Has Elizabeth Warren been practicing law without a license?
5 Answers
The Massachusetts Board of Bar Overseers has not taken any official action at this point. From the Massachusetts Lawyers Weekly (http://masslawyersweekly
But clearly there's some room for interpretation in the wording "establish an office ... for the practice of law."
(Note: Answer originally read "The Massachusetts Board of Bar Overseers apparently doesn't think so." Corrected to reflect the fact that Fredrickson was not speaking in an official capacity.)
Rule 5.5 of the Massachusetts Rules of Professional Conduct states that an attorney cannot, without a license to practice in Massachusetts, “establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.” It also states an attorney cannot, without a license, “hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.”
Michael Fredrickson, general counsel for the BBO, says he does not believe a law professor would be considered to have “a continuous presence” or “an office practicing law.”
“If they actually practice here – as some part-time law professors at some of the smaller schools do – they might,” Fredrickson says. “But being a professor at one of the large schools, their office is a professor’s office, and the fact that they tend to dabble in the practice of law doesn’t run afoul of our rule. I don’t think Elizabeth Warren would fall within that, such that she would have to register here.”
But clearly there's some room for interpretation in the wording "establish an office ... for the practice of law."
(Note: Answer originally read "The Massachusetts Board of Bar Overseers apparently doesn't think so." Corrected to reflect the fact that Fredrickson was not speaking in an official capacity.)
As best as I can determine, the answer to this question hinges upon which courts Elizabeth Warren represented clients in front of and how she obtained these clients.
Here are the facts as I understand it. She has never been admitted to practice in Massachusetts, that seems clear. At various times she has been admitted in Texas and until a few weeks ago New Jersey. This would allow her to practice law in state courts located in those two states even if she did not reside in those states (although some states require you to maintain an office in the state in order to practice there, Texas does not and these laws are often subject to challange).
She can also practice law in any federal court to which she has been admitted to practice. Generally in order to appear in a federal court you must either move to be allowed to appear pro hoc for a particular matter or be a member of good standing of the state where the federal court is located in which you seek to appear and then gain admission to that court. Where it gets tricky is there are loopholes and exceptions to this rule.
Now to the extent that the charge is that she engaged in the unauthorized practice of law in Massachusetts by appearing in federal courts elsewhere while located in Massachusetts , I find her not gulity based on these exceptions . One such exception is that simply preparing legal briefs in non-Massachusetts federal cases or providing advice on federal law while located in Massachusetts and maintaining a primary office in Massachusetts does not by itself constitute the "systamatic and continuous practice of law" in Massachusetts that would be prohibited, particularly when the cases involve matters of federal law only such as bankruptcy. While there may be outlier cases that dispute this, most of the cases cited in the various blogs that have discused this issue seem to support that argument. See for example Sperry v. Florida (1963) which clarified that the federal government can independently regulate who practices before it and states cannot enjoin such practice within their borders as the unauthorized practice of law. Various military JAG agencies and nearly all federal agencies will accept applicants licensed in any U.S. jurisdiction for attorney positions, regardless of the state/territory jurisdiction where the position is actually located. Because Warren limited her private practice to bankruptcy and the Constitution expressly guarantees federal authority over bankruptcy law, she's protected under the Supremacy Clause. The argument is also supported by Massachusetts Rule of Professional Conduct 5.5(d), which states that:
Thus as long as the cases in which she appeared in are entirely cases from the federal courts dealing with federal law , and indeed appear to be cases lying even outside the jurisdiction of the Massachusetts federal courts, the Massachusetts Rules of Professional Conduct appear to explicitly exempt Professor Warren’s actions in those cases from the prohibitions on the unauthorized practice of law.
However, Professor Jacobson also argues that Ms. Warren may have violated a prohibition on communications advertising legal services to prospective clients in Massachusetts by lawyers who are only admittied to practice in other jurisdictions. The question raised is whether listing the location of one's Massachusetts office in an official court filing in which one is otherwise properly authorized to appear can be properly construed as a communication advertising legal services to prospective clients in Massachusetts. Jacobson does not cite to any cases which support his view that asserts that an official court filing may constitute an “advertisement for legal services” merely because it lists the attorney’s Massachusetts office address. I would be very surprised if there were any since such an argument does not make much sense. Being a professor at a law school and listing your office address on a pleading would hardly make one think that you were running a full scale law practice out of your Harvard Law School office.
Jacobson claims that Warren was in fact doing just that, representing dozens of clients and earning huge fees all while running an office out of Harvard Law School despite never being admittied into Massachusetts. If in fact, Warren did exactly that, she might be in serious trouble as it could then be alleged that she maintained an office in which she was engaged in the systamatic and contunious practice of law in a state within in which she was not authorized to practice. That would violate the Massachusetts Rules of Professional Conduct. The problem is that the good professor is rather light on any actual facts let alone names and dates of cases wherein Ms. Warren allegedly did this. He mentions a few federal or Supreme Court cases but again these would seem to be covered by the loophole discussed above.
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 undefined but it seems clear that it means holding oneself out to the public in a manner that the public might interpret as a claim to being admitted to practice in Massachusetts. The emphasis in these type of rules is always on how an attorney holds herself out to the general public and potential clients.
To the extent Warren actively marketed her services in Massachusetts , she would thus have a clear problem but there is no evidence she did so. Rather it appears as if she simply accepted work from out of state clients in matters already pending in out of state federal courts that dealt with bankruptcy and other areas of exclusively federal law. Based on the facts as we know them, it’s difficult to argue that she was engaged in the “systematic and continuous” practice of law in Massachusetts. But that could change if we learn more about her cases and how she obtained her clients.
Here are the facts as I understand it. She has never been admitted to practice in Massachusetts, that seems clear. At various times she has been admitted in Texas and until a few weeks ago New Jersey. This would allow her to practice law in state courts located in those two states even if she did not reside in those states (although some states require you to maintain an office in the state in order to practice there, Texas does not and these laws are often subject to challange).
She can also practice law in any federal court to which she has been admitted to practice. Generally in order to appear in a federal court you must either move to be allowed to appear pro hoc for a particular matter or be a member of good standing of the state where the federal court is located in which you seek to appear and then gain admission to that court. Where it gets tricky is there are loopholes and exceptions to this rule.
Now to the extent that the charge is that she engaged in the unauthorized practice of law in Massachusetts by appearing in federal courts elsewhere while located in Massachusetts , I find her not gulity based on these exceptions . One such exception is that simply preparing legal briefs in non-Massachusetts federal cases or providing advice on federal law while located in Massachusetts and maintaining a primary office in Massachusetts does not by itself constitute the "systamatic and continuous practice of law" in Massachusetts that would be prohibited, particularly when the cases involve matters of federal law only such as bankruptcy. While there may be outlier cases that dispute this, most of the cases cited in the various blogs that have discused this issue seem to support that argument. See for example Sperry v. Florida (1963) which clarified that the federal government can independently regulate who practices before it and states cannot enjoin such practice within their borders as the unauthorized practice of law. Various military JAG agencies and nearly all federal agencies will accept applicants licensed in any U.S. jurisdiction for attorney positions, regardless of the state/territory jurisdiction where the position is actually located. Because Warren limited her private practice to bankruptcy and the Constitution expressly guarantees federal authority over bankruptcy law, she's protected under the Supremacy Clause. The argument is also supported by Massachusetts Rule of Professional Conduct 5.5(d), which states that:
“A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that…are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.”The Official Comments to Rule 5.5(d) further elaborate to make explicit that 5.5(d) permits such an attorney to have even a “systematic and continuous presence in [Massachusetts] for the practice of law as well as provide legal services on a temporary basis.”
Thus as long as the cases in which she appeared in are entirely cases from the federal courts dealing with federal law , and indeed appear to be cases lying even outside the jurisdiction of the Massachusetts federal courts, the Massachusetts Rules of Professional Conduct appear to explicitly exempt Professor Warren’s actions in those cases from the prohibitions on the unauthorized practice of law.
However, Professor Jacobson also argues that Ms. Warren may have violated a prohibition on communications advertising legal services to prospective clients in Massachusetts by lawyers who are only admittied to practice in other jurisdictions. The question raised is whether listing the location of one's Massachusetts office in an official court filing in which one is otherwise properly authorized to appear can be properly construed as a communication advertising legal services to prospective clients in Massachusetts. Jacobson does not cite to any cases which support his view that asserts that an official court filing may constitute an “advertisement for legal services” merely because it lists the attorney’s Massachusetts office address. I would be very surprised if there were any since such an argument does not make much sense. Being a professor at a law school and listing your office address on a pleading would hardly make one think that you were running a full scale law practice out of your Harvard Law School office.
Jacobson claims that Warren was in fact doing just that, representing dozens of clients and earning huge fees all while running an office out of Harvard Law School despite never being admittied into Massachusetts. If in fact, Warren did exactly that, she might be in serious trouble as it could then be alleged that she maintained an office in which she was engaged in the systamatic and contunious practice of law in a state within in which she was not authorized to practice. That would violate the Massachusetts Rules of Professional Conduct. The problem is that the good professor is rather light on any actual facts let alone names and dates of cases wherein Ms. Warren allegedly did this. He mentions a few federal or Supreme Court cases but again these would seem to be covered by the loophole discussed above.
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 undefined but it seems clear that it means holding oneself out to the public in a manner that the public might interpret as a claim to being admitted to practice in Massachusetts. The emphasis in these type of rules is always on how an attorney holds herself out to the general public and potential clients.
To the extent Warren actively marketed her services in Massachusetts , she would thus have a clear problem but there is no evidence she did so. Rather it appears as if she simply accepted work from out of state clients in matters already pending in out of state federal courts that dealt with bankruptcy and other areas of exclusively federal law. Based on the facts as we know them, it’s difficult to argue that she was engaged in the “systematic and continuous” practice of law in Massachusetts. But that could change if we learn more about her cases and how she obtained her clients.
Quora User, Born a blue dog Democrat4 upvotes by Claire J. Vannette, Michael Lee, Quora User, (more)Loading...
Maybe....
She may not have practiced law in any Massachusetts court - so she would not have need to be a member of the Massachusetts bar.
She appears to have practiced in Federal Cases.
That would require membership in a state bar or one in Guam, Puerto RIco, etc.
She used to be member of the Texas bar, but let that lapse.
She was member of the New Jersey bar.
Now, here is where it interesting.
On September 11, 2012 she resigned from the New Jersey Bar in a way that hides the details and dates of her past membership.
That's about two weeks ago.
From the Legal Insurrection blog...
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http://legalinsurrection.
Warren became licensed in New Jersey in 1977. She famously and speculatively claimed to be the “first nursing mother to take a Bar exam” in New Jersey.
Warren, however, is not currently licensed in New Jersey:
While the date of termination of her New Jersey license is not on the website, telephone inquiries to the New Jersey Board of Bar Examiners and the New Jersey Lawyers Fund For Client Protection indicated that Warren resigned her license on September 11, 2012 (one of the people remarked to me “that’s a memorable day”). It’s odd that in the middle of a campaign Warren would take the time to resign her New Jersey Bar membership, particularly since she would haveto retake the Bar exam to be readmitted.
Neither office in New Jersey could state whether her license was continuously active until her resignation because the computer only shows the current status, so I have made the request in writing as instructed. By resigning her New Jersey license earlier this month, Warren made it more difficult for the public to determine her pre-resignation status.
By all available information, Warren never has been licensed in Massachusetts, but at varying times has had active law licenses in Texas and New Jersey, although currently she is not licensed in either jurisdiction. It is unclear whether during the years she represented Travelers and others Warren was actively licensed anywhere.
I emailed the Warren campaign’s spokesperson, Alethea Harney, after the debate Thursday night requesting a list of all jurisdictions in which Warren was licensed to practice law. I requested that the information be provided by Friday morning specifically so I could include the campaign’s response, but I received no response.
*** *** *** ***
She may not have practiced law in any Massachusetts court - so she would not have need to be a member of the Massachusetts bar.
She appears to have practiced in Federal Cases.
That would require membership in a state bar or one in Guam, Puerto RIco, etc.
She used to be member of the Texas bar, but let that lapse.
She was member of the New Jersey bar.
Now, here is where it interesting.
On September 11, 2012 she resigned from the New Jersey Bar in a way that hides the details and dates of her past membership.
That's about two weeks ago.
From the Legal Insurrection blog...
*** *** *** ***
http://legalinsurrection.
Warren became licensed in New Jersey in 1977. She famously and speculatively claimed to be the “first nursing mother to take a Bar exam” in New Jersey.
Warren, however, is not currently licensed in New Jersey:
Neither office in New Jersey could state whether her license was continuously active until her resignation because the computer only shows the current status, so I have made the request in writing as instructed. By resigning her New Jersey license earlier this month, Warren made it more difficult for the public to determine her pre-resignation status.
By all available information, Warren never has been licensed in Massachusetts, but at varying times has had active law licenses in Texas and New Jersey, although currently she is not licensed in either jurisdiction. It is unclear whether during the years she represented Travelers and others Warren was actively licensed anywhere.
I emailed the Warren campaign’s spokesperson, Alethea Harney, after the debate Thursday night requesting a list of all jurisdictions in which Warren was licensed to practice law. I requested that the information be provided by Friday morning specifically so I could include the campaign’s response, but I received no response.
*** *** *** ***
Jim Gordon, Results speak louder than words, but ... (more) Results speak louder than words, but need to make no noise.2 upvotes by Quora User and Les Hartzman.
The Massachusetts regulation is vague and unspecific on its face -- It seemingly would forbid someone who is a lawyer from opening an office in Massachusetts for other reasons, such as teaching or practicing elsewhere.
If she is, where's the evidence? Is there a contract? Did she appear in court or file papers on the clients' behalf before a Massachusetts court? Lobbying or providing political or general advice is not practicing law. Teaching law is not practicing law.
There's nothing in the title of "leading conservative blogger" that requires us to take such statements or allegations seriously. Or more to the point, there's nothing in such a title that would cause us to hesitate for a millisecond in assuming politically-biased mud-slinging, pending verification of the facts.
If she is, where's the evidence? Is there a contract? Did she appear in court or file papers on the clients' behalf before a Massachusetts court? Lobbying or providing political or general advice is not practicing law. Teaching law is not practicing law.
There's nothing in the title of "leading conservative blogger" that requires us to take such statements or allegations seriously. Or more to the point, there's nothing in such a title that would cause us to hesitate for a millisecond in assuming politically-biased mud-slinging, pending verification of the facts.
Warren made five requests for compensation for services rendered May 2002 through January 2003, totalling $14,175, for “Professional Legal Services” which were described in detail in billing records attached to the requests, and included consultation and review of various motions. --------> So if Ms. Warren wasn't charging clients $675/hour for practicing law...what WAS she charging them for?
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