New Facts on the Elizabeth Warren UPL Issue

Professor Jacobson has uncovered this morning a case in which Elizabeth Warren entered an appearance in a federal appellate court as a representative of a Massachusetts client in a case that appears to have clearly implicated Massachusetts law.  Although this is still a federal appellate court, because we’re dealing with a Massachusetts client and issues of Massachusetts law, this looks really, really bad for Professor Warren.  With this bombshell, I would no longer view the case against her as weak.

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188 thoughts on “New Facts on the Elizabeth Warren UPL Issue

  1. What is especially astonishing, and damning, is the simple fact that Professor Warren could easily have been admitted in Massachusetts on motion if she’d been admitted and in good standing in any state and had been practicing or teaching law for 5 of the 7 years preceding her motion for admission.

    Why, Elizabeth? Why?

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    • I wonder, and perhaps the lawyers here can answer, how big of a violation is this?

      Is this something that lawyers shouldn’t do but a lot do and then they get in trouble only when they’re trying to do something else, like run for office or try to be counsel on a controversial case? Or is this a big no-no that is so ethically unconscionable that only scoundrels will do it? Or is it somewhere in between?

      To be clear, I’m not trying to be glib, but I am curious how big a violation this is.

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        • Is malpractice for this kind of practicing law without a license as much of a deal breaker in terms of moral outrageousness as malpractice for other kinds of practicing law without a license (like passing oneself off as a lawyer without ever having attended law school)?

          To use a (perhaps stupid) example, it seems to me that on the moral outrage meter, bigamy that arises when one party has failed to dot all the i’s of the divorce settlement with his or her prior spouse seems different from bigamy that arises out of one spouse trying to have two spouses unbeknownst to both of them.

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          • Here is the thing: had she just put her name and some office location in Texas where she may have been licensed (I don’t know the exact location where she was admitted to practice, BTW) on her admission/briefs, and if any letter she sent, etc. had “not licensed to practice in Massachussetts” that would have been better and more honest. But think about the cases she’s signing on to–she WANTS the Court to know that she is a Harvard Law School professor, because that gives her a leg up versus her competitor – she’s signaling to the Court she has an added “credential credibility”. So yeah, since she’s getting (or at least trying to get) a material benefit from saying her office is at HLS, it is worthy of some moral outrage.

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        • I disagree with this. Malpractice occurs when the attorney renders advice or services that fall below the standard of care. It analyzes the quality of the services rendered. UPL is a qualitatively different offense.

          Whether it’s a serious or trivial issue depends on the context. For instance if the attorney erroneously but reasonably believed herself entitled to practice for some reason, that’s a different animal than practicing after a previous admonishment not to do so.

          Until this fact came to light I’d have said that if it’s a UPL offends at all, it was more towards the trivial end of that spectrum. If what is described in the OP is true that’s a bigger problem for me than contributing to a SCOTUS brief.

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      • Having been found to be practicing without a license in a jurisdiction often leads to a permanent bar from admission in that jurisdiction. It may also lead to discipline – up to and including suspension or disbarment – in any other jurisdiction in which the attorney has been admitted.

        In some states, practicing law without a license is not merely a matter of bar discipline, but it is a criminal offense. A felony in some states, a misdemeanor in others. Prosecutions are not common, but not rare either. In a high profile case, it might well be difficult not to prosecute.

        For lawyers, this is quite serious, because it goes to their ability to earn a living. While Prof. Warren could still teach if enjoined from practice or (worse, criminally convicted of practicing without a license), she would be radioactive to law firms hiring her as a consultant on briefs, and I’m not even sure about her submitting ‘friend of the court’ briefs as an attorney.

        She really, really, shouldn’t have let this get out of hand.

        Her only hope of avoiding this being a real story – since she apparently hasn’t been active in Texas since 1992 – is to show that she has been continuously active and in good standing in her other state of admission, New Jersey, since her original admission, or at least since she went inactive in Texas.

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    • Why? Arrogance, is the most obvious anwer. She’s is now, and has been throughout her career, a member of the home team – the good guys, if you will. They are unvetted because the media and the powerbrokers consider Ms. Warren and her ilk pure-of-heart. With all of the damning evidence relating to her unethical, even illegal, use of affirmative action set-asides, the legal community in Mass. has stubbornly refused to question her character.

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      • You’re making an awful lot of far-reaching suppositions here based upon what probably boils down to a personal clerical error.

        Granted, that’s no call for her not to be properly disciplined if she didn’t dot an “i” or cross a “t”. But the “proper” here is up for contention.

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        • A “clerical” error? She is either dishonest or incompetent. I wouldn’t consider either a good attribute to have although for a politician it might be considered a resume enhancer. My father is the chief judge of his district and said this would be inexcusable and beyond a simple oversight.

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  2. After looking at present First Circuit Admissions standards, I don’t really see how this changes the analysis under 5.5(d)(2). I realize the optics of the situation look much worse, but whether she is in the First Circuit or Fifth, the legal analysis proceeds in much the same way.

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  3. Mark:

    I don’t understand why the Massachusetts law part is the important ethical nail upon which to hang this case. If your previous arguments stand, this is still a Federal Appeals Court.

    Can you not appear as a lawyer in a Federal Appeals Court based upon the subject? I would think if you can appear at all, you can appear regardless of subject.

    I will say this: this entire affair has convinced me of two things, and one of them is, “Dizam, the laws for lawyers appear to be crazily complex”

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      • This is the problem with increasingly stringent regulations on all areas of conduct : they are crazily complex.

        What is even worse is that someone who advocates for more regulations felt entitled to a “King’s Pass” in lieu of following the most basic requirement of professional practice.

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        • What is even worse is that someone who advocates for more regulations felt entitled to a “King’s Pass” in lieu of following the most basic requirement of professional practice.

          You’re conflating several things here.

          Elizabeth Warren’s argument for more bankruptcy law regulation does not necessarily imply a call for more general regulation. Nor does it have anything to do with the regulation level of law practice (too much, too little, or just right).

          From what I’ve heard, getting a MA license would have been largely a cosmetic affair for someone in her position with her bona fides. She didn’t do this probably because she never really intended, upon moving to MA, to practice law as an MA attorney.

          I’m not sure why this so triggers the outrage meter. It’s not like she’s been running on “the legal profession is under-regulated!” It’s a legitimate point of evidence to not vote for her, sure.

          It’s hardly the Giant Smoking Gun For How All Liberals Are Snooty People Who Want To Overregulated EVERYONE’s Life Except Their Own.

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          • It’s hardly the Giant Smoking Gun For How All Liberals Are Snooty People Who Want To Overregulated [sic] EVERYONE’s Life Except Their Own.

            Actually it is.

            For every liberal who screams, “deregulation caused the recession!”, I can point to a John Corzine (liberal, Democrat). Getting everyone else to follow the rules while your team gets to skirt them is tremendously advantageous. In brilliant Sun Tzu fashion, the liberals accuse the conservatives of this tactic while continuously employing it themselves. Of course it won’t matter how many examples I provide, you’ll just call it anecdata. This entire episode will be covered up by a complicit (and liberal) ruling elite in liberal Mass. Informed voters might know better, but let’s be real, how many are there? 1000? 10,000?

            Adlai Stephenson was once told, “Everyone with a brain will vote for you”. He said, “Great that gives me less than 10% of the vote”.

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            • Getting everyone else to follow the rules while your team gets to skirt them is tremendously advantageous.

              Sure.

              And this is clearly an entirely liberal-only phenomena? And all liberals do it?

              Yeah, neither of those… not so much.

              Liberalism, and regulation, are not monolithic things, nor are they conjoined twins.

              I can point to a John Corzine

              MMS! Should we keep playing this game?

              Look, Ward, I’m sympathetic to the revolving door accusation, and the close ties between regulators (generally) and industry. But this is clearly – in my opinion anyway – not a partisan problem.

              It’s a government< ->industry problem.

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              • Patrick, here is the disconnect. You are NOT hearing Conservatives shouting from the rooftops for MORE regulation. You are NOT hearing Libertarians calling for MORE regulation. You ARE hearing Liberals calling for more regulation. Therefore it is especially egregious when Liberals are caught flouting /existing/ regulations. This is precisely analogous to JB’s family values guy getting a BJ in the men’s room after giving a speech denouncing same to his constituency. If this is a mystery to you I don’t think we can resolve the point between us, but lurkers and others most certainly can see the connection.

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                • You are NOT hearing Conservatives shouting from the rooftops for MORE regulation… You ARE hearing Liberals calling for more regulation.

                  Generally speaking, Ward, I’d say that the Liberals are calling for better regulation, not “more” (we can argue about what constitutes “better” -> I think you know me well enough to know that I disagree with a lot of what liberals call “better” regulation). Neoliberals, in fact, don’t have a fundamental problem with deregulation, they have a problem with “letting inmates run the asylum”.

                  I don’t know anybody who thinks that more rules for the sake of more rules is a good idea, and I think that people who frame things as if that’s the way they actually think are seriously misunderstanding liberals. Do you, honestly? I dunno, maybe you do.

                  This is precisely analogous to JB’s family values guy getting a BJ in the men’s room after giving a speech denouncing same to his constituency.

                  Sure. I gotta be frank, I’m never going to not vote for a guy because he gets a BJ in the men’s room. Hey, that can be part of your calculus, that’s cool. It’s really not my business if someone gets a BJ in the men’s room.

                  What I care about is what he’s going to do in office.

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                  • Patrick, I was saving this article for a guest OP I intended to write, Since I can’t type properly with an injured hand that project is indefinitely tabled. However if you read it, you’ll see some very specific definitions of liberal positions vis a vis regulations and why. Likewise you’ll see clear Libertarian positions re same. Krugman and countless others are and have been calling for more regulation and of course when the crisis hit the Democrats blamed the Republicans based on their intent to deregulate (supposedly – the narrative falls a little flat when the half dozen or so times the R’s tried to rein in Fannie and Freddie (w/more regulation no less) they were blocked by unified D resistance). That would have gone in my OP as well with copious proof.

                    As for Liberal politicians overtly calling for /more/ regulation, this article neatly sums up why that isn’t quite the narrative:
                    ” Liberals won’t get votes by calling for more regulation, so they are forced to tiptoe around the word to make their arguments. “

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                    • That paper looks interesting, thanks for that (sorry to hear about the dead wing, that sucks). I’ll take a look.

                      The second paragraph, well, you may be right, there, Ward, but that’s an unfalsifiable standard. It’s like the “Everything they actually do is *because* they’re racist” charge leveled at the GOP.

                      But I gotta say, everybody I know who’s over the age of 35 – liberal or no – has a lot of grumps about rules for the sake of rules.

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            • Fuck you, wardsmith.
              Fuck you, and harold ford, that fucking corporate whore.
              And you can fucking take that to the fucking bank.
              Because I can stand here and tell you exactly how
              Mr. Ford did NOT win Clinton’s Senate seat.

              And you ain’t got nothing to do with it.

              You want to learn about Democrats making some rules
              then making the politicians follow them?

              Look it up.

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            • I completly agree with Ward that too many pols go between gov and business. They lobby up a storm to help out who ever will pay them the most. This is a real problem and there is no way to see it reflected in just one party. It afflicts both parties. There are plenty of liberals who are just as upset about this. It is more about the DC beltway class making money by jiggering the rules for their own benefit.

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              • Just a note, for those not paying attention:
                Clinton was real cozy with plenty of businessfolk
                even though she had never been in “business”.

                Lamont, on the other hand, wasn’t terribly
                cozy with much of anyone, despite being
                a businessman. ‘Course, someone had to
                talk him into running…

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      • All I can say to that is: “Who wrote those laws?”
        We the Great Unwashed have been suffering under stupid laws written by brilliant legal minds for thousands of years. Gratifying to see y’all torment one another as well.

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    • It’s not that different from being a plumber. You get licensed in Texas. Fine. You can be a plumber in Texas. But if someone in Oklahoma needs their sink worked on, you can hop over and work on it. You can even go as far as Massachusetts for a big job. But when you move your shop to Massachusetts, the Texas license isn’t enough anymore. You need to get a Massachusetts license and comply with Massachusetts law.

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    • First, I don’t have much free time today, so this will likely be my only comment for awhile, but…I wouldn’t go so far as to say that it makes it an open and shut case of UPL, but it does make it something where I’m not comfortable exonerating her, either; at minimum, she’s got some serious explaining to do IMHO.

      The reason this changes things significantly for me is that: (1) the Chimko case I quoted yesterday makes pretty clear that the sort of activity that should be viewed as being at the core of what constitutes the “practice of law” in a given state is whether they’re soliciting or advising clients in that state and whether they’re appearing in a Massachusetts forum; and (2) as discussed somewhat in the thread on my OP, the 5.5(d)(2) exception is likely to be read quite narrowly insofar as it won’t give a lawyer permission to advise a client on state law issues.

      Keep in mind that it’s not just a matter of whether she can appear in a court (she could), but also whether she can fully and properly advise on relevant issues. One of the big concerns here is that a lawyer admitted in the relevant federal court but not the state court would have an incentive to tailor her advice to push the client towards action in the federal court while ignoring possible state court options.

      The “holding herself out” issue may (or may not) still be in her favor here, but once you’re advising Massachusetts clients on issues that implicate Massachusetts law from an office in Massachusetts, it’s quite difficult for me to conclude that you’re not practicing law in Massachusetts, and certainly Massachusetts has a very strong and legitimate interest in regulating that activity.

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      • Keep in mind that it’s not just a matter of whether she can appear in a court (she could), but also whether she can fully and properly advise on relevant issues. One of the big concerns here is that a lawyer admitted in the relevant federal court but not the state court would have an incentive to tailor her advice to push the client towards action in the federal court while ignoring possible state court options.

        Thanks, that clarifies it for me.

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  4. Pingback: » Elizabeth Warren defender: “With this bombshell, I would no longer view the case against her as weak” - Le·gal In·sur·rec·tion

  5. Mark,

    I don’t know if someone raised the following issue with you previously, but I don’t believe you have addressed it in your posts – the fact that the NJ RPC did apparently, at the time of a number of the cases in questions, require an in-state office. Somone on Prof. Jacobson’s blog posted the 2002 version of the rule. That actually jives with my previous recollection of the state of NJ rules; I do not know when the bona fide office rule was changed to permit no office in NJ.

    In light of that, there is a secondary, and interrelated *potential* legal ethics / UPL problem because if Warren was running afoul of NJ’s requirements to practice law (which likely went unreported – you and I both know that angry clients or very angry opponents are the main source of ethics complaints), then that would both raise issues in NJ and potentially complicate any defense in MA that she was authorized to do work on cases via her NJ license and the nature of the litigation/representation.

    respectfully,

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  6. Ok, I really picked a good name, because I’m going to now express utter puzzlement as to why this would change your views. If a federal court can control its own bar, and pre-empts state UPL rules, then it doesn’t matter whether that federal court is in Massachusetts or not. (This is pretty much the fact pattern of In re Desilets, where the Sixth Circuit found that a Texas attorney, practicing in Wisconsin and Michigan but admitted in Texas, could practice before the Michigan federal courts despite lack of license.)

    I don’t find Desilets very persuasive, and it’s not law of the First Circuit, but to the extent that one believes federal admission pre-empts UPL, I don’t see why it matters that the admission is in Massachusetts.

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  7. This is in Federal Court, but Warren was working for a Massachusetts Client in regards to Massachusetts Law…but wouldn’t this be the same as defending a Massachusetts law in the SCTOUS

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  8. Yet again, this is another big nothing. Even assuming that this rises to the level of implicating Massachusetts law – which is not obvious – none of you are actually reading the rules here.

    In the documents posted by Legal Insurrection, Warren is clearly not the “counsel of record” – Charles Nesson is. Nesson is admitted to practice law in MA.

    According to Rule 5.5: “A 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 … are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter.”

    Assisting another lawyer, who is barred in MA, on a temporary basis, is not a violation of the rules. Which is obviously the right policy anyway, and probably why this exception is also in the Model ABA rules.

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    • That’s Rule 5.5(c)(1). As I’ve pointed out pretty consistently, in this thread and elsewhere, it wasn’t promulgated by the ABA until 2002, and not adopted in Massachusetts until sometime around 2006. The brief cited by Jacobson is in 2001.

      Can we please agree that whatever the status of Ms. Warren’s Indian heritage–a matter on which I have no opinion or interest–she isn’t a Time Lord?

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      • So I’m a law student. When reading the Mass. rules, 5.5(c)(1) was what I thought gave me license to practice as a student attorney. The only mention of’ ‘student’ on the Chapter five page is dealing with internships. So, was there a prior rule, or I am missing something?

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        • I wouldn’t think it applies to you, on its face, unless you’re a student but nonetheless admitted in another jurisdiction. (Possible, if you’re a foreign student or otherwise doing an LLM.)

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    • When confronted by reporters about the seeming impropriety of her actions Warren responded “Ugh. My people live on this land long before paleface come from across Big Water; we practice jurisprudence according to word of Great Spirit, not recognize stains on big white leaf that Paleface call his ‘laws’. Ugh.”

      hat tip: BigGovernment.com

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          • Tom, I am not above using ridicule when it’s appropriate (this seems like a strange justification for it, but whatever, it’s politics and it’s clear that you’re playing for a team). But ridiculing someone through enacting offensive cultural stereotypes? Inane is the nicest word I can think of to describe that.

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            • Huh? Inappropriate? We’re dealing with a lying politician who – with the enablers of her profession – wants to TRADE ON cultural stereotypes. Geez, spare me the faux outrage. Come to think of it, spare me any further support of Fauxchohantas.

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              • Let us use Irish people as an example instead.

                Let’s say that she claimed 1/32nd Irish heritage. “Kiss Me!”, she explained. “I’m Irish!” She drank green Guinness, got in fist fights, and sang Danny Boy poorly but, still, not *THAT* poorly… the pipes, the pipes are calling…

                Anyway, as it turns out, she doesn’t have a drop of Irish blood in her.

                Would it really be appropriate to engage in racist Irish stereotypes to mock her? It seems to me that if the Irish didn’t have anything to do with her heritage, it might be most tasteful to leave the Irish out of it ENTIRELY.

                I mean, they have a temper.

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            • Can we even say “Pow wow chow” without laughing at the foolish lengths partisans seem to think they must go to pretend offense at “enacting offensive cultural stereotypes”. Inane doesn’t even get close to it.

              So why not just call them all racists in time honoured fashion ?

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      • And so the sky fell, and all was black.
        And then we realized…
        “This land will remain yours until the waters cease to flow.
        And the sun ceases to fly across the sky.”

        Treacherous people these Americans.

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  9. Is it too late to jump in and say that UPL statutes are unnecessary? All that’s really needed is an anti-fraud statute.

    “Sure, I can represent you, but I must let you know that…..
    a) I never went to law school, but I did watch a lot of law and order;
    b) I never went to law school, but I was a paralegal in a law firm for ten years;
    c) I went to law school, but never passed the bar;
    d) I went to law school and passed the bar, but haven’t practiced for few years.”

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    • James, in general I agree with this (esp. for smaller matters), but I assume that part of the idea of requiring state-required licensing is to prevent undue strain on the whole court system.

      Look at the court system like a highway – you think it’s backed up now, how bad will it be when every sub-Lionel Hutz type a.) ‘lawyer’ is in there causing traffic jams due to not understanding the ‘rules of the road’. Requiring licensing, as with driver’s licenses, helps to assure a minimum competence level that hopefully helps the whole system run more efficiently.

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      • In addition to this, I think there is reasonable concern about people getting a “fair” trial. Some folks might not realize the qualitative difference between a real lawyer and a b) lawyer, opt for the latter because of the price discrepancy, and end up wrongfully convicted. The easy response is, “Hey, he made his choice,” but do we really want people going to jail for non-criminal stupidity?

        More broadly speaking, I am very much in favor of a broadening of anti-fraud law that can avoid many such situations like this. I just think that the practice of law might be a little bit different. There may be other protections that can be put in place, though, such as judges taking it upon themselves to brief a defendant on his choice of “lawyer”.

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        • Yeah, that makes sense, when it comes to criminal law. If there is a chance that you could end up in prison or executed, there needs to be some minimum standard for the people who can represent you.

          When it comes to civil law I am a little more open-minded since the stakes usually aren’t quite so high (though losing all your money or possessions is no small risk either).

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          • I think if you are thr plaintiff… Go to bat with whomever you want. If you are a defendant and the stakes are above a certain threshold, some qualifier should kick in. Basically, expand small claims court, I guess.

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            • Except indigent defendants don’t get a right to legal representation in civil cases, do they? So the result of a minimum requirement for civil defendants could assure that they hire a Real Live Lawyer… or that they have to go without representation.

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              • Well, maybe there should be a form of “public defendants” available to indigent civil defendants for damages over a certain threshold. Then again, I don’t know how often indigent folks are being sued or what the end-result is if damages are awarded that they simply don’t have.

                I didn’t realize that there isn’t a right to legal representation civil cases. I hadn’t really thought about it, to be honest.

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              • Depends on the situation. Many states have “Civil Gideon” statutes extending representation to some indigents for some issues, Massachusetts for example provides counsel to parents during termination of parental right’s trials and appeals.

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          • If there is a chance that you could end up in prison or executed, there needs to be some minimum standard for the people who can represent you.

            Except in Texas, of course, at least if that minimum standard includes “stays awake and sober during the trail”.

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      • I expect James to come back with something to the effect that the legal code should ideally be simple enough so that the Lionel-Hutz-type a.)’s (or us regular schmoes) could reasonably navigate it, and I have some sympathy to that viewpoint.

        But I don’t see how we now get back to a simpler legal code without, say, nuclear war or something.

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        • Actually, when people complain that we have drones buzzin’ about everywhere, this is the root cause of that development – every single problem needs a ‘solution’, which creates new problems, and new solutions, and no one in power is just willing to let go and let the chips fall where they may.

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          • Absolutely, this is the main libertarian complaint about the bureaucratic tendency to only ratchet one-way, towards increasing complexity and the resultant need for greater control.

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  10. Preaching to the choir. However, given that law professors make higher wages than their non-law academic peers because they act as gatekeepers for their fellow professionals, Ms. Warren isn’t really in a position to protest too much there.

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  11. Pingback: Elizabeth Warren law license flap - Overlawyered

  12. Mr. Thompson,

    Now that you have established that Elizabeth Warren has in fact misrepresented herself as an attorney in court, are you going to followup on this and inquire as to whether or not any penalty will ensure from the law concerning this? Also, I was curious…given that she did so in a federal appellate court, will this action require federal remedy as well?

    I was just curious as I would expect such from someone who has taken such an interest in this case.

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    • I won’t speak for Mr. Thompson, but you overstate the concession he made in this post. Mr. Thompson has indicated that he “no longer view[s] the case against her as weak.” That’s not the same thing as saying that she’s guilty of UPL, and it’s certainly not the same thing as misrepresenting herself as a lawyer.

      Recall the difference between a “lawyer” and an “attorney.” An “attorney” is one who is empowered to act on behalf of another. A “lawyer” is one who is learned in the law.

      It’s readily apparent that Prof. Warren was and is a lawyer — she holds a juris doctorate degree, she is not only well-educated in the law, she is considered an academic authority in the sub-discipline of bankruptcy law. It’s also readily apparent that she never held a license to practice law in Massachusetts and therefore that her ability to act as an attorney without violating laws and ethical codes limiting the ability of unlicensed lawyers from acting as attorneys was limited.

      I’ve been closer to Mr. Thompson than Prof. Jacobson in that the only thing that, until this morning, seemed questionable was that she maintained a physical office in Massachusetts from which she engaged in legal work, but it struck me as dubious that she was dealing with the law of the state of Massachusetts, people in Massachusetts, or access to the institutions of Massachusetts. I don’t think that the situs of the legal research is particularly relevant as compared to its subject matter and the identity of the court to which it was submitted, and I still think that.

      The revealation found by Prof. Jacobson this morning comes much closer to the idea that not only was she physically in Massachusetts, but she was addressing issues of Massachusetts law for Massachusetts clients. What remains unclear is whether she was properly admitted to the bar of the court in which the pleadings she submitted, over her own signature. There are circumstances in which an attorney can be admitted to a Federal court’s bar without having been admitted to practice in the state courts of that jurisdiction. Because that’s not clear yet, convicting Prof. Warren of the unauthorized practice of law is still premature.

      This is stronger evidence than the briefs submitted to the Supreme Court in which she was listed as “of counsel.” That’s what Mr. Thompson conceded, and I think that’s exactly the right gloss on it.

      Of course, if your only real goal is scoring political points, then the legal merits of the issue are quite irrelevant in the first place.

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        • ….with one exception – whether she was properly admitted to the court to which she submitted the pleadings doesn’t exonerate her in and of itself – by and large the potential UPL claims come from the nature of her relationship with her clients in those matters. She’s not by and large suspected of violating any federal laws or rules at this point, just the MA UPL statute.

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          • To argue that you’d have to argue that
            1) her actions fell into none of the safe harbors or alternate ways to represent a MA client on MA law (affiliation with a MA attorney or pro hac vice admission spring to mind) of the MA Rules of Professional Conduct and
            2) the UPL provision of the MA RoPC is not preempted by her being admitted to the federal court.

            2 seems to be a pretty big stretch – see Sperry v. Florida, 373 U.S. 379 (1963), where SCOTUS was fine with a patent attorney who, unlicensed in FL, represented a client in a federal district court in Florida in a case where Florida state law was partially at issue.

            As I stated below, it seems silly that an attorney who is properly representing their client before a federal court can be dinged for UPL by the state bar which the federal court is in.

            h/t to John Steele at http://www.legalethicsforum.com/blog/2012/09/elizabeth-warren-and-upl.html

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  13. 1. I have not “established” anything other than that I would “no longer characterize” claims that she did as “weak.” That is not a distinction without a difference.

    2. While there may be good reason to suspect she committed UPL, there are not, to my knowledge, any specific allegations yet that she misrepresented herself as an attorney in court.

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  14. No attorney can practice law in federal court without having a valid state license. If Elizabeth Warren for whatever reason let her New Jersey and Texas licenses lapse, then she should not have been practicing law anywhere. Obviously, she should have applied for admission to the bar in Massachusetts. She may have been required to take the bar exam in Massachusetts and, perhaps, that is why she did not bother to get licensed there.

    Regardless of the reason, no one should attempt topractice law without a license, and it is a crime to do so.

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    • “No attorney can practice law in federal court without having a valid state license. “

      This is my understanding as well, Mr. Winn, and it’s been proven she was not active TX bar

      http://www.redmassgroup.com/upload/Warren-1992-Law-inactive-texas.png

      and I haven’t seen evidence she was current in NJ either. It would have been easy to find out until last week, when she suddenly resigned from the NJ bar! As a result, the records appear to be locked.

      [I revisit this since when Prof Jacobson’s original allegations came out, I submitted that her sudden resignations “smells.” Right in the middle of a heated campaign she decides to do her paperwork? Made no sense, except it sure does make sense if it buries her previous NJ bar status from public view.]

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    • Agreed. And to those who defend her by citing to the “temporary basis”exception in the MA Rules of Professional Conduct 5.5(c), you are not reading the comments that follow, specifically comments 5, 6 and 7, quoted below. See comment 7 specifically. At some point, she was no longer authorized to practice in either TX or NJ, so she could not provide legal services about anything, whether in state or federal court or about state or federal law, regardless if the work was done on a “temporary basis.” It’s all a question of timing, i.e., when was she no longer in good standing in either TX or NJ, and did she provide legal services in Massachusetts after that.

      From the Comments to MRPC 5.5:
      “[5] There are occasions in which a lawyer admitted to practice 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 under circumstances that do not create an unreasonable risk to the interests of the lawyer’s clients, the public or the courts. Paragraph (c) identifies four such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. With the exception of paragraphs (d)(1) and (d)(2), this Rule does not authorize a lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice generally here.

      [6] There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction, and may therefore be permissible under paragraph (c). Services may be “temporary” even though the lawyer provides 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.

      [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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    • “The media” (meaning inhabitants of higher orders in the food chain than independent blogs) has to figure it out just like everyone else, which “everyone else” hasn’t yet done either. But beyond that, they need to confirm facts and fix their meanings far more solidly than blogs do in order to publish on the story.

      Now, this story is as old as Jacobson’s first post on it, is that not right? I mean, he’s the only original fact-finder at this point, no? I’m not sure at this point what the media’s role at this point would be other than to commence their own investigations, try to confirm his facts independently and establish their meaning under the law and in politics. In any case, they would need to do that before running with it, right? I mean, that’s what we would want them to do, no?

      Well, that takes time. How many major stories have lived at near-MSM levels of factual confirmation for literally months on end without being picked up by established commercial outlets (whether national or local) in the past? Countless, right? Jacobson’s initial post went up three days ago this morning. I would submit that there is no here here on this idea that “the media” is falling down on this story. Do we honestly think they’re not looking into it at this point?

      As of now, from what I can tell, the supportable headline would run, “Law professor accuses Elizabeth Warren of practising law without a license.” What I expect from media organizations in such cases is to actually look into such allegations and run with the ones where they find verifiable headlines, because allegations of this sort would dominate every newscast and newssheet if allegations were worthy of being printed just on the basis of existing.

      Maybe I’m weird on that, but I do think it’s not the case that a three-day lag between the partisan blogosphere and the mainstream news media is not even a notable fact given that establishment’s long-observed posture with respect to stories originating in the blogosphere. (Not to mention the simple and pan-ideological tendency for news orgs not to want to quickly trumpet the fact that they’ve been scooped.)

      In my view, the media’s role right now at this very minute is to investigate this and see what’s there, and I don’t see where there is good reason at hand to doubt such investigation is underway. Given them the week to find the facts, and let’s see if there are not stories next week. If there aren’t and the allegations have not been definitively debunked in the blogosphere by then, then I would say it’s appropriate to start talking about a preferential burying. I know that’s one of Tom’s main general gripes, I’d submit that expecting orgs to blare headlines within three days after a more-or-less obscure law prof posts accusations based on private original research is a bit on the itchy-triggerish side of reasonable vigilance.

      YMMV.

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        • The issue being raised now is the timing – why they haven’t gone with it now, with the facts on the table now, three days after anyone, so far as I know, became aware of it (and props to the professor for his research!) not whether they go with this. It’s simply unknown whether they will – that depends on what the facts and legal applications turn out to be. Anything from the past you can point to simply won’t compare — there’ll inevitably have more than three days’ worth of backstory to whatever the MSM ultimately did with it.

          Now, if you believe you have an example that illustrates that these expectations about what the MSM should be elevating relative to new facts found by an independent blogospheric non-fraternity-member on a three-day turnaround window are based on established practice, I’m all ears.

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            • So the problem is just that partisan-branded corporate outlets haven’t picked up on a story that runs counter to their open, admitted, loudly trumpeted partisan (at least ideological) loyalties, and you admit that neutral-branded MSM outlets not having done so is not remarkable in any way? The partisan-branded media that would be inclined to pick this up early (Fox, etc.) did.

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            • And let me just get this clear: you’re pointing to examples of MSNBC being particularly moronic and gullible as examples in support of Tom’s desire that “the media” make more of this story now now now. Is that right? Like, this is what we should want “the media” to do? Be more like that?

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                • There’s openly partisan/ideological media and there’s media that claims not to be. I don’t see why we don’t want a menu that includes many instance of both things. The examples given so far are of openly partisan media acting openly partisan. I’m fine with that.

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  15. So, Here in Jacksonville they are arresting unlicensed contractors. I guess that if you are a “progressive” Democrat that practicing law without a license is “no big deal”.

    11 unlicensed contractors busted in joint raid by Jacksonville authorities
    The investigation began because people are often victims, police say.
    Read more at Jacksonville.com: http://jacksonville.com/news/crime/2012-09-24/story/11-unlicensed-contractors-busted-joint-raid-jacksonville-authorities#ixzz27h2U5xEf

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    • Did you read the article you linked to? These people weren’t arrested for building things without a liscence,. They were arrested out of an anti-fraud sting opperation. The crime they are accused of is making a low bids to perspective home owners, collecting deposit checks and then disappearing with the money – which is a very different thing, despite what the headline implies.

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  16. Pingback: Elizabeth Warren - Fake Lawyer? - Page 3

  17. Except that “NTC” only means “To Receive Notice,” not “Counsel of Record” (which requires the “COR” designation).

    http://www.pacer.gov/psc/faq.html

    Receiving notices, so that one can (perhaps) act as an expert consultant (which, by the way, no matter how much flailing people do, does not require a law license) does not a controvery make.

    Are we going to start claiming that summer associates engage in the illegal practice of law because they draft motions and memos and receive excessive amounts of compensation for their work? Many firms even bill clients for summer associate work. Is that the illegal practice of law?

    What about first year associates that begin working at firms prior to passing the bar. Are they engaged in the unauthorized practice of law because they draft deal documents, motions, briefs, client communications, and bill clients for all of the above?

    This is plain partisan silliness. Haven’t we all got something better to complain about? Let’s focus on her positions on policy and actual issues.

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    • Work by law students, paralegals, etc. is expressly covered by the Rules of Professional Conduct. That work is considered an extension of the supervising lawyer. See, e.g., MA ROPC 5.3. But you confuse the point. Unlike Ms. Warrne, law students, paralegals, etc. do not hold themselves out to be licensed attorneys. Their names do not appear as counsel in filings in a court.

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      • Which is why its important to remember that “NTC” only means “TO RECEIVE NOTICE.”

        There is a significant difference between receiving notice of filings and appearing as counsel of record. This isn’t the “smoking gun” that Jacobson is attempting to make it out to be. Lots of non-lawyers receive notice on PACER. Creditors in bankruptcies, for example, “receive notice.” Technical advisors receive notice. Mediators receive notice.

        The clerk entry doesn’t even indicate that she “appeared on behalf of” the party in that case. It merely states that she was “added” to the case. This also totally ignores the fact that she was licensed to practice law in New Jersey at the time of this case, and she was appearing in FEDERAL COURT. If she was admitted to the First Circuit, which . . . I can tell you from experience, most federal courts don’t allow you to appear unless you’re admitted, then none of this matters. I’m not licensed in New York, but I advise NY based clients regarding NY lawsuits dealing with the interpretation of NY law in NY federal courts *all the time.* Jacobson is trying to manufacture a controversy where none exists.

        Furthermore, as you so rightly pointed out, summer associates, first year associates, even partners (that transfer to a new jurisdiction, and are awaiting admission . . . which in some instances, can take over a year) are not in violation of the rules (or laws) against UPL because there’s always someone there “supervising” and “signing off” on their work. Law professors that provide expert consultant services on legal issues are not violating ethical rules or state laws against UPL. General Counsel who are licensed in one jurisdiction and working in the law offices of their corporation in another are generally not in violation of UPL statutes and rules.

        This is a manufactured controvery by an attention-seeking partisan. Nothing more. Given all the important issues that our elected officials are facing (e.g., the economy), there are much more important criticisms to be made against both candidates. The hand-flailing over this non-issue is, quite frankly, incredibly stupid.

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        • Is this use of “NTC” some odd 1st Circuit practice? Every time I’ve seen it, NTC means that an attorney is appearing as counsel (albeit not COR) for a client, and it obligates other parties to provide that attorney with notice (i.e., it’s not sufficient to simply serve the counsel of record).* I’ve never seen someone’s name on a filing with NTC when they weren’t appearing as counsel for a party.

          *This can be very important in bankruptcy, where the notice lists can be as long as your arm.

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  18. The legal brief in question was filed in a NJ court, not MA court, and she was a member of the bar in NJ.
    That is “practicing law in NJ” the same way as it is if you are on vacation in CA and file a brief in NJ.
    Practice does not require residence. (Presumably many NY lawyers live in NJ and vice versa.)

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    • That depends on when the brief was filed. If she filed it after she was no longer authorized to practice law in NJ (not “inactive” in NJ — there is no such thing, you are either authorized to practice law or you’re not), then she has a big problem. That she was once admitted there years and years ago is not the point. She has to be currently authorized to practice law in NJ when the brief was filed if she is listed as one of the attorneys of record.

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  19. Assuming that she had been properly admitted to the First Circuit to argue this matter, are you saying that she was violating MA’s UPL rule even despite this? Because, uh, it seems to beggar the imagination that you could correctly represent someone in an appellate matter in front of a circuit court, and then get dinged for UPL by the state bar. Especially considering that SCOTUS has found before that federal courts are the arbiters of who can appear before them, and that their rules preempt state rules and laws.

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  20. Those claiming this to be trivial fail to understand the matter.

    No matter the outcome of the case Warren argued, Warren’s client will ultimately have to sue her:

    If her client won the case the opposing party can move for a mistrial. Warren’s client will then sue her. Add to that the insurance coverage of Warren’s client against litigation, almost certainly requiring defense by an attorney of the jurisdiction, and she has herself an incredible mess.

    Or if her client lost they can sue her for ineffective assistance of counsel.

    This will likely be covered by malpractice insurance.

    Which brings up another issue: if she has malpractice insurance she had to affirm that she was admitted to practice law, otherwise they never would have covered her. Ultimately they, too, will sue Warren for fraud.

    What she did is also illegal under the criminal code and could result in criminal prosecution; jail, fines, community service, probation.

    Further, the legal profession has their own ethical code of conduct. I’m certain her actions violate that code. That code is enforced by the Supreme Court of that state. Her punishement could include disbarment, fines, suspensions, ect.

    The Supreme Court will not look at this as “it was easy to comply with but you didn’t, therefore the punishment should be light,” they will see it as the opposite. If it was so easy to comply then you are more negligent for not complying than if the requirement were difficult.

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    • This only applies if she appeared in MA state court, and even then only if she wasn’t admitted pro hac vice or affiliated with another, MA, attorney.

      The comments to the MA ROPC specifically note that the prohibition of establishing of an office refers to establishing one for the purpose of practice in that jurisdiction.

      “[4] Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. 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.”

      http://www.mass.gov/obcbbo/rpc5.htm#Rule 5.5

      I mean, if we find out that her NJ license was inactive during the period where she appeared as counsel of record for someone in federal court, there might be something here. But there’s no evidence that it’s ever happened.

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      • Again, it is a question of timing. When was she no longer authorized to practice to NJ? There is no “inactive status” for NJ attorneys (special exception for military and retired). You are either active and authorized to practice law, or you are not authorized to practice law, period. She submitted an official resignaton just 2 weeks ago, which, as another poster noted, simply has the cosmetic effect of hiding her previous status on the NJ Bar website. My guess is that she failed to pay her NJ Bar dues years ago (not saying it’s true, just a guess) and lost her license then. Of course, she says she resigned because of the new NJ minimum continuing legal education requirements. That is laughable! NJ lawyers must now complete 24 hours of MCLE over a 2-year period. This is not hard! It’s over 2 years, for Pete’s sake, and you can do much of it on-line. Rich, fancy lawyers often do it in one shot in a weekend at a fancy resort. Assuming that she was now subject to the MCLE requirements–and, remember, she would not be if she lost her NJ law license years ago–she could easily have satisfied those requirements AFTER the election.

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        • Karen (great posts btw) it is even more ridiculous when you consider that as a LAW PROFESSOR she could have received a factor of ten time credit for Giving a CLE course! I finally got ahold of my (retired) law professor friend and he finds this whole thing laughable. He’s in his eighties and is STILL asked to give CLE’s. Her “excuse” is specious at best.

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          • Not quite – it’s a 2:1 credit for teaching that NJ permits. That credit only applies to teaching approved CLE courses as well, and a course can only be approved if you’re teaching lawyers. Since she lives in a non-mandatory CLE state, she’d likely also have to teach the CLE course within the physical borders of NJ for her to get any credit for it. But as I explain below, the fact that she lives in a non-mandatory CLE state means that she could have done all of her credits online.

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            • Hmm, my state is 10:1 based on attendance (I suppose to encourage lawyers prepping and doing a good job teaching each other). The point remains that she had no excuse. Furthermore she could have /led/ a junket in NJ as a visiting Hahvahd professor and charged up the wazoo for the task AND received 2:1 CLE credit.

              I seem to recall people saying that a recent presidential candidate wasn’t really a “doctor” because he was no longer licensed to practice medicine and making a big deal about it. But since he had an (R) after his name I am certain the argument had considerably more validity, notwithstanding that he by no means was assisting in operations, nor giving consult, nor collecting fees for doctoring work. YMMV

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        • Karen: Her MCLE excuse is plausible, although I think it does certainly carry with it some additional issues that are political liabilities for her, even if it’s easy to see how it happened.

          Someone located out of state, who isn’t a regular reader of the NJ trade publications and tends to ignore what is often junk mail from the state bar could have easily missed the changes to NJ’s CLE policy (which was previously non-existent for attorneys who had been admitted for more than 3 years). The new policy is comparatively confusing, as well – a certain number of credits have to be “live,” which NJ defines pretty narrowly (even if you’re attending a session in-person, videotaped or even simulcast programs don’t count). In addition, since Warren lives in Mass., which is one of the few states without a mandatory CLE requirement from what I can tell, no “live” program she attended in MA would have counted.

          On the other hand, since she lives in a non-mandatory CLE state, she would have been entitled to do every single one of her 24 hour credits online if she so desired, which isn’t exactly difficult, even in the midst of a Senate campaign.

          Still, it would not be altogether surprising if she simply neglected her CLE requirements until she got a notice of a pending administrative suspension (which she wouldn’t have been able to toss away under the belief of it being junk mail since it would have been pretty conspicuous), giving her the option of resigning or certifying compliance within a fairly short period of time, and opted to resign. Heck, she may well have gotten to the point where she actually was administratively suspended (I’m not sure if there’s typically an additional grace period once a notice of suspension is sent out), which would have been politically toxic, and as a result resigned her license.

          In other words, her excuse is plausible, and if true would help (though not necessarily vindicate) her UPL defense, but it still likely reflects quite poorly on her.

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  21. In addition, a few areas of law, such as patent law, bankruptcy, or immigration law, are mandated by the U.S. Constitution to be strictly under federal jurisdiction. In this case, state courts and bar associations are not allowed to restrict the practice of that field of law. Thus, these attorneys may freely advise clients as to these matters anywhere in the jurisdiction of the United States without regard to state court or bar association rules

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    • First, you are confusing the question, and second, your last sentence is simply not true. Yes, certain areas of law, like bankruptcy, are preempted by federal law. But preemption doesn’t negate a state’s power to regulate who can practice law — whether federal law or state law — in that state. Moreover, federal district courts (by extension, their associated bankruptcy courts) usually require attorneys to be in good standing with the bar of the state which the district court serves in order to practice before that district court. See, e.g.,
      http://www.mad.uscourts.gov. If the attorney is not in good standing with that bar, he/she may be allowed to appear with another attorney who is in good standing, but that must be done by prior pro hac vice motion to the court. Again, that is by motion to court — an attorney who is not in good standing with the respective state court does not simply say add his/her name to the federal court paper.

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    • Indio007–mine is on my office wall. feel free to stop by. I have been in and out of many “Guilds” over the years, but have always maintained my licensed, issued by the state supreme court.

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    • As a risk manager that has several attorneys for clients I can tell you that there absolutely is such a thing; it must be obtained before practicing, and continuing education must be verified before renewal (plus fees paid of course). Each state has its own requirements, but I certainly unaware of any state that allows practice without such a liscence.

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    • Mine came in the form of very pretty certificates, also suitable for framing. The Guild’s card is not the same thing but serves as a stand-in. The Guild is pretty good about making sure you have the license before they give you a card.

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  22. Sounds like you shot before you aimed.

    But you did your job: this “update” will not be repeated by the liberal websites and pundits who cited your previous post “far and wide” to defend Fauxcahontas.

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    • Sounds like you shot before you aimed

      You meant this comment, of course, for Jacobson, who throw so much against the wall before any of it even began to stick.

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  23. A Federal Court simply will not accept anything from an attorney who has not been “admitted” by that Court, regardless of their status with the particular state they’re in.

    From http://en.wikipedia.org/wiki/United_States_district_court#Attorneys

    In order to represent a party in a case in a district court, a person must be an Attorney at law and generally must be admitted to the bar of that particular court. The United States usually does not have a separate bar examination for federal practice (except with respect to patent practice before the United States Patent and Trademark Office). Admission to the bar of a district court is generally granted as a matter of course to any attorney who is admitted to practice law in the state where the district court sits.[note 3] Many district courts also allow an attorney who has been admitted and remains an active member in good standing of any state, territory or the District of Columbia bar to become a member.[14] The attorney submits his application with a fee and takes the oath of admission. Local practice varies as to whether the oath is given in writing or in open court before a judge of the district.

    If you want credibility with reasonable people, you ought to check your facts first.

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    • You are correct, and so was I, although perhaps I should have used the word “generally” instead of “usually” in my prior post regarding what federal district courts require. Each district court decides its own standards for attorney admission. For example, in the federal Western District Court of Texas, an attorney may be admitted if he/she is admitted and in good standing with any state bar. See Local Court Rule AT-1. http://www.txwd.uscourts.gov/rules/online/at/at-1.pdf. But for the District Court of Massachusetts, admission is limited to those attorneys who are admitted and in good standing with the Massachusetts state bar, and only the Massachusetts state bar. See Local Rule 83.5.1(a). http://www.mad.uscourts.gov/general/pdf/LC/LOCALRULEScombined.pdf
      In my experience, the MA rule is more common among the districts than the WD-TX rule. I believe federal circuit courts follow the TX rule. But regardless, this all begs the core question, which is this: When was Ms. Warren last in good standing with ANY state bar (not just admitted, but in good standing, which is maintained by paying the dues and fulfilling all other requirements like MCLE)? When she was no longer in good standing with any state bar, she could no longer practice law. Please save me the artificial distinctions that merely dispensing legal advice is not practicing law, or that bankruptcy is a preempted federal field of law, or that she associated herself on cases with other lawyers who were in good standing.

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  24. Wikipedia is an excellent source of information on uncontroversial facts, such as how attorneys are “admitted” to practice before Federal Courts (State courts are different).

    Oh, I forgot, the real world often conflicts with the “reality distortion field” of many right-wingers. And the opinion polls are now unfair to Republicans because they find more Obama supporters than Romney supporters based on demographics weightings developed from the reams of numbers put out by those radical leftist U.S. Census analysts.

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    • Wikipedia may be useful as a starting point for research, but it is not reliable and should not be cited as a source of legal authority. I learned that through my real world experience as an attorney practicing in federal court. :)

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  25. It seems like it was a federal appeals case in which she appropiately filed in the states where she was licensed. Federal court is just that, Federal! It all seems like a scam anyways! So, you have to pay each state that you practice in. It is just another nonsense fee that each state pulls out of its citizens. There is a fee for everything!

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  26. The question no one can obtain an answer to is this one:

    It is established above that in order to be admitted to practice before SCOTUS, one must present evidence of good standing/membership in a state bar (i.e., active licensure).

    So, on Elizabeth Warren’s application for admission to SCOTUS, where did she assert active, good standing licensure?

    And the follow-up: When one’s good standing/membership status changes in the meantime (i.e., license expiration or inactivity), does one still have the right to continue representation before SCOTUS? I doubt it.

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  27. A few thoughts on developments:

    1. As long as EW remained active (i.e., authorized to practice and not ineligible) in NJ until 2010 or so, I think all we have are technical violations at most (malum prohibitum vs malum in se). There may be political points to be scored re: these technicalities but I’m not offended as a lawyer by her behavior.

    2. EW needs to clarify that she was active (i.e., authorized to practice and not ineligible) in NJ until recently. Surely a member of the press with access can demand a clear answer to this question?

    3. I am offended by the idea that an attorney might gain federal court admission on the basis of state bar admission and let that state bar admission lapse or go inactive but continue to practice before the federal court. Tribe’s hypothetical of an inactive CA lawyer practicing before the Supreme Court offends me (even if technically permitted by Sperry – which is not clear if state law issues are implicated).

    3. Part of what offends me regarding point 3 is that I don’t see anything on the Supreme Court website regarding complaints from clients, reporting attorney misconduct (maybe I’m missing something?). It doesn’t seem that the Supreme Court is an effective regulator … where does a client direct complaints regarding an attorney who is admitted only to the Supreme Court?

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  28. Mr. Thompson,

    I left a comment on Professor Jacobsen’s site which was quickly removed, but I’d like to raise a couple of questions in the hope that you might consider them, and if valid bring them to the attention of a wider audience.

    First, on my reading there is no evidence she entered an appearance as Jacobsen claims. She was only added as an attorney to the case. In fact, if you read the docket, it is Charles Nesson who makes the appearance, and he is licensed to practice in MA. Additionally, Jan Schlichtman and Nesson are listed as Counsel of Record. Given that at this point, Schlictman had already lost and was now appealing to have the case heard en banc, and given the initial ruling it was likely the case would eventually be appealed to the Supreme Court, where cert was denied, it is not surprising that one would want to involve an attorney who might play a more active role at that stage. There is no mention of Warren’s name in the entire docket except for this addition as counsel, and unless I am reading it wrong, no evidence she actually attempted to appear (whereas there is note that Nesson, does appear).

    Now, Mrs. Warren clearly would’ve been allowed to take such a position, act with significantly more latitude and potentially even appear in a purely Massachusetts case after 2007 via Rule 5.5 (c)(1). Prior to that, it is a bit less clear, but we still do not have a concrete example of what she did in relation to this case which would elevate concern. I have not seen any case precedent which states that in 2002 advising on specific federal issues would have constituted UPL. Mr. Jacobsen references a purely Massachusetts case which discusses the rule at the time and that opinion notes how vague and undefined the definition of practicing law was, even pointing out the consideration of modifying rule 5.5 to be consistent with the ABA which was ongoing at the time. In fact, the opinion noted it was an issue of first impression (the issue at hand in the example case was participation in an arbitration proceeding; potentially more dangerous since the arbitration was conducted at the order of a State Court, not Federal) suggesting this discussion of the law at the time is hardly exhaustive or conclusive. Given that I’m not even sure I can parse what the accusation stemming from Warren’s participation in this case would be.

    But this all assumes a Massachusetts State case, subject to Massachusetts Law. Being added to a case that was once in State Court once it is in Federal Court simply cannot be construed as unlicensed practicing of law without serious logical error, and Mr. Jacobsen makes that leap with little substantiation. Such an accusation relies on an implicit equivocation in the use of the word “law.” We often use law in a general sense, but a State simply does not have the power to regulate practice of law in a general sense ([non-state] law). They regulate the legal practice as it relates to State law. Even if the issue was at one point a State issue which affected the interpretation of State law giving Massachusetts an interest in regulating those practicing law, is it realistic to assume that the Supreme Court would accept that any lawyer arguing a case before them would need to be licensed to practice in the State where the case originated? That fails basic logic, as well as common practice.

    As long as she was admitted to the First Circuit, I do not see the issue raised by this “bombshell.”

    To me, there needs to be a clear cut example where she participated in a Massachusetts matter without exemption or allowance, and with clear precedent establishing the specific action as constituting the improper practice of law.

    Absent this, Jacobsen’s attacks are nothing but a Rovian attempt to turn a political candidate’s strength into their weakness. While I understand an unwillingness to defend her absent more information, you also do not need to accept the accusations of Mr. Jacobsen and others as meritorious or deserving of response. I can claim that someone is a racist and a dinosaur, but without any evidence of that a 3rd party approaching my claims as potentially valid unfairly adds fuel to the fire. So far the accusations are speculative and presuming impropriety rather than showing direct evidence of it. They show the opportunity for UPL, but that is not direct evidence itself of UPL.

    If Mr. Jacobsen produces a solid piece of evidence, I’d be happy to ask Warren to be more forthcoming, but so far he has not. He commits numerous logical fallacies, misreads documents (or omits relevant sections that do not support his position) and seems to be at the least suffering from a form of confirmation bias.

    My opinion over at LegalInsurrection has been completely suppressed, with my comments being deleted without note or response. However, his post this morning did re-focus on events prior to 2007, suggesting he at least read my comments that the revised Rule 5.5 explicitly permits her to maintain an office.

    I had two other brief points: 1) The purpose of maintaining the office is for the teaching of law at Harvard University, not for the practice of law. If the practice of law is incidental and or merely a consequence of the requirement of her employment, you cannot construe it as systematic and continuous for the practice of law. 2) It is unclear to me whether exemptions for your employer or your employer’s organizational affiliates existed in Rule 5.5 prior to 2007. If they did, Harvard has quite a number of organizational affiliates. I would love to read a copy of the Rule as it existed in its entirety circa 2000; or even earlier.

    I’d be curious if you have any thoughts on this.

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    • Thank you for the comment, and I am saddened to hear that your comments to the above effect have been deleted elsewhere.

      My feeling with all of this is that the above case makes it a much closer issue than it would otherwise be, taking an issue that would, at worse, fall on the periphery of UPL cases and making it something that at least has a strong potential to fall within the “core” of what constitutes UPL.

      Once she starts representing Massachusetts clients from a Massachusetts office in a case where Massachusetts law is at issue, even if she is not officially designated in the record as counsel of record, I think it starts raising a lot of potential questions that she needs to answer. For instance, for whom was she working? Was she just brought on as a consultant to the attorney of record, or was she being paid directly by the client? Was she advising the client directly, or under the supervision of the attorney of record? How did she come into contact with whomever hired her – was it just through word of mouth, or was she doing some kind of active marketing of her services? These questions are made even more important in light of the fact that she did not seek pro hac admission in the case. If she was just advising the attorney of record, who contacted her because he was familiar with her academic work (and/or work on the Bankruptcy Commission), then I think she probably falls outside most definitions of “practice of law”; but if she was advising the client directly and was hired as a result of active marketing on her part, then it would be tough for me to say that she was doing anything other than “practicing law in Massachusetts.”

      Moreover, with evidence of at least one Massachusetts-based client, how many other Massachusetts clients did she represent or advise?

      Beyond that, I agree that Jacobson has made a number of other arguments that are IMHO weak and can be dismissed fairly easily (for instance, there are a number of cases where she was hired as a consultant by the attorneys for either the trustee or the creditors’ committee in a bankruptcy, not the trustee or creditors’ committee itself; advising an attorney is not, in my mind, the “practice of law” in any meaningful sense). But whatever his motivations, this particular argument of his has some real merit that warrants further investigation and demands answers from Warren herself.

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      • Thank you for your response. I would have replied sooner but had an unanticipatedly busy day.

        I theoretically understand the issue of “representing Massachusetts clients from a Massachusetts office in a case where Massachusetts law is at issue” but what I don’t understand is why Mr. Jacobsen, and you, view this as what was going on in this case, or that if we accept that it is, that such a scenario is sufficient to require explanation. Perhaps you could help clarify this for me? Most clearly, why is he simply ignoring Federal Court’s original jurisdiction under 28 USC § 1332. It seems as though it is merely, convenient to his argument to suggest that this case need not have been tried in Federal Court. If Massachusetts never had jurisdiction over this case to begin with, how could she possibly, in this case, be practicing law in Massachusetts without a license, regardless of whether or not it pertained to a Massachusetts lien.

        Furthermore, I don’t know all the details of the case being appealed, but if there were bankruptcy issues involved which Mr. Jacobsen suggest, doesn’t that then give US District Courts exclusive jurisdiction? Was this original case subject to some form of exception which removed exclusive jurisdiction under 28 USC § 1334?

        Its possible I’ve missed something, but even if there were a legitimate question of Massachusetts law at stake / partial or concurrent jurisdiction, there were admittedly issues at play to which her expertise was relevant. While Massachusetts might then have a right to regulate her practice of law in relationship to that portion of the case, it certainly has no right to regulate, or even be involved in, her participation in other aspects of the case. To suggest otherwise requires an implicit equivocation on the word “law.” To Massachusetts, their definition of law cannot have any meaning outside their jurisdiction, so if my practice operates on “law” outside of their jurisdiction, I am not in fact practicing law without a license, though I am still practicing law in a more general sense. In order to question Mrs. Warren’s actions, you would need to show some evidence that she advised improperly and overstepped this threshold. The mere existence of her name on a docket is not evidence itself of any impropriety. The appropriate question could be, “Mrs. Warren what was your involvement in this case?” since this might create opportunity, but to allege “Mrs. Warren may have been practicing law without a license in Massachusetts— look at this case as evidence of this” as is what Mr. Jacobsen essentially asserts, is completely indefensible and unsubstantiated; it presumes facts not in evidence related to means and motive.

        Even without a response from Mrs. Warren, we can deduce some basics. She was apparently only a part of the case as of 8/8/01 once the case was not only a First Circuit Appellate case, but also being further appealed. She was listed as NTC Retained, not Lead Counsel, or Counsel of Record, plus the client was a licensed attorney in MA. In Mr. Jacobsen’s original accusation, he claims that this case was only in Federal Court because of diversity jurisdiction; but you can’t just disregard a component of the law when making a legal argument. He also admits there were legitimate bankruptcy issues at play, suggesting she had legitimate cause to be involved in the case. The lack of her making an appearance anywhere on the docket other than when she was noted as NTC Retained, is further evidence of not practicing law without a license (though its not clear to me she couldn’t have, and pro hac admission might’ve helped clear things up). Additionally, since it would have been so easy for her to get Massachusetts bar admission, what motive does she have to practice without a license? These components are not just neutral background, but circumstantial evidence which provide context and support the conclusion she did nothing improper. Only someone seeking to confirm a presupposition would think the possibility of a certain event occurring can be used as evidence of its likeliness.

        Similarly, I find the question of if she represented one Massachusetts-based client, how many others did she represent or advise irrelevant and specious. It is not (and more importantly was not at any point in her life) practicing law without a license to represent or advise Massachusetts-based clients on matters not subject to Massachusetts jurisdiction. We need a concrete example of a violation or questionable behavior in order to then question how many other times she did it. She could have advised or represented hundreds, or thousands of clients, and in my mind not crossed the line as long as she stayed out of Massachusetts Courts and purely internal state matters. As a thought experiment, I would hazard that one could operate a firm in Massachusetts which deals strictly with Supreme Court cases, and have no attorneys with Massachusetts licensing, and not be committing UPL (if this is an error with precedent, please correct me), as long as my clients were fully aware I could not advise them on local matters. This would beg the question, is there anyone out there who was represented or advised by Mrs. Warren who feels they were led to believe she could properly advise them on issues of Massachusetts Law? So far, I don’t believe we have been made aware of any, though of course this does not preclude the possibility.

        As a random aside, I’d like to point out that the fact that the First Circuit happens to be in Boston is a coincidence. If she were a Law Professor at Yale, and a client from Connecticut was appealing a decision to the Second Circuit in New York (dealing with a Connecticut lien), the accusation of practicing law without a license would be laughed at. And since you mentioned it, I’d like to point out that in this Schlichtmann case, it appears Mrs. Warren was doing little more than advising an attorney who was in part representing themselves. There is no evidence of fraud, there was no deception, and there was little to no potential for harm to the client. Again, if this case had been brought before the Supreme Court, would we really question her ability to argue this case? If so, then Jacobsen’s point holds water. If not, then we should dismiss his claims. If she advertised that she was available for federal appellate work, that isn’t UPL either.

        Here’s my problem with asking her to answer these questions: how many answers will be enough? How many cases will someone like Mr. Jacobsen raise questions about, and then you have set the precedent that you will respond to these questions. This sustains the story indefinitely. Then there becomes the opportunity for error in response which then becomes another story itself, another news cycle. And the myth continues with little or even no basis in reality. I think this issue is structurally similar to the Obama Birth Certificate “issue.” Some truly believe that Obama’s long form certificate was forged because when it was scanned and distributed, some clerk somewhere did not disable optical character recognition, making the document editable in Acrobat or Illustrator. A simple error, and a myth persists.

        I understand that as an attorney, you may have questions you would like answered to your satisfaction, and that as a legal professional and colleague, she owes you a certain level of accountability. But Mr. Jacobsen has touted your openness to the possibility there was malfeasance as both a suggestion that malfeasance was likely if not a fact and that random voters should have similar questions they should want answered before voting for Mrs. Warren. The problem with this perspective, is that while I do believe in holding our public officials to a higher standard, there is no possible answer to these questions which should allow the Senate to fall into the hands of what has become an increasingly reckless part of our society. Her platform, her public actions, her recent successes with corporate accountability, have won her a significant amount of credibility. Not as an attorney, but as a politician and a candidate for office. Your openness also ignores the context; that she has an opponent who will use any perceived weakness and portray it as an actual weakness. The questions you want answered can be answered whenever without significant harm, and even if there is nothing to hide, it is simply not worth the risk of an error in responding harming the direction of this nation for the next decade.

        I’ll leave it there, its a bit long winded, I apologize, more so if some part is incoherent or doesn’t make sense. I frankly did not realize the territory I was in when I posted over at Legal Insurrection yesterday. I had been linked through AboveTheLaw, and I’ve just really been floored by the legitimacy some of these claims are receiving. You appear to be one of the rational voices on the topic, so I appreciate you engaging me in a discussion.

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        • One thing to remember is that being admitted to practice in front of a court is just part of what constitutes “practicing law,” the definition of which the federal courts tend to leave to the states. Though I don’t have the time or ability to pull the cites right now, there is actually some case law that gets into this specific aspect of the dispute, which IIRC was pointed out by some of the commenters in my first post on the topic. Basically, the issue stems from the fact that state law issues are very often intertwined with issues in the federal court’s jurisdiction. This is quite often especially true in bankruptcy law.

          There is thus quite often going to be a set of options for the client to pursue in state court that a lawyer will have an incentive to steer the client away from if they are not actually admitted to practice in that state. Indeed, they theoretically wouldn’t even be able to advise the client of those state law options without engaging in the practice of law in that state. one may or may not find these to be good policy reasons (I actually don’t), but the courts and state bars do seem to interpret the rules in something approximating this manner.

          Obviously, lawyers advise clients about laws in states where they’re not admitted all the time without running afoul of UPL laws, and even did so before current 5.5. But the rationale for licensing regimes- consumer protection- doesn’t really work when you’re talking about out of state consumers and/or lawyers residing in a different state; certainly, the forum state has a harder time claiming jurisdiction over the attorney’s advice in such instances.

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  29. 5.5″(c) A 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”

    It seems like this would excuse her participation in a single case in Massachusetts. I haven’t seen any evidence so far that shows she was sole attorney for any MA cases, nor was she actively and continuously practicing law in this state. I’m not familiar in any way with the intricacies of law, but I would truly love to make as informed a decision as possible at the upcoming election. So, if you could provide any links you might have to relevant cases in which she worked alone in MA, I would be very grateful.

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