Elizabeth Warren law license flap

by Walter Olson on September 26, 2012

John Steele at Legal Ethics Forum and Mark Thompson at League of Ordinary Gentlemen don’t see much substantiation to back up the allegation lodged by some critics that the Harvard professor and Senate candidate, who doesn’t have a Massachusetts law license, overstepped the rules on unauthorized practice of law in her consulting work.

Update: Thompson is now taking the allegations more seriously based on new information unearthed by William Jacobson at Legal Insurrection about Warren’s representation of a Massachusetts client on issues arising from Massachusetts law. But John Steele at Legal Ethics Forum does not find the representation as described (in a federal bankruptcy court) to raise UPL flags. For one state’s view on whether admission to practice before a federal bankruptcy court is a valid defense to charges of UPL concerning state-law issues ancillary to that practice, see also In the Matter of the Reinstatement of Mooreland-Rucker, Oklahoma Supreme Court, 2010 (thanks to a reader for the tip). More: Bader.

{ 16 comments }

1 John Rohan 09.26.12 at 9:01 am

Actually, William Jacobsen at Legal Insurrection has a very strong rebuttal to the points made above:
http://legalinsurrection.com/2012/09/no-mass-board-of-bar-overseers-has-not-exonerated-elizabeth-warren/

2 D.C. Lawyer 09.26.12 at 10:08 am

Actually, Elizabeth Warren probably did violate the rules against unauthorized practice of law. Just because you don’t practice in state court, but rather federal court, doesn’t mean you can avoid getting licensed in the state you work from.

I once worked for a law firm that took the position that Steele and Thompson seem to be taking, for years, regarding analogous D.C. bar rules. Since we only practiced in federal court, we took the position we didn’t need to be admitted to the D.C. Bar.

Then the D.C. Bar and federal judges in D.C. started cracking down on people like us, so we belatedly sought admission to the D.C. bar. People like Judge Paul Friedman of the U.S. District Court for D.C. started blocking lawyers from appearing before him if they weren’t admitted to the D.C. Bar.

The bar sat on my boss’s application for years, without approving it, no doubt due the unauthorized practice of law issue. I suspect they wanted to punish him for his past unauthorized practice of law by denying him admission.

But they let me in, perhaps because I moved to another law firm that handled even more specialized cases arguably exempt under the rules. (A big-name law firm whose lawyers’ politics were more similar to those running the D.C. Bar than my old non-profit law firm).

Then my ex-boss cited the fact they let me in to get them to let him in, based on the argument that doing otherwise would be discrimination against him, since the bar let me in without punishing me for prior unauthorized practice of law.

Otherwise, he probably would have been denied admission to the bar, and been forced out of the practice of law in D.C. All for doing what Elizabeth Warren did.

We were lucky. We could have been punished for doing what Elizabeth Warren did. But we weren’t.

3 John Steele 09.26.12 at 1:39 pm

DC Lawyer, thanks for that comment.

My argument is that *so long as Warren has complied with federal admission rules* the Massachusetts rule both doesn’t matter (because of preemption) and doesn’t cover her conduct (under the terms of the rule itself) regarding those federal appearances.

Your example is one where a federal court apparently decided to deny admission to people who didn’t have their DC license. Federal courts and agencies sometimes require an active state license for admission to federal court, but not always. Apparently that court did. That is consistent with my argument rather than contradictory of it.

And notice that I’ve conceded that for the argument to work as to Warren, she’d have to have gotten all her federal admissions done correctly. I wouldn’t bet money on either side of the question!

Finally, there is an argument about what’s called the “systematic and continuous” rule. I haven’t seen many cases anywhere that give a lot of guidance on that, and I expect that pursuing Warren would be a case of first impression that could go either way.

4 ParatrooperJJ 09.26.12 at 4:22 pm

Here’s another good post on the issue: http://www.powerlineblog.com/archives/2012/09/has-elizabeth-warren-been-practicing-law-without-a-license.php

I believe the main issue is that her office was located in MA and that’s where she was producing her work product, therefore that’s where she needs to hold a license.

5 Stu Van Tine 09.26.12 at 10:07 pm

She’s hiding behind an offhand comment from the head of the MA bar discipline agency that it might be OK for a law professor to “dabble” in law practice. The gentleman withdrew the comment when he heard the facts of the case. Her supporters are ignoring the withdrawal and sticking by the dabble defense. If she billed $200K for dabbling, she must have padded the hell out of her time sheets

6 D.C. Lawyer 09.26.12 at 11:04 pm

John Steele is mistaken. Warren was required to be admitted to the Massachusetts bar to practice in federal court from her Massachusetts office in the way that she did.

He writes in his comment above responding to me,
“Your example is one where a federal court apparently decided to deny admission to people who didn’t have their DC license. Federal courts and agencies sometimes require an active state license for admission to federal court, but not always. Apparently that court did. That is consistent with my argument rather than contradictory of it.”

The lawyers I discussed in my comment above all had “an active state license,” just not in D.C. My boss was admitted in two states, and I was admitted in two states as well. We just were not admitted in the jurisdiction we worked from (Washington, D.C.), and as such were deemed to be engaging in unauthorized practice of law.

We were required to be members of the D.C. Bar to practice in federal court under the D.C. Bar’s interpretation of its rules, and the interpretation of its rules by judges like Judge Friedman.

By analogy, Warren was required to be admitted to the Massachusetts bar to practice in federal court the way she did from her Cambridge, Massachusetts office.

7 John Steele 09.27.12 at 12:12 am

DC Lawyer, thanks again for posting.

As I’ve been saying, to see if Warren committed UPL, one of the things you would need to do is list all the courts where she practiced and see if she complied with the admission rules of that court when she practiced there. With all respect and collegiality toward you, given that you’ve been polite and helpful, it is not enough to argue by analogy based upon some court that denied admission to some lawyer at some time. We’d need to look at the local rules regarding admission of each court where she appeared. For example, some federal courts have taken the position that as long as you had some state license at the time you were admitted to that federal court you can keep practicing there even after your state license lapsed. And, for another example, what the USDC for the District of Columbia does with admissions does not bind the US Supreme Court. So if Warren was admitted to the SCOTUS court, the fact that she might be ineligible for the USDC for DC is not governing.

I’ve said all along that it’s possible that Warrren failed to properly secure admission into the courts in which she has practiced. But none of us can conclude that she practiced UPL at this point, based upon what her critics have been saying.

8 Xmas 09.27.12 at 12:17 pm

The way I’m seeing this, then, is she’ll be in deep trouble if she was counsel on a case going through any State’s court system. She’ll be safe on Federal preemption grounds on any Federal case, but the Massachusetts law on legal licensing makes it clear that you need to be part of the MA bar if your office is located in Massachusetts and you’re offering legal advice.

So the question is, “has Elizabeth Warren only worked on bankruptcy cases?” That is her area of expertise, and those are all handled under the Federal court system (I believe). It will only take a brief, bill, or other piece of paper in regards to some other type of case in any other state’s court system from her with her Massachusetts address to show she’s broken the law.

9 Walter Olson 09.27.12 at 2:56 pm

Thompson is now taking the allegations more seriously based on new information unearthed by William Jacobson at Legal Insurrection about Warren’s representation of a Massachusetts client on issues arising from Massachusetts law. (Thanks to a reader for the tipoff.)

10 John Steele 09.27.12 at 8:04 pm

I’ve tried to respond to the latest issue. At Legal Ethics Forum.

http://www.legalethicsforum.com/blog/2012/09/elizabeth-warren-and-upl.html

11 John Rohan 09.28.12 at 7:49 am

As Walter Olson pointed out above, apparently even Mark Thompson at League of Ordinary Gentlemen has changed his mind:

http://legalinsurrection.com/2012/09/elizabeth-warren-defender-with-this-bombshell-i-would-no-longer-view-the-case-against-her-as-weak/

12 Jack Wilson 09.28.12 at 4:08 pm

What is interesting to me as a non-lawyer is how complicated this issue seems to be.

13 bridget 09.28.12 at 4:34 pm

Massachusetts does not require all attorneys within its borders to be licensed, but it does unambiguously require all those who are serving “as counsel” or as “in house counsel” to be registered with the Board of Bar Overseers and to pay annual fees equal to the dues paid by MA-licensed attorneys. That provision applies regardless of the location of the client who is being represented; it is triggered when the foreign-licensed attorney opens up an office within the state.

So even if her NJ law license was active (we know she went “inactive” in Texas in 1992, despite probably not being eligible for that status), she still ran afoul of MA rules.

14 thufir_hawat 10.01.12 at 1:05 pm

Speaking only for Texas, an out of state lawyer admitted to the federal courts can practice in the federal courts if they are only applying federal law. For example, immigration, certain criminal statutes, tax, and patent/ip, do not implicate state law.

It becomes a little murky w/r/t bankruptcy where, for example, the Code provides priority but state law determines exemptions. Even more murky are the Code provisions that allow non-attorney bankruptcy petition preparers and administrative activities under 9010.

As a practical matter, however, the federal courts have taken the position that they can manage their own dockets (thank you very much) and don’t really need the intervention of the state unauthorized practice of law committees. See, e.g., UPLC v. Paul Mason & Associates, Inc., 46 F.3d 469, 472 (5th Cir.), where the Court held that what is the practice of law in Bankruptcy court is not determined by Texas law, but rather by federal law. So even if she “ran afoul of MA rules” and the state committee decided to seek an injunction, federal courts have shown a certain ambivalence towards being told how to run their dockets.

15 Doggerel 10.01.12 at 5:30 pm

Oh what tangled webs we create
when we seek to regulate

keep your lawsuit and your will
safe within the lawyers guild

Where’s your office? in which court
is your contract or your tort

If your practice crosses state lines
will you incurs their dues or fines

Split those hairs, quite pathetic
this we call, legal ethics

16 Hugo S. Cunningham 10.03.12 at 2:22 pm

There is a note of desperation in some of the Brown campaign’s recent attacks on Warren. He has more of the common touch than she does, but that may no longer be sufficient in a State leaning heavily toward Obama.

Brown has attacked Warren for negotiating, on behalf of Traveler’s Insurance, a $500 million dollar trust fund to handle asbestos claims in exchange for an end to lawsuits. Most Republicans would favor it– reasonable payouts to everyone who deserves them, rather than a handful of jackpot verdicts, leaving nothing but a bankrupt company for most legitimate claimants. But Brown is grasping at straws to parry Warren’s equally demogogic claim (resonating with Obama’s campaign) that our economic troubles would be over if only “Scott Brown and the Republicans” would stop shielding “billionaires” from being taxed their “fair share.”

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