A Reply to Professor Jacobson

Professor Jacobson has responded to my post disputing his contention that Elizabeth Warren may have engaged in the unauthorized practice of law.  As explained below, I continue to believe the case that Professor Warren engaged in the unauthorized practice of law is weak.

But at the outset, I want to make clear that I agree with Jack Marshall that Jacobson’s allegations are being treated with insufficient seriousness by Warren’s sympathizers.  That neither she nor her campaign have directly responded to the allegations is disappointing and irresponsible at minimum.  In the last few days, my post has been linked far and wide as if it were the definitive debunking of Jacobson’s allegations.  While I stand by my arguments, neither my original post nor my additional arguments below are exactly a detailed ethics opinion, either.  In particular, as Jacobson’s response correctly notes, I did not attempt to address his central argument that Professor Warren maintained a “systematic and continuous” presence in Massachusetts for the practice of law.  That is an essential question because, to the extent Warren’s actions were not “systematic and continuous,” they would almost certainly constitute “temporary” activities fitting within the safe harbor provisions of Rule 5.5(c).

With that out of the way, Jacobson’s reply makes several points that I would like to address.

As noted above, Jacobson states that I skipped over his argument that Warren “maintained an “office for the practice of law” and had a “systematic and continuous presence” practicing law in violation of Rule 5.5(b).”  Although technically correct, it must be emphasized that my primary argument was that Warren seems to fall within the protections of Rule 5.5(d)(2), in which case whether she had a “systematic and continuous presence” would be immaterial since one who falls within 5.5(d)(2) is explicitly permitted to have such a presence.  Several commenters in my original post argued that my interpretation of 5.5(d)(2) is broader than its drafters contemplated, and I think they make a strong case to that effect; however, whatever its contemplated effects, 5.5(d)(2)’s actual language says what it says and is worded quite broadly – if federal law authorizes an attorney to provide services, the attorney may maintain even a systematic and continuous presence in Massachusetts for the limited purpose of providing those services.

Jacobson also claims that my argument that Warren is not alleged to have done anything that would constitute a violation of advertising restrictions, Rules 7.1 et seq, by “holding herself out” as a Massachusetts attorney is a straw man.  This is incorrect – Jacobson’s original post relied in part on Mass. Ethics Opinion 76-18, which dealt with advertising restrictions, for the proposition that Warren “has held her Cambridge office out to be her law office”; particularly in the context of citing an ethics opinion pertaining to advertising restrictions on out of state attorneys, the use of the phrase “held her Cambridge office out to be her law office” comes across as an accusation that Warren was advertising herself as a Massachusetts-licensed attorney, even if only on letterhead.

While not discussed in my original post, I should also mention that whether Warren “held herself out” as a Massachusetts attorney for advertising purposes (and there’s currently no evidence that she did) seems to me to be an important question for unauthorized practice of law analysis, and especially for purposes of determining whether her practice of law in Massachusetts was “systematic and continuous.”

Activity by Warren that is not “systematic and continuous” would inherently seem to fit within Rule 5.5’s broad and vague category of permissible “temporary” activity, which official comment 6 states may even include “services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.”  Unfortunately, the phrase “systematic and continuous” is likewise undefined; however, official comment 4 provides an indication of the type of activity that is “systematic and continuous”:

“Presence may be systematic and continuous, for example by placing a name on the office door or letterhead of another lawyer without qualification, even if the lawyer is not physically present here. A lawyer not admitted to practice in this jurisdiction must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1(a) and 7.5(b).”

No other examples of a “systematic and continuous” presence are provided, and the clear theme running through what might constitute a “systematic and continuous” presence is one of holding oneself out to the public in a manner that the public might interpret as a claim to being admitted to practice in Massachusetts.  Admittedly, Comment 4 doesn’t contain any restrictions on the definition of “systematic and continuous” either, but the emphasis on how an attorney holds herself out gives a clear indication that the concern is primarily with how one presents oneself to the general public and potential clients.  This interpretation, furthermore, is consistent with the sole stated purpose of Rule 5.5’s prohibition on the unauthorized practice of law, which is that it “protects the public against rendition of legal services by unqualified persons.”

To the extent Warren actively marketed her services, she would thus have a clear UPL problem; but to the extent she simply passively accepted out of state clients for work in matters already pending in out of state federal courts (which seems likely given her reputation in the bankruptcy field), then I think it’s difficult to argue that she was engaged in the “systematic and continuous” practice of law in Massachusetts.  This conclusion is rendered even more likely by the fact that activities which “do not involve either rendering legal advice to or soliciting Massachusetts clients, or even engaging in a legal contest in a Massachusetts forum on behalf of an out-of-State client” are at most “at the very periphery” of what constitutes the practice of law in Massachusetts.  In re Chimko, 831 N.E.2d 316 (Mass. 2005).

 

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75 thoughts on “A Reply to Professor Jacobson

      • Definitely FP this. The whole world is watching! Prof. Jacobson’s update is in specific reply. The game is on.

        http://legalinsurrection.com/2012/09/no-mass-board-of-bar-overseers-has-not-exonerated-elizabeth-warren/

        Update 2:45 p.m: Mass Lawyers Weekly has not yet responded to multiple requests that it add a clarification to its story to make clear to readers that Fredrickson was not speaking on behalf of the BBO and was not expressing a conclusion as to Warren. The Fredrickson comments are being cited far and wide as representing the view of the BBO.

        And, some commenters (all new) are touting the supposedly brilliant analysis at League of Ordinary Gentlemen. Since it now is getting attention in the blogosphere, and at risk of creating a never-ending blog post circle, I’ll dispatch with that blog post quickly:

        First, LOG skips over the first of my two main points, that Warren maintained an “office for the practice of law” and had a “systematic and continuous presence” practicing law in violation of Rule 5.5(b). She had an office in Cambridge, she practiced law in it for 15+ years continuously earning large fees in numerous cases, and she used it as her office address for her law practice in court filings. There’s nothing real complicated about it.
        LOG asserts that preparing legal briefs from an office in Massachusetts is not practicing law in Massachusetts if it involved federal law, but LOG cites zero authority for that. You can’t just make stuff up and call it a legal argument. Not even on a blog. In fact, as cited in my original post, preparing legal briefs clearly is within the definition of practicing law under Massachusetts case law. See Section 3 of my prior post. It’s what lawyers do.
        The LOG claim that Rule 5.5(d) saves Warren, which LOG says is the most important point, is wrong. The subsection in question, 5.5(d)(2) says “(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: … (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.” This does not apply to Warren because there is no claim that there was a federal law or other law which permitted her to practice in Massachusetts. If a federal court somewhere granted her the right to appear in that court, it only would cover that court and would not usurp state Bar licensing requirements. No one is claiming, for example, that Warren violated Supreme Court admission rules, but nothing in her Supreme Court admission gave her the right to maintain a law office or practice law in Massachusetts. This is a distinction a lot of people commenting on Warren have confused. Ed Whelan notes this distinction over at NRO.
        Continuing with Rule 5.5(d)(2), you can’t have it both ways, and say she was not practicing law in Massachusetts, but then saying there was a federal or other law (which you don’t cite) which says she can practice in Massachusetts.
        LOG also makes a strawman argument about Warren not violating advertising rules. I make no such claim.
        None of this legal analysis is particularly complicated. It’s made complicated only because of how much Warren defenders have to spin in order to claim that representing numerous corporate clients from an office in Massachusetts for 15+ years earning hundreds of thousands of dollars is not practicing law in Massachusetts.
        (added) Good to see John Hinderaker is on the case picking apart the baseless argument at LOG:

        So the question is, what “federal law or other law of this jurisdiction” would allow Warren to practice law in Massachusetts, even though she doesn’t have a Massachusetts law license? Neither she nor her supporters have suggested any such law that might apply.

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  1. That neither she nor her campaign have directly responded to the allegations is disappointing and irresponsible at minimum.

    That depends on whether the allegations have any plausible basis in fact. If not, treating it as the moral equivalent of birtherism is both sensible and proper.

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    • There are two types of factual allegations here, I think: confirmed and readily ascertainable facts that may or may not give rise by themselves to a UPL issue; and speculative factual allegations or suggestions that would be quite likely to create a UPL issue. With regards to the latter, I don’t think there’s much of a plausible basis for the factual speculation, and agree that a response is of limited necessity. But with regards to the former, it would be kind of nice to know her legal theory or at least set forth facts that would place her within one of the safe harbor provisions (ie, she never actively solicited clients, ensured clients were fully apprised of her bar status, no MA issues were ever implicated, and no MA clients were ever represented). I think there’s circumstantial evidence that should give her the benefit of the doubt on the existence of those facts, but it’s not unreasonable to refuse to give that benefit. Regardless, I wouldn’t be hoping that legal arguments from small-time bloggers who recently said kind words about my opponent will be enough to make the issue go away.

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    • The Warren campaign ignoring this is fine. Not so for the media, which is what I meant by “cover-up” in an earlier comment–not that the press is literally covering up for Warren, but seem uninterested in investigating. The only google hits to this point are blogs and right wing New Media*: Breitbart, The Blaze, etc.
      ___________________
      *The “New Media” may be said to have begun with Drudge’s expose of the Lewinsky affair, which the Old Media declined to report.

      http://articles.cnn.com/1998-01-30/politics/pandora.web_1_matt-drudge-web-site-lewinsky-story?_s=PM:ALLPOLITICS

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      • I will say that on the local NYC affiliate of NPR yesterday, they discussed the “ugly turn” that the Warren/Brown race took, including attacks by Brown about Warren’s family history.

        Is Brown himself incorporating these into his campaign?

        And, Tom, it should be noted that Google tailors its hits to your search and web history. If you tend to frequent conservative sites, it is going to bring up many more conservative sites when you do a search. Two folks can Google the same phrase and come up with very different results, even on the first page. You can see this for yourself by clearing out your history and your cache and typing in some searches and noticing how they compare to the results you got before the clear. I’m not saying that is the case here, as my own search (“Elizabeth Warren License to Practice Law”) shows either legal sites I’m unfamiliar with or conservative sites, including Fox News. And this might be something you are aware of and somehow compensated for in your search. I just think it is an important thing to keep in mind when using Google as a barometer in this way.

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        • As I understand, Brown has been attacking her on her claims of American Indian heritage (which do indeed seem tenuous at best) and has been attacking her for hypocrisy in representing Travelers while claiming to be all about the little guy; however, to my knowledge he has not to this point adopted the UPL line of attack.

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        • including attacks by Brown about Warren’s family history.

          This strikes me as interesting phrasing. If they are talking about what I’m thinking about, Warren claimed Native American heritage. As it turns out, she does not have Native American heritage.

          It seems to me that rephrasing “attacking her for lying about her Native American heritage” as “attacking Warren’s family history” is brilliant on her part. Goodness knows, we could expand that to other attacks.

          Talking about Ms. Romney’s remembering her first apartment? You’re attacking Mitt Romney’s family history! Questioning Romney putting the dog on top of his car? You’re attacking Mitt Romney’s family history!

          Man, whatever she is paying NPR, it’s not enough.

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          • Oh no, JB, that was my own phrasing, not Warren’s. They played a snippet by Brown which I’ll paraphrase as “Warren claimed Native American history to gain advantage. Look at her. She’s not Native American”. Then they played a snippet of Warren responding, which I’ll paraphrase as “Growing up, I was always told that my grandparent was Cherokee and Delaware. But I never gained any advantage by stating this.”

            I didn’t research it beyond that so tried to pick language that indicated which side I thought was legitimate. I was going for neutral, though clearly flubbed that. My apologies.

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              • I suppose it would have been better to have said something to the effect of, “Brown raising the question of Warren’s claim to a Native American heritage that many doubt.”

                Apologies for any confusion or bias. It was unintentional.

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                • Believe it or not, I am one of the 349,999,999 Americans who can claim 1/32nd Native American heritage. Sadly, my proof of that consists of a picture of Mama but I hope that we can run with that.

                  It would seem absolutely absurd to me for me to claim Native American ancestry for anything other than, oh, the ability to make a point in a comment section. (I certainly don’t think that I should be eligible for Native American Scholarships or Diversity Awards on the part of businesses that hire me or anything.)

                  As someone who is as Native American as she claimed to be (falsely, it appears), I find myself vaguely amused and irritated by the thought that 1/32nd is something worth writing down in the first place.

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                  • Here’s my take…

                    First off, I don’t know if Warren has Native American heritage. And I’m not going to pretend to.
                    Second, I don’t think there is anything off base about Brown bringing it up if there is good reason to believe that Warren deliberately misrepresented her ancestry to gain any sort of support that was otherwise not intended for her.
                    Third, I think Brown should have been wiser than to say, “Well, look at her,” as part of his claim. Interracial marriages can do quite a number to phenotypes.
                    Fourth, that being said, the extent to which Warren does “look” Native American can be a factor in determining the appropriateness of her receiving any form of support intended for Native Americans, depending on the purpose and structure of that support. If the support was structured in such a way to account for racism or other prejudice of which Native Americans were a target, and Warren and her family never suffered these harms because they were not perceived to be Native Americans, it is dubious of her to accept that support (if she did indeed accept the support). If, on the other hand, the support was structured in such a way as to broaden the voices and perspectives present in a community and Warren’s upbringing did indeed give her a perspective informed by her Native American heritage, then accepting that support seems acceptable, in spite of her appearance.

                    So, yea, this is a murky situation with too many unanswered questions for me to really weigh in on.

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          • I get Fox News, Washington Examiner, several from Breitbart, a few local Portland sites/papers, something called Black-and-Right, YouTube, and AtlasShrugs2000.

            I tried to find the link and couldn’t but I once saw an “experiment” where they googled something like “gun rights” or “gay marriage” or some other “culture war” issue into different Google accounts and the difference in what was return was vast. If you’re getting into more nitty-gritty searches, it might cancel out some of the targeting and if you’re going 100s or 1000s deep, you probably mitigate it as well. I just thought that was a useful tidbit to know in general about “the Google”. THEY’RE WATCHING YOU!

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              • Well, I think the question is, “Is this a non-story?” I have a lawyer for a sister but otherwise don’t know the first thing about the law, so I’m not really in a position to say.

                More broadly, I agree with you that we can’t immediately assume a lack-of-coverage is indicative of some sort of conspiracy, cover up, or bias. Or that the presence of coverage is indicative of the same. Sometimes a story doesn’t get attention because it is not worth paying attention to. And sometimes one gets a lot of play because it deserves it.

                I’m still waiting for the news trucks to arrive to report on my having eaten half a jar of peanut butter for lunch.

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                • For me the issue is the pattern established.

                  I’m sure we all remember 2008 as vividly as if it were yesterday. The Secret Life of Bees was in the theater, Pink’s “So What” was taking over the airwaves, and the New York Times was running a story about an affair that John McCain was having.

                  No biggie, right?

                  Well… except that there was a story a few year earlier about John Edwards having an affair… that was broken by the Enquirer… and there’s evidence that such newspapers as the LA Times had an editorial stance to not talk about salacious gossip.

                  It’s when you put those things together that you find yourself knitting your brow.

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                  • I’m limited in how far I can knit my brow about “media bias” and “media cover up” stories in large part because I’m not sure how good “the media” is as “covering things up”. These stories ultimately do get out and there is enough media members of all stripes to ensure nothing remains fully buried. That doesn’t excuse the conduct, but it mitigates how much we should fret over it.

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                    • I’m not talking about covering up, Kaz. I’m just talking about finding something else to talk about.

                      Dig this: let’s say that I wrote a front page post every single time a democrat had an affair. Oooh, look! Salacious pictures! Looks like Senator Wiggles is macking on someone who isn’t his wife! WOOOO!!!

                      And then, imagine, Senator Family Values is found having an affair with the spouse of a family values colleague.

                      And that week I decide to write about the deficit.

                      Am I engaging in a coverup? Showing bias? Hey, don’t I have the right to write about money from time to time? Would you think I was being disingenuous if, a few months later, I talk about Senator Wiggles again?

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            • Kazzy, so you confirm that the MSM bypassed the Obama/kid gloves/Occupy story. Thank you, that’s a start. That it was Drudge who broke the Lewinsky “non-story”–while the mainstream media buried it–is now part of journalism history and smirks about “cover-ups” by the media are simply not justified anymore.

              I just gave you another example with the Obama admin letting #Occupy slide. As for the Warren thing, it’ll be interesting to see if the Boston Globe looks any further. They might. But if the results are embarrassing to Warren, however, I expect a national news blackout.

              BTW, I know nobody here watches MSNBC, but Howard Fineman thinks it might be a good idea for the press to start doing its job when it comes to reporting on the Obama record.

              Kaus on Fineman on Obama:

              http://dailycaller.com/2012/09/25/will-msm-guilt-start-working-for-mitt/

              Will MSM Guilt Start Working for Mitt? “Like Ali, Obama Floats Like a Butterfly”–that’s the headline Real Clear Politics gave Howard Fineman’s latest post. But even though Fineman is Editorial Director for leftish Huffington Post (and appears regularly on MSNBC) his piece isn’t what you’d expect. It’s basically a plea to the MSM to start covering Obama they way they’d cover a normal candidate. According to Fineman, Obama has bounced back in the polls

              “without having to seriously and substantively defend his first-term failed promises or shortcomings, and without having to say much, if anything. about what, if anything, he might do substantially differently if he is fortunate enough to win again. …

              Obama was such a cool and uplifting story to so many in the media in 2008 that they essentially ceded ground to him that they have yet to reclaim. He ran a tightly controlled message campaign then, and has run an even more tightly controlled White House, with few press conferences and deep access only to those most likely to write positive stories. Univision didn’t get the memo, and its reporters hammered the president about immigration last week. It was a rare moment.

              An MSM veteran, Fineman, in essence, is agreeing with conserviative critics of his profession: they’ve been cutting the President way too much slack, failing to take him to task in areas (the Woodward portrayal, Libya, the jobs numbers ) where they would have hammered another candidate. Hence the strange, empty, helium-filled trajectory of the Obama campaign so far.

              Does Fineman’s analysis, from within the belly of HuffPo, suggest an impending surge of MSM Guilt? That could be what just Romney needs at this point–in any case it’s probably the best he can hope for.

              Christ, Likko, this HTML markup is a lot of damn work for something that’s going to be papered over anyway. Sheesh.

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              • Tom-

                I can neither confirm nor deny how “the media” is handling whatever happened in Portland. I can say that the first page results for the specific search terms offered included primarily right wing and local outlets. I don’t know enough about anything else on the matter to say anything more.

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                    • Please note that I’m not denying your accusations. I’m not just well enough informed to make a call. I didn’t click through any of the links.

                      I will say this: If there is indeed a story there and major media outlets opted not to cover it, I’d be curious as to their motives. If it was part of a larger pattern of curious motives, I’d be given a small, meaningful pause.

                      As stated above to Jaybird, I think media bias and media coverups are not as powerful nowadays as they might have once been because of how information is disseminated. There was a time where if the local or national papers didn’t cover a story, it was near impossible to know about it. Now, you can here a mention on the radio, fire up the Google box, and access the information via other outlets.

                      That doesn’t excuse the behavior nor the impact it has on people who don’t access information via other outlets; it just mitigates the extent of the damage and, for me, the extent of my outrage.

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                    • Kazzy, I’ll rest with Howard Fineman saying the press is too easy on Obama:

                      “…without having to seriously and substantively defend his first-term failed promises or shortcomings, and without having to say much, if anything. about what, if anything, he might do substantially differently if he is fortunate enough to win again. …

                      Obama was such a cool and uplifting story to so many in the media in 2008 that they essentially ceded ground to him that they have yet to reclaim. He ran a tightly controlled message campaign then, and has run an even more tightly controlled White House, with few press conferences and deep access only to those most likely to write positive stories. Univision didn’t get the memo, and its reporters hammered the president about immigration last week. It was a rare moment.

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  2. Here’s my take: it’s politics, so everything is fair game. Even rampant, wild, irresponsible speculation. But my impression after reading Jacobson’s argument re: Warren’s status in Mass. is that it’s not attempting to make an academic point nor is it being advanced for strictly legal purposes. The entire motivation for advancing it is political. Jacobson even admits as much in his original post when he writes the following as the conclusion of his argument:

    The voters of Massachusetts are entitled to know, before they vote, whether one of the candidates for Senate has not been following the rules which apply to everyone else.

    Given the arguments he’s made, it’s difficult to believe that his primary concern here is the sanctity of the voting process rather than pure partisanship. You, Mark, have done an excellent job of rebutting the arguments presented. Have you done so definitively? What does “definitively” mean when the purpose of the argument is not yet achieved?

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  3. I moved to Tennessee for a couple of years. During that time, I continuously maintained my California law license. I wrote pleadings, responded to and propounded discovery, and made telephone phone appearances during this time, all in cases pending before the Superior Court of California in and for the County of Los Angeles, the Second District Court of Appeals of the State of California, the United States District Court for the Central District of California, and the Ninth Circuit Court of Appeals. I signed my own name to the documents, and was listed as “of counsel” to a firm in which I had previously been a law partner. Attentive adversaries would have noticed the Tennessee postmark on my correspondence. No one raised any objection, though.

    Shortly after arriving in Tennessee, I began a relationship with a firm in Tennessee, and I applied for admission to the United States District Court for the Eastern District of Tennessee. A friend sponsored my admission to that Court. Thereafter, I signed pleadings submitted to that court under my own signature with no supervising attorney’s or co-counsel’s name attached, and personally made appearances in that court without the assistance of or supervision of co-counsel.

    In all cases described above, I was engaged in the application of evidence to law as an advocate. In all cases described above, I demanded and was paid money in compensation for my services.

    And here’s the critical part: for about six months of all of this activity, I did not hold a license to practice law issued by the Supreme Court of Tennessee. I had an application pending to waive in to the Tennessee bar, but the waiver process took a lot longer than I thought it would before the license eventually came and I was issued a number by the Board of Professional Responsibility and sworn in by a judge (in a ceremony I found more than a little bit odd, but that’s another story).

    Aside from the fact that I was working out of my house rather than out of an office I maintained separate from my home, it seems to me I was doing something substantially similar to what Prof. Warren was doing in Massachusetts. (She also apparently was able to command higher fee than I did; good for her.)

    For those six months, was I practicing law without a license for those six months? Does the answer to that depend on the exact wording of the professional ethics rules and statutes regulating the unauthorized practice of law applicable at that time in the state of Tennessee? Put another way, if I’d done all of this in Boston instead of Knoxville, mutatis mutandis, would I have been engaged in the unauthorized practice of law in Massachusetts?

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    • This type of scenario has been very much at the heart of a lot of my objections here. One thing to muddy the waters on this even further: the ABA’s new proposed amendments to R. 5.5 add a subsection (d)(3) that allows for precisely a 365 day safe harbor period for the scenario you describe, on the condition that the attorney (1) make an application for admission by motion in the new jurisdiction within 60 days of moving to the new jurisdiction; and (2) associate with an admitted attorney; (3) notify appropriate authorities that he is practicing under new subsection (d)(3); (4) not enter any appearances in the new jurisdiction’s court – even pro hac vice; and (5) advise all clients of these limitations.

      So the question is whether this means that your situation, which happens literally all the time without any objections, was (a) previously a UPL issue that is now being legalized; or (b) previously kosher, but is now being tightly restricted.

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    • Burt, what if while in TN you practiced CA law without a CA license? Did you break TN law? You broke CA law certainly, so should TN arrest and xtradite?

      Just axin’.

      ” My counsel tells me there is no controlling legal authority that says that is any violation of any law.”—Al Gore 2000

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      • So let’s say, I did all of those things as described above, unsupervised, but let my CA license lapse while I was in physically in TN?

        In that hypothetical version of events, I’d have been practicing CA law without a license. My physical presence in TN would be irrelevant to the violation of CA law.

        So far as I can tell, I’d have violated no TN law by doing even that variant of the hypo. An arrest effected by TN would have to have been on an extradition request from CA based upon an indictment issued by a CA grand jury.

        According to Prof. Jacobson, though, had I done that in Mass., that would violated Mass. law; my physical presence in Mass., without a Mass. license, would have been UPL whether or not my CA license was valid at the time I practiced CA law while physically sited in Mass.

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        • First of all, Burt, I need to FTR that I think this is all small potatoes and have no partisan interest in this thing. It just has my Sherlock Holmes juices flowing. And there’s a little bit about the press not doing its job. I would expect to be able to get the answers in an hour were I a journo who knew how to pick up a phone.

          My best guess per our incomplete info is that the court doc that names her as “Of Counsel” [and therefore an “attorney” for Travelers’] is wrong.

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

          [This bit came from a pro-Warren commenter at Jacobson’s blog who seemed to know what he was talking about.]

          The defense claim is that she was not acting as an attorney, only as something resembling a research assistant or paralegal. Therefore, no practicing w/o a license. This probably holds—she likely didn’t put her own name on the brief; somebody else did to make it look all Harvardy.

          And we’d also have to see her billing correspondence and billing records with Travelers to be sure that she conducted herself as a law consultant and not an attorney.

          That’s my bottom line. As for the rest, it seems she held no license anywhere so IF she was practicing law, she was practicing it somewhere and doing it without a license. Whose laws that violates

          So far as I can tell, I’d have violated no TN law by doing even that variant of the hypo. An arrest effected
          by TN would have to have been on an extradition request from CA based upon an indictment issued by a CA grand jury./i>

          I don’t know, but as a campaign issue that doesn’t really matter. She violated something, be it a law or an attorney ethics code, whathaveyou. Couple that with her [apparently false] American Indian claim, and you have a case that Elizabeth Warren cuts corners. Again, as a campaign issue. Character attacks are true only in the eye of the beholder. If you know what I mean. ;-)

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          • As for the rest, it seems she held no license anywhere so IF she was practicing law, she was practicing it somewhere and doing it without a license.

            I was with you until you got to this; I thought we had established the other day that she at the very least appears to have had an active NJ license at all pertinent times?

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  4. It seems to me that you’re both right. Warren probably did not violate the spirit of the licensing law, but probably did violate the letter of the law. Presumably nobody was duped into hiring Warren to obtain advice on Massachusetts state law, but to my mind, if you move to a state and continue to work on legal matters for material sums of money over the course of 17 years, you really should get a license to practice in that state.

    In support of the “letter of the law” argument there is the issue of dues, which appear to be $390/yr for a senior attorney (i.e. admitted to the bar prior to 2002). As somebody who runs an investment advisory business in Massachusetts, I can speak to the fact that licensing requirements are mainly just revenue raisers. I spend thousands of dollars each year maintaining registrations for myself and various companies, and all Massachusetts basically requires is that I confirm my office address , that I am in good standing, and (most importantly) that I write a check.

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    • To my mind, if you move to a state and continue to work on legal matters for material sums of money over the course of 17 years, you really should get a license to practice in that state.

      Generally speaking, this isn’t how professional certifications work. The question of licensing has to do with provenance of professionalism.

      Take, for example, being a CPA or an architect or a structural engineer. Those are all certified professions; there are a number of requirements to be a Professional Architect, or a Professional CPA (redundancy).

      You don’t, however, need to have that actual certification to work in an accounting office or an engineering firm or an architectural firm. In the case of engineering/architecture, you can literally do *all* of the work, from the original conceptual design right down to construction blueprints… all of it… but what you can’t do is stamp those with your seal (because you don’t have one) and submit them to a city hall for permitting. You need an actual, certified, bona fide Professional Architect to do that.

      A Professional Certification is the last gatekeeper between the private sector and public processing. It’s the Fall Guy, really, if something goes wrong. They’re the final arbiter, the one who is not just expected to know the field but is actually required to be keeping up on the new regs and whatnot.

      If we actually required professional certifications for everybody that did any level of work in a professional firm… well, (a) you’d hear bloodcurdling screams from the GOP about over-regulation – RIGHTLY so (b) you’d jack up the prices of all professional services by a gazillion and (c) you’d have about a 10 year wait to get an addition put on your house.

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      • Note further that you’re not only allowed but actually required to work for a time in the engineering field (under the supervision of a Professional Engineer) before you’re even allowed to apply for a Professional Engineer License.

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          • You’re right, Wardsmith — bad legal advice in a capital murder case could cost someone their life. Even scarier — it could result in a lawyer having to forego payment for actually-billed, not just billable, time.

            The horror! The horror!

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          • The court found that Mr. Hoffman’s court-appointed lawyer, William Wellman, who had never before handled a murder case, failed to conduct “reasonable research into the legal landscape” before advising his client to reject the guilty plea. The appeals court also found a “reasonable probability that the outcome of the proceedings would have been different had counsel acted competently.”

            This seems like it should be a letter of censure sent to the court that appointed the lawyer or something.

            (Granted, public defenders and their handling is probably rife with all sorts of problems…)

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      • “Generally speaking, this isn’t how professional certifications work. The question of licensing has to do with provenance of professionalism.”

        I thought we were discussing the specific licensing requirements for practicing law in Massachusetts, and so I focused on a reasonable interpretation of 5.5(b)(2) “shall not … establish an office or other systematic and continuous presence in this jurisdiction for the practice of law;”

        Warren moved to Massachusetts more than 17 years ago and has done a considerable amount of legal work on a wide variety of matters, most of which were new engagements. I don’t see how she has avoided running afoul of 5.5(b)(2) unless Mark Thompson is correct that the safe harbor of 5.5(d)(2) applies. This allows the practice of law if authorized by some other federal or Massachusetts rule.

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        • Why don’t you think 5.5(d) applies? I see comment 15 as being pretty clear, and it seems to contradict Jacobson’s reading of the rule:

          “Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice in another United States jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law as well as provide legal services on a temporary basis.”

          Is it interpreting the statute narrowly? or am I just not able to see a plausible alternative because of an ideological bias?
          (If I’m misreading you just let me know)

          Also (from the previous thread and Prof. Jacobson commenting on one of my posts), federal law under 5.5(d)(2) is explained in comment 18, which states that the term is inclusive of ‘court rule’. Such as Supreme Court Rule 5, which deals with admission to that court.

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          • There are two problems with 5.5(d)(2). First is the question as to whether admission to a bar (Supreme Court Rule 5) is the same as authorization to practice. There are a few courts (though not in the First Circuit) that have held this to be true, but it is at best an open question. (There was a big food fight between the Pennsylvania Supreme Court and the Third Circuit about this a few years back–it makes for great reading. Look up Office of Disciplinary Counsel v. Marcone and the related federal cases, all available on Google Scholar.)

            The bigger problem, however, is that the Rule 5.5(d)(2) safeguard wasn’t promulgated by the ABA until 2002, and not adopted by Massachusetts until, as far as I can tell, 2006 or later. So for most of the period under question, it wouldn’t apply.

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  5. Pingback: » Elizabeth Warren represented Massachusetts client in Massachusetts - Le·gal In·sur·rec·tion

  6. I didn’t get the chance to mention this in our earlier conversation (before comments closed). Isn’t the big problem with your reliance on either 5.5(c) or (d) that they were only adopted in Massachusetts in 2006? They can’t have provided a safe harbor for Warren for a brief filed in 1998.

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      • I have to admit, I’m not certain why it’s a bombshell. If the argument is that “federal only” practice is allowable–essentially, under Disilets or Tribe’s supremacy argument–then it doesn’t matter much whether she practiced in Massachusetts or not, so long as it was in Federal Court. And if it doesn’t, this “bombshell” is just another instance of unauthorized practice.

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  7. My eyes are glazing over trying to parse this one out. The fact that we’re still going in circles somewhat, and that it’s Mark — not me or Chris or Mike — who is on the other end with Jacobson, has me thinking whatever happened was borderline at best/worst. And then we have the understandable partisan motivations that fill in the rest with white noise.

    (^ This kind of reasoning is not quite what I expect to be taught in law school.)

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