitutional foundation?
That is, the rules are what we say they are, whenever we say so; situational ethics?
Is this the lesson HLS is teaching, that the truth is whatever we want it to be?
IANAL, I don’t play one on TV. Am not even a sea-lawyer. But, it is hard for me to imagine that the HLS legacy is pleased to have its name & reputation dragged through the mud over Warren.
To paraphrase The Bent One…..
It depends on the meaning of the word “license”.
Language, truth and young interns need to be flexible.
Let me rephrase the good Mr. Fredrickson’s statement: he did not want to be dragged into a political issue beyond what he said and did yesterday to help his colleague in her Senate campaign.
There, that reads better!
Like many, many other state officials, Mr. Frederickson understands that one of his primary duties is to take care of the favored. In Massachusetts, that means taking care of 1) Kennedys (a near full time job) 2) Democrats and 3) progressives of other stripes.
May I suggest gently that if Senator Brown had a law license problem that the matter might be handled ever so slightly differently, and that Mr. Frederickson’s public comments might also be a tad more, oh, what’s the word I’m looking for here, harsh?
His public comments were meant to pour oil on troubled waters and thereby put the public back to sleep. They were meant to give the MSM the excuse they needed to drop the matter. It would have worked, too, without our favorite honey-badger professor to follow-up.
I’d keep digging. Texas and New Jersey might be helpful.
In particular — why did Prof. Warren just give up her New Jersey license? And did he have an ACTIVE license in any state during the time she was writing these briefs?
My gut says that Texas might be more helpful than New Jersey.
This uncertainty in Warren’s compliance with the Massachusetts licensing laws can be cleared up starting now, by registering a formal complaint with the Board of Bar Overseers.
Such claims take time to process, but the filing of the claim can be sufficient to generate news of its filing – although a formal adjutication might be months away. Typically such Boards have a long and shielded period of due process, though they should accept formal evidence from interested parties.
The complaint would be taken most seriously if registered by a practicing attorney already licensed in Massachusetts, asserting something like ‘unfair and illegal competition’.
“Justa Indian” = not an Indian
First breastfeeding tester = 1st of maybe 31st, “who knows”
Scholarly works vetted = not vetted
Justa cabdriver = her regular driver, that brings his child to sit with her
Never practiced out of her MA office = ? where did she practice out of? under what state’s license?
Mercyneal, We don’t know how Texas or New Jersey would respond. Many people hold multiple active licenses, and never really use them, but always one of them is where they reside and do legal work. It’s just really weird she never bothered with getting a MA license. If Warren held a Texas and RI license, her Massachusetts office may not be a big deal. It’s only an hour between Providence and Boston, but New Jersey???
The infamous plagiarism scandals at Harvard Law School by Professors Tribe, Dershowitz and Ogletree were all forgiven by now Supreme Court Justice Kagan. As far as I know, the BBO did not review their law-breaking at all. Now, for sure, we know that Lizzy Warren committed plagiarism in Pow Wow Chow with no consequence from HLS, so we can likely expect no review of her potential violation of Massachusetts regulations regarding lawyer licensing.
To repeat what I posted yesterday:
I am not yet convinced, one way or another, whether Warren illegitimately practiced law in MA. I am convinced that she should reveal the specifics of her legal activities.
Let me put that another way. Suppose that a Fortune 500 company, embroiled in litigation, was interviewing Warren to be its Chief Legal Officer. They would certainly demand that any ambiguity about her professional standing be resolved before they would even consider whether to make her an offer.
The people of Massachusetts should act no differently wrt a potential Senator.
The Boston Globe has asked for specifics of her legal career, and she has refused to comply. Why?
I tell my kids that some ballplayers make mistakes and we pat them on the butt and encourage them to “play through it”! Other players make mistakes and they take a seat on the bench for the rest of the season. Depends on the coach! So we got mistakes and we got mistakes! I suspect Professor High Cheek Bones gets to play through this mistake, again!
Fredrickson provided cover for Warren. That’s how I read this post. He inserted himself in a situation that has political implications for Warren, and he did so knowing he is on the MBBO and his statements will be received as definitive absolution. Fredrickson did not make a “personal” statement; he made a political one. For him to seek to cover himself in “personal statement” is bull. Had he been interested in being “personal,” he would have withheld any point of view that differed from the law and simply stated he needed to look at the particulars. When you belong to certain offices, “personal” statements that would have political impact are a luxury. Trying to baffle the public with BS says he, like all the pinko limbs, thinks we the people are stupid.
Imagine. You can’t weave corn rows in someone’s hair without a license. You can’t drive a taxi without a PERMIT. You can’t even run a dang lemonade stand without government licensing but you CAN practice law without a license?
The rules only apply to some. As usual. The most intolerant people.
MassLive has just done a story. At least the reporter cites Jacobson’s name:
http://www.masslive.com/politics/index.ssf/2012/09/lawyers_say_elizabeth_warren_d.html
It doesn’t say whether Warren’s licenses were active in NJ and Texas at the time of her work on Travellers.
I don’t think it should come as a huge surprise that Mr. Fredrickson wasn’t speaking with the full imprimatur of the BBO when he spoke with a reporter mere hours after the “law license problem” post appeared on LI. Nevertheless, it does seem somewhat relevant that the chief GC at the BBO doesn’t think Lizzy really has a “law license problem.”
Getting back to the merits, I don’t see why Warren’s work wouldn’t fall into the second express exception to Mass. Rule of Profesional Conduct 5.5, which states:
“(c) A lawyer admitted in another United States jurisdiction [i.e., federal court], and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction [i.e., Massachusetts] that: . . .
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction [federal court], if the lawyer . . . is authorized by law or order to appear in such [federal court] proceeding . . . . [bracketed references inserted by me, of course].
IOW, if Warren was in good standing as a member of the Bar of the U.S. Supreme Court, she could provide legal services from her office in Massachusetts, on a temporary basis, pertaining to whatever case she was working on that was pending in the Supreme Court.
As the OP stated, there’s a comment to the rules that says: “There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction . . . . 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.”
To me, the official comment would clearly suggest that an out-of-state lawyer who from time to time performs legal work in Mass. in connection with his/her pending out-of-state cases doesn’t need to be a member of the Mass. Bar. But Prof. J dismisses this exception out of hand, stating:
“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.”
That, I’m afraid, is a complete mis-reading of the exception and the comment. The exception doesn’t talk about whether the LAWYER is in the Commonwealth on a “temporary basis”; it clearly relates to whether the provision of SERVICES is on a “temporary basis” (which, again, can mean recurring and over a long period of time, according to the comment).
I should add that I don’t believe Warren would even need to rely on the exception, because she doesn’t appear to be in violation of the general provisions of Rule 5.5 to begin with. She didn’t (apparently) establish a law office; she just used her office at Harvard for whatever legal work she was doing. And she didn’t (as far as we know) establish a “systematic and continuous presence” in Mass. for the practice of law. I would think indicia of such a systematic presence would include advertising, marketing, a website, employees, the opening of client trust accounts (IOLTA), business cards, signage, etc. And, she never (AFAIK) held herself out to be a Mass. lawyer.
I get that this is intended to make a political splash, and “all’s fair in love and war,” but there’s so much other stuff to go after Warren for that we really shouldn’t need to expend credibility in the pursuit of baseless charges. I didn’t like it when Romney was accused of committing a felony a few weeks ago, or when Harry Reid tried to put the burden of proof on Mitt to show he paid taxes for the last 10 years. I can’t pretend it’s OK when our side does the same sort of thing.
Apparently in MA there’s no such thing as a part-time law practice where clients are referred exclusively by word-of-mouth?
Can you say specious, I knew you could.
Ms. Warren was not an out-of-state attorney. She was a resident of the Commonwealth of Massachusetts. Therefore, relying on licensure from other states instead of obtaining proper licensing in the Commonwealth is not a matter of temporary expediency. It’s a matter of professional standards and respect for the Bar of the Commonwealth.
Having watched a few episodes of Boston Legal, I can’t imagine that the obstacles to Prof. Warren getting right with the law in MA were too great for her. 🙂
“Ms. Warren was not an out-of-state attorney. She was a resident of the Commonwealth of Massachusetts.”
She was a NJ and (at some point) TX attorney. That’s what the rule is referring to, not state of residency. In fact, read the rule: It says the exception applies to “A lawyer admitted in another United States jurisdiction . . . “.
“Therefore, relying on licensure from other states instead of obtaining proper licensing in the Commonwealth is not a matter of temporary expediency.”
That may be YOUR rule, but it’s not what the the applicable ethics rule in Mass. say in regard to a “lawyer admitted in another United States jurisdiction.” Lawyers duly admitted to practice in other jurisdictions are expressly allowed to provide services IN Massachusetts on a temporary basis — which may mean over a long period and on a recurring basis — on matters they are handling from those other jurisdictions. That’s just what the rule says, whether you like it or not. There’s nothing “specious ” about it. Your insistence that the exception doesn’t apply to Massachusetts residents is nonsense; it has nothing to do with residency.
“It’s a matter of professional standards and respect for the Bar of the Commonwealth.”
Lizzie Warren is a fraud in a number of ways, but she hasn’t violated professional standards or disrespected the Bar of the Commonwealth as far as I can tell.
I’m sure the legislature which passed the licensure law, and the individuals who wrote the rules governing their enforcement by the MBBO were looking for a way to allow venue shopping for licensing requirements instead of being courteous to those temporarily in the state, or with business interests which bring them only sporadically into the state.
1. Is it legitimate for an employee of a nonprofit institution to use that institution’s facilities to support a for-profit enterprise like a legal practice?
Even if “everybody does it”, should “everybody” include a micro-regulator and critic of supposed capitalist abuses?
2. Whatever the technical status of Warren’s legalistic activities may be, IMO her work for Travelers creates reasonable concern that she is hiding something.
Most universities require faculty members to file an annual report disclosing all of their outside consulting activities, usually faculty have to give at least a general estimate of how much they were paid plus the names of their clients.
So yes, it is usually allowed – with the caveat of full disclosure to the main employer. Personally, I would love to see those disclosure documents to see who the heck Warren, “champion of the little guy,” has actually been working for.
It would just be a matter of her (or Harvard) releasing documentation that already exists.
Where is the line between “dabbling” in the practice of law and the unauthorized practice of law? I’m not a lawyer, so I wouldn’t know.
At Legal Ethics Forum I have posted an analysis that comes to conclusions very different than yours. First, you fail to consider the effect that admissions (general or pro hac vice) by federal courts would have. Second, you mis-analyze the distinction between a systematic and continuous presence as opposed to temporary. Your claims are unproven and unlikely (although not impossible if there is evidence that Warren botched her federal court applications).
http://www.legalethicsforum.com/blog/2012/09/elizabeth-warren-and-upl.html
So we can count on nothing happening b/f that board; if the person in charge of investigating is already saying this, they’re not going to seriously consider any unauthorized practice charge against her. I love how rules only apply to people that regulators/govt/liberals (all the same) don’t agree with.
Bar Boards always cover for attorneys. You have to practically commit murder to get them to do disbar you.
It is up to reporters to keep digging on this. Often Boards will change their tune if there is a public outcry.
Ain’t that the truth!!
I filed a grievance complaint against an attorney with the state grievance panel as a “pro se” litigant as I subpoenaed a witness represented by said attorney.
1. Said attorney originally filed a motion of continuance – but failed to inform me that she was filing a motion of continuance. What am I – chopped liver?
2. Said attorney failed to contact me per the instructions on the subpoena.
3. Said attorney then filed a “motion to quash” without providing me a copy and giving me an opportunity to argue against her quash motion; the magistrate involved approved the motion to quash without giving me the opportunity to argue. It was all done without my knowledge.
Needless to say, I found out about this after the fact and went ballistic. I filed a grievance complaint, and the panel basically said the attorney could have made a better attempt to contact me, but no punishment or sanctions were merited.
I am in the process of setting up a website about this attorney and will advertise it in the hometown paper. I may advertise this every 6-months! I will exercise my rights of free speech – and state the facts with copies of all motions, etc. Let the public decide ….
If you follow through as planned, I think you may not like what the public decides.
Court documents [unless sealed] are public records. What harm is there in telling my story, 100% truthful, backed up by factual documents? I feel I definitely got the short end of the stick, and I am willing to go public with my experience.
You might be right with respect to underlying incident. Perhaps the lawyer was wrong in failing to notify you about the motion to quash.
However, you’ve already filed an ethics complaint which the lawyer was obliged to respond to, and it sounds like the board essentially exonerated her (mild criticism notwithstanding).
Now, unwilling to let the matter drop, you are talking about setting up a website and advertising it in the local paper on a recurring basis, all in an apparent effort to punish the lawyer for failing to call you to tell you about the motion to quash (which the magistrate may well have granted anyway).
If I saw something like that in my local paper, I’d probably conclude that the person behind it was a crank who lacked any sense of proportion.
Sorry to be blunt, but you asked for my opinion.
FOX News about to cover whether Warren “practiced law without a license”
EW would have had to file an Application for the Admission to Practice before the Supreme Court
http://www.supremecourt.gov/bar/barapplication.pdf
And, on the Application, she is required to state whether she does practice law and the Application asks the nature of her practice.
Is this FOIA obtainable?
Yesterday, the professor mentioned another aspect to the matter of Elizabeth Warren that perhaps someone with ties to present-day Harvard Law School could help him with via his tip line. That would be he didn’t have access to the Law School Faculty manual – so he didn’t know what Harvard expected in the way of policies set for Faculty doing outside business. Or if Harvard’s expectations for Faculty and Administration doing legal practice on behalf of themselves, for Harvard, or for a “Cause” included a Massachusetts law license for permanent staff..or a more nebulous requirement they be licensed and in good ethical standing “in some jurisdiction”.
Jacobson said yesterday the Faculty guide was not online. But if he or someone else had one furnished by Harvard or obtained it through someone at the Law School – it would be helpful in putting an end to much speculation.
I note that someone posted in another site that they checked on about a dozen other Law School Faculty members license status including Dershowitz and Tribe and found all had active law licenses in Massachusetts. So, at minimum, Warren appears at 1st glance atypical of how other Harvard Law profs dealt with this.
“So, at minimum, Warren appears at 1st glance atypical of how other Harvard Law profs dealt with this.”
You’re assuming that those other professors all have backgrounds and careers that put them in the exact same position as Warren, but they reached the opposite conclusion as to the necessity of obtaining a Mass. law license. There are an awful lot of assumptions and suppositions tied up in that inference.
Perhaps the rest of the faculty had the sense to understand that it’s easier to maintain an active MA bar membership than have there be any questions raised about any sideline work they did (even if they don’t believe they’re technically doing anything wrong).
[…] Prof., for saving me the trouble of pointing out the absurdity of the Mass Lawyer’s Weekly article about the whole debacle. […]
Has no one actually done any actual research to see if this is in fact a legitimate claim? You know like: looking at the evidence present and the applicable law without Prof. Jacobson’s conclusions, or even following the links to read what the various other bloggers had to say.
Before anyone comments, they should go to Ordinary Gentleman and read the critique of the original post and subsequent commentary. It lays out pretty clearly that Warren had an active license to practice law in NJ, meaning that practicing in Federal Court at various times during her tenure in Mass. did not violate Mass code of professional conduct. Further, the ‘on point’ case that Jacobson cites is nothing of the kind. The question is whether putting your address on a formal legal document is holding yourself out to the public, the case cited says nothing of the kind.
The post also points out that NJ recently created a CLE requirement, and those mandatory hours would have been do very recently. Warren could have either done the classes, suffered a disciplinary action, or resigned. She chose to resign.
On a last note, it is strange that Prof. Jacobson did not respond to the thorough deconstruction of his argument at Ordinary Gentleman, and instead responded by saying that opinion of the BBO counsel was just an opinion, which was pretty clear from the original post.
Wel, in partial defense of the LI commentariat, several of us clearly disagree with Professor Jacobson’s analysis and have said so. I would note that, from my review of discussion threads here and in other blogs, it appears that Professor J’s analysis is not faring particularly well amongst the lawyers who have commented on it.
Gaelan: Warren herself said on the radio yesterday that her license in New Jersey had been inactive for “many, many years.”
Where are you getting the information that it was active?
http://www.judiciary.state.nj.us/cpf/internetfaq.htm#inactive
NJ does not have an inactive status. The options are either active, suspended or disbarred. Again Warren resigned her position without prejudice. See here for evidence that Warren did not have any disciplinary proceeding from 1987-2012. And it should be noted that to appear before the Supreme Court requires a letter of good standing from a state bar.
http://www.judiciary.state.nj.us/oae/discipline.htm
Finally, her inactive quote was not a comment on the legal status of her law license, rather it was about her legal activity in NJ. Does that clear it up?
Gaelen, it is good to understand the status of NJ’s licensing approach. Active, suspended, disbarred. Though the last I believe might be more accurate to say was in the category of reasons to revoke a license – along with disbarrment, matters like non-payment, conviction of a felony, etc.
The question is what status would fall on the license of someone that failed to meet NJ’s Continuing Legal Education requirement for 20 years? (Assuming Warren was not making regular trips for the mandatory classroom part, or substituting some CLE offered in Mass and accepted by NJ the last 20 years.)
Would her failure to comply with NJ’s obligations leave her in an active status but ethically bound not to practice law until she cleared up her CLE? Or would NJ suspend her license pending completion of CLE? Which would likely have put her in UPL for both her private client cases and practice of law in Mass and Federal Courts where an active status is required….
I don’t know.
Maybe a NJ attorney can illuminate us both on what NJ does.
Gaelen, one other matter. I did not include the possibility that Warren may have cheaped out, and not paid her license fees because she wrote that she was not currently practicing in NJ and therefore did not need to pay NJ to practice law. And instead of revoking her license, procedure was to suspend the license pending return from her “temporary teaching job”.
And my understanding, BTW, from other posters, is that NJ’s CLE is not a very recent requirement, but in place for many years in NJ.
Chris, so, as you probably noticed, I was actually wrong on the classification (never followed that link from the original article). It seems like she could also have been ineligible, though as I noted, she was able to receive a certificate of good standing from either NJ or Texas.
In response to your question, there was a good discussion of NJ CLE requirements at LOG. If I remember correctly CLE requirements are new to NJ, and it seems like it became time for her to do the work or resign, and she chose to resign.
Gaelen, actually, no. Please keep the sloppy analysis over at LOG. She almost certainly was “administratively ineligible” which is the same status she has now in Texas. The link was in my original post. http://njcourts.judiciary.state.nj.us/web10/AttyPAWeb/pages/AttorneyStatusDefinitions.pdf
I would point out that you did not present any evidence that Warren was ineligible to practice law in NJ. Instead the circumstantial evidence points to the fact that she was, in fact, an active member of the NJ bar.
From the link in my previous post. “ineligible attorneys are considered not in good standing in New Jersey.” And we know that she was admitted to the Supreme Court, which requires a certificate of good standing from the state bar.
Now, I assumed that was NJ because I thought a Texas attorney could not get a certificate of good standing because they are not able to practice law. But after a little research I realize I may have assumed to much. Either way, she admitted to the Supreme Court.
Now on 5.5(d) I tend to disagree with you. The regulations states that a lawyer “may provide services in this jurisdiction that . . . (2)are services that the lawyer is authorized to provide by federal law . . .” This regulation seems to allow Warren to provide legal services in Mass. whether she is licensed there or not, as long those are temporary services for which she was authorized to appear by federal law (ie. admission to the federal bar).
In fact, comment 18 to 5.5 states:
“Paragraph (d)(2) recognizes that a lawyer may provide legal services in this jurisdiction even though not admitted when the lawyer is authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent.”
And Supreme Court Rule 5 deals with admission to practice before the Supreme Court.
http://www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf
And then You have Comment 15, which states:
“Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice in another United States jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law as well as provide legal services on a temporary basis”
Now to me that sounds like what Warren actually did: she was admitted to practice in federal court, and provided legal services on a temporary basis. On a final not it seems like this rule was adopted for retired or semi-retired lawyers, and . . . wait for it . . . law professors.
Dr. Jacobson is front and center on Meagan Kelly right now! Way to go Prof!
Megyn didn’t cover much .. mentions six year statute of limitations, and that it would have been Elena Kagan that allowed her to practice out of her office without a license. Didn’t take it real seriously.
Up on Fox website: http://www.foxnews.com/politics/2012/09/25/warren-now-faces-questions-about-her-law-licenses-legal-defense-big-biz/
It seems that this discussion has gotten very “out there” – and the question really is a very simple one. If I, Mary Smith, ordinary attorney on the street, had committed this pattern of behavior – would I be excused on technicalities or would I be the subject of great outrage by all members of the Bar and ultimately a guest of the State of Massachusetts fine prison system?
Having recently been involved in litigation, I can tell you that the plaintiffs attorneys considered it a near fatal mistake on my part to not have read a safety manual for a piece of equipment that never existed or that I didn’t possess a hazmat certificate to operate a piece of equipment that is sold in all discount stores to the general public.
I’m just saying – she needs to be held to the same standards that the ordinary public is held to by those same lawyers… which includes having the appropriate professional licenses.
Sounds like you are arguing that because you were involved in litigation and were treated unfairly by the opposing lawyer, then, as lawyer, EW should be treated unfairly in this instance, even if she didn’t actually break any rules?
Should Scott Brown be deemed guilty of some sort of ethical misconduct just because he, like EW, is also a lawyer?
The entire discussion we are having stems from a blog post in which Professor J. asserted, based on his legal analysis and the stated facts, that EW had broken the law and the applicable ethical rules. That claim by him should stand or fall on its own merits. It has nothing to do with getting revenge for any other grievance people have had with lawyers in their personal lives.
Conrad, I’ve read several of your comments. I’m gathering that you are a lawyer.
Would you kindly state your expertise? I recognize that you may not want to share identifying particulars, but if you could mention the law school you attended, the state(s) in which you practice, and your area of specialty, it would help me and others understand your background.
Thanks,
Perhaps you could post an email address where I can contact you to provide a bit more info as to my background in the law. However, I don’t think it should be necessary to get into people’s biographies in order to respond to the merits of what they’re saying.
I understand your frustration, but Warren is really not getting any special favors here. The exceptions were written because a hard line rule that any lawyer doing any legal work in the state be admitted to that states bar run into practical concerns, as well as horizontal and vertical federalism issues.
Said another way, the rule requires that people that practice law in Mass. state courts, or whose legal office (from which they solicit the public) is in Mass. register with the bar of that state. Warren did not practice in Mass. state courts, and while she did have a office, it was as a full time professor, not to solicit (or provide) legal services.
So, the next time I’m in Boston eating Lobster at the Black Rose and represent myself as a loi-ya to some pretty twenty-somethings, is that considered legally “dabbling in the law”? If they are ultra naive, can I charge them?
😆
Granyn Warren says she was licensce to practice law in NJ? I think not. Passing the bar is only one requireiment. here is a quite from the NJ courts
What must I do if I want to engage in the private practice of law in New Jersey?
In order to engage in private practice in New Jersey, you must:
a. pay the annual assessment;
b. complete the attorney annual registration statement and keep the data current throughout the year;
c. maintain a bona fide office under R.1:21-1(a);
d. fulfill the requirements of R. 1:21-6, including trust and business accounts in an approved New Jersey financial institution; e. keep trust accounts IOLTA-compliant (R. 1:28A); and
f. maintain required levels of malpractice insurance under Court Rules if practicing in a P.A., P.C., L.L.P., or L.L.C.
Lizard did not “maintain a bona fide office under R.1:21-1(a);” and hence was ineligible to say she was licensed to rpactice law in NJ.
and by the way, a NJ license does not entitle you to practince outside NJ.
Your assertions do not appear to be true. From the rule:
” a bona fide office is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney’s behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time. For the purpose of this section, a bona fide office may be located in this or any other state, territory of the United States, Puerto Rico, or the District of Columbia (hereinafter “a United States jurisdiction”).”
And EW was, in fact, licensed to practice in NJ, at least until this month.
so Conrad, where was Lizard’s bona fide office?
did Lizard also set up the required trust funds for client money? me thinks not
also prior to 2003, the law office had to be located in NJ. Lizard’s office never was in NJ or anywhere else.
I don’t know what address and phone number she gave to the bar authorities as her BFO. I would presume it was her office in Cambridge, but perhaps she gave them a different place where she could be reached (her home?).
I don’t know about her bank accounts. If she wasn’t handling client funds, I doubt she was required to open accounts.
As for the pre-2003 requirements, I would imagine that NJ lawyers who didn’t actually live and work in Jersey could make arrangements with other lawyers or offices to serve as their BFO for purposes of this rule.
Please don’t assume that the BFO address and phone number a lawyer was required to provide to the NJ bar authorities was legally and for all practical purposes the same as a “law office” under the Mass. rules, such that if EW listed Cambridge as her NJ BFO, she ipso facto had “established an office for the practice of law” within the meaning of the Mass. rules.
But Conrad – was her license to practice in NJ in an active status, or was it in an inactive/suspended status?
That is the question.
If it was suspended for non-payment, failure to maintain liability insurace, TECHNICALLY she still HAD a license, but she could not practice law.
From what I understand, EW was a member of the NJ bar in good standing until earlier this month, and there’s no formal “inactive” status in NJ. I would agree that if EW was not admitted to practice ANYWHERE at the time she was filing briefs, etc., she has a “law license problem.”
I am a Massachusetts lawyer at a prominent national law firm. I have not analyzed the legal issues, so I would like to comment only on the custom. Our firm occasionally hires non-Mass lawyers for our Boston office. They are required to sit for the Mass bar the next time it happens. This costs our firm significant amounts of money, as these folks are paid during their prep time. If the rules as applied to Warren applied to everyone, we could save a lot of money. This is circumstantial evidence, but still evidence, that some of the most prominent Massachusetts lawyers believe such licensing is required. I do not know, but I suspect, that our peer firms take a similar position.
Ariel, you comment is needlessly haughty. I hope you are a clueless junior associte and you don’t talk like this your whole career. LOL.
but hey, I am sure your firm makes buckets full of $$ when said junior lawyer is not prepping but billing clients. (if you have 5 years admitted in another state, you do not need to take the Mass bar but can waive in) How greddy are you people?
Not the same situation at all, Ariel. Your firm requires new lawyers to take the Mass bar exam so they can appear on the letterhead and so that they can advise and represent clients in Massachusetts without any kind of restriction.
You raise an interesting point, however. Seems to me the big firms in Boston often do have a lawyer or two on the letterhead who is “Admitted in New York only.” Maybe those lawyers are permitted to practice IN Massachusetts, without a Mass. license, because they are expected to eventually take the Mass bar?
Thought that would get your motor runnin’. Need any assistance in the THUG department, just ring our bell, Professor J.
An out of state holder of a NJ bar admission who did not complete their required CLE by end of 2010 (or 2011, depending upon which half of the year their birthday fell) could no longer have an active law license as of January 1, 2011 (or 1/1/12) following their failure to meet the newly instituted CLE requirements.
And extension could have been granted, but even that lasts only so long.
Warren may have give up on her NJ license on 9/11/12, but it certainly did not stop being valid on that date. It had gone bad long before then.
All typos are mine, but damn that touchscreen for submitting my comment too soon.
As I mentioned yesterday, this is based on helping my licensed-in-NJ but living out-of-state wife navigate the newly imposed (perhaps just on out-of-state licensees) NJ CLE requirements late last year. (I’m admitted in NY, but do not and have not practiced whatsoever during the last decade.)
(My recollections are solid, but I augmented them using my wife’s recollections as I could glean them from her during a funny few moments of lucidity as she recovers SPO her fourth cancer surgery in as many months. It did provide her a moment of lightness knowing that her lost 24 hours of Thanksgiving and Christmas holidays last year may help provide some needed information that might make Ms. Warren campaign a little more futile.)
The problem is that there is now reason to believe that it is more likely than not that Elizabeth Warren conducted activities that are dangerously close to “practicing law.” And, this comes on the heels of her claiming that she was helping the asbestos victims (when in fact she had duties to the insurance company that wanted to tie off claims), that she was 1/32nd Native American and a “person of color,” and the author of a Native American recipe that was cribbed.
Voters, donors, reporters and other members of the U.S. Senate and House of Representatives now have to wonder whether Chief Teaching Bull is even more cavalier and disingenuous than the typical American politician, as she has proven demonstrably that she is a person who does not appear to believe that the rules she would impose on others (or at least expect others to abide) apply to her, that she is entitled to exploit a 3.125% genetic heritage (assuming her claim of Native American heritage is true), that she is entitled to a $350,000 per year tenured salary even if it means teaching only one class, said salary quite possibly being the tainted fruit of her exploiting an unjust system of racial spoils that won’t protect a po’ white kid from the hills from a disadvantaged background but will protect, promote, and reward all minorities, including those who are wealthy, privileged, and not the least bit disadvantaged, or merely a quadroon of an octaroon. [Are quadroon and octaroon actual words? I tend not to think of people as anything other than human beings, except, for their gender when I am in, ahem, “Sandra FlUCKe mode”].
And, if anyone in Non-Native American portion of Chief Teaching Bull’s family was displeased about a member of their clan getting “Sandra FlUCKie,” with a quadroon or octaroon Injun’, redskin, primal aborigine of the Cherokee and Delaware varieties, then does not that merely prove that Chief Teaching Bull is descended from a family of bigots? Any disadvantages she may have endured, such as some elderly crank, curmudgeon and ratchet-jaw of an ancestor not loving her as much as they would have if she were actually 100% pure (Aryan?) instead of just 96.875% pure (Aryan?), would have been at the hands of her own bigoted (and perhaps even racist) clan, not the rest of us.
Not being disadvantaged, except by bigots within her own clan, what business did Chief Teaching Bull have claiming racial spoils? And, did she gyp a truly disadvantaged Native American out of an opportunity, in the process of claiming one for herself?
Well, she wanted to meet people like her? But, what was that? Did she bring any more Native American culture to the table than does the typical person raised in Oklahoma (which has substantial exposure to at least the Cherokee tranche of Native American culture and history – its even on the license plate, for f*ck’s sake!).
Harvard Law School also appears to be an institution that is willing to judge (and tout) people not on the content of their character but on the color of their skin and some ancient family lore based upon a wedding license. Sic transit MLK. Harvard was promoting itself by having this “person of color” faculty member. Did not one person at Harvard ask, “is it credible, is it ethical, for us to tout a ‘person of color’ faculty member who looks like a Hitler Youth and who, by her own account, could not be more than a dotriadecaroon?” No, of course, not. That would probably be a term used by someone from MIT, or CalTech or Georgia Tech. So, maybe someone inquired whether they should be touting a faculty member sho is, at most, a semi-mustefino (or demi-mustafino, hemi-mustafino)? But, assuming there was even one person at Harvard with integrity or at least an eye for credibility, vox clamantis in deserto, protesting this disingenuous and self-congratulatory marketing, that voice went unheeded.
So, what other claims of Harvard Law School and Harvard in general are disingenuous? There is already a class action lawsuit against a handful of law schools about the accuracy or fraudulent nature of their placement and salary statistics. To the best of my knowledge, it does not involve Harvard. And, Emory just admitted fudging numbers, although, I believe, undergrad, not law school.
For years, Harvard had an almost impeccable reputation, and now, it seems, Harvard is wrecking its franchise the way the New York Times has wrecked its brand.
Part of this has to do with the democratization of information and education. More than 500 years ago (pre-Gutenberg) only clergy and a few academic institutions, such as Oxford, had books. Then, books and newspapers became common, but not so common that the drunk guy in Gatsby’s library could help marveling that the books on the shelves were real, not ersatz.
But, given this trend, and the fact that law school does not involve cadavers, laboratories, teaching hospitals, and other really expensive inputs, what is Harvard doing charging God knows what for tuition while paying someone like Chief Teaching Bull $350,000 a year to teach one course? The answer, of course, is that the degree is valuable and the teaching positions competitive. But, does not that mean that Harvard and Chief Teaching Bull are invoking the free market to justify the tuition that they charge, while at the same time decrying the free market in general? And, does not that mean that Chief Teaching Bull had better have a killer resume and better than that of everyone else she beat out for the position (and the salary and the perks)? Who else applied? Were they minority or just some craphat, heterosexual white guy, like Charles Fried, for example? [I assume the former Solicitor General is not just a fan of the First Amendment, but also heterosexual. If wrong, then I apologize profusely for imposing hetero-normative assumptions upon the man.]
Speaking of the First Amendment: Even using Sandra FlUCKe’s math, $350,000 would pay for 1,000 months of birth control. [Which also raises the question, is it fair to make eunichs, castratos, the infertile, the asexual, auto-eroticists, the lonely and forlorn, and those who engage in non-procreative sex acts pay for the birth control of those who do, such as people who still with oral stimulation, mammary f*cking, ass play, grinding, frottage, foot fetishes, dry humping, tribadism, scat play, water sports, rusty trombones, Cleveland Steamers, Cincinnati Bowties, and the like. Not that there’s anything wrong with that. But, why should those who do not risk unwanted pregnancy have to pay for the behaviors of “breeders,” unless, you know, they are Papists to who need to be taught a lesson. Of course, it would be wrong to ask Muslims to pay for stuff they do not approve of.]***
But, I digress. Sorry.
The onus is now on Harvard and Chief Teaching Bull to come clean. Release the personnel records. Release American Association of Law School and similar records, submissions, listings. Release tax returns, including all compensation from Harvard and law “clients” and perks and interest-free loans and business deductions. Ditto the State Bars of Massachusetts, Texas and the People’s Democratic Republic of New Jersey (where dispensing your own gasoline is prohibitively dangerous, despite all of the flag-waving, knuckle-dragging, NASCAR lovin’ Neanderthals in “flyover country” who seem to have mastered the skill). A society of unionized gas jockeys and tollbooth attendants? What a wonderful civilization you will build!
Chief Teaching Bull’s hair and skin may be lilly white, but her candidacy is not. She needs to come clean. Sunlight is the best disinfectant. And, to quote Mr. Fried, Harvard needs to come forward with something other than “a very good answer on Mars,” especially because he supposedly said, regarding one case, “Yale made the argument that it’s a community based on tolerance and inclusion. Harvard didn’t make that argument…Harvard doesn’t think it’s a community, it thinks it’s a law school.”
*** Jack the Ripper lives with his first wife and two kids by the aforementioned first wife. He wishes birth control were a big issue around his house, but his wife frequently talks to him about bills and his “honey do list” during foreplay, “sex,” and afterward, or some combination thereof, and he does not make enough money to afford a girlfriend/mistress, does not know how to get Bunny Mellon to pay for a girlfriend/mistress for him, and John Edwards’s book – How to Get Rich Bitches to Pay for Side Bitches – is still in galleys.
MEMO to SCOTT BROWN:
Ask Elizabeth Warren, a.k.a. Chief Teaching Bull, which is more important – preventing Iran from getting nuclear weapons or preventing viable semen from reaching the ovaries?
Regardless of Chief Teaching Bull’s answer to that, then ask Chief Teaching Bull if it would be okay to get Muslims to oppose Iran getting nuclear weapons and to pay for the birth control used by “infidels” to engage in “immodest” sex?
Then, ask Chief Teaching Bull if she would support a Modest Proposal (with apologies to Jonathan Swift): Given that my (Jack the Ripper’s) fellow Jews are going to vote Democratic again, in part because of a distaste for the Christian Right and its views on abortion – regardless of strict scrutiny and federalism (which includes state constitutions), would Chief Teaching Bull support comprehensive legislation that would have all Israelis taxed to pay for free birth control in the United States in exchange for the United States taking a vigorous role in stopping Iran from getting nuclear weapons?
Do you suffer from asbestos and mesothelioma, despite the improbability of both?
If so, call the law offices of Elizabeth Warren, Leo Gotlieb Professor of Law at Harvard Law School, and 1/32nd Native American of the Cherokee and Delaware stripe.
Despite representing insurance companies seeking to stamp out asbestos claims and no current bar membership, Chief Teaching Bull, has no client conflicts and is de facto licensed to practice in all 57 states (ahem, jurisdictions in the United States), and probably most other countries.*
Attorney Warren can get you results. One very important client of hers currently receives over a third of a million dollars a year, for life, with only a few hundred hours of climate-controlled effort, based upon Attorney Warren’s excellent skills of persuasion, involving just a little modest testimony that really brought the claimant’s disadvantaged family history to life.
* – Not de jure licensed in the following 57 jurisdictions: Alabama, Alaska, American Samoa, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Guam, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Northern Marianas Islands , Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia , Virgin Islands , Washington, West Virginia, Wisconsin, Wyoming, and Something Missing, like Solomon Islands, Marshall Islands, Gilligan’s Island. What the F do you care? It covered. Or not. No matter.
I remember Howie Carr’s Boston Herald article on Elizabeth Warren’s house flipping and the Boston Globe mentioned Warren’s “home based business” of law practice, teaching and investing supporting approximately $150,000 annually. Did “Elizabeth Warren of Cambridge MA” appear as a “Preparer of Deed” in any real estate transactions (in MA or otherwise)? Did she help friends, family, colleagues or MA businesses in connection with contracts, leases, loan applications, bankruptcy filings? Did she help anyone with a will or a Probate Court matter in MA? All of this–even without being paid–would constitute the practice of law in MA.
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