No, Mass. Board of Bar Overseers has not exonerated Elizabeth Warren

WILLIAM A. JACOBSON SEP 25, 2012 11:42 AM

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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