“Nope, no way to Texas; can’t get to New Jersey…maybe I should just bite the bullet and get a Massachusetts law license? Nawww, who’s going to care?”
No major newspapers or broadcast news outlets seem to care, but what was originally dismissed as a partisan blogger’s over-reaching accusation has been bolstered by more than one smoking gun, proving Elizabeth Warren’s untrustworthiness and lack of fitness for high office.
Robert Eno of Red Mass Group, who joins Prof. William Jacobson as a blogger doing dogged and necessary research on the Massachusetts Senate candidate, has convincingly shown that Warren’s justification of her practice in Massachusetts, sans law license, doesn’t work, because what she says can’t possibly be true.
Earlier this week, Warren tried to rebut Jacobson’s allegations by explaining, “I haven’t practiced any law since 2010 since I went down to do the Consumer Financial Protection Bureau. I’ve been a member of the bar in Texas for all of my career, in the Supreme Court bar, and until a few weeks ago the bar in New Jersey.” Warren and her defenders also argued that Jacobson’s claim that she was operating a regular law office out of her Harvard faculty office, which would make her an unlicensed Massachusetts practitioner, was inaccurate. Warren periodically was involved in cases in Federal court, which did not require a Massachusetts license, they said. All that was necessary for Warren to appear before various Federal Courts was for her to be duly licensed in a state or territory, and file a statutory request to the court to appear.
Warren’s problem: it is beginning to appear that she may not have been properly authorized to practice law anywhere, or, if she was, she had to be using her Harvard office as a regular law office, meaning that she was practicing Massachusetts law. Without a license.
Here is what Eno discovered:
1. Warren says she has been a continuous member of the Texas bar,which is technically true but misleading. After following her constantly changing spin while explaining her undocumented status as an affirmative action beneficiary, I believe misleading us is her intent. Yes, she has been a member of the Texas bar during her whole career, but during most of that period she was not allowed to practice Texas law, which was the topic under discussion when Warren cited her membership. Kim Davey the Public Information Officer for the State Bar of Texas told Eno that Warren has been on inactive status in Texas since June 1, 1992. Inactive status means a lawyer is not authorized to practice law. Warren says that she only stopped practicing law (while living and working in Massachusetts) in 2010, which means that she could not rely on her Texas license while she was at Harvard.
2. Thus it must have been her New Jersey law license that made Warren eligible to appear in Federal Court. But there’s a problem there, too. New Jersey rules hold that a lawyer can only be a licensed attorney in good standing in New Jersey if that lawyer maintains a bona fide office for the practice of law. The office can be in any state, but it must qualify as a law office, or New Jersey’s license to practice law is no longer valid.
This means that Warren is mired in a Catch 22. If, as her defenders and Warren have maintained, she was not engaged in the practice of law because her Harvard office did not constitute “a systematic and continuous presence in Massachusetts for the practice of law” (because Warren was just a typical Harvard law professor who now and then helped write a few briefs for the U.S. Supreme Court and out-of-state federal courts), then she could not meet New Jersey’s licensing requirements, and was practicing law without any valid law license in any state once she went on inactive status in Texas. If, in the alternative, her Harvard office was a bona fide office for the practice of law, rather than a place where she just “dabbled,” then she was practicing in Massachusetts without a Massachusetts license.
This, Professor Jacobson’s latest post shows, is almost certainly what she was doing. He writes in part…
“…Warren represented to the Texas Bar that Cambridge was her “primary practice location,” in 2002 billed over $14,000 for “professional legal services” in the GAF bankruptcy case, and even entered a court appearance for a Massachusetts client in 2001 on Massachusetts legal issues in a federal court in Massachusetts…In a March 20, 2002, Verified Statement Warren submitted in the Kaiser Aluminum bankruptcy, Warren detailed for the Court the extensive nature of her law practice at that time, which included at least 9 bankruptcy matters plus other legal work. Interestingly, Warren disclosed that she had advised Dow Chemical Company, in keeping with a long history of representing large corporate entities [writing: ]
“…. In addition to these academic and legislative activities, have consulted with a number of companies on mass tort issues. I served in an advisory capacity to Dow Chemical, the parent company of Dow Coming, in the early days of the Dow Coming bankruptcy I have assisted the Johns Manville ‘rust and the National Gypsum Trust in appellate litigation….I have assisted in the preparation for petitions for certiorari to the United States Supreme Court in two cases involving future claims, one in an environmental context and one in an employee liability context. I have argued a case on behalf of Fairchild Aviation, an airplane manufacturer facing future claims liability. I have filed an amicus brief in future claims litigation involving Piper Aircraft….In addition, I am working with Caplin & Drysdale as a consultant in Chapter 11 proceedings involving the Babcock & Wilcox Company, Pittsburgh Coming Corporation, Owens Coming Corporation, Armstrong World Industries, Inc., W.R. Grace & Company, G-1 Holdings, Inc., United States Gypsum Corporation, Federal-Mogul Global, Inc. and North American Refractories Company.”
“In addition to the nine bankruptcy cases, we also know that Warren was working on the FCC v. Nextwave Communications case detailed in my original post. Even if none of the additional matters listed in paragraph 10 of Warren’s Verified Statement were active in 2002, that would mean Warren was involved in handling a minimum of 10 active private legal matters during 2002.“
There is more. Warren, Prof. Jacobson discovered, informed the Court in the opening paragraph of the document that she was admitted in Texas, but did not inform the Court that she was on inactive status and had been since 1992. This is called fraud on the tribunal, and is a serious ethical breach, everywhere, for any lawyer. In the same document, she cited her Harvard office, in Cambridge, Massachusetts, as her law office.
Warren may have been cheating Harvard as well. The law school requires that no faculty member can devote more than 20% of her time to non-scholastic activities, and it looks as if Warren’s case load in some years would make meeting that limit impossible. The Harvard faculty handbook also specifically warns professors that they should take care to ensure that they are complying with all state licensing requirements. Prof. Jacobson promises more revelations, and so far, he is making an impressive case.
Meanwhile, you will search in vain for any coverage of this issue on the news networks, in the Washington Post and New York Times, or virtually any other traditional news source. Clearly, the return of the NFL refs and rehashing the latest in an endless series of Presidential polls is more newsworthy than the growing amount of evidence indicating that the keynote speaker at the Democratic National Convention has been flaunting the rules of her own profession, misrepresenting herself to courts in sworn statements, and is refusing to be candid with the voters in the state she seeks to represent in Congress.
I hate playing this game, I really do, but the thought is gnawing on my brain: if revelations like this surfaced tomorrow about Sarah Palin, is there anyone reading this who doubts that the news media would proclaim it far and wide, even though she isn’t running for anything?
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Facts:
Graphic: Teranomediary
Ethics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work was used in any way without proper attribution, please contact me, Jack Marshall, at jamproethics@verizon.net.
Ethics Alarms 
Jack, I don’t think you read the rule before reposting the findings. The bona fide office requirement is for attorneys actually practicing IN New Jersey. (“No person shall practice law in this State unless…”) It is not a licensure requirement.
It is also likely unconstitutional, and a case out of New York on appeal in the Second Circuit called Schoenefeld will hopefully affirm that.
“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”). An attorney who practices law in this state and fails to maintain a bona fide office shall be deemed to be in violation of RPC 5.5(a).”
I don’t know how else to read it. In the eyes of New Jersey, if you are legally using a New Jersey license to practice law, you are “practicing law in New Jersey”. How else would someone practicing law in New Jersey comply by having their sole office in, say, Alaska, unless it wasn’t a bona fide office, but a sham? Are you suggesting that it is possible for a New Jersey licensed lawyer to validly use a New Jersey license OUTSIDE the state when she couldn’t use it IN the state? Come on.
It’s read this way: unless you have a bona fide office somewhere, you can’t practice law here in New Jersey. That’s the first sentence. No person shall practice law in this State unless… I don’t think it’s ambiguous.
Although I do concede it’s not necessarily unconstitutional with that qualifier you’ve added; the New York case required a lawyer to have a New York office, and this is distinguishable from that.
Again, are you really arguing that if you have no law office anywhere, a New Jersey license would authorize you to practice New Jersey law in Mass,, but not in New Jersey? That just can’t be right; it makes no sense. I read the rule to mean that you, as a New Jersey Lawyer, are not authorized to practice law anywhere if you don’t have a bona fide law office somewhere.
Since you and I read it two different ways, I’d say it is by definition ambiguous, no?
New Jersey’s regulations appear to be stricter regarding how NJ-licensed lawyers operate within NJ than it is about about they operate out of state. Why is that something that makes no sense?
That’s what the plain language appears to say. (Which doesn’t mean it’s what the language means – sometimes the law is interpreted in a way other than what the plain language says. Do you know, is there a court ruling in which a judge clarifies what the language means?)
Fair enough. But declaring Warren to be exposed as “a Dishonest and Unlicensed Lawyer” based upon an ambiguous law seems unfair, to say the least.
It makes no sense to say, “You don’t qualify to practice New Jersey law in New Jersey, but you can practice New jersey law OUT of New Jersey.” No other state suggests anything remotely similar.
She’s Unlicensed in Mass, and she was Dishonest about her status in Texas, beyond argument. And really, this issue is so easy to fix, really easy. She can show that she was properly waived in all her cases of record. The fact that she won’t suggest to me that she thinks she can skate this out. And you know, all she had to do, as with the Cherokee foolishness, is say, “Yes, I may have slipped up there; it’s complicated, there are conflicting rules, and even though it sounds funny to admit it, we law professors sometimes mess up with them. It wasn’t intentional.” I guarantee the Mass Bar wouldn’t do anything; I’d accept that; Jacobson would have to, and nobody else would care. The fact that this doesn’t even seem to occur to Warren is what troubles me most about her.
My guess is that Warren or her advisers believe that the more she addresses this story, the bigger the story will become. This is not on its face an unreasonable opinion, and it’s one that she could reasonably hold even if she’s innocent.
(To be clear, I’m not saying that she’s innocent. I’m not decided one way or the other.)
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Regarding the ambiguity question, I think it’s obvious that the text can be read either way — as you yourself said just one comment ago. I might change my mind, however.
Regarding the office question, your argument additionally flounders because Massachusetts and New Jersey rules regarding an “office” are not identical, and cannot be treated as interchangeable.
Massachusetts rules say that a lawyer who “establishes an office or other systematic or continuous presence in this jurisdiction must become admitted to practice law generally in this jurisdiction,” unless the services provide “are services that the lawyer is authorized to provide by federal law….”
So that gives Warren two defenses: she hasn’t established a “systematic or continuous presence” for her law practice, and that even if she has, the services she provides are ones that she is authorized to provide by federal law. Under Massachusetts rules, she hasn’t run afoul of MA’s “office” requirements.
New Jersey rules say “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.” Warren’s Harvard office presumably meets those requirements. So under New Jersey rules, Warren hasn’t run afoul of NJ’s “office” requirements.
What you’re saying is that because Warren has an office under New Jersey rules, she has therefore run afoul of the Massachusetts rules — even though Massachusetts does not, in fact, share New Jersey’s definition of “bona fide office.” That doesn’t hold water.
Now we’re really in deep water. Most would concede (though not all) that “services that the lawyer is authorized to provide by federal law….” applies only to special practices like patent Law, where one can be authorized by the PTO without any other active bar membership at all. It does not, bu this analysis, apply to “just taking cases in Federal Court.” I would argue that if an office is bona fide under NJ Rules, it’s a law office under Mass rules too. I can’t believe Mass would allow a lawyer to claim both a full time law office (to another state) and a non-“continuous presence in this jurisdiction” simultaneously. Would it be the strangest ruling I’ve seen or heard of? No. So you could be right.
If she has a license to practice law she might be able to sue them for defamation of character…were she to have any to defame.
Heh.
Elizabeth Warren is the very definition of sleezy.
You’d think someone on the liberal side would admit it at some point, but they just keep doubling down.
And so they say, that it’s the 99% of lawyers who give the other 1% a bad name. Also appears to be true for the mainstream press.