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.
In an interview with public station WGBH (full audio here), Kevin Peterson, founder of the New Democracy Coalition, noted the issue had to be addressed forthrightly by Warren (via Red Mass Group):
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Comments
In the military, there is an expression for screwing up “stepping on your d*ck”. When the screw up is especially egregious, and(usually) the result of quite intentional behavior, you sometimes here it described as the person “rolled it out and danced on it”.
It’s beginning to look like Fauxcahontas really rolled it out and did a war dance on it.
It does appear that Warren also performed an unauthorized war dance, not approved by the Faux Band of Fauxcherokees. She should be removed from the Faux band leadership!
Warren is supposed to be (and I guess really is) an erudite expert in bankruptcy.
She was not advising consumers as to which chapter they might file (which any CPA should be able to do).
She was advising clients in bankruptcy adversary proceedings (litigation within bankruptcy), and in litigation touching on bankruptcy issues. This was high level lawyering that nobody could mistake as not being “the practice of law”.
I have no doubt she knew she was practicing law. She freaking billed for it! Why put herself in this position? And why give up her New Jersey bar card without applying for a CLE exemption or extention?
I really do begin to wonder if this lady has lost her marbles.
“Why put herself in this position?”
Rules are for the little people?
That’s cute, but not really satisfactory.
Warren…like all attorneys…works in a world of rules, and she has to know they DO apply. This behavior is not explained by arrogance (alone). It is quite bizarre.
Rags, there was no reason for Lieawatha to believe the rules applied to her. They never had before. For that matter, they still don’t, as evidenced by the total disinterest of the MSM in Warren’s prevarications and the rock-solid support of Dems for her horribly flawed candidacy.
I’ve been one of the little people and I’ve been a (fringe) member of the power structure. Most definitely the rules are not applied equally. See Kennedy, Teddy and Zimmerman, George.
1. Rags, my guess is that Warren never expected to get this far. Somewhere in the intertubes she is quoted as not having expected tenure at Harvard.
The legal-practice issues would not have come to light had she remained a professor; if they had, the consequences would have been negligible.
I wonder if they played into the Obama administration’s decision not to nominate her to a Senate-confirmable position.
2. Staircase wit is the clever thing you think of, too late, as you’re walking away from a social gathering. Here’s mine:
An LI commenter wrote that the MA bar exam is notoriously easy.
Of course it’s easy. It’s designed so a Kennedy can pass it.
As many have mentioned, in NJ there was no CLE requirement until 2009. This means that by 2011, attorneys had to complete the 24-course hour CLE requirements in order to remain “complaint.”
The NJ court people has been sending tons of letters our this year — 2012 — asking for proof taht lawyer who seek to re-register are Complaint with the CLE requirements over the past two years.
Many lawyers cannot comply with the request for proof (becuase the out-of-staters did not reliaze that NJ’s CLE requirment for out-of-state lawyers changed and NJ is not granting out-of-state lawyers more time to comply).
It seems likely that very-busy EW, was not paying attention to this issue and got caught blind-sided. She chose to resign rather than get put on an inelligigle list. If you get on such a list, it is hard to gain admittance to a new bar. So if you plan of getting admitted else where, it is better to resgn from NJ.
I think your guess as to how this went down is exactly on point. Like most out-of-state lawyers, probably, Warren did not realize in January 2010 when the new rules were implemented that by early 2012 she’d need to amass 24 CLE hours, whereas earlier NJ had no CLE requirement. Remember that Warren was in inactive status in TX, so that she had no CLE requirements there. She was used to not having to worry at all about CLE. Once she realized she had a problem, around Feb. of this year when she received the NJ forms requiring her to show CLE compliance, it was either make time to satisfy the requirement or surrender the license by early September.
Two interesting things:
1. This summer Scott Brown managed to satisfy a requirement of TWO WEEKS service in the National Guard. Warren, despite not having a primary opponent, couldn’t spend TWO DAYS to complete her CLE?
2. Warren’s huge mistake — one that really goes to her judgment/competence — was in not taking prudent steps back in January 2010 to shift her bar membership from NJ to MA. It would have been the perfect excuse to belatedly join the MA (that is, without it seeming to be a recognition that she had an unauthorized practice of law problem): NJ was now requiring CLE, whereas MA requires no CLE. All that would have been involved would have been some paperwork and about $1,300 in fees and costs to file a motion for admission — those who’ve practiced or taught law for at least 5 of the 7 prior years are exempted from taking the bar.
I suspect Warren’s failure to satisfy the CLE requirements was not so much a matter of laziness as it was ego–that her thinking went something like this: “I’m a professor. I’m too important to have to satisfy laws made for the hoi polloi. These rules are made for the little people, not me.”
Ging up the NJ bar card was a sensible decision, as her CLE hours were due several months ago, and she was only allowed a 90-day grace period to complete them. It appears that had she not resigned her bar card she would have been included on the list of those administratively suspended (for not completing CLE, or not paying dues) issued at the end of September. Even assuming she doesn’t win the Senate seat, the new CLE requirements (half of which have to be physically completed in NJ, though there’s a narrow exception to that requirement she might fit in) probably don’t make it worthwhile for her to keep the NJ license. Her TX license is enough to allow her to appear in federal courts, and the main marginal value added by the NJ license is to allow her to appear in NJ courts without being admitted pro hac vice. Apparently she hasn’t used the NJ license for years, so it makes sense she dropped it at this juncture.
I meant “Giving up” — oops! No edit function!
As I’ve noted previously, my reading of the rules indicates she could have applied for an extension, or a complete (or partial) waiver of the CLE requirement for good cause shown.
I know of nothing in the record to show she did.
And had she…a Harvard law professor in a U.S. Senate race…my guess is she would have had the request granted.
NJ has firmly denied any extension of CLE complaince issue for the 2009-11 period past April 30, 2012. No exceptions.
Not a challenge…but could you post your support for that, please?
so long as she does not pracitice law from 1/1/12 going forward, she does not have a big problem. Going backward from 1/1/12 to 2003, she appears to have been validly admitted in NJ. Assuming she paid her dues, she was complaint (there were no other requirments then, sucgh as CLE completion)
Prior to 2003, she had to have had a bona fide office in NJ, but sucha techniccality that is almos ta decade old is not very important today.
Are you sure she was required to have a bona fide office in New Jersey prior to 2002? My understanding is that under the rules as they’ve existed at least since 2007, Warren was sent a form each year asking whether she was currently practicing law IN New Jersey (including working on New Jersey matters from outside New Jersey). If the answer was NO, she didn’t have to list her “bona fide office for the practice of law” (very helpful for her, as if she had listed an office on her NJ form, that might have been admitting a violation of the MA rules against having a law office without being admitted to the bar), and she didn’t have to have a client trust account at a bank in NJ.
Why would the rules have been any different before 2002? That is, when Warren was in Texas, and then Pennsylvania, and then Massachusetts, all the whole holding on to her NJ license, why would New Jersey have insisted that she have a bona fide office within New Jersey? As long as she avoided actually doing anything in New Jersey, my strong assumption is that New Jersey wouldn’t have required her to have an office in New Jersey. The rationale underlying the bona fide office requirement was to ensure that New Jersey clients would be able to have ready access to their lawyer working on their New Jersey matter. It would make no sense to require a New Jersey lawyer to have an office in New Jersey if he or she was located outside New Jersey and didn’t have any New Jersey clients.
I’m hardly a fan of Warren, but I don’t see any indication that she violated any New Jersey rule, except in the most technical sense that apparently she didn’t finish her CLE by this spring, and didn’t finish it within the 90-day grace period, so she face administrative suspension in the near future if she didn’t give up her bar license. Because she avoided any adjudicated violation of any rule, and apparently is listed as always having had a clean NJ record, it seems to me that the main issue is her compliance or non-compliance with MA law (although her failure to shift her bar membership to MA in the past couple of years, to avoid the new NJ CLE requirement, does say something about her judgement/competence in handling her personal affairs).
maybe she really isn’t as smart as she claims to be and could not pass?
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.
In a botched attempt at tit for tat, Warren crony Adam Levitin’s cheap shot at Scott Brown declared that Brown has not disclosed his client list.
This is a golden opportunity for Brown. At the debate he should offer to release his client list if Warren releases hers. His campaign should let it be known that Levitin is a Warren crony who is apparently teaching her courses at Harvard and could be her successor if she is elected. (See my comment at the above link.)
To continue repeating myself, I suspect that her client list shatters Warren’s pretense to be a champion of ordinary people against big business. (It’s also relevant to the issue of Warren’s possible evasion of MA jurisdiction.) The list could be the difference maker in the campaign.
Problem is that Brown likely had lots of individual local clients, who would find themselves in the media fire. How would you feel if a few years ago Scott did your house closing, and now you are targeted by the media? Warren’s clients, as far as we call tell, all were large corporations or banktuptcy estates, so there is no such concern.
Point taken, but surely there’s a way to put Warren on the spot.
Maybe Brown can offer to release the names of his corporate clients if Warren releases hers, or to release the names of the companies involved in the closings. Although he probably doesn’t need a reason to protect his individual clients’ privacy, he can point to the harrassment of Twilla Barnes and her children.
I wondered what the requirements were for bar admission in TX and NJ at the time she received her licenses. Also, do you think her nj license was suspended? If so, scotus revokes its admissions when state license is suspended, or at least, scotus can according to its rules. Did she hire law students? Did she split fees? While a non-lawyer can draft simple contracts, would someone entering into a contract with her assume that she is a licensed atty?
I’m looking forward to tonight’s Brown vs. Warren 2nd debate at 7:00 pm. Hoping the senator will have found Prof. Jacobson’s research and reasoning (plus contributors to this site) useful.
WBUR just released new poll showing Warren’s lead down from 5 to just 2 (effectively dead heat). http://www.boston.com/politicalintelligence/2012/10/01/elizabeth-warren-lead-over-scott-brown-narrows-two-points-wbur-poll/uZrW7LT45VorSTvhtFx1QO/story.html
No splits on that poll so I don’t know if it is D+70 or only D+65…
Many thanks to Professor Jacobsen, doing the work the MSM refuses to do. Um, correction, that’s the work the MSM reserves exclusively to apply against Republicans.
In a comment at Massachusetts Lawyers Weekly, one person said he was going to file a bar complaint against Elizabeth Warren:
Colt Ledger09-26-2012
The quickest way to determine the question is to file a complaint with the Mass Bar. I will do it! I file complaints and ethics charges on these lab rats from time to time. I am sure that the upright defenders of Mass Law will respond quickly, with a year or two at least! Is this the lady that was claiming to be an Indian to get in on the casino handouts? Do they have more Indians or Attorneys in Mass? Colt
The post is at: http://masslawyersweekly.com/the-docket-blog/2012/09/24/warren-law-license-matter-called-non-issue/,
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I don’t know if any complaint has actually been filed.
Any member can file a Bar complaint. I hope that many do.
I meant to say that any member of the PUBLIC can file a Bar complaint.
The Fake Indian is a character issue that has an impact on 25% of likely voters. In other words, the issue might be the difference in whether Brown gets re-elected on not.
This is from The Hill –
“Seventy-nine percent of voters say they’re somewhat or very familiar with that story, and nearly one-quarter of all likely voters polled say the story makes them less likely to vote for her.”
http://thehill.com/blogs/ballot-box/senate-races/259439-poll-warren-leads-sen-brown-but-faces-challenges-in-mass-senate-race
It looks like Warren represented the creditors, parent companies or trusts in the bankruptcy proceedings. I didn’t see any where see represented the debtor
Oh, goody! jim1 must have her client list. No need for further digging.
Care to share, jim1?
lol. Be nice. Jim is only concerned for us.
Look at the Professor’s post from Friday with the March 20 2002 verified statement
I see a pattern here…
Obama gets into Harvard Law by being the smartest person ever (or maybe it was affirmative action and ties to wealthy Saudi’s). We don’t know anything about his academic credentials and probably never will.
Elena Kagan gets into Harvard and later becomes Dean of the Law School. Is it possible that Mrs. Kagan didn’t bother to check Mrs. Warren’s credentials in the excitement of getting another female “minority” on staff. Or maybe Mrs. Kagan is a fellow Native American like Warren? Mrs. Kagan should bear some of the responsibility in Mrs. Warren’s illegal activity no? What are Kagan’s credentials? Surly she knew Warren was making money from her Harvard law office.
See, this is why I have difficulty with lawyers. How can you be parsing out the fine points of Warren’s licensing or lack thereof while Justin Bieber is puking his heart out for his fans onstage? HOW?
http://www.hollywoodreporter.com/news/justin-bieber-vomits-throws-up-on-stage-believe-nicki-minaj-twitter-375208
Y’all are some coldhearted bastages.
You must not have seen the latest:
“BREAKING – Tragedy struck the music industry again today when Justin Bieber was found in his Beverly Hills hotel room, alive and unharmed.”
LOL.
Reminds me of a forensics blog I used to follow where the blogger would post this every Monday morning:
This just in… Anna Nicole Smith remains dead.
He makes me puke off stage. How come he’s not concerned about that?
Business Insider: More troubles for Liz Warren and her law license just ahead of the debate:
http://www.businessinsider.com/elizabeth-warren-law-license-poll-2012-10
At the last debate, Scott Brown wore a flag pin. Warren did not.
Will she wear one this time or does she feel too above it all to do so?
Hell, if I were her, I’d go all in and wear full battle face paint and headdress.
[…] Not Real Transparency for Politicians? Posted on October 1, 2012 3:30 pm by Bill Quick » Elizabeth Warren 2005 – Assists on paper regarding unauthorized practice of law – Le·gal… As previously demonstrated, for a number of years Elizabeth Warren counseled clients on issues […]