No, Elizabeth Warren Did Not Engage in the Unauthorized Practice of Law

[UPDATED BELOW; FOLLOW UP POST HERE and HERE]
At Legal In.sur.rec.tion, Professor Jacobson contends that Elizabeth Warren, the Massachusetts Senate candidate, liberal firebrand, and Harvard law professor, has  engaged or appears to have engaged in the unauthorized practice of law in the state of Massachusetts.  In support, Professor Jacobson points to numerous briefs either filed by Ms. Warren or with her listed as being “of counsel” in various federal courts around the country in which her office address is listed as being in Massachusetts.  As Ms. Warren is not, and does not appear to have ever been, licensed to practice law in Massachusetts, but instead appears to have been licensed only in New Jersey and/or Texas at all pertinent times, Professor Jacobson argues that Ms. Warren’s actions constituted the unauthorized practice of law in violation of Massachusetts law.

If Professor Jacobson’s analysis is correct, this is an extraordinarily serious charge for which Professor Warren should be held accountable both at the ballot box and before the appropriate ethics panel.  However, and with all due respect to Professor Jacobson, none of the facts alleged would constitute the unauthorized practice of law nor any other violation of relevant ethics rules.

In making his arguments, Professor Jacobson makes a fatal error by assuming that merely preparing legal briefs in (seemingly non-Massachusetts) federal cases or providing advice on federal law while located in Massachusetts and maintaining a primary office in Massachusetts constitutes the “practice of law in Massachusetts.”    Although he cites several cases for this proposition, these cases do not go nearly as far as Professor Jacobson assumes, as they each involve cases wholly within the jurisdiction of the Massachusetts courts, specifically Massachusetts real estate transactions and Massachusetts probate matters.

He further errs in deeming “on point” a 1976 case in which the Massachusetts state bar issued an ethics opinion prohibiting a law firm from listing a “Boston Office” address on its letterhead where the firm lacked any Massachusetts-admitted attorneys but instead sought to claim that a Massachusetts firm with which it had a relationship falling short of an “associate” or “partnership” relationship constituted its “Boston Office.”   This case, however, is not “on point,” as it is not an unauthorized practice of law case but is instead a misleading communications case in which the firm was prohibited from “holding itself out to the public” as having a Massachusetts office.  Jacobson incorrectly assumes that merely listing an office location in a court filing, rather than a communication “to the public” constitutes “holding oneself out to the public” as being licensed in the jurisdiction in which one’s office is located.

But most importantly, Professor Jacobson ignores Massachusetts Rule of Professional Conduct 5.5(d), which states that:

“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.”

As the cases to which Professor Jacobson has drawn our attention are entirely cases from the federal courts, and indeed appear to be cases lying even outside the jurisdiction of the Massachusetts federal courts, and as there seems to be no allegation that Professor Warren was unauthorized to appear in those cases, the Massachusetts Rules of Professional Conduct appear to explicitly exempt Professor Warren’s actions in those cases from the prohibitions on the unauthorized practice of law.

Although it is true that Rule 5.5(d) does “not authorize communications advertising legal services to prospective clients in [Massachusetts] by lawyers who are admitted to practice in other jurisdictions,” merely listing the location of one’s office in an official court filing in which one is properly authorized to appear cannot possibly be construed as a “communication advertising legal services.”   To hold otherwise would be to make Rule 5.5(d) meaningless since attorneys are typically required to list their office addresses in official court filings, and in fact I am aware of no authority that stands for the proposition that an official court filing may constitute an “advertisement for legal services” merely because it lists the attorney’s office address.

UPDATE 9/24 10:45 PM: Suggesting the same conclusion as my analysis here, please see this article from Massachusetts Lawyers Weekly, which includes a quote from the General Counsel for the Massachusetts Board of Bar Overseers that also suggests there is no UPL issue here, albeit for reasons that do not even require going as far in the analysis as I have.

UPDATE 2 9/26: I’m closing comments at this point, as I don’t have time to respond to any more comments and as the comments are increasingly repeating arguments addressed elsewhere in the thread. After almost 2 days and 200 comments, the thread has run it’s course.

UPDATE 3: Professor Jacobson has responded to this post, and my reply to his response is here.

UPDATE 4 9/27: Professor Jacobson has uncovered new facts that I view as a gamechanger.  Although I stand by my above analysis as applied to the facts known at the time, Professor Jacobson’s discovery this morning answers my objections to his arguments.

[Edit: Via Memeorandum]

[Edit 2: I corrected a grammatical error in the sixth paragraph by inserting the phrase “an attorney to have.”  I also inserted the word “such” to clarify that the comment only applies to an attorney who meets the conditions of 5.5(d).]

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202 thoughts on “No, Elizabeth Warren Did Not Engage in the Unauthorized Practice of Law

  1. Actually, as Ms. Warren has refused to release to the Boston Globe any information about other legal cases she’s worked on- we have no idea if she worked on cases at the state level.

    Also this article does not address the fact that she abruptly resigned her New Jersey law license just 13 days ago. Why? As Professor Jacobson points out, when one resigns one’s law license, it makes it more difficult for the public to ascertain when her actual law license expired.

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      • (And, crap, did I just defend Warren? I didn’t see that coming.)

        Not a fan? I tend to make the assumption that most Canadians will support a Democrat over a Republican most of the time. I recognize that’s steeped in stereotype, but it’s what I find myself generally assuming unless otherwise indicated.

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    • 1. As someone who actually practices, if there was a case where she entered an appearance in MA state court without being licensed in Massachusetts, it is a virtual guarantee that she would have been swiftly caught and sanctioned, particularly given her relatively high profile as a law professor at Harvard and as a highly influential bankruptcy law scholar.

      2. If the allegation is that she may have merely “worked on” Massachusetts cases where another attorney entered an appearance, then this would not be an unauthorized practice of law issue, either, as in that case she would be doing no more than a paralegal would be permitted to do since the other attorney would be handling all court appearances and taking responsibility for everything in the briefs. As a practical matter, in the actual practice of law, people who are not admitted to practice law in a given jurisdiction write initial drafts of briefs for cases in those jurisdictions all the time – what matters is who is actually signing, reviewing, and submitting the briefs.

      3. Whether or not she should disclose all of the matters on which she worked over the years is, absent a firm prima facie basis for ethical charges, largely a political matter on which I offer no opinion and pretend to offer no opinion. However, there is also an issue that disclosing much more than clients and dates would violate attorney-client privilege rules.

      4. Regarding the NJ bar resignation, that is a different issue from that which I’ve attempted to address here. However, for purposes of the issue I’ve addressed here, it is noteworthy that, to be permitted to resign without prejudice as she appears to have done, one may not have any pending disciplinary proceedings against them.

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      • Out of curiosity, other than appearing in court, what all can’t someone without a license do? Is there anything that someone with a JD can do but that a paralegal can’t? I’d imagine that it varies by state, but how tightly are paralegals licensed?

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        • It’s a gray area that IIRC varies quite a bit from state to state, though mere drafting (as long as there is attorney supervision) is, AFAIK, always ok. But beyond that, providing advice directly to clients on state law while in that state is generally going to present UPL issues (with some otherwise notable exceptions); in some jurisdictions, certain types of document review work can present UPL issues.

          IIRC one relatively common area where UPL issues arise is when a nonattorney conducts a real estate closing. There’s also some areas where something would constitute a UPL if you’re not admitted anywhere but not if you’re only admitted in another jurisdiction.

          The last – and most relevant – thing of course is that you can’t “hold yourself out to the public” as being an attorney in a given state unless you’re actually licensed there. The question here is what constitutes holding oneself out to the public as being admitted in a given state, and it seems pretty clear that, particularly under the MA rules, listing an address in a court pleading is not the type of “holding out to the public” that the rules are concerned with.

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          • Mark–from your analysis, it appears that any lawyer licensed in a state other than MA can move to MA, advise clients on any US federal laws (e.g., securities, tax) and not have a MA UPL issue so long as (1) such lawyer doesn’t hold himself out to the public as a MA lawyer and (2) doesn’t advise on any MA state law issues. Example: Assume a lawyer resides in and is licensed in Illinois and advises clients across the US solely on US federal tax matters. Also assume he has a stable book of clients and has no website and never solicits clients in any form and never meets with clients in his office. All of his business is conducted on the phone or through email. He is undoubtedly practicing law in Illinois. Such lawyer now moves to Boston and continues the exact same practice. Is such lawyer not practicing law in MA? He is not advising on state issues and is not holding himself out as MA lawyer. If not, where is he practicing law at? Nowhere? Is he no longer practicing law.

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      • Re Mark’s point #3. While many client representations are a matter of public record — as when a lawyer files an appearance on behalf of a client in a court — some engagements are private matters and the mere fact of engagement is, itself, a sensitive fact that would cause harm to the client if disclosed.

        I’d have a bigger problem with Ms. Warren, or any other lawyer, who disclosed “I represented clients X, Y, and Z in non-public matters” than a lawyer who did research or drafting of documents that were reviewed by another attorney prior to submission — something which, as Mark points out, is no different than a paralegal, a law clerk, or an expert witness researching and drafting something submitted over the signature of counsel of record.

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        • Also, there’s a related issue here insofar as we’re talking about briefs where she was only listed as being “of counsel” to the filing attorney. I vaguely recall some case law holding that being listed in that capacity is, in effect, a nullity and does not constitute the practice of law, at least in the federal courts. I don’t have that case law handy, though, and it’s possible my memory is playing tricks with me. If I have time, I’ll look into it more.

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          • I think this is a difference in professional culture from region to region. If letterhead or a case caption identified counsel on a case as “Burt Likko, of counsel to Thompson, Kowal & Knapp, LLP,” what does that suggest to you about the relationship between Likko and the TK&K firm? To me, it indicates that there is a sharing of support infrastructure (offices, bank accounts, support staff) but a division of formal responsibility and financial rewards different than either employment or partnership, and a relatively high degree of independence for the “of counsel” with respect to the firm.

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            • I don’t think it’s a difference in professional culture, actually – in the letterhead scenario, “of counsel” has a pretty established meaning basically along the lines you’ve identified. But in the scenario of signature blocks on court filings (at least in federal court), my understanding is that, as a matter of law, it doesn’t imply anything regardless of what it might ordinarily imply. Again, though, I need to do the research on this and find the case(s) I was thinking of.

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            • I do work for another law firm in Northern California in what I would consider to be an of counsel relationship — I’m not an employee or associate of that firm. But I have a separate malpractice policy for the work I do for that firm. I certainly would never expect to escape liability by saying “I was just of counsel, I wasn’t really ‘practicing law.'”

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              • Well, sure, but the question here is less whether you were practicing law, but instead where you are practicing law. Also, the “of counsel” designation in a pleading is, IIRC, viewed as having a significantly broader definition than an “of counsel” agreement fir marketing purposes.

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          • MarkT, if “Of Counsel” is not practicing law, that could be added to the OP as probative.

            The court doc

            http://legalinsurrection.com/wp-content/uploads/2012/09/Travelers-v-Bailey-Brief-Cover.jpg

            calls Warren—as “Of Counsel”—an attorney for Travelers’. But we should all know by now that what plain reading and common sense tell us is not synonymous with “law.” To me, if Elizabeth Warren had no valid license in any state at that time and was charging Travelers’ $500/hr for legal work she performed in her Massachusetts office and was listed on the court doc as an attorney for Travelers’, that’s practicing law without a license.

            I say this with no spin or snark—I wouldn’t be surprised if the laws and regs say it’s just dandy. Nothing much surprises me anymore. Common sense is for the little people.

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        • I agree with MarkT on the peripherals. However, she was listed as Of Counsel and was paid $212K by Travelers. This is practicing law. The question is a) whether she had a valid license anywhere to practice law at the time or 2) whether a NJ license to practice law is valid when you’ve formally set up your office in Massachusetts.

          The answer could be yes to both, I don’t know, but that’s the nub here I think.

          Regardless, the resigning of her NJ license just a week ago smells, especially because I see no advantage in surrendering a license you could just let sit dormant. [Resigning means she’d have to take the bar again. Resigning makes no sense that I can see except to close the books on her record from nosy newspapers.]

          And there’s also the irony of the great consumer advocate taking money from Big Business, and in an asbestos case at that. Although for the record what one does professionally as a lawyer doesn’t trouble me, I am acquainted with a number of attorneys who refuse to represent Black Hats like asbestos or Big Tobacco on moral grounds.

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          • I agree with MarkT on the peripherals. However, she was listed as Of Counsel and was paid $212K by Travelers. This is practicing law.

            Unless I misread the above (I might, it’s Monday), Mark’s point is that this isn’t the definition of practicing law, at all. That’s the whole point of citing the Massachusetts Rule of Professional Conduct.

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            • Acknowledeged in my next comment here, PatC.

              “MarkT, if “Of Counsel” is not practicing law, that could be added to the OP as probative.

              The court doc

              http://legalinsurrection.com/wp-content/uploads/2012/09/Travelers-v-Bailey-Brief-Cover.jpg

              calls Warren—as “Of Counsel”—an attorney for Travelers’. But we should all know by now that what plain reading and common sense tell us is not synonymous with “law.” To me, if Elizabeth Warren had no valid license in any state at that time and was charging Travelers’ $500/hr for legal work she performed in her Massachusetts office and was listed on the court doc as an attorney for Travelers’, that’s practicing law without a license.

              I say this with no spin or snark—I wouldn’t be surprised if the laws and regs say it’s just dandy. Nothing much surprises me anymore. Common sense is for the little people.”

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              • Again, though, the question isn’t “was she practicing law”? It’s “was she practicing law in Massachusetts“? To say that working on cases located entirely in other jurisdictions (where you are undeniably admitted) constitutes the “practice of law” in the jurisdiction where your office is a claim that is at odds with how law is actually practiced and how the term “practice of law” is actually interpreted on a more or less daily basis.

                No state has the right to invalidate someone’s license to practice law in another state, which is what Jacobson’s argument would have the effect of doing.

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                • To my (admittedly inexpert) reading, this seems largely analogous to situations when I offer medical advice to my patients when they are located in a state outside of Massachusetts, where I am licensed. If they happen to be calling me from Florida or California, I am not subject to discipline by the boards of licensure within those states because I am acting under my license in the state where my practice is actually located.

                  Perhaps this is not an apt comparison, but that’s how it looks to me.

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          • The question isn’t simply “was she practicing law,” though. It’s “was she practicing law in Massachusetts“?

            The Travelers’ case was a SCOTUS case, and there does not appear to be any dispute that she was duly admitted to practice before the SCOTUS. There is no evidence to suggest that she lacked a license to practice law anywhere at the time, and if such evidence exists it can be obtained readily enough through FOIA-type requests – it is utterly baseless speculation.

            As to question (2), the validity of her NJ law license is wholly and inherently a function of NJ law – Massachusetts cannot dictate to NJ who may and may not practice before NJ courts – and Professor Jacobson has raised no arguments alleging she was engaging in UPL under NJ law.

            The surrender of her NJ law license is indeed unusual, but I see nothing to tie it to this particular allegation, and there may well have been reasons for that surrender that are entirely understandable.* In addition, it should be noted that she hasn’t technically terminated her Texas license, but instead has merely gone on inactive status.

            * For instance, NJ just instituted a pretty significant CLE requirement, which is bi-annual in nature. Ms. Warren’s first reporting deadline would, I believe, have been late December 2011/early January 2012. For someone who is not well-attuned to the goings on of the NJ bar, it would have been fairly easy to miss these deadlines. I believe there was an automatic extension granted until mid-April of this year, after which she would have started getting fined; if she didn’t have time to complete the CLE due to the Senate race (a pretty likely scenario), at some point she’d have been faced with a decision to either resign her membership or risk suspension of her license. I’m not saying this is what happened, I’m just using it as an example of an explanation for the resignation that is as or more plausible than Jacobson’s conspiracy theory which, as I think I’ve shown, seems pretty baseless. There are surely plenty of other plausible explanations.

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            • I hear your arg, MarkT. It may hold, but it’s not out of the woods yet w/o more info.

              Elizabeth Warren clearly accepted $$ for legal work for Farmers’. Did she have a valid NJ or TX license at time? Is she admitted to practice before the US Supreme Court or other federal courts* [Warren’s CV does not mention being admitted before the federal courts] and if so, is that enough cover to legally charge $$ for legal work?

              If not, can I do it too?

              ;-)

              I enjoy these detective things. A pity the press doesn’t do their damn job more often.
              _________
              *http://en.wikipedia.org/wiki/Admission_to_the_bar_in_the_United_States#Federal_courts

              **Boston Globe: “…In the case, Warren defended Travelers as it sought protection from future claims as part of an agreement that would also unlock a $500 million settlement for asbestos victims, a step many victims supported. After Warren’s work on the case ended, however, Travelers won another court ruling that allowed it to avoid paying victims. That ruling is under appeal.”

              Read more: http://newsbusters.org/blogs/pj-gladnick/2012/09/24/boston-globe-story-about-elizabeth-warren-legal-work-fails-mention-lack#ixzz27QeX5OYb

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              • Did she have a valid NJ or TX license at time?

                All of the evidence that exists at this point indicates that yes, she in fact did have such a license. She was admitted to NJ in 1977 and resigned her admission two weeks ago with the “without prejudice” designation. There is no allegation that her membership in NJ lapsed in the interim 35 years, and no basis to suggest otherwise. At most, it’s possible she went to “inactive” status during that period of time, a fact that would have been automatically disclosed on any applications for admission to the federal courts by virtue of the Cert of Good Standing she would have had to obtain. Her Texas report in fact lists at least some federal admissions, including the SCOTUS admission.

                That her CV doesn’t list her federal admissions is unremarkable since, as Burt pointed out, federal admissions are fairly pro forma. I know plenty of attorneys who don’t advertise all or even any of their federal bar admissions on their resumes.

                Her admission to the SCOTUS bar at the time of the Travelers’ case is not remotely in question – I rather doubt that the SCOTUS is going to be accepting briefs from people not authorized to practice before it; and to the extent the “of counsel” designation is a mere nullity as I’ve indicated elsewhere, she’s not doing anything that a paralegal would be unauthorized to do (and yes, receive compensation for).

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                • “All of the evidence that exists to this point” is incomplete because Warren won’t disclose it all*. Enough to get us to an acquittal in a combox, but not to the whole truth.

                  *http://articles.boston.com/2012-05-01/metro/31499452_1_asbestos-case-asbestos-victims-travelers/2

                  By resigning from it, she’s put her record with the NJ bar in a lockbox. Did she practice law from a Massachusetts office under an expired NJ law license? Is that OK? I don’t know, and frankly I’m not terribly upset by this technicality either way. But the possibility of a coverup is interesting, and I’m unsatisfied that her bolt-from-the-blue resignation from the NJ bar isn’t part of one.

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      • Also, I didn’t realize before reviewing Mark’s comment that Ms. Warren’s area of academic and professional expertise was bankruptcy. This further mitigates, in my mind, the question of whether she was engaged in UPL. State law matters in the area of exemptions from bankruptcy estates, and the availability of certain state-law remedies and procedures to protect (or not) certain kinds of assets that might belong to a debtor. But for the most part, bankruptcy is largely uniform in its application becaues the law is Federal and pre-emptive. The flavor of a bankruptcy I might file in Massachusetts may be different from the flavor of a bankruptcy I might file in Texas, but there are not typically going to be a lot of significant differences between the two.

        And, more to the point, a member of a Federal District Court Bar in one District is presumptively able to seek membership and practice law in another District Court, even in a different state, with minimal paperwork and review. When I moved to Tennessee for a couple of years (long story) my membership in good standing with the Central District of California bar was pretty much all that the Eastern District of Tennessee was interested in seeing before I was admitted — EDTN didn’t even care if the Supreme Court of Tennessee had issued me a license to practice in the state courts. It was a matter of filling out the application, paying a nominal fee, and getting a friend to sponsor my admission.

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      • In Ohio, and I am sure other states, you are prohibited from disclosing clients without that client’s agreement. It is one thing to put in an appearance for Dow Chemical in a case filed in court; it is presumed that when you hire the client for a piece of litigation, they are agreeing to disclosure, as it is necessary to the job of representing their interests. But if your work for Dow was behind the scenes, it would be an ethical violation to disclose that UNLESS the client agreed. As such, I understand why she would not disclose clients EXCEPT those for whom she made a formal appearance. Yes, this does hamstring disclosure; but the rule is the rule.

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      • “If the allegation is that she may have merely ‘worked on’ Massachusetts cases where another attorney entered an appearance, then this would not be an unauthorized practice of law issue, either, as in that case she would be doing no more than a paralegal would be permitted to do since the other attorney would be handling all court appearances and taking responsibility for everything in the briefs.”

        Meanwhile, the Globe has her collecting $212k for these services, making her the world’s highest compensated paralegal, but never mind that. What do you think are the odds she was paid a flat hourly wage rather than a percentage of the attorney fees?

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        • Her rate of compensation has little, if anything, to do with whether she engaged in UPL. Moreover, there is no allegation that the Travelers’ case specifically was Massachusetts case in any meaningful sense. This is because, well, it wasn’t- it was a federal case. She was by all accounts admitted to practice before SCOTUS, where the case was pending, and it was not a MA case in the lower courts, either.

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  2. Prof. Warren may or may not have violated the law, but Sally has it right. Her refusal to be more forthcoming about what work she did do and her sudden resignation from the bar add an air of wrongdoing.

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    • It isn’t often that I have this reaction, but when I read your comment, I had a sinking feeling tinged with a bit of disgust for our current political climate. Is it really that simple — someone like Scott Brown can throw some mud at the wall, and without his having to offer any proof of wrongdoing, the other party is expected to go off their own message in order to argue about their work history, produce all kinds of records about their clients, etc.? If Scott Brown yells “Squirrel!” Elizabeth Warren is expected to start chasing after whatever-the-heck, until the next “Squirrel!” sends her scurrying off in another direction? And if she refuses to be jerked around by all these spurious charges, there’s an air of wrongdoing? Please.

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        • First, Warren uses an unconstitutional quota system to get employed over real Americans. Second, there is no doubt that she practiced law without a valid license to do so in mass. However, I cannot find in the US Constitution anywhere, that says that a Government, State or Federal, can require anyone to get a license to get employment and that includes, to practice law ect. Also, “Maybe not, but it is a democracy.” Question is , can you point out in the US Constitution, where that word is mentioned just once. Our system of Governing is “A republican form of Governing”, not a Mob Ruled Democracy.”

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      • Isn’t there a (probably apocryphal) story of LBJ who was discussing an opponent in a campaign and he mentioned accusing him of being a goat fucker. Everyone agreed it wasn’t true and he replied, “I know. I just want to hear him deny it.”

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      • In the first place, Scott Brown hasn’t been the person yelling “Squirrel!”. That is coming from a blogger. In their recent debate I heard Brown accuse Warren of being a champion of a corporate behemoth, Travellers, in its battles with stricken workers–a legitimmate claim judging from Warren’s response. But I never heard him accuse her of practicing without a license.

        Regardless, something tells me you haven’t been loosing much sleep over Harry Reid, an actual Senator and Senate Majority Leader, shouting “Squirrel!” Actually, I think the words he used were: “I heard from a good source that Mitt Romney has paid no taxes. Why won’t he release his tax returns?”

        In fact, the entire Obama campaign can be summed up as the Squirrel Defense. “Economy? Why.. uh…Squirrel!”

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      • Apparently you have not read the tale of Harry Reid and Mitt Romney’s tax returns. Or Obama and “shooting first.”

        In Warren’s case there is and was enough documentation to warrant further investigation. This is not the sort of thing the press is interested in doing — going after someone of their political persuasion — so it is left to be done, if inexpertly, by others. I am not sure if Prof. Jacobson drew any definitive conclusions. But he was working from much more than just the alleged word of someone who may or may not even exist as in the case of Harry Reid’s allegations. And the professor had proven Warren was wrong in her claims of Indian ancestry previously.

        But I personally think Warren would welcome a distraction. She disqualified herself in the minds of most decent people when she claimed to be the “intellectual” inspiration for an OWS movement that consists almost solely of people who do not have a clue what they are protesting and whose activities consist mainly of trespassing, committing acts of vandalism and — well, let’s just say “worse” since it is all well documented. Anything that distracts from that and her “didn’t build that” meme that Obama appropriated likely only helps her.

        The other important caveat is that there is no indication that Brown had anything to do with the allegations. I know Professor Jacobson contacted the campaign but I am not aware of them making any allegations. In Harry Reid’s case there has been plenty of time for the Obama campaign to disavow him but instead they seem to be doubling down on that line of attack. These things are coordinated on the left so they assume that the right does the same sort of thing.

        It is just politics as usual and wouldn’t matter so much if the government was as weak as the Founders had wished and as the Constitution requires. If you want to clean it up then you will have to restore the government to its proper function where there is not so much at stake. But in socialist countries like the US is becoming everyone fights for the lever of power all the time because there is just that — only one lever of power and who wields it makes all the difference in the world.

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    • “…add an air of wrongdoing.”

      Walking slowly backwards from practicing law without a license.
      To me, this is the sort of thing which people bring out when they’ve lost
      their actual argument.

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  3. I’m confused. Assuming that you are correct, Mark (and I am assuming you are), how does Cornell law professor botch that serious a claim that badly regarding such a high profile election?

    Am I missing something?

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    • Honestly, I’ve seen similar UPL issues botched worse. But in this case, I suspect part of it stems from the fact that Professor Jacobson is opining outside his area of expertise. It’s also somewhat counterintuitive, and researching state bar ethics opinions is often a serious pain in the rear.

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        • Tod, I don’t know if you know this already but Jacobson is a big ticket blogger for the Breitbart crew. I can’t speak to how often he’s empirically wrong, but, y’know, company you keep, etc.

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              • It’s not an ad hominem if it’s being proffered as an explanation for why one got something wrong after having been proven wrong, as opposed to being an argument for whether one got something wrong. Elias’ point is quite clearly the former rather than the latter.

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              • I just said it was a data point. Doing this is an ad hominem fallacy?

                If you don’t consider your sources as at least a part of weighing judgement about supplied information, you’ll find yourself maintaining some pretty credulous beliefs. For example: If the White House issues a statement that it acted with no conflict of interest hen it pushed through a controversial appropriations bill that helped one of it’s donors it might actually be stating the God’s honest truth – but I would still want to take the source of that statement (and that source’s skin in the game) as a data point in my attempts to untangle what was what.

                Ironically, insisting that someone arguing against your position in a political disagreement should ignore the source of information in politics to avoid an “ad hominem fallacy” doesn’t seem like logical argument to me, it seems a rather lawyerly one.

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        • Although, the more I think about this, the more Jacobson’s claims seem not just wrong, but outright absurd. What Jacobson is claiming is that the Massachusetts Rules of Professional Conduct prohibit an attorney with a license in other jurisdictions from utilizing that license on a regular basis if that attorney is not herself licensed in Massachusetts.

          In other words, he’s saying that Massachusetts has the ability to place its own restrictions on an attorney’s right to practice in another jurisdiction in which that attorney is licensed whenever that attorney resides in Massachusetts. If that were the case, then it would raise all sorts of constitutional concerns, and it would certainly place Massachusetts at odds with the rest of the states even though Massachusetts’ Rules of Professional Conduct pretty closely match the rules in the rest of the states.

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          • In other words, he’s saying that Massachusetts has the ability to place its own restrictions on an attorney’s right to practice in another jurisdiction in which that attorney is licensed whenever that attorney resides in Massachusetts.

            Kinda like a use tax, isn’t it? Just using or doing something in a state subjects you to all kinds of requirements, even if it has nothing to do with the state. A critical eye toward such loose imposition of state coercion is quite warranted.

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    • Because law professors don’t practice law and actually know very little about being a lawyer.

      Now, they know A LOT about legal theory, for sure. They read about legal theory, they write about legal theory, they teach legal theory… but they certainly don’t do much actual lawyering. And for the most part their actual legal experience is limited to contributing to the occasional appellate brief. Getting into the nitty-gritty of state-bar ethics requirements is exactly the sort of thing that most law professors wouldn’t know from a hole in the ground.

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      • Prof. Jacobson is a clinical professor, which indicates that his instructional activities are focused on practical training rather than legal theory. He practiced from 1984 to 2007 full-time. It’s not fair at all to suggest that Prof. Jacobson knows nothing about the practice of law. Or even to suggest that he hasn’t undertaken some degree of study of legal ethics. His cirriculum vitae indicates quite to the contrary; unless he’s simply lying in his CV, he is an experienced practicioner. To repeat: I think it’s more likely that he’s wrong than he is right.*

        Prof. Jacobson might not be right about the UPL issue. Seems to me that Mr. Thompson has the better of the two analyses, based on my reading through Prof. Jacobsen’s post and Mark’s post; at minimum, there are more variables out there (What were the scope of Ms. Warren’s legal engagements? Was she listed as counsel of record by the rules of the court in which the filings were made?) Many of the briefs in question were before the Supreme Court; it is entirely possible that she can be a member of the bar of the Supreme Court of the United States, and practice before that Court, without being a member of the bar of the state in which she resides.

        And Prof. Jacobson may well be politically biased and waving a Team Red advocacy flag rather than actually holding the pose of a disinterested observer. That wouldn’t be the first time a lawyer, law professor, law student, or anyone else who can look up the law (which is to say, anyone at all) used an application of fact to law to score a political point.

        None of that excuses deprecating his professional background. If you think he’s wrong, say why. If you think he’s too biased to be trusted as an authority, say why. But it’s not right to say he’s unknowledgeable.

        * (Edited for clarity; I moved a paragraph around and didn’t delete this sentence before hitting “publish”.)

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        • FWIW, I agree with this completely – this is definitely not a situation where a law professor is just opining about the day to day practice of law from an ivory tower with little experience of that day to day practice. Jacobson’s experience is not to be pooh-poohed.

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        • None of that excuses deprecating his professional background. If you think he’s wrong, say why. If you think he’s too biased to be trusted as an authority, say why. But it’s not right to say he’s unknowledgeable.

          I have a question; how many times must Prof. Jacobson be proven wrong or too biased to be trusted before we can call him unknowledgeable. Too much respect is given to those who often chose to use their credentials for purposes other than for which they’re given or to outright lie and mislead.

          I don’t know enough about Prof. Jacobson or the quality of his work so I will take your recommendation at its face, however much more like this and I can easily see him falling into the unknowledgeable hack section of pundit land

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    • You’re confusing Mr. Jacobson with someone like a Jack Balkin, Richard Posner or even a Eugene Volokh. The number of crazy professional academics that engage in this sort of hackery aren’t small.

      See also: Hanson, Victor Davis; Ferguson, Niall.

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  4. Mark,

    How does Warren fare under 5.5(d)’s requirement that she be “not disbarred or suspended from practice in any jurisdiction”? Does either a “withdrawn” or “voluntarily inactive” status, as in NJ and TX fall, constitute being “suspended from practice in any jurisdiction”?

    Not really related, but this made me remember: After Jerry Brown was elected AG of California, someone filed a petition pointing out he was ineligible under the state constitution because he had not maintained continuous active bar status for the prior 10 years. He was a politician, after all. The petition was mysteriously dismissed and was never heard of. I suspect someone somewhere got a cushy commission appointment shortly thereafter.

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    • With respect to the Texas portion of your question, my understanding is that this would not constitute a “suspension,” as it does not imply any ethical violations by the inactive or resigned attorney, which is usually the purpose of prohibitions on being “disbarred or suspended from practice in any jurisdiction.” That type of requirement isn’t unique to 5.5(d), but is in fact pretty common in a good number of situations, especially for purpose of evaluating admissions application, both permanent and pro hac vice.

      It’s not uncommon, for instance, for an attorney to go to an inactive status with respect to a license that she doesn’t make any use of so that she can save herself some dues payments and/or CLE requirements. But that doesn’t necessarily affect whether the attorney can obtain a certificate of good standing from the jurisdiction, and the attorney is certainly not going to run into trouble with their admission to another bar or pro hac vice because they’ve gone into inactive status on one of their admissions.

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    • See my post below re: Comment 7 to Rule 5.5. One does not even need to reach the “disbarred or suspended” question. If inactive (such as Warren has admitted), one is not considered as “admitted to practice” and Rule 5.5 (d) does not apply.

      ****
      *******
      [7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States. The word “admitted” in paragraph (c) and (d) means the lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.
      *******

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  5. Not knowing squat about Mass [professional codes of conduct, I can’t say one way or the other.
    But as a political activist, I am scratching my head as to what makes Brown think this would be a good line of attack. Does this really play well in Boston?

    It seems like high Birtherism to me.

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    • Low class warfarism more like it. If he can get… who paid her? Travellers? If he can turn the argument into “She was illegally paid a quarter of a million dollars by the insurance industry!” “No, she got that money fair and square and perfectly legally!” into the minds of the undecideds, it’s to his benefit.

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    • I could be wrong, but my understanding is that the line of attack Brown’s making is different from the line of attack Jacobson is attempting here. Brown, to my knowledge, is just accusing Warren of being a hypocrite in fighting for Travelers’ in the SCOTUS (an fairly ordinary line of attack in politics); Jacobson just took that line of attack and seems to have added the UPL claim on his own. Again, I could be wrong, since I didn’t actually watch the debate myself, but that’s my understanding here.

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    • Brown’s just slinging mud in the grand tradition of mud-slinging, except that it’s the kind of mud that doesn’t immediately look like mud and most folks aren’t capable of readily identifying as mud. He’s counting on that.

      Mud-slinging in the south is a whole lot easier to spot. Illegitimate black babies and whatnot. Mud-slinging in MA is, evidently, necessarily more sophisticated.

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    • I argue a lot with liberals about messaging. They tend to want to turn every debate into an NPR debate, with white wine and brie served afterwards. Charts, graphs, points of order, all that.

      I think conservatives over the years have been a lot better at retail level politics than liberals; attacking her as a Hah-vahd perfessor who became Cherokee to get an unfair advantage seemed like a shrewd line of attack that ordinary Joes can grasp and idenfity with.

      At my layperson level, this sounds like a Mallard Fillmore cartoon where some egghead is whining about her law license not being signed in triplicate. Every plumber, carpenter, and restaurant owner who ever had to get permits and credentials to operate is probably on her side in all this.

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      • I chuckled at your characterization of libs. Pretty much spot on. And you make an excellent point, in that the GOP has proved demonstrably more effective at selling themselves to the low-info masses.

        Every plumber, carpenter, and restaurant owner who ever had to get permits and credentials to operate is probably on her side in all this.

        Albeit unintentionally, I think you might be highlighting Joe Conservative’s complaints about “too much government”. I seriously doubt this would prove a persuasive narrative for Warren.

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      • “I argue a lot with liberals about messaging. They tend to want to turn every debate into an NPR debate, with white wine and brie served afterwards. Charts, graphs, points of order, all that.”

        Baked brie, please.

        Of course, NPR has dropped the “NPR debate” by inviting AEI, the Heritage Foundation and other low-information think-tanks onto their shows and not asking anything other than puff-ball questions.

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        • Because NPR and its listeners don’t have a dog in this fight, which makes their liberal values no more than noblesse oblige.

          NPR speakers, like the talking heads on cable news, are not union members or waitresses or farmworkers. Listen to CNN or Fox or MSNBC- for them, the biggest issue facing us is not unemployment, but taxes; not health care, but birth control; not the drug war and mandatory sentencing, but property values.

          In other words, the problems of affluent white people.

          The dittoheads and Palinistas have a good grasp of the pain that is being inflicted on them; but like the peasants of Czarist Russia, they are being lead by people who convince them that the cause of their misery is the dusky skinned immigrant over here, or the heretic Mohhamedan over there, or the wanton city women who are abandoning hearth and home.

          The list of enemies is long, but it never includes the plutocrat in his manor. No, he is the benevolent Creator of Jobs.

          Against all this savage propaganda, what does NPR offer, except polite armchair navel gazing, set to a Bach concerto followed by a Volvo ad?

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      • As a licensed lawyer who has been carefully maintaining her inactive status for years now and pays attention to this stuff, I think Warren is acting very suspiciously here. If she was not on active status in at least one state while she represented a client in federal court, then she was practicing without a license. It would be very easy for her to put this to rest by showing that she had active status in NJ at the necessary times, but instead she resigned her NJ license suddenly. That is very suspicious behavior, and I think she’s hiding evidence of guilt on this issue. As for everyone “who ever had to get permits” being on her side, hah! This lawyer knows that all law students have it drummed into their heads 1) what the practice of law is, and 2) that they can’t do it without an active legal license. Warren was a Harvard law professor, not some high school graduate getting her hairdresser license before charging her neighbors for hairdos.

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        • By “active”, I mean “current, paid up active”, not late in paying her dues because she’s trying to decide how/whether to do the CLE and then when the spotlight hits her license status, quickly paying up and getting out of her license w/o ever having done the CLE (thus covering up a lapse).

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  6. Pingback: Hacktacular! - Lawyers, Guns & Money : Lawyers, Guns & Money

  7. Seems to me, she’s as much a practicing Mass lawyer as Jacobson is a law professor. Only differene is that Warren seems good at her federal court work.

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  8. I read the link and the OP – seems like the attack is plausible but mostly wrong. For my part, I’ll echo the TVD comment that one ought not to be surprised what lawyers define as acceptable legal regulated licensed arcane business practice by lawyers.

    On a serious note, what do lawyers produce? Fairness? I think they are supposed to produce fairness and generally, as a group, do so. One can say they produce certainty or something, but really, if everything was fair already in all things, we would not need any lawyers. That’s my view anyhow. What do bankers produce? Efficient capital allocation? I think they are supposed to produce a good capital allocation, to direct savings to profitable uses. Again my view. Both products are needed and producing both involves real costs.

    So I see our current situation, I mean America not the world-at-large, as one in which the lawyers and bankers are providing their products at really high cost in a bad-agent sort of ugly way. It is of the highest importance to society that we solve this problem, namely creating the conditions under which the lawyering and financing professions are incentivized to provide their services at ever lower cost and better quality. I’m fairly worried what will happen if we don’t fix this situation – if too many of the rich people in society are rich by virtue of lawyering and financing, and the society takes the view that these groups basically rigged their markets / sectors in order to rip everyone else off, then we have big troubles. I’m not blaming individuals for looking at prices / incomes and choosing those professions and working their tail off to make money for themselves. That’s just natural for most folks. But it fails the Kantian imperative, and ultimately it fails society and undermines its own success.

    Bit off topic, admittedly, but that’s my comment about whether or not Elizabeth Warren, a tough but misguided smarty-pants, broke some legal restriction created by lawyers for lawyers on her way to making a good life for herself. It just isn’t the real issue for me.

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  9. First: Even if Elizabeth Warren was legal to do what she did: The hypocrisy of a liberal Democrat representing Travelers Insurance Co. and getting dismissed cases by injured asbestos workers (most of which were undoubtably union members) is astounding. If Scott Brown did anything similar, the press would destroy him.

    Second: It is not at all clear she was an active member of the New Jersey or Texas bars (the only bar associations she was ever a member of) when she raked in $200,000 on part time insurance defense work. If that is true, she may be in for some serious trouble. Does she fall under the “law clerk” exception? Only if she did not appear in any pleadings and that is not entirely clear either.

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    • Regarding your first pint: I have explicitly offered no opinion on that aspect of the issue, which is at minimum certainly fair game.

      Regarding your second point, this is untrue with respect to NJ, and seemingly irrelevant with respect to Texas since it is possible to be a member of a federal court bar based on an inactive state bar admission (see the link in the update for an example). NJ does not have an inactive status – you’re either active, not admitted at all, or in bad standing with a suspended license. There is no dispute she was first admitted in 1977. There is also no allegation that she ever retook the NJ bar to get back to active status after resigning her membership a previous time. At best there is completely unfounded speculation that she fell into suspended status sometime between 1977 and 2012. However, she could not have fallen into an ongoing suspended status in order to be permitted to resign her license without prejudice, so we do know that her license was active and not inquestion as of Sept. 11, 2012. We also know that prior to that date, the Brown campaign has had eons to look into this, and looking at Ms. warren’s disciplinary record, if any, would be just about the first thing that any self-respecting campaign would do (and the Brown campaign is by all appearances a well run campaign). Yet the Brown campaign has not turned up anything on that front. Nor does her resigning her NJ license prevent an investigation into her disciplinary record- it just makes it so that one or two additional hoops need to be jumped through to obtain them.

      It is also a fact that NJ has brand new CLE requirements and that the initial reporting deadline for Ms, Warren was Dec. 31, 2011, though she would have received an automatic extension, even without asking, until April 2012. After that, it would have been a matter of time before she would have had to either complete 24 hours of CLE (only a handful of which may be online- most need to be in person at approved courses in the state of NJ) or resign her license, or fall into bad standing and have her license suspended. Right now, I rather doubt she has had the time to do the CLE in the midst of her campaign, and resigning the license is a much less embarrassing option than falling into bad standing.

      Regardless, there is currently absolutely no basis for speculation that her NJ license ever lapsed between 1977 and 2012- not a single shred of evidence has been produced to support the allegation at this point, and the fact is that it is not usually possible to get admitted to practice before a federal court, much less the SCOTUS, without a certificate of good standing from the state supreme court.

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  10. Per Elizabeth Warren’s radio interview Monday, she has been inactive in NJ for a “very long time” due to CLE requirements. Comment 7 to Rule 5.5 provides that Rules 5.5 (c) and (d) are not available to attorneys who are on inactive status (see below). Please explain how Rule 5.5 (c) and (d) are available given her inactive status in NJ and Comment 7 to the Rule?

    *******
    [7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States. The word “admitted” in paragraph (c) and (d) means the lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.
    *******

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    • As I have repeatedly pointed out, New Jersey does not have an “inactive” status. See: http://www.judiciary.state.nj.us/cpf/internetfaq.htm#inactive

      Second, please link to the source for this quote.

      Third, it is not possible for her to have been “inactive in NJ for a ‘very long time’ due to CLE requirements,” since NJ had no CLE requirements applicable to longtime members of the bar until 2010. Since 2010, there is a bi-annual requirement of 24 credits, with half of NJ attorneys reporting each year, depending on their “compliance group.” Because her birthday falls in June, she is part of Compliance Group 1, whose first reporting deadline for CLE was December 31, 2011. This is referenced in the above link; but beyond that, I should know, since I had to deal with it myself.

      Fourth, while I have not yet seen documentation for the claim that Warren admitted being inactive in NJ for “quite some time” due to CLE requirements, I have seen documentation that she is stating the reason she resigned her license two weeks ago was because she couldn’t comply with the CLE requirements. This fits quite well with the timeline for the institution of the new CLE requirements, as anyone who failed to timely file their first report was given an automatic extension to April 2012. After that point, it would have been a matter of time before she was forced to effectively decide between resignation, compliance, or falling into bad standing and administrative suspension.

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      • Moreover, even if she was on inactive status in NJ (which, again, is impossible since NJ has no inactive status), this would not prevent her from fitting within R. 5.5(d) unless the fact of her inactive status rendered invalid her admissions to practice in the federal courts. The Supreme Court Rules, which are the most relevant given the emphasis on the Travelers’ case, contain no such restriction. They seemingly require that an applicant for admission be on active status in a state court jurisdiction at the time of the application, but the applicant needs to prove this by providing a certificate of good standing in support of the application. Once the applicant is admitted, the Supreme Court Rules do not contain any provisions requiring that admitted attorneys keep their state court admissions on active status, only that they not be disciplined. Other federal courts have similar rule structures.

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        • Comment 7 refers to “admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States” This is clearly referring to state bar admissions (or the DC or Puerto Rico equivalent). I don’t think admission to practice before the Supreme Court constitutes a jurisdiction for purposes of the above. Therefore she is not “admitted” for purposes of Rule 5.5 (d) due to her inactive status (her words, most likely she was actually the NJ equivalent of “ineligible and not in good standing”)

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          • That interpretation makes no sense, though:

            1. Most importantly, you’re using the word “including” as being restrictive, but it is not a restrictive word under any theory of interpretation of which I’m aware; instead, “including” is an expansive term. The operative words are “any United States jurisdiction.” The Supreme Court is clearly a United States jurisdiction under any definition. The “which includes” language merely makes clear that “any United States jurisdiction” is not limited to just federal jurisdictions, but instead includes any jurisdiction located within the territorial boundaries of the United States. It would be redundant and superfluous to list federal courts in the definition, since those courts are “any United States jurisdiction” regardless of whether you interpret that phrase as meaning “any jurisdiction within the boundaries of the United States” or “any jurisdiction of the United States [federal] government.”

            2. See my point above, as well as the disciplinary records I linked to above.

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            • I don’t think we reach this issue because she was likely active in NJ for relevant time period, but I’m not convinced that Supreme Court, USPTO, Federal District Courts, are “jurisdictions” here. They list “District of Columbia and any state, territory or commonwealth of the United States”, but not federal courts, USPTO or Supreme Court. If federal court or USPTO admission is sufficient, I think that would have been listed ahead of territory or commonwealth.

              FYI, here is a discussion of Rule 5.5 and practicing without local admission.

              http://lazar-emanuel.com/US%20Courts%20v%20the%2050%20States%20-%20New%20MJP%20Issues.pdf

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              • Thanks for that link – I think it’s helpful. It certainly makes a good case that the states can act in ways that place de facto restrictions on an attorney’s ability to practice in federal courts, and even de jure restrictions in the Indiana case (obviously an extreme example). I still think MA R. 5.5(d) applies to federal courts by its terms, but your link makes a very strong case that it should be applied more narrowly than I might have assumed, effectively prohibiting anything much beyond word-of-mouth business (though in this case, it seems pretty likely that the business at issue was purely word-of-mouth due to her reputation as a bankruptcy scholar).

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      • Its the last 3 minutes of the Jim and Margery podcast from yesterday:

        http://www.newstalk969.com/podcast/index.aspx

        ******
        “I’ve been inactive in the New Jersey bar for a very, very long time and they had changes in their Continuing Legal Education and I couldn’t go down to New Jersey and take –” *****

        “Very, very long time” does not sound like 2010 to me, though that does appear to be the date of the most recent CLE changes. When was the last set of CLE changes before 2010?

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        • Prior to 2010 there was no CLE requirement for attorneys whatsoever other than a set of Skills and Methods courses for first, second, and third year attorneys. It had been that way for a very long time.

          Listening to the referenced portion of the interview, I think it’s a stretch to understand the quote “I’ve been inactive in the New Jersey bar for a very, very long time” as meaning “my license has been on inactive status for a very, very long time.” I think the far more reasonable interpretation is “I haven’t made active use of my license for a very, very long time.”

          This interpretation particularly fits in light of the fact that she’s responding to a question about her decision to resign her NJ license. She’s responding to that question by saying, in effect, “since I hadn’t been making any real use of my NJ license for a long time, the new CLE requirements made it no longer worth maintaining that license.” It doubly fits in light of the fact that: (1) NJ has no inactive designation, and (2) there’s no record of her license being suspended or placed in bad standing at any time prior to the imposition of the new CLE requirements.

          Her use of the specific word “inactive” is perhaps inartful, but given that Jacobson’s post was made just minutes before she went on air, also made without the context of knowing that anyone was alleging that her NJ license had been on inactive status or otherwise impeded. Absent that context, it’s pretty natural for an attorney to describe a state in which they rarely, if ever, actually appear as being a state in which they are “not active” or “inactive” regardless of their formal bar status. Heck, I’ve seen attorneys casually and nonchalantly state that they’re “not active” in a state bar even when they practice exclusively in that state simply because they don’t participate in the state bar association. Point being that “inactive” is susceptible to a lot of different meanings depending on the context.

          In this context, there’s a huge difference between “I’ve been inactive” and “my license has been inactive.”

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  11. Pingback: » No, Mass. Board of Bar Overseers has not exonerated Elizabeth Warren - Le·gal In·sur·rec·tion

    • Professor Jacobson’s follow up post does not address, nor does it attempt to address, any of my points, and merely stands for the proposition that the personal opinion of the BBO General Counsel is not an official opinion of the BBO. I have not suggested otherwise.

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    • You may need to refresh your browser from time to time. There’s some technical stuff about how long the unrefreshed cache shows up after the last hit on a screen. People with more skillz than me know how to over come that. The rest of us, we click “refresh.”

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      • Assuming you’re using Chrome, the simplest seems to be using an incognito window; that bypasses the cache entirely and reads the newest version of a page ever time. On Windows, you can instead edit the icon’s shortcut properties to add the flag –disk-cache-size=1.

        I’m doing neither myself, since I’m using a Mac and I think it may be illegal in California to go incognito except for the specific purpose of looking at porn.

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  12. Pingback: Elizabeth Warren - Fake Lawyer? - Page 2

  13. As liberals have so effectively stated in the past, “It’s the seriousness of the charge that matters.” Warren needs to answer, or better, resign.

    That’s how democrats do republicans, right?

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  14. thread hijack:
    Does Harvard University have polices that prohibit a professor from using university resources to run a private, for-profit business on university premises? Including a professor’s office.

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    • All universities have formal policies that discourage the use of university resources for for-profit ventures. They are almost uniformly *not* zero-tolerance, however.

      It is in this day and age basically impossible to be a member of a for-profit institution and a private institution and not occasionally “use” resources from one organization to access another. Nor, realistically, should an organization police this behavior. Provided the use is not consuming sparse resources, this is a case of letting your employees leverage commodity infrastructure to make their days easier, which generally makes them better employees.

      For example, here at Caltech it’s not considered kosher to run a consultant company off of a website running off of your hardware in your server room. However, nobody is going to give you grief for using the campus network to access your corporate email, or access the campus library occasionally for non-research related purposes.

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      • In addition, it’s pretty normal for law professors, especially fairly prominent law professors, to get brought on as consultants in various cases, and especially on relatively high profile cases. This should be regarded as a good thing for everyone involved – the law prof makes a nice chunk of change on the side (which keeps them from looking to move on to other law schools), while practicing some actual nuts and bolts law (meaning they’re not just teaching from an ivory tower), and bringing free publicity to the school. It’s as win-win as you can get.

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  15. Another thread hijack:
    Elizabeth Warren recently let her New Jersey law license lapse. When asked why, she stated the onerous burden of the continuing education requirements.

    This from a university law professor.

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  16. A few issues:
    The federal district and circuit courts have slight variations, but the basic rules are the same:
    (1) if your name appears on a pleading as counsel of record for a party, you must be licensed to practice law in a recognized U.S. jurisdiction (typically a state bar). Her name appeared on a pleading as counsel of record for a party (“of counsel” does not limit that).
    (2) if licensed outside the jurisdiction of the circuit or district court, that must be disclosed on an application to the court and approved and,
    (3) state bars require pretty uniformly that you keep your address current with the bar and that you use only that address on pleadings.
    So if her N.J. bar membership was not “active” at the time of her appearance (meaning she could not be on “inactive” or any passive status), or if her Harvard address did not match up with her NJ address, then she does have a UPL issue (or at least a violation of NJ bar rules).
    So the big questions are: (1) when was she on “active” status in the NJ bar, and (2) what office address did she have listed for the NJ bar.
    And finally, to state the obvious, if she provided any legal advice or services (for fee or otherwise) in Mass. (or held herself out as a provider of such within the state of Mass.) then she has a potential UPL problem. This will turn on state law, but typically UPL is not limited to appearing on pleadings but also involves providing legal advice or services (regardless of whether a fee was charged). Also, Harvard needs to be looking at its malpractice policy if she is using her law school office on pleadings.

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    • Much of this is asked and answered elsewhere in this thread. To sum up those points, all of which are supported by links where previously addressed:
      1. New Jersey does not have an “inactive” status. You’re either active, suspended, or resigned.
      2. Despite Prof. Jacobson’s assertion to the contrary, any disciplinary records are readily available online regardless of Prof. Warren’s resignation. Those records, which go back 25 years, show no discipline of Prof. Warren, which means that she was both active and in good standing in NJ for the entire period unless she previously resigned and then obtained readmission by sitting for the bar exam a second time (highly unlikely).
      3. The requirements you cite for federal and district courts are application requirements; they are not ordinarily, AFAIK, post-admission requirements. In addition, in most federal courts, including the SCOTUS, admission not only requires disclosure of your bar admissions, but also certificates of good standing from the pertinent state bar, which will disclose your admissions status.
      4. In most of these cases, she is not listed as counsel of record, only “of counsel” or some similar designation, though my analysis generally treats her as if she were counsel of record.
      5. A signature block in a court pleading does not constitute “holding oneself out” for purposes of UPL/misleading communications analysis.

      To your last point, this is correct so far as it goes, but there’s no basis to believe that she ever held herself out as being licensed in Massachusetts nor that she ever provided advice on Massachusetts law. Indeed, this seems unlikely, as her expertise is almost entirely bankruptcy law, which is a uniquely federal practice area. One would not seek out Elizabeth Warren for assistance in MA on a purely state law tort issue. Even if she did at some point provide compensated advice on MA state law, though, it’s difficult to conceive of a situation in which it would be possible to either obtain that information or for her to even have a right to disclose that information without her client’s consent.

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      • Mark, could you flesh out what “of council” really means? There’s a picture of her here which appears to show Harvard’s address (I didn’t check) on the left.

        My attorney used to be the Dean of a law school. He was also “Of council” on a law firm’s door while he was there. I asked him about it one time and he said something to the effect that it was because the school didn’t want to appear to be backing one horse or law firm over others in the community. Coincidentally he also specialized in bankruptcy and has been before SCOTUS twice (and has those really nifty sheepskin looking things stating that he is qualified or somesuch wording (might have been Latin I don’t remember) to practice before the Supreme Court of the United States). He’s 88 yrs old and his license is still active although he rarely “practices” law anymore, he’s happy to give me legal advice on request (do you need a license to do that?). When I have a chance I intend to ask him about this situation but you’re easier. ;)

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  17. Pingback: Transterrestrial Musings - Elizabeth Warren

  18. Shouldn’t the title of the article be “No, based on what we know at the moment, Elizabeth Warren did engage in the unauthorized practice of law”? I’m a NJ lawyer and the CLE requirements are onerous. From her comments that she has been “inactive a long period of time” leads me to wonder if she never completed her Skills and Methods requirements. I know that some folks who were not going in to private practice never bothered to finish them. But until the Professor is entirely forthcoming, we will never know. MT is doing a Yoemans job of defending her, but he is using lots of speculation to do it.

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    • From her comments that she has been “inactive a long period of time” leads me to wonder if she never completed her Skills and Methods requirements.

      See my comments above, but the proper interpretation of this statement, in the context in which it was given, is that she was just saying that it had been a long time since she had actually done anything with her NJ license, not that she was saying that her license was on inactive status for a long time.

      The Skills and Methods course was offered beginning in 1962, and she was first licensed in 1977 in NJ. After that, she was able to gain admission to the TX bar and several federal court bars, not including any pro hac vice admissions along the way, if any. The only way for her to have obtained those subsequent admissions would have been for her to demonstrate that she was a member in good standing in NJ by providing a certificate of good standing. The only way for her to have become a member in good standing in the first place would have been for her to complete the Skills and Methods course. Once she completed that, probably back in the late 70s, she would have had no CLE requirement until 2011.

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  19. Mark,

    I think your conclusion is not really supported by your post; only the possibility of it.

    The New Jersey Rules of Professional Conduct may related to Prof. Jacobson’s analysis. The RPC, pasted below, require a bona fide office for work, though it allows it to be outside of the State. But the presence of a bona fide office in MA (since it is the only office we have) raises question about whether an Agent was properly designated in NJ, and how that office and activities undertaken in it are viewed under the MA RPC.

    MA RPE 5.5 (b) states:

    (b) A lawyer who is not admitted to practice in this jurisdiction shall not:
    (1) except as authorized by these Rules or other law, establish an OFFICE or other systematic and continuous presence in this jurisdiction for the practice of law; or
    (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

    The saving grace would be “as authorized by these rules” then applying to 5.5(c), which allows for: (c) lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

    (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

    (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

    Nothing in your post settles these questions, which are tricky questions of law and fact, where we are faced with an incomplete record. So your post comes down to: Jacobson didn’t prove it… but Jacobson didn’t say he proved it, only that there is a legitimate question in light of the facts that are in fact known. And you haven’t rebutted that, at all.

    http://www.judiciary.state.nj.us/rules/r1-21.htm

    (a) Qualifications. Except as provided below, no person shall practice law in this State unless that person is an attorney holding a plenary license to practice in this State, has complied with the Rule 1:26 skills and methods course requirement in effect on the date of the attorney’s admission, is in good standing, and, except as provided in paragraph (d) of this Rule, maintains a bona fide office for the practice of law. For the purpose of this section, a bona fide office is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney’s behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time. For the purpose of this section, a bona fide office may be located in this or any other state, territory of the United States, Puerto Rico, or the District of Columbia (hereinafter “a United States jurisdiction”). An attorney who practices law in this state and fails to maintain a bona fide office shall be deemed to be in violation of RPC 5.5(a). An attorney who is not domiciled in this State and does not have a bona fide office in this State, but who meets all the qualifications for the practice of law set forth herein must designate the Clerk of the Supreme Court as agent upon whom service of process may be made for all actions, including disciplinary actions, that may arise out of the practice of law and activities related thereto, in the event that service cannot otherwise be effectuated pursuant to the appropriate Rules of Court. The designation of the Clerk as agent shall be made on a form approved by the Supreme Court.

    A person not qualifying to practice pursuant to the first paragraph of this rule shall nonetheless be permitted to appear and prosecute or defend an action in any court of this State if the person (1) is a real party in interest to this action or the guardian of the party; or (2) has been admitted to speak pro hac vice pursuant to R. 1:21-2; (3) is a law student or law graduate practicing within the limits of R. 1:21-3; or (4) is an in-house counsel licensed and practicing within the limitations of R. 1:27-2.

    Attorneys admitted to the practice of law in another United States jurisdiction may practice law in this state in accordance with RPC 5.5(b) and (c) as long as they maintain a bona fide office.

    No attorney authorized to practice in this State shall permit another person to practice in this State in the attorney’s name or as the attorney’s partner, employee or associate unless such other person satisfies the requirements of this rule.”

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  20. Not being an attorney — I can tell you that when I reviewed what Jacobsen offered re Warrens “of counsel” and use of her Harvard office address — as a lay person, I would assume she was practicing law. Not all voters are attorneys or so stuck-in-the-mud of the particulars of this issue. She looks dishonest, and I wouldnt vote for her.

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    • She was practicing law, but not in Mass.* I honestly don’t see any dishonesty. She worked in Federal Courts, which required that she be in good standing in at least one state. It really doesn’t matter what state that is as long as she complied with the applicable rules, which it looks like she did.

      *This has little to do with to do with geography, and more to do with jurisdiction (at least for the part time practitioner).

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  21. So MT, you are saying that if Prof Warren let her NJ admission lapse because she didn’t want to pay the annual fee, she would have had to been listed on a Quarterly Discipline Report as “Temporarily Suspended”? And that since she was never listed, she must not ever have been suspended/inactive from the practice of law in NJ? If you review the roll of attorneys in NJ you will see there are other designations for attorneys not currently authorized to practice law such as “Retired”, “Administratively Ineligible”and “License Expired”. Unfortunately, we may never know if any of these applied since she voluntarily resigned from the NJ bar earlier this month.

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    • This is my understanding, yes. But what’s more is that she would not have been able to obtain any certificates of good standing at any time when she was temporarily suspended, administratively ineligible, etc. and thus would not have been able to obtain her federal admissions at that time. Once she obtained those federal admissions then for UPL purposes in MA under R. 5.5(d), her NJ status would have been irrelevant (though again, there’s every reason to believe she remained in good standing in NJ from 1977 through 2012).

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  22. You are wrong. Signing a brief is practicing law, even if the issues are Federal, and you must be licensed to do it in the State where practice. Ms. Warren’s only protection against sanction for unauthorized practice is her being a liberal Democrat and a Harvard.

    You are wrong and your legal advice stinks.

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  23. Just a follow up, having re-read Jacobson’s posts as well as this one:

    Your citation to 5.5(d) seems inappropriate, as it has limited relevance, particularly when 5.5(c) is on point.

    Here’s 5.5(d): (d) 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:
    (1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or
    (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

    In short, you can (1) be an in-house attorney for a company/agency domiciled in MA without a MA license so long as you are licensed elsewhere, and (2) there’s a catch all for other authorizations under federal law or MA law.

    But that catch all would generally have no power in and of itself, but would have to be combined with the actual federal or MA statutory authorization that would bring it under 5.5(d)’s purview. And you have provided nothing to that effect – just conclusory argument.

    You assume that because she might be authorized to practice in a federal court somewhere, that she can therefore establish a continuous law office in MA? That’s appears to me to be an absurd interpretation of the regulation – stretching it far beyond its relatively narrow intent.

    You would be better off pointing to notes 8-11 and 13-14, which apply to 5.5(c). It seems likely, based on the briefs, that Warren’s work was done in collaboration with MA licensed attorneys, and thus the work itself would not be unauthorized practice of law.

    However, these are not dispostive and fact questions still remain, as does the nature and therefore treatement of the MA office persuant to 5.5.

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    • But that catch all would generally have no power in and of itself, but would have to be combined with the actual federal or MA statutory authorization that would bring it under 5.5(d)’s purview. And you have provided nothing to that effect – just conclusory argument.

      Sperry would certainly constitute authorization under “federal law.” I think you’re overstating your argument by suggesting “federal law” is limited to “federal statutory law.” That is not typically how that phrase is construed. So federal law would include not only Title 28 of the US Code, but also the Fed. R. of Civ. Pro. and local rules, as well as federal case law.

      Where things become a potential issue is on the scope of Warren’s representation and how narrowly Massachusetts courts interpret the notion of practice being under “federal law,” as suggested by the link from ZippityDoo above. But I think even there, Warren’s in the clear as long as she’s not actually holding herself out to the public and is just taking on cases from clientele that contact her directly for assistance on bankruptcy matters.

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  24. There’s a distinction that you are missing. The alleged practice all actually occurred inside Massachusetts. This isn’t an instance of a Texas lawyer traveling to Massachusetts to handle a case. This is a case of a Texas lawyer moving to Massachusetts and never conforming to Massachusetts law.

    There’s also an issue of whether or not she was in violation of the Texas Disciplinary rule 7.01(b). If she had any sort of letterhead from Massachusetts that failed to not that she was not licensed in Massachusetts, then she’s run afoul of her ethical obligations from Texas.

    At the end of the day, she was playing fast and loose. It would have been inconvenient for her to sit for the bar in Massachusetts (if she could have passed it at all, it likely would have taken weeks of study first, since most attorney never use half of the knowledge they are required to test for.) So, instead of being above board about it, she just buried it and ignored the problem, figuring that it would never come up.

    It’s come up.

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    • But most importantly, Professor Jacobson ignores Massachusetts Rule of Professional Conduct 5.5(d), which states that:

      “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.”

      That’s in the OP.

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  25. Isn’t that a fairly expansive view of MR 5.5(d)? Comment 18 does allow for continuous practice where “authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent.” But this mostly comes up in the context of statutes particularly authorizing practice. See Iowa Supreme Court Attorney Disciplinary Bd. v. Carpenter (Iowa 2010) (noting that an immigration attorney can practice under Rule 5.5(d)(2) due to 8 C.F.R. 1292.1). But I can find nothing suggesting that mere admission to a foreign bar gives an attorney the right to continuously practice in a local jurisdiction, and I can find no law or rule comparable to 8 C.F.R. 1292.1 allowing practice before the Supreme Court. The theory seems to be that Supreme Court Rule 5, or maybe 9, but neither of those give a positive right of representation.

    Applying Rule 5.5(d)(2) in that situation seems quite a stretch. By that logic, an associate admitted in New York and to S.D.N.Y. can join a Boston firm, move to Boston, and never join the local bar, so long as he only ever works on S.D.N.Y. cases. Indeed, any attorney admitted to any bar of a foreign federal court would be probably be allowed to practice.

    There isn’t a lot of case law on this–unsurprisingly, since MR 5.5(d)(2) is relatively new, and these cases don’t come up much–but none of the ABA reports on the rules suggested this was a possibility. (See, e.g., http://www.americanbar.org/content/dam/aba/migrated/mjp_final_interim_report_2.authcheckdam.pdf)

    I’ve found no case in any U.S. jurisdiction applying ABA MR 5.5(d)(2) in this manner. Typical cases imply that, so long as an attorney with a foreign office is licensed in a foreign jurisdiction, and admitted to a federal court in the home state, the home state’s unauthorized practice laws do not apply to such attorney. See, e.g., IN RE QUARM, (N.D. Ohio Bankr. 2011) (noting that district court for Northern District of Ohio allows admission of non-Ohio attorneys). But the opposite concept–that admission to N.D. Ohio allows one to set up an office in any MR 5.5(d)(2) state and practice continuously, so long as one only practices before the foreign court–does not seem to have precedent.

    Admittedly, the lack of precedent may be due to the situation not arising very much. (No one would care, or bring a complaint, against Elizabeth Warren in the normal course of events. It comes up because she’s running for Congress.) But your reading of MR5.5(d)(2) suggests some rather radical new forms of multijurisdiction legal practice that seem rather extreme. (For instance, an attorney admitted in New York would be able to join the bar of multiple foreign jurisdictions, move to any MR5.5(d)(2) state, including Massachusetts, and then have quite a decent practice filing securities class actions without joining the local bar. I can’t believe that Massachusetts would allow such a thing.)

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    • Thank you for this. I generally agree with your interpretation of the ABA committee report, and it seems that my interpretation of 5.5(d) is broader than it was intended. That said, whatever its intent, it’s hard for me to get past the fact that the actual language of 5.5(d) just IS broad.

      As someone else noted above, the stronger argument does seem to be under 5.5(c) and that she doesn’t have a systematic and continuous practice, which I opted not to address in the OP since it’s a lot more fact intensive; while more fact intensive, I do think that there are enough facts known at this point ( including some that dug up in the comments here since the OP yesterday) to put her in fair territory under 5.5(c) as well.

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  26. This is really pretty hillarious. Only a group of lawyers could engage in a hypothetical circle jerk of this nature. MT has done an admirable job of reverse engineering Professor Warren into compliance by using deduction and assuming facts. Of course it could be proved or disproved in a heartbeatby PW supplying a few key facts. The fact she hasn’t leads me to deduce that her exculpation isn’t so neat and clean. We already know she misrepresented her ancestry to get her job why should we be surprised to find she bent the rules here?

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