Law & Law Enforcement

Nakoula’s Arrest and Imprisonment: The Big Chill [UPDATED]

/ Jack Marshall / 31 Comments

More than a week ago, one of my blogging, legal, ethics idols, Ken at Popehat, took issue with my post stating that the midnight questioning of Nakoula Basseley Nakoula (the alleged producer of “Innocence of Muslims,” the crude anti-Islam film then being blamed by the Obama administration for all the violence that erupted in the Middle East on September 11) would appear both abroad and at home to be in retaliation for his exercise of his free speech rights, and should have been avoided even if it was otherwise justified by his parole violations. Ken wrote:

“…What separates us from the mob is the rule of law. We shouldn’t ignore the rule of law by violating First Amendment principles in what Eugene Volokh correctly points out would be an utterly vain attempt to appease a mob. On the other hand, we shouldn’t hinder the rule of law to avoid the appearance of appeasement, either. That’s still letting the mob dictate our actions and our adherence to our own laws. “We would normally do X, but we mustn’t because it might enrage the mob” is just the flip side of “We would normally do X, but we mustn’t because it might embolden the mob.” Both are a sucker’s game. The mob’s actions are going to be driven by its own culture and by the people manipulating the mob for their own political gain. Jack, and others, seem to be saying that the mob will misunderstand the orderly administration of the law in this instance: but is there really any chance that the mob will ever make an honest attempt to understand, or will care, or that the forces manipulating them will react honestly? Respect the rule of law and fuck ’em if they don’t like it.”

On this blog, commenter tgt was more succinct:

“Jack’s view of law is that if you are enough of a dick, you should be immune from prosecution for any action.” Continue reading →

“And Now We Welcome You To Another Episode of “As The Media Shrugs”! Elizabeth Faces Exposure As a Dishonest and Unlicensed Lawyer…Will She Finally Reveal The Truth? Will Voters Care?”

/ Jack Marshall / 13 Comments

“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. Continue reading →

More Revelations Regarding Elizabeth Warren’s Alleged Unauthorized Practice of Law, and Why This Matters

/ Jack Marshall / 36 Comments

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. Continue reading →

Indians, Pirates, Greeks, Intellectual Property, and Political Correctness

/ Jack Marshall / 5 Comments

The always understated Robert Newton as Long John Silver. You owe his estate a quarter every time you say “Arg!”

Here I am banging my forehead with the palm of my hand for not realizing that all of the rhetoric flying around about how horrible it is that people in the U.S. can get away with denigrating religions would spark yet another round of political correctness applied to team names and mascots. Perhaps this was inevitable when a vestige of an earlier controversy along these lines invaded the Elizabeth Warren-Sen. Scott Brown race: some of Brown’s staff were seen doing the old Atlanta Braves “tomahawk chop” to mock Professor Warren’s beneficial delusion that she is a bona fide Native American. The political correctness police were all over this one, though the logic, as in a lot of political correctness, was strained: doing a famous fake Indian gesture to mock a fake Indian political candidate is an insult to…real American Indians? Even after the real Cherokees have announced that Warren’s pretensions of affirmative-action worthy Native American status is offensive to them? I’m afraid  those who are empowered by being offended are just too creative for me—I don’t get it.

Nor do I get an earnest essay by  Paul Lukas on the ESPN website, titled “Time to Re-think Native American Imagery.” I am on record as believing that the assault on Native American symbols and imagery for school and team names is just more cynical power-mongering by convenient victims, with the exception of the Washington Redskins, the one team with an undeniably racist name that ought to offend everybody. Still, it is obvious that the political correctness thugs will keep chipping away, counting on their persistence and the eventual bureaucratic shrug (“Oh, what the hell—it’s only a name. Let’s just give them what they want!”) to give them a victory–whereupon they will find something else to be offended about.  Continue reading →

More From Prof. Jacobson On Elizabeth Warren’s Law License

/ Jack Marshall / 32 Comments

Uh, guys? Do you even care what really happened any more?

[ 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.” Continue reading →

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

/ Jack Marshall / 20 Comments

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. Continue reading →

The Ethics Incompleteness Dilemma and MLB’s Melky Cabrera “Solution”

/ Jack Marshall / 14 Comments

Who cares what Melky wants?

[ When we last visited the messy Melky Cabrera situation, people were clamoring for baseball to rule Cabrera ineligible for the National League batting championship he seemed destined to win because the Giants outfielder had been suspended for the rest of the season for testing positive for steroids. The suspension froze his average, then as now leading the NL, and because he had already amassed sufficient at bats to qualify for the title, this meant that 1) he would benefit from what was supposed to be a punishment and 2) the most prestigious of all baseball season titles would be won by a proven cheater. I explained why taking the title away from Melky would be unethical as well as unwise:

“…There is a very good reason why the Constitution bans ex post facto laws—laws that make something illegal retroactively, so someone can become a criminal for something they did that was legal when they did it. Allowing such rules is an invitation to an abuse of power, culminating, in the worst case scenario, with the modern day equivalents of the Russian or French Revolutions, where people are executed for “crimes” that were not crimes at all. Even cheaters have rights, and one of them is to know what their risks are when they cheat. Cabrera knew that he risked suspension, a loss of millions in income, and permanent harm to his reputation and career. He did not know that he risked not winning a batting championship if he qualified for it, or being put in the stocks, being exiled to Portugal, or having his children subjected to human medical experiments. Should a player suspended for performing enhancing drug use after testing positive be disqualified from winning a batting championship that season? That seems fair and reasonable, but because Major League Baseball didn’t think of it when they were making the rules, it would be unfair for Cabrera to be subjected to such a penalty, which would embody the inherently unfair principle of an ex post facto law. Some people just can’t process this. People just shouldn’t get away with intentional bad conduct, they say. …Such people are unwittingly willing to dismember the bedrock principle of due process, which requires that we know by what rules and laws our conduct society will use to judge our conduct, and that we know what the penalties for violating them will be, or at least have a the opportunity to find these things out. No, of course it’s not fair for Melky Cabrera to win a batting championship by cheating, but a society that allows him to be penalized in ways he could not have anticipated using a rule imposed after the fact is an unfair society, and ethics is ultimately about building a more ethical society.”

Bud Selig, the Commissioner of Baseball who is always as likely to make a terrible decision as a good one, said that he would not take any action on the matter. But that was not the end of the story…]

Yesterday, Major League Baseball announced that Melky Cabrera would not be eligible for the batting title after all. Continue reading →

Cruelty and the Comers: At a Certain Point, Being Nice Just Makes It Worse

/ Jack Marshall / 7 Comments

Meet the Comers

The nauseating news story of the week comes from L.A., where 18-year-old Mitch Comer was seen looking emaciated and confused in a downtown Greyhound bus station. A hundred pounds and 5’3″ tall, the boy seemed lost, and a security guard questioned him. Comer explained that he had just arrived from Georgia, where he had been imprisoned in his parents’ basement since his father pulled him out of an 8th grade class four years ago. Then, on his 18th birthday, they released the boy, and his stepfather took Mitch to the bus station, where they had a touching goodbye

“The story we got was that the stepfather took the kid to the bus depot, said ‘Here’s $200, here’s a list of the homeless shelters in Los Angeles, you’re a man now and don’t come back,'” said LAPD Commander Andrew Smith. This won Paul and Sheila Comer, who live in an affluent Georgia suburb, child abuse and false imprisonment charges as well as a nomination as 2012’s Monstrous Parents of the Year. Continue reading →

The Part of Legal Ethics The Public Will Never, Ever Understand

/ Jack Marshall / 8 Comments

Sen. Brown has the pulse of the public on this issue, and like the public, he’s ignorant.

Especially since politicians like Scott Brown keep making sure that they misunderstand.

In this week’s Massachusetts Senate debate between Sen. Scott Brown and Democratic challenger Elizabeth Warren, Brown slammed the anti-corporate crusader, the self-styled intellectual catalyst for the Occupy Movement, for accepting $250,000 from the Travelers insurance company to help the company deny claims for asbestos poisoning. He said:

“You chose to side with one of the biggest corporations in the United States: Travelers Insurance. When you worked to prohibit people who got asbestos poisoning, and I hope all the asbestos union workers are watching right now. She denied, she helped Travelers deny those benefits for asbestos poisoning, made over $250,000 in an effort to protect big corporations….”

Brown is accurately stating the way most people look at lawyers and what they do. But he is absolutely mistaken. His characterization of what Warren did is incorrect, and his inference of hypocrisy is unfair.  It is all the worse because he is a lawyer himself. If Senator Brown, as a lawyer, doesn’t understand what’s wrong with his accusation, he should. If he does know, then he is undercutting his own profession for political gain. [NOTE: The original version of the post incorrectly stated that Brown was not a lawyer. My thanks to Mass lawyer James Flood III for flagging the error.] Continue reading →

Someone Please Explain to Soledad O’Brien That Attorney General Holder is NOT “Exonerated” Regarding Fast and Furious

/ Jack Marshall / 4 Comments

So much attitude, so little comprehension…

[I apologize to all for not posting anything yesterday. I was handling back-to-back seminars, and had to drive a long distance in-between. by the time I got back home late afternoon, I was too wiped-out to write anything coherent, and that state persisted until I went to bed. I’ll be trying to catch up today.]

CNN’s partisan hack morning anchor Soledad O’Brien was smirking and raising eyebrows to beat the band yesterday morning, as she announced to her audience that the Inspector General’s report on the Justice Department’s deadly botch of its so-called gun-walking scheme, codename Fast and Furious, had “exonerated” Attorney General Eric Holder. I suppose I am giving O’Brien the benefit of a considerable doubt here in assuming that she knows what the word means, but to exonerate is to free from blame or responsibility. The 471 page report does state that there is no evidence that Holder knew about the operation before it had gone horribly wrong, as some Republicans had maintained. On the other hand, it also states that there is no evidence that Holder knew about the operation before it had gone horribly wrong. Continue reading →