[ 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.
Graphic: 3 Pipe