Prof Jacobson, on his blog Legal Insurrection, is in line for an Ethics Hero award with his tenacity regarding Elizabeth Warren’s dubious qualifications to engage in the practice of law in Massachusetts. The overwhelming reaction by his colleagues in legal academia, and mine in the legal ethics community, has been to airily dismiss his arguments as trivial, far-fetched and thinly disguised political warfare, since Jacobson is an unapologetic conservative blogger (and a distinguished one.) Meanwhile, the mainstream media has, I think it is fair to say, completely ignored the story.
Part of this is undoubtedly because of the ignorance of most journalists regarding the importance of the legal ethics rules in question. Part of it is probably due to the accurate assessment by editors and TV news producers that the average American’s brain would switch off right around the time the story mentions Massachusetts Rule of Professional Conduct Rule 5.5 Subsection (c), and will start wondering about how Blair from “The Facts of Life” is going to do on “Survivor.” And part of it, infuriatingly, is because most journalists are willing to forgo the ethical duties of their profession in order to ensure that a Democrat wins back Ted Kennedy’s Senate seat, and character be damned.
The rude brush off Prof. Jacobson is getting in this wagon-circling exercise is wrong in every way, and does injustice to every person and institution involved, including the Massachusetts legal establishment, the legal profession, ethical lawyers (which, believe it or not, the vast majority of them are), Senator Brown, the U.S. Senate, Massachusetts voters, and the American public. Bar associations across the country regularly punish ordinary lawyers who practice law without proper authorization, and there is a reason: a lawyer who won’t or can’t obey the most basic requirement of the profession—be sure you are practicing law legally—should not be trusted to handle the important transactions and controversies of their clients’ lives. Those who want to minimize the relevance of this misconduct to Elizabeth Warren because she is a Democratic candidate for the U.S. Senate have their ethical standards upside-down: we must hold elected officials to higher standards than mere lawyers, not lower ones. If an individual shows a proclivity to cut corners, slide past compliance, ignore rules and skirt regulations for her own convenience and profit as a lawyer, imagine what someone with these habits will do in high elected office, where her power will be greater, corruption is entrenched, and the temptations and rewards are massive. The research and conclusions of Prof. Jacobson should be of urgent concern to all, not just conservatives and Republicans, but anyone who wants better, honest and effective government at a time when we desperately need it.
To make this point more specific: Elizabeth Warren has built her political career condemning the financial sector for manipulating and avoiding laxly enforced regulations for their own enrichment. If Prof. Jacobson’s research and analysis is correct, and increasingly it is appearing that he had detected fire as well as smoke, then Warren has been doing exactly what she (accurately) accuses banks and brokers of doing…in a word, cheating. (I would also think such conduct would be worthy of serious inquiry by Warren’s employer of record, Harvard Law School, whose graduates it is supposedly training to conduct themselves, in class and out, otherwise. Apparently it does not agree.)
As for Professor Jacobson, his ideological orientation should not factor into this story at all. In a Bizarro World journalistic establishment where only “conservative media” will report facts and conduct damaging to progressive and Democratic leaders and causes, and where the liberal mainstream media will proceed to dismiss the resulting reports as “conservative stories,” as if they are tall tales told around the campfire, passionate bloggers like Jacobson are filling a crucial need, depressing as it is that such a need exists. One blogger, however, cannot make regulators do their jobs, journalists be responsible, or candidates come clean. The public has to care who it elects and what kind of character and habits they have displayed in their professional lives. A competent, objective and responsible news media would be committed to explaining to them why they should care. If only we had such a news media….
Today Prof. Jacobson delivers still more convincing evidence that Elizabeth Warren operated a continuous Massachusetts law practice (and not just a sporadic Federal law practice) without a valid law license, after his post yesterday that raised questions about her representations regarding her license to practice in Texas.* He is doing the job that the national and Massachusetts media should be doing. In the end, the significance of this episode may make the election or defeat of Warren superfluous, as well as whether she violated the rules of her profession and escapes the consequences. It may prove conclusively that the United States no longer has a trustworthy press that is dedicated to informing the public, but an ideological press that abuses its Constitutional power in order to manipulate the public.
That is far more catastrophic, I believe, than electing one more unethical politician to the U.S. Senate.
* Note: The source for Prof. Jacobson’s Texas post was Rob Eno’s Red Mass Group
Graphic: Throwing Anvils
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