More From Prof. Jacobson On Elizabeth Warren’s Law License

Uh, guys? Do you even care what really happened any more?

[ Original post here]

He has read various critiques of his analysis and allegations, and addresses them here. Jacobson also spoke with the much quoted General Counsel of the Mass Board of Bar Overseers, and confirmed that  Michael Fredrickson was not speaking officially or on behalf of the BBO, but rather giving his personal opinion.

For my part, I am dismayed, if not shocked, that the legal establishment, as well as legal ethicists who should know better, are letting their political biases dictate their analysis. It is true that Jacobson is an openly conservative blogger as well as a long-time critic of Warren, but he raises legitimate questions that deserve to be taken at face value, whatever their source. The fact Fredrickson, the BBO General Counsel, felt it necessary to personally defend Warren in the absence of sufficient facts strongly suggests a pro-Warren bias in the disciplinary system, where it really shouldn’t matter who breaks the rules, but whether or not they have. Similarly, over at the Legal Ethics Forum, legal ethics legend Monroe Freedman comments,

“It surprises me that so much commentary has been expended on such a relatively unimportant issue, which apparently was raised in the first place to embarrass a candidate for the Senate in a race that has matters at stake that could affect the future of the country.”

Really? I have never had the impression that any of the ethics experts who maintain LEF regard the unauthorized practice of law as “relatively unimportant.” Apparently the Professor Freedman is embracing “The King’s Pass,” one of the more insidious of the unethical rationalizations, which holds that those who are accomplished, valuable to society, powerful, successful or otherwise elite should be held to lower standards of conduct rather than higher. What does the fact that the election is will affect the future of our country with whether Warren’s UPL, if indeed that is what it was, should come to light? What difference does it make that Jacobson might actively enjoy embarrassing Warren with his revelations, if his allegations have validity? Shouldn’t Massachusetts voters know whether a candidate for the Senate willfully and flagrantly violated the rules of her profession? Wouldn’t that fact, if true, have a bearing on her fitness to serve in the U.S. Senate?*

Have we really reached the point where distinguished professionals will advocate ignoring serious misconduct within their own profession if the individual raising the issue is from a different side of the political divide? I think this is far more troubling than anything Prof. Jacobson has alleged.

*UPDATE: To be fair to Prof. Freedman, whom I have long admired and who has done more than anyone in the legal ethics field to make it the dynamic and intellectually challenging area it is today, I want to note that in a subsequent comment on the Legal Ethics Forum, he stated that he is not a great proponent of unauthorized practice rules. This may place his “relatively unimportant” verdict in proper perspective, though his earlier reference to Prof. Jacobson’s motives and the importance of the election suggest otherwise. I also disagree with him regarding UPL.

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Sources:

Graphic: 3 Pipe

32 Comments

Filed under Character, Government & Politics, Law & Law Enforcement, Leadership, Professions

32 responses to “More From Prof. Jacobson On Elizabeth Warren’s Law License

  1. Arthur in Maine

    Have we really reached the point where distinguished professionals will advocate ignoring serious misconduct within their own profession if the individual raising the issue is from a different side of the political divide?

    Ummm…. Jack? We reached that point some time ago. I mean, I’ll forgive you your defense of Bobby Valentine (may he be fired in less than a month) but yeah, m’man, we blew past that point and then some.

    You see it in politics, natch; you see it in law; you see it in the media, you see it in academia; you see it in so-called scientific journals. You even see shades of it online, even here, where serious professionals with integrity choose to post under pseudonyms rather than invite opprobrium due to personal values.

    Don’t cut your wrists. You’re one of the good guys wandering around with a lantern.

  2. Eric R.

    Quick reminder. I’m not a lawyer, and this is based on the best information I have been able to find. If I have made an error please point it out and I will alter my opinion with much haste. Now for the meat.

    The best information I have been able to find regarding Professor Jacobson’s position is, “I’ve done the leg work it’s up to the BBO to do something with it.” He as made a very compelling argument but seems compelled to stir the pot instead of do something useful with his information.

    I’m sorry, but at this time I have to call bullshit on this entire story until someone, ANYONE puts their money where their mouth is and files a formal ethics complaint against Elizabeth Warren with either the Mass BBO or relevant New Jersey body as it seems the New Jersey was her last active license.

    I would also like to point out that to ascribe nefarious political intent to Fredrickson’s comments when you do not know the complete facts regarding his discussion with the original blog nor his discussion with Professor Jacobson is in my book HIGHLY unethical. Did you really mean to impugn Fredrickson’s integrity as well as the integrity of the entire Mass BBO? I quote your post above, “The fact Fredrickson, the BBO General Counsel, felt it necessary to personally defend Warren in the absence of sufficient facts strongly suggests a pro-Warren bias in the disciplinary system…” Re-reading the relevant documents, there is no indication that Fredrickson’s comments were political in nature and there is no indication that his comments would have been any different for a conservative professor.

    Furthermore, Freedman’s comments which you quote above are important to note both for where he is wrong but where he is also right. “Relatively unimportant issue?”, Freedman is wrong. Ethics violations ARE important and should be investigated as you state. Freedman, at this point in time, is 100% correct with his assertion that this issue, “which apparently was raised in the first place to embarrass a candidate for the Senate.” Until someone brings a formal complaint against Elizabeth Warren to the appropriate bar there is no other conclusion to draw that a conservative and politically active law professor has made allegations for purely political reasons.

    In closing, stop the blogging and gnashing of teeth, and bring it to the Mass. BBO. If Professor Jacobson or any other lawyer, feels this strongly then they are under an ETHICAL OBLIGATION to report it to the appropriate authorities as you confirmed in the previous posting. If they can’t do that because they don’t think there is sufficient evidence to lodge a formal complaint then the potential ethical problems of Elizabeth Warren pale in comparison to the ethical problems of those who could do something about it but choose to chew the fat over a coffee klatch.

    All of my comments above are completely irrelevant if these discussions were happening on The View or Facebook. They’re not. Mr. Jacobson can say just about whatever opinion he wants on the matter. Dr. Jacobson, Professor of Law needs act like an ethical lawyer if he’s going to present himself as one.

    • Eric R.

      Sorry for the wall of text. In short, if you think there is a fire there… report it. If not, stop accusing Elizabeth Warren of serious ethics violations and move on to something else. Simple as that…. but I could be wrong :)

    • Regarding Fredericks: yes, I think his comments were ill-advised, and the fact that the media took them as an official rather than a personal statement proves they were ill-advised, and that he didn’t properly clarify them, either. And yes, I think they occurred because of a political preference, otherwise I don’t know why they would be made at all. I’ve never heard of a bar official, anywhere, without special information of knowledge, opining that he or she didn’t think a lawyer had violated any ethics rules. And yes, when a key figure in a supposedly objection professional disciplinary body makes a gratuitous personal statement bearing on a case that the body might be called upon to investigate, I don’t think that reflects well upon the body, or bodes well for its objectivity. Do you? I mean, these are rather obvious inferences.

      I urge lawyers to make disciplinary complaints, because the profession, like any profession, needs to police itself. The fact is, most lawyers won’t and don’t, even the very best and most ethical lawyers. Many object to what is called the “snitch” rule on principle, and bar associations fail to enforce it—only one lawyer, ever, has been disciplined for not reporting another lawyer. Indeed, lawyers who do report other lawyers are often pariahs in the legal community. One reason: complaints against lawyers by non-lawyer for purely vindictive or spurious causes are a real problem.

      So you simply can’t ascribe Prof. Josephson’s decision not to report as any kind of proof that he either doesn’t believe in his assertions or is only interested in embarrassing Warren. Some lawyers believe that they are only required to report if the practice in the same jurisdiction. Others won’t report if they have reason to believe that the Bar won’t take action. I know lawyers who are bloggers who believe that publicizing another lawyer’s unethical conduct is enough.

      And this statement— “Until someone brings a formal complaint against Elizabeth Warren to the appropriate bar there is no other conclusion to draw that a conservative and politically active law professor has made allegations for purely political reasons”—is clearly wrong, since the allegations appear substantive and Jacobson clearly believes they are valid, and if he believes they are valid, he has duty to raise them. It shouldn’t matter that he also wants to nail Warren. I’m sorry: I got thoroughly sick of this argument during the Monica Mess: “Republicans just want to attack Pres. Clinton!” Well, yes, that and the fact that the man lied under oath, lied to the public, recruited officials to cover his lies and oh, incidentally, violated his own sexual harassment law that he had been hailed by feminists for passing. The latter makes the former irrelevant, and in this case, Jacobson’s political stripe doesn’t make his accusation less damning in the slightest.

      • Dwayne N. Zechman

        The way I normally present this concept to people who don’t get it (in general–I am not accusing Eric R.) is this:

        If Adolf Hitler says “2 + 2 = 4″, he’s right. It’s four.
        Just because HE says it doesn’t make it wrong.
        Just because you agree that it’s four doesn’t mean you support the Third Reich.

        –Dwayne

        • Michael L

          Well stated.
          Facts are funny things. Somewhat disconcerting: and, predictable: that certain elements of our society choose to label someone “openly conservative”, and hence to throw their opinions into question, while the MSNBCs, CNNs, Chris Matthews and Rachel Maddows of our world hold unquestioned ‘word of God’ acceptance among those selfsame individuals.
          The law is the law. If she broke it, it’s a crime. Period. I don’t care what her politics are. Let’s not apply the Kathleen Sibelius rule of “if it was a violation, let’s redefine the event”, simply because some would like to insulate liberal politicians from the inconveniences of the letter of the law.

      • Eric R

        I want to reiterate, I do believe that Prof. Jacobson’s allegations have merit. I do believe they are worthy of formal investigation by the bar and I do believe Elizabeth Warren has the responsibility to address these allegations prior to the election. If true, I find the alleged wrong doing to be highly unethical at best and illegal at worst.

        Let’s review what we know the be facts of this situation…
        1) Mr. Jacobson alleges Elizabeth Warren practiced law in Massachusetts without having a Massachusetts law license.
        2) Mr. Jacobson is a lawyer and professor in the state of New York and presents himself on his blog as such.
        3) (Assumption) Mr. Jacobson is licensed in NY and is bound by the NY Rules of Professional Conduct.
        4) The NY RoPC contain Rule 8.3 pertaining to reporting professional conduct, which Mr. Jacobson is required to follow.

        There are only two questions up for debate with Rule 8.3. What constitutes “a tribunal or other authority” and what the word “knows” means. I would hazard a guess that a half a dozen blog posts and at least two appearances on talk radio do not qualify as “a tribunal or other authority”

        What about the word “knows”? Arthur F. Greenbaum, Professor, Ohio State University discusses this issue in THE ATTORNEY’S DUTY TO REPORT PROFESSIONAL MISCONDUCT: A ROADMAP FOR REFORM (Georgetown Journal of Legal Ethics, Vol. 16, Winter 2003). He states that, “There appears to be a consensus that knowledge means more than a mere suspicion, but less than absolute certainty.”

        Does Mr. Jacobson “know” that Elizabeth Warren practiced law in Massachusetts without a license. Again, a half a dozen posts on his public blog and two appearances on talk radio indicate requirements of knowledge of ethics violations as outlined in Rule 8.3 have been met. With this definition met Mr. Jacobson is required to act in accordance with Rule 8.3. What if he ‘knows’ but chooses to not report Elizabeth Warren? Then Rule 8.4(a) is in force, “A lawyer or law firm shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another…” Unfortunately, “I don’t want to be a snitch” is not an appropriate reason for failing to report.
        By not formally reporting Elizabeth Warren to a “a tribunal or other authority” for known violation of Rule 8.3 Mr. Jacobson is in fact in violation of Rule 8.4. That some lawyers ignore Rule 8.3 or law boards fail to investigate violations of Rule 8.3 is immaterial to the fact that Mr. Jacobson is in fact bound by ALL the NY RoPC and can’t pick and choose which ones he chooses to follow.

        • 1. Prof. Jacobson clearly has not reported any misconduct under the terms of NY’s 8.3.
          2. Lawyers play games with “know” all the time. They may believe something, be pretty sure of something, be convinced that something is true, but argue that they don’t “know” it. And this is almost never challenged.
          3. Jacobson may believe that Warren’s actions call into question her fitness to serve in the Senate without necessarily calling into question her trustworthiness as a lawyer. That’s not unreasonable. We should hold Senators to higher standards than lawyers.
          4. You’re preaching to the choir regarding the duty to report, but the fact is that the profession itself does not interpret the rule as it appears to be written. In practice, only a lawyer who knew that another lawyer was an outright criminal and certain to do harm to his or her clients would be considered for sanctions for non-reporting, and probably not even then.
          5. And in Massachusetts, a very political and crony-operated state, one can’t discount the fact that many lawyers in a Democratic monopoly state dominated by Harvard would be afraid of the long term consequences of reporting a Harvard Democrat who might get elected Senator. This doesn’t apply to Jacobson, but keep it in mind.
          6. Jacobson is the only one keeping the press and the Mass Democrats from burying this story, and it is still pretty much being ignored. As you can see from Freedman’s reaction, the overwhelmingly liberal/progressive legal establishment is inclined to look the other way. I don’t think focusing on Jacobson’s conduct is germane. He’s right: he’s raised the issue, and based on what he’s raised, Warren should be answering questions.

          • Eric R.

            I’ve often been accused of focusing a little too much on the letter of the law while ignoring some of the more practical implications, though you’ve probably guessed that by now.

            I”m not insensitive to the politics of the situation in Mass. Bringing a liberal lawyer before the board in Mass would be similar to bringing a conservative lawyer before the board in Texas or Wyoming I would guess.

            Is there another avenue for Mr. Jacobson to pursue? As he pointed out in his blog Warren was not licensed in Mass. She appears to have an inactive license in Texas and has recently “closed” her license in New Jersey. All indications are that her New Jersey license was her most recent and therefore wouldn’t reporting her alleged behavior to the New Jersey be more appropriate and more of an impartial (?) venue?

            The other obvious avenue for reporting is to go to the Attorney General of the State of Mass because it appears Warren has violated Mass State Law. This suffers some of the same political roadblocks that going to the Mass BBO suffers so it may not be any easier of a path.

            Furthermore, one thing I failed to consider in my arguments that Mr. Jacobson may have in his favor is this. Should Mr. Jacobson be considered a Journalist and therefore be given much more latitude with respect to the reporting requirements in rule 8?

            In closing, what’s got a bee in my bonnet is I hate breaking rules to the rules to get ahead… to get your way. I detest basketball because breaking the rules is an integral part of the strategy in the closing minutes of a half/game. I’d rather tell the truth, be honest, and let the chips fall where they may.

            • Having lived in Wyoming and now living in MA, I can assure you that the latter is far more odious about allowing politics to affect professional decisions that have no basis in politics.

              Jacobson has very, very recently researched an ethics violation and is continuing to do so. He has never made a statement that he will not formally file a complaint. It is presumptuous of you to assume that he will not.

              The ethics issue in this case is that an attorney practiced law within the state of MA, for MA clients, for over a decade without being a member of the bar. I think that issue weighs far more heavily than whether an attorney has filed a formal complaint about her within seven days of beginning the discovery process.

  3. Michael

    I’m sorry, but if there is nothing to this allegation, shouldn’t it have been cleared up already? I know lawyers like to drag things out and argue back and forth about things that should easily be cleared up, but this is an argument about whether someone has a license to practice law or not. Don’t the Bar Associations have databases of their members? Don’t the courts have computer records that could be searched to clear this up? Shouldn’t this be an argument that could be settled in a few hours at most? If so, why hasn’t Fredrickson done just that? Why hasn’t Warren?

    It just seems silly to keep talking about it. If I was accused of driving with a suspended license, not having car insurance, or lying about my educational qualifications, I could respond with documents that would prove that there was nothing to the allegations (to all but the diehard conspiracy theorists) within hours, a business day at the most.

    • The question is, is this like Harry Reid’s claim that Mitt Romney didn’t pay his taxes, a bogus claim meant to force a candidate to deal with a non-issue based on nothing? Or is it a valid question where the candidate is stonewalling, hoping surragates, supporters and the press will obscure a legitimate question by denigrating the questioner? There are problems with a lawyer “proving” she didn’t engage in UPL; among other things, a lawyer can’t normally divulge the identity of clients and what she did for them without their permission—it’s confidential. Still, you are more right than wrong: if Jacobson has valid questions, and I think this is not a Reid situation, Warren should be able to answer most of them, and should want to, unless she knows the answers are damaging.

    • Michael L

      Yes.
      Awful lot of lawyering chatter in this string: What is ‘knowing’, and was a complaint formally filed, and yadda yadda yadda…no wonder courts are backlogged nationwide.
      Look, as a simple physician who is neither a lawyer, nor ever stayed at a Holiday Inn Express: if she practiced law in MA without a MA license, she’s in violation of the law.
      If I cross the Colorado River from my practice in AZ and practice medicine in California, how long do you think it would take until I get in very, VERY hot water? A month? A week, at most?
      But then, I’m not a lawyer and liberal media/intelligentsia darling, but a mere citizen. Apparently, rules are only for the little people. Or conservatives.

  4. Eric R

    Mr. Jacobson has an update that gives further credence to his original allegations. ( http://legalinsurrection.com/2012/09/elizabeth-warren-listed-cambridge-as-primary-practice-location-with-texas-bar/ )

    Jack, can you talk about what Mr. Jacobson means by a “mandatory” bar?

    • Sure. In some jurisdictions, like DC, joining the bar association is mandatory. In others, like Massachusetts, it is optional. One can still have a license to practice in optional states with being a bar member. In a DC, if you don’t pay your bar membership dues, you are suspended from practice.

      • Eric R.

        Membership with the bar doesn’t mean a license? Is it the state that provides the license then?

        • That’s my understanding. I’m a member of the Mass Bar, and only recently learned that it was voluntary. The Bar still collects the yearly fee for the license and handles ethics complaints. Now that I think about it, I’m really not sure how it works. But it’s not mandatory. That I know.

          • Eric R.

            I’m guessing then there is some language within Mass State Law that states even if you’re not a member of the bar in order to maintain your license you must adhere to the Mass Bar rules and regulations?

  5. Pingback: » Elizabeth Warren represented Massachusetts client in Massachusetts - Le·gal In·sur·rec·tion

  6. theebl

    http://evilbloggerlady.blogspot.com/2012/09/elizabeth-warrens-supporters-are.html Elizabeth Warren’s campaign site is still silent on this. Why did she give up her bar license in New Jersey on September 11, 2012? This not merely going inactive, she withdrew so if she wants it back she has to reapply again. Why would she do that?

    • That may be the least suspicious part of this. NJ used to require no mandatory CLE, now it does, and that will be a chore for her. Mass has no such CLE requirement (but then she’s not a member of the bar there.)

  7. If the assumed and/or overt political biases of those who are making and supporting the allegations against Elizabeth Warren should not matter as long as the facts of the allegations themselves are correct and the legal ethical theories have merit–a concept with which I agree–then shouldn’t the assumed and/or overt biases of those who are charged with evaluating those accusations, as well as those actually defending Warren ALSO not matter, as long as their facts are correct, and their legal/ethical theories on the subject also have merit?

    Just as I’ve seen attacks on Jacobson’s motivations, I’ve seen folks disregard Lawrence Tribe’s analysis because he’s a Democrat, just as a for instance. If the people charged with investigating and adjudicating the allegations against Warren either decline to proceed or actually say there is nothing unethical or illegal in what she did, how many will claim they did so based on political bias, regardless of the facts and the laws and ethics they put forth in support of their decision?

    Political partisanship and other biases should always be taken into account, but the fact that someone appears to be–or even admits to being–on the “other” side politically does not make everything they say and do politically biased…not even when you disagree with what they said or did.

    I’d like to hear the individuals involved–Warren, the other lawyers involved with the cases in question, for and against, and the people who wrote and who enforce the laws and ethical rules Jacobson, et.al. are saying were violated–speak on the record, and explain their positions, whatever they may be.

    And if I must read accusations of bias, I’d like to see them backed up with the record as regards other accusations, investigations, and adjudications with analogous facts. Have others been accused of UPL for doing what Warren did? Have there been formal investigations in those situations? How many have been penalized, and what were the penalties?

    Like I said, I’ve little doubt that many of the people involved have a political bias one way or the other as to candidate Elizabeth Warren. But that doesn’t mean that everything they say and do regarding these accusations is therefore a product of their political biases, whether it’s William Jacobson, Lawrence Tribe or Michael Fredrickson. Don’t just allege bias, or treat it as though it’s obviously obvious (as least to we intelligent folks)–actually show it.

    • Of course. But a statement like, “This is not important in the context of such an important election” is per se evidence of bias. You are also making a false equivalency. Raising legitimate questions about a politician’s character based on real facts, documents and evidence neither indicate bias or the lack of it. Automatically discounting the questions or not considering them at all does show bias.

      Depending on the state and the year, between 1 and 2% of disciplinary actions are taken by bars against lawyers engaging in UPL. In cases where the rule against UPL is statutory,lawyers have been indicted; whole firms have been indicted. Have others been accused of UPL for doing what Warren did? You mean practicing law without a license, as Jacobson alleges? Sure, lots. Have there been formal investigations in those situations? Of course. How many have been penalized, and what were the penalties? I don’t care: this is an ethics blog. That’s enforcement, a different matter. It’s an ethics violation and a serious one, whether it is punished in a particular case or not.

      In the case of Mr. Frederickson, who I am guessing regrets his statements, I have no idea what his biases are. But for the general counsel of the body that would be charged with investigating Warren’s case to register a personal opinion before any investigation creates a prima facie case for bias. There is no reason for him to try to support or rebut Jacobson’s charges in his position, absent a serious examination of the evidence.

  8. “a statement like, “This is not important in the context of such an important election” is per se evidence of bias.”

    I’m not seeing anyone involved who said that, though.

    “Raising legitimate questions about a politician’s character based on real facts, documents and evidence neither indicate bias or the lack of it. Automatically discounting the questions or not considering them at all does show bias.”

    That isn’t what I said, though. I said the accusations may be discounted or not formally taken up based on real facts, documents and evidence, and if that happens, there will be many who CALL it bias. My point was, if Jacobson’s political bias isn’t relevant, as long at he bases his accusations on real facts and legitimate legal and ethical theories, then Tribe’s or Frederickson’s, or even the supposed political biases of the whole of the MA political and legal system shouldn’t be relevant, as long as their responses are based on real facts and legitimate legal and ethical theories.

    As for the rest, well, I suspect you know exactly what I was asking, and that your replies didn’t really answer the questions I asked, which were meant to look at whether the system in MA is or isn’t treating Elizabeth Warren any differently than they have other law professors/lawyers accused based on analogous facts. I’m sure folks throughout the US have been accused and investigated regarding UPL in general, but that wasn’t what I asked.

    • You don’t? I think Freedman’s “It surprises me that so much commentary has been expended on such a relatively unimportant issue, which apparently was raised in the first place to embarrass a candidate for the Senate in a race that has matters at stake that could affect the future of the country,” quoted in the post, is the same thing exactly.

      I agree with your general premise, but Tribe’s and Frederickson’s responses were not motivated and based on real facts and legitimate legal and ethical theories. They were based on the perceived need to defend Elizabeth Warren. They did not address the issues Jacobson raised as they applied to her conduct. They muddied the water.

      I thought I answered what you asked, and if I didn’t, I am sorry. I don’t appreciate your innuendo. If you read the other comments on this topic, you will note that I agreed with another commenter that violating UPL probably is very common among law professors. I don’t think repeated violations over 1o years are common, however, and it is not the subject of much discipline because clients, who file most complaints, would be unlikely to, and adversaries would assume that the professor, of all people, would be following the law. And again, so what? If she can get away with it, that makes it OK? The other law professors aren’t running for U.S. Senator on a “let’s make banks follow the rules” platform.

      • “I think Freedman’s “It surprises me…’”

        I stand corrected. I thought this was said by someone more directly involved, rather than someone who read about the allegations and was expressing his opinion about them, august as his opinion may be.

        “…but Tribe’s and Frederickson’s responses were not motivated and based on real facts and legitimate legal and ethical theories. They were based on the perceived need to defend Elizabeth Warren.”

        I neither see that, or understand how you can claim to know either man’s motivations. Tribe is far from the only person suggesting that one can write briefs and be listed “of council” in the federal system as long as one is licensed to practice in at least one state, even if one writes those briefs in a state where they are not licensed to practice. I did not see ehere he misstated any of the facts or rewrote any of the rules that pertain to the situation. Whether not one agrees with his theory of the ethics and legalities involved, he is putting forth a theory.

        As to their motivations, i believe we both already agreed that why a party says what they say is far less important than whether or not what they say has merit. (Or should it matter that Jacobson was and is motivated by political partisanship and the desire to see Scott Brown reelected and Elizabeth Warren defeated and if possible, deemed unfit to run for any future elected office?)

        “And again, so what? If she can get away with it, that makes it OK? The other law professors aren’t running for U.S. Senator on a “let’s make banks follow the rules” platform.”

        The “so what” is that if Elizabeth Warren is treated differently than other law professors or lawyers because she is running for office, or because she has spoken about bankers following the rules, (or for any other reason, but perhaps moreso for the ones you bring up) that also shows bias in the system, which I hope you would agree would be unethical. Just as she shouldn’t get a pass because she’s running for office, because of her politics, or because of the stands she’s taken, she shouldn’t be prosecuted because of those things, either. A truely dispassionate system would look at the laws and ethics involved, and not who the lawyer is or what positions that lawyer has expressed. And the record would show that they proceed (or not) the same way in all (or at least most) similar situations, based on the facts, not on the lawyer.

        • 1. Well, in Tribe’s case, he ignored the primary issue raised by Jacobson; in Frederickson’s case, he made a serious professional mistake by commenting in advance on a matter he may be called to investigate. Tribe wears his liberal bias on his sleeve; he is also a faculty colleague. On a witness stand, these4 would be significant indicators of likely bias. I’m giving Frederickson the benefit of the doubt by attributing such a gaffe to bias. Other explanations are not so complimentary.

          2. “As to their motivations, i believe we both already agreed that why a party says what they say is far less important than whether or not what they say has merit. (Or should it matter that Jacobson was and is motivated by political partisanship and the desire to see Scott Brown reelected and Elizabeth Warren defeated and if possible, deemed unfit to run for any future elected office?)”

          No, it shouldn’t. In fact, bias may serve a public interest here, since it motivated a capable investigator to do what the media should, but won’t.

          3. The “so what” is that if Elizabeth Warren is treated differently than other law professors or lawyers because she is running for office, or because she has spoken about bankers following the rules, (or for any other reason, but perhaps moreso for the ones you bring up) that also shows bias in the system, which I hope you would agree would be unethical. Just as she shouldn’t get a pass because she’s running for office, because of her politics, or because of the stands she’s taken, she shouldn’t be prosecuted because of those things, either.

          Jacobson didn’t suggest that she should be prosecuted. Any lawyer would be investigated for this if it came to the bar’s attention, but that’s not the professor’s objective, nor is it mine. I think, as he did, that such conduct shoul disqualify a Senate candidate. John Edwards hasn’t benn disciplined either—that doesn’t mean that his outrageous conduct shouldn’t eliminate him from contention as a Senator or higher. If you read the posts, I made the obvious point that Senators need to be held to higher standards than mere lawyers. And they should. You disagree?

          • I don’t wish to belabor this, but I do think you’re wearing more of a political hat than an ethical one.

            Yes, Tribe wears his liberal bias on his sleeve. But i still fail to understand why his bias is any more or less relevant than Jacobson’s bias, (or mine, or yours), as long as what he (or we) are saying is legally or ethically sound, at least in theory (and apart from whether you or I agree with the theory presented, obviously).

            I agree that Frederickson should’ve refrained from expressing his personal opinions on a matter that may come before him. I’m far less sure that this indicates bias on his part, however. Whatever the reason, it was foolish.

            “Any lawyer would be investigated for this if it came to the bar’s attention…”

            And all I’m asking for is evidence that that is so in the case of the MA bar, and that the investigation and results in this case are not significantly different than the investigation and results in cases that come before this body when these other lawyers are accused.

            “I think, as he did, that such conduct should disqualify a Senate candidate.”

            But only if the candidate is actually guilty of such conduct. Folks are free to decide that one way or the other based exclusively on posts and comments they read on the internet, of course, but for others, the judgement of the MA bar–including whether or not that choose to do anything at all with these allegations–will play a part in what they believe about the merits and validity of the accusations. That’s why I want the bar and the people who wrote the rules to weigh in.

            “If you read the posts, I made the obvious point that Senators need to be held to higher standards than mere lawyers. And they should. You disagree?

            Here’s the thing, and the reason I believe you may be wearing the wrong hat.

            Politically, I’m with you. The voting public deserves to know whether or not the candidates are moral, ethical people who practice what they preach. But that is a POLITICAL consideration.

            Legally and ethically, no, I absolutely do not agree with you. As i already said, where legalities and ethics are concerned, it should be about what the rules say and what the person did, and not about who the person is. In part, that means that a lawyer who is also a candidate for office is neither more or less scrutinized by the oversight board than other lawyers accused, no matter what political party the lawyer or the oversight board members align themselves with or what positions the lawyer has taken in his/her career.

            In short, the legalities and ethics should inform the politics…not the other way ’round.

            • The determination that leaders should be held to higher standards is not a political conclusion in any way. It is an ethical principle of long standing, which goes to the core of how ethical standards are set in a society. It is also a logical decision. Those with greater power have greater ethical obligations, and can do greater harm if their values are lacking. This is a standard finding of all ethics research involving organizations of any kind. You are confounding the compliance and enforcement process with ethics. A Bar association may choose to ignore an offense or not bring charges for a wide range of reasons, some good, some questionable. They may be swamped with more serious cases. There may be people in the organization who object to UPL rules. The decision not to pursue enforcement may be political, or it may just be wrong. The UPL rules can be murky—a determined lawyer could make genuine negligence or willful violations to appear ambiguous. None of that is necessarily determinative of the degree to which a candidate’s conduct may be disqualifying.

              My own Representative, Jim Moran, accepted favored loan rates (with a terrible credit rating) through the efforts of a lobbyist, and later voted for legislation favoring the company involved. A stacked House ethics committee did nothing about it. The facts aren’t in dispute: Moran is a crook, essentially. Just because he got away with it doesn’t mean I have to be blind.

              I agree with your last sentence. How you find my approach inconsistent with it bewilders me.

  9. I doubt that either of us can more clearly state where we stand.
    We disagree.

    Thanks for the conversation, sir.

  10. Pingback: A Reply to Professor Jacobson — The League of Ordinary Gentlemen

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