1. Elizabeth Warren may have engaged in the unauthorized practice of law in Massachusetts at various times.
2. It is not as clear that she has done so as her primary accuser, Prof. Jacobson, appears to believe, nor is it as certain that she has not done so as her reflexive defenders assert.
3. If she did practice Massachusetts law without a license, it is very unlikely that she did so intentionally.
4. It is also likely that at this moment, she herself is unsure whether she did or not.
5. I very much doubt that if she did as Prof. Jacobson asserts, that would lead to discipline by the Massachusetts Bar. The discussion of the issues surrounding Warren’s situation make it clear that a) the whole area of unauthorized practice when it involves state and Federal law is relatively unresolved and murky, with even legal ethics experts in disagreement, b) it would be impossible to separate the professional regulation of the matter from its political content, and 3) any time members of the disciplinary committee slap their foreheads and say, “Damned if I know!” when the discussion turns to what the rules require, discipline is unlikely, and properly so.
6. The fact that Warren may have blundered into UPL between the varying requirements of her two bar memberships and her intermittent practice in Massachusetts does not make her unfit to practice law.
7. It may, combined with her unwillingness to candidly and thoroughly reveal all documents that bear on the issue, call into question her fitness to be a U.S. Senator, especially one running on the proposition that regulations on another profession (the financial sector) need to be strictly followed and tightly enforced. It definitely is worth exploring and explaining to voters, which the mainstream media clearly does not intend to do.
8. Prof. Jacobson performed a service to his profession and the public by raising the issue, and was behaving responsibly and fairly to do so. The fact that he opposes Warren’s politics does not diminish the legitimacy of his work.
9. Journalists should have done the work themselves, and reported Jacobson’s allegations. They had a duty to do so.
10. There is no doubt in my mind whatsoever that if there had been any question raised regarding unauthorized law practice by Scott Brown, Warren’s Republican opponent, it would have been reported in the Boston media and elsewhere with enthusiasm and gusto.
11. There is a strong argument to be made that Warren’s contention that she never maintained a permanent office in Massachusetts for the practice of law within Massachusetts rules is mistaken. There is also a strong argument that it is not.
12. Prof. Jacobson’s contention that Warren’s representing Massachusetts clients in Massachusetts cases based on disputes in Massachusetts law constitutes practicing law in Massachusetts, requiring a Massachusetts license, regardless of whether the case itself is adjudicated in Federal court is persuasive (to me, anyway) on a logical and ethical basis, but appears not to have been settled by any bar’s legal ethics opinion or by any court decision. It should be.
13. The disparity among the states in determining what is a valid license to practice, what constitutes the authorized practice of law, and the enforcement of both is a black mark on the integrity and professionalism of the legal profession. If nothing else, this controversy is useful for highlighting that fact, and the profession should set out to remedy the problem,
14. The attacks on Prof. Jacobson for raising the question of Warren’s compliance without making a formal complaint to the bar are misplaced. We have no way of knowing whether the professor regards his conclusions as proof that Warren isn’t fit to practice law, which would trigger a mandatory (but largely unenforced) requirement to file a disciplinary complaint. His conviction that the issue reflects upon her fitness to be a U.S. Senator is sufficient justification for his posts on Legal Insurrection.
15. The Massachusetts Bar can investigate attorney conduct without a formal complaint, and should, if only to clarify the matter for its other members. As this would take longer than the time between now and the election, I don’t see why this wouldn’t be done. In an informal poll by Massachusetts Law Weekly, 87% of respondents answered “Yes” to the question, “Should U.S. Senate candidate Elizabeth Warren be investigated for possibly practicing law without a license?” Since most of those participating in the poll are presumably lawyers, and since most lawyers in Massachusetts, like everyone else in the state, tend to be Democrats, this result indicates professional rather than partisan concerns.
16. It appears likely that Warren is not alone among law professors, at Harvard and elsewhere, in being less than careful about meeting her professional licensing requirements. That is not an excuse for Prof. Warren, nor does it reflect well on her colleagues or the law schools they work for. Law professors should not be held to lower expectations of compliance with the rules of the legal profession just because they tend to be sloppy, careless, arrogant or “absent-minded,” depending on a critic’s level of charity. They should be held to a higher standard, by the universities, their students and the public because they teach future lawyers. That doesn’t mean that lawyers who are law professors should be disciplined for conduct that the bar lets pass with less scholarly members. It does mean that such conduct by law professors should not be condoned or tolerated by anyone else.
17. Warren should, but almost certainly won’t, explain the various matters that Jacobson has uncovered, which are still proliferating. In his latest post, for example, he reveals that the Texas Bar, for reasons unknown, changed the entry under Warren’s membership this week to register a status of “inactive” rather than “Not eligible to practice in Texas.” This is significant for two reasons. Warren has implied that she was licensed to practice in Texas for the past two decades, when in fact she has been “inactive” since the early ’90’s. In addition, the previous status listed on her Texas listing, “Not eligible,” suggests administrative suspension, which, according to the State Bar of Texas, arises from “one or more of the following”:
- Failure to pay Inactive or Active Membership Dues
- Failure to pay Attorney Occupational Tax
- MCLE (continuing legal education) requirements non-compliance
- Texas Guaranteed Student Loan Default
- Failure to pay Child Support
- Failure to take A Guide To The Basics Of Law Practice course
To any Massachusetts voter who understands this, it certainly is relevant to Warren’s character and qualifications to be Senator. In the absence of fair and competent press coverage, however, such understanding is unlikely, so Warren has no motivation to explain it herself…unless, of course, being candid and transparent to voters is itself sufficient motivation.
18. Conduct that would not be sufficient to cause a bar association to discipline a lawyer may still be unacceptable for a Senate candidate. The ethical and character requirements for Senate candidates, indeed all high elected officials, ought to be higher than those required of lawyers. The argument that our current group of elected officials tend not to meet such standards is not a rebuttal, but rather an explanation of why we have the dysfunctional and untrustworthy government we have.
19. The best current analysis of the substantive unauthorized practice of law issues regarding Warren’s Massachusetts law practice is here, by legal ethicist and attorney John Steele.
20. Outside of Steele, and a few others, the reaction to Jacobson’s research was overwhelmingly influenced by partisan preferences and prior biases, by officials, pundits and experts who should know better, including me. I have defended Elizabeth Warren against unfair attacks, but I cannot deny that I found her conduct and statements regarding her dubious Cherokee heritage and acceptance of affirmative action status and benefits manipulative, deceitful and evasive, and that this predisposes me to regard Prof. Jacobson’s allegations as credible. Professor Warren’s demeanor, words and what I know about her career also trigger in me an instinctive distrust that I cannot sufficiently explain with substantive evidence. All I can offer is that my ethics “spider sense”* was similarly caused to tingle at early stages of my knowledge of Bill Clinton, Al Gore, Newt Gingrich, Herman Cain, especially John Edwards, I’m proud to say, and yes, Mitt Romney.
* As Peter Parker has…
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Sources:
Graphic: Pappy’s Balderdash
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.
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Thank you for an excellent and even-handed summation of the situation as it now stands. The recent change in her Texas status is indeed odd, and note that she also cancelled her New Jersey a few weeks ago.
Politically, all this is important because, as you say, she’s “running on the proposition that regulations on another profession (the financial sector) need to be strictly followed and tightly enforced.” The fact that she has not yet tried to explain her law license problem indicates to me that she can’t square that circle.
A commenter who didn’t bother to read the commenting requirement (“Anon” will never cut it here), wrote, in part, that my spider sense “’ is remarkably selective if it didn’t include Barack Obama.” I did not and do not instinctively distrust Barack Obama. His conduct has been consistent with my original assessment however, as someone not prepared to lead, with few leadership skills or knowledge, who is too much of a narcissist to learn from his mistakes. But I don”t think he’s a phony.
This case points out what may be an unacceptable hole in the coverage of Massachusetts’ ethics rules. Are we to believe the Massachusetts bar has no authority to discipline a resident of the state who advises Massachusetts clients on federal legal matters simply because the attorney has a valid Texas law license? Instead, we must assume, a Massachusetts resident must complain to the Texas bar about any ethical concerns that might arise. What incentive does the Texas bar have to regulate the ethical behavior of Massachusetts attorneys serving Massachusetts clients?
Thank you sir for your insightful analysis. I must admit that I am an anti-Warren partisan. However, I generally inscribe good behavior to most people…but when a politician is consistently evasive in answering questions about prior behavior, it too brings up my suspicions.
I thought this was an excellent post.
I’m not saying there aren’t bits that I could quibble with — you know me, Jack, I can ALWAYS quibble — but still, an excellent post.
Thanks…and you know what? You inspired me to write it.
I honestly wouldn’t have guessed that! But thanks.
Here’s why: my exchange with you on this topic made me realize that I was communicating more like an advocate than an analyst. It’s a trap I fall into not infrequently, because when I begin defending rather than perfecting, my message gets lost. So I decided that I needed to clarify exactly how tricky this issue is, in all its various layers, rather than sound like I am invested in a specific conclusion.
Jack rules! This post is one of your shining moments!
For whatever it’s worth*, I agree with the others.
Evenhanded, insightful, a shining moment.
That about sums it up.
In light of our colloquy in one of your earlier posts, I wanted to add my shiny two bits on this one.
*(I’m just a guy on the internet–not a lawyer, not a professional ethicist, not an MA voter, even. My thoughts generally are worth every cent folks pay to read ’em–and sometimes less. Still, I just wanted to say…)
Since it appears not to be such a really big deal to so many, or at least not punishable, to illegally practice law in Massachusetts, Elizabeth Warren’s case could become a real precedent to allow hundreds if not thousand of new “law practitioners” flooding Boston and beyond to set up shop. I see hourly attorney rates precipitously dropping and certainly more work coming for the Appellate Courts.
With a few minor quibbles, this all sounds exactly right to me. Great post, Mr. Marshall.