Well, There Goes Elizabeth Warren’s Legal Ethicist Vote! (UPDATED)

On the positive side for Prof. Warren, at least she may be able to  truthfully say that in Massachusetts, she’s more Cherokee than lawyer…

As thoroughly researched by Cornell Law Professor ( and conservative blogger) William Jacobson, Democratic Senate candidate Elizabeth Warren practiced law in her Cambridge, Massachusetts office for more than a decade without ever being licensed to practice law in that state. His findings are here.

I’m sure non-lawyer Democrats in Massachusetts will want to dismiss this as a mere technical violation, but it is not. Practicing law without a license is grounds for disbarment, and disbarment means that you are dishonest and untrustworthy, something U.S. Senators should not be. It is also, as Prof. Jacobson definitively shows, a violation of Massachusetts law. Meanwhile, Harvard Law School, where Warren teaches, emphatically cautions its students against unauthorized practice.

Warren has yet to respond to these allegations, but they are serious and convincing, and if accurate, compel certain conclusions:

  • Warren’s Cherokee heritage deceptions, as I suspected, were not an aberrational quirk, but rather a symptom of core ethical deficits.
  • She is arrogant beyond words. She had to know that she was not licensed, and that it was a serious infraction to hold herself out as a lawyer in a jurisdiction where she was not authorized to practice law. Or, in the alternative…
  • …she is too sloppy and disorganized to trust in any position of responsibility. It must be one or the other.
  • She is unqualified for high political office, and
  • If she really did engage in the unauthorized practice of law, she is an idiot. There is, literally, no excuse for this violation of basic legal ethics, not for ten years.
  • Anyone who votes for a politician with a prior record of irresponsibility, dishonesty and misrepresentation for ideological reasons, ignoring competence, integrity and character, should be ashamed of himself, and I don’t care if that politician is running against a pet rock. Massachusetts voters should insist that Warren show that Prof. Jacobson is mistaken.

UPDATE: The General Counsel of the Board of Bar Overseers has weighed in on Warren’s side, as have her Harvard colleagues and many of the worthies at the Legal Ethics Forum. Hopefully, the questions Prof. Jacobson raises will be answered thoroughly, the main one being whether any of Warren’s legal activity was not in Federal court.

UPDATE 2: A commenter on the National Review online notes that to practice before the Massachusetts District Court, Warren was required, as a non-bar member, to be sponsored by a Mass Bar member in good standing. If she was not, then she misrepresented herself to the court. The sponsoring member should be on the case docket. This would be easy to check.

UPDATE 3: A new Ethics Alarms post here…

_____________________________________________

Pointer: Drudge

Facts: Prof. Jacobson

Graphic: Dig Boston

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.

20 Comments

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

20 responses to “Well, There Goes Elizabeth Warren’s Legal Ethicist Vote! (UPDATED)

  1. Question, which Prof. Jacobson does not address: Since she seems to be limited to Federal practice, need she be admitted in MA? See, Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963). I found this for VA: http://www.vacle.org/opinions/1856.htm . Haven’t had time to do an exhaustive search in MA.

    • Jay, this is Sperry stuff, and Sperry involves the specific kinds of federal practice that license lawyers independently. This isn’t the case with what Warren did…these weren’t immigration or patent cases. And she does have to be licensed SOMEWHERE, and there is even some doubt about that. Here’s a good treatise: http://www.wmitchell.edu/lawreview/Volume35/documents/Kuck.pdf

      • Jack, the question here seems to be whether a member of the bar of the US Supreme Court, by listing an address on a filing before that Court, is “holding himself (or herself) out as authorized to practice law” in that particular state. It’s not clear to me that that’s so.

        People know lawyers practicing before the Supreme Court could be licensed anywhere, and it seems consistent with Sperry that lawyers of the Supreme Court bar could practice before that Court even if they move to a state where they cannot practice in the state’s courts.

        If the question is answered the way you would have it, I’m sure hundreds of law professors are committing UPL each year as they sign Supreme Court briefs while not licensed to practice in the state where they happened to land their professorship. On a whim, I looked up another high profile example, Randy Barnett, the law professor guru behind the Obamacare challenge. Here’s the petition for cert from 2011, listing his Washington DC address at Georgetown:
        http://www.supremecourt.gov/docket/PDFs/11-393%20Cert%20Petition.pdf
        And a search here for Randy Barnett will show he did not become a member of the DC Bar until January, 2012.
        http://www.dcbar.org/find_a_member/index.cfm

        UPL? I’m not 100% sure, but I would say no.

        • In fact, I’m sure that hundreds of professors ARE engaging in UPL, at least for a little while. And lots of other lawyers. Harriet Meyers was Bush’s WHC on an expired license. The realissues remain 1) did she render legal advice to non-New Jersey clients in or from her Mass office? 2) did she hold herself out as a lawyer in a state where she was not one? 3) was the Federal litigation the only legal activity she was engaged in? 4) did she render advice to Mass residents or companies on Mass matters, or other non-New Jersey, non-Federal matters? Jacobson is right: we teach lawyers to be extra careful about UPL. This was beyond sloppy, at best.

          • I don’t see how you’re reaching this conclusion on the available evidence. In Jacobson’s blog post, the only evidence he provides of “UPL” is that she used her office address on the cover of pleadings in the Supreme Court (and also was listed as counsel in cases in the 5th and 7th Circuit federal courts of appeal). So the real issue is, would that be enough to constitute holding herself out as authorized to practice in Mass? Lots of professors do it; I’m not so sure it’s UPL.

            In any event, I’m curious what your view is on this more narrow question of using an address (in a state where one isn’t licensed) only for Supreme Court and federal court practice. Because in my view, that’s the only real issue here, and maybe even one that has been addressed in at least some jurisdictions.

            • I’m researching that issue. You’re right. I think that’s probably fine, based on what I’ve seen so far. But there still are the issues of 1) whether she only engaged in federal litigation and 2) whether she was a NJ Bar member at all times.

      • Not immigration or patent, but still Federal practice. The Virginia opinion would suggest it lawful; perhaps MA might agree. The article you linked to does not countermand the proposition that if she was solely working on federal matters, it would be lawful. And, I’ll give her the benefit of the doubt her NJ license was current at the time. I’m no fan of hers, but I think it premature to conclude UPL occurred. Rather, it is ripe for investigation as there is cause to suggest UPL occurred.

        • I don’t see how you get that out of the Virginia opinion, Jay. The opinion references fields where one can be separately licensed by the Feds, like Patent law. And what makes you think you can practice 10 years in Mass on a NJ license? That’s per se UPL. Nor can I find any indication that she was only working on Federal matters. IF she was, and IF she was properly admitted to the various federal courts, and IF she wa s a continuous member of some bar, then Jacobson is wrong, and she’s in the clear. She should be able to show this all easily.

  2. This blogger (a lawyer), and the folks commenting here (who I suspect of being lawyers), both seem to think that as long as Warren had a license to practice somewhere, then she was not engaging in unauthorized practice of law. (For both those posts, read the comments as well.)

    As far as I can tell, there is no evidence to suggest that Warren wasn’t licensed in New Jersey at the time of all the cases listed on LI. When you say there is “some doubt about that,” what is the evidence on which you’re basing your claim?

    • John Steele is great, and his post, and the comments, point up the murkiness of this issue. Warren has to answer some questions, like what other cases she handled, and whether her NJ license was live during her whole ten year period of alleged UPL. Jacobson’s suspicions about her resignation in NJ are justifiable, don’t you think? Why do that now? Or ever? Doesn’t it suggest muddying the water? Rick Underwood’s comment, the last one when I read it, and Rick is a fair and non-partisan guy, pretty much sums up my feelings. Why not just get a Bar membership? And why isn’t this being vetted by all? After her evasive handling of the Native American nonsense, I admit it: I don’t trust her.

  3. Eric R

    Adding another point to the data set…

    http://masslawyersweekly.com/the-docket-blog/2012/09/24/warren-law-license-matter-called-non-issue/#comments

    If the allegations are proven to be true and it is a violation of Massachusetts Law then it should be disqualifying. I would like to see Elizabeth Warren answer the of whether she was licensed to practice law in Massachusetts or any state at the times of interest. I would also like some statement regarding whether the cases she was working on required a license in Massachusetts specifically or any state in general.

    I do find it interesting that a member of the BBO has stated it’s a non-issue and not a violation of the law, and that the blogger who has brought this to light has not filed a formal complaint with the BBO.

    I would assume the BBO is ethically obligated to pursue allegations if there is evidence of wrong doing. I would also assume William Jacobson ethically obligated to file a formal complaint in a case like this?

    • Filing cross jurisdiction complaints isn’t that common, though yes, it is an obligation, though one that hasn’t been enforced, ever, anywhere. What “member”? I’m a member, and I also teach this stuff. Who’s the member? Why is that “interesting”? It’s a fact: you can’t practice law without a license. She wasn’t a member of the bar, and she was practicing law.

      • Mark Thompson

        Mr. Marshall: Jacobson ignores R. 5.5(d) and the official comment thereto, which states“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…are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.”

        The Official Comments to Rule 5.5(d) further elaborate to make explicit that 5.5(d) permits such an attorney to have even a “systematic and continuous presence in [Massachusetts] for the practice of law as well as provide legal services on a temporary basis.”

        This is important as every case in which there seems to be a record of her appearing is a federal case, and there does not appear to be much dispute that she was admitted to the relevant federal bars, which makes sense given that her area of reknown is bankruptcy law. She is not alleged to have advertised her services in MA, and at most is alleged to have used her MA address on the signature block for her briefs. But as far as I know, a signature block on briefs is not generally viewed as “holding oneself out” for purposes of the RPC; in the case of the MA rules of professional conduct, to suggest that it would constitute “holding oneself out” would in fact defeat the entire purpose of 5.5(d) and the official comment referenced above.

        Nor is there really any reason to doubt that she was admitted in NJ at the time- she only resigned her license – without prejudice, which means no pending actions regarding her conduct- two weeks ago, and was first admitted in 1977. NJ does not have an inactive license status – you can only either resign, stay active and meet the dues and (very new) CLE requirements, or fall into bad standing, with a license suspension. Had the latter occurred at any time in the last 35 years, it is safe to assume that the Brown campaign would have discovered that fact long before she resigned her license a few weeks ago. Had she previously resigned, she would have had to retake the NJ exam to get back to active status, and there is no evidence to suggest that happened. So it is safe to assume she stayed in good standing in NJ from 1977 through 2012.

        She is saying she resigned because she couldn’t meet NJ’s CLE requirements, which are brand new, and for which her first report would have been due December 31, 2011 (they are biennial, with half the state bar reporting in any given year). As a practical matter, she would have gotten an automatic extension on that until April 2012, and it is possible she would have sought an additional extension. Regardless, with the schedule of a Senate candidate, it is doubtful she would have had the time to do the 24 hours of CLE required, and so would have quickly gotten to a point where she had to either resign her license or fall into bad standing status.It seems likely to me that she failed to meet her CLE requirements, which is problematic unto itself, but is a whole different issue from the UPL issue.

        • If the federal cases were the only instances in which Warren practiced, and if she was a member in good standing in NJ the whole time, then Jacobson’s case falls apart. Your CLE point also adequately explains her resignation at this time from NJ. She still has some questions to answer, and I fear that given the preemptive statement by the GC of the Bar Examiners, she won’t have to answer them. But I agree with you: Jacobson’s case appears over-stated.

      • Eric R.

        I need to correct what I said above. Having re-read the article, it wasn’t a member of the BBO but General Councel for the BBO that stated he didn’t believe Elizabeth Warren was in violation of Mass. Bar Rules. The fact that General Councel is willing to go on record saying it’s a non-issue is telling, interesting at the very least.

        This is likely something that can only be cleared up the the Mass. BBO so it’s good SOMEONE is formally asking the BBO to investigate the matter. I consider William Jacobson’s unwillingness to file a BBO interesting because if he feels so strongly about this issue you’d figure he’d put his money where his mouth is.

        Finally, you cannot say she was not a member of the bar and you cannot say she was in violation of Mass. Bar Rules. She appears have not been admitted to the Mass. Bar and appears to have violated Mass. Bar Rules. Furthermore you cannot say that the law work she did required a license to practice in Mass.

        Only the Mass BBO can get to the bottom of this. Let’s hope your formal complaint is investigated….

        • You will note that my whole post was predicated on this statement: Warren has yet to respond to these allegations, but they are serious and convincing, and if accurate, compel certain conclusions:

          I didn’t do the research, the professor did. Yes, he’s a conservative, partisan blogger, but his brief was convincing.

          • Eric R.

            Yep, I understand that completely. I also understand you stated unequivocally, “It’s a fact: you can’t practice law without a license. She wasn’t a member of the bar, and she was practicing law.” in your reply to my post.

            If he has not (is not planning on) filed an ethics complaint he must have convinced everyone but himself. THAT I would, go out on a limb and, say
            is also unethical.

            • Yep, and to the extent that what Prof Jacobson assumed regarding her practicing law in Massachusetts, my statement was unwarranted. And your last sentence is accurate. 8.3 says that when a lawyer is convinced that a lawyer has engaged in conduct in violation of the ethics rules that calls into question his or her trustworthiness, honesty and fitness to practice law, he MUST file a complaint. At this point, I am no longer convinced. When and if I am, I’ll file a complaint myself.

  4. Bill

    God reading this thread is like watching paint dry. Are all lawyers so boring and dry that it makes a person want to step in front of a bus out of boredom?

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