Has Elizabeth Warren Been Practicing Law Without A License?

Elizabeth Warren’s Senate campaign is, I think, going rapidly down the drain. On top of her affirmative action fiasco comes another scandal: it appears that she has been practicing law in Massachusetts without a license for some years.

Credit William Jacobson, who, like Warren, is a law professor, for the discovery. Jacobson has been one of the most effective members of the blogosphere over the last couple of years, and this story is a tribute to his dogged investigation. His initial post is here. Jacobson establishes that Warren is not licensed in Massachusetts, and never has been; that she is not currently licensed to practice law anywhere; that Warren repeatedly listed her Cambridge, Massachusetts office as her law office in court filings; and that Warren in fact practiced law out of her Cambridge office. If all of that is true, as seems incontestable, Warren has a lot of explaining to do.

It is important to note that Warren has done a considerable amount of legal work in recent years, and has been well paid for it. She was paid a fee by Travelers Insurance Company, to cite just one example, that was in the low six figures. So we are not talking about a casual, borderline situation. Warren indisputably is practicing law, and by her own repeated assertion, she is doing so in Massachusetts.

The Massachusetts Rules of Professional Responsibility treat this subject as the rules do in most states. Rule 5.5 addresses the unauthorized practice of law. Rule 5.5 (b) sets out the basic prohibition on practicing law in Massachusetts without a Massachusetts license:

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

Emphasis added. On the undisputed facts, it appears that Warren has violated this prohibition. She admittedly is not licensed in Massachusetts, and yet she has established a law office in Massachusetts–one which she has referenced on any number of appellate briefs, and in which she has earned a large amount of money. Absent an exception, she is guilty as charged.

Liberals have tried to defend Warren, but so far ineffectively. First they seized on a casual statement by a representative of the Massachusetts Board of Bar Overseers suggesting that Warren might not have done anything wrong:

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.”

Well, no–not merely by virtue of being a law professor. But that isn’t the claim with respect to Warren; the claim is that she carried on an extensive and lucrative law practice in addition to being a professor.

“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.”

It was inappropriate for Fredrickson to make these comments without knowing the facts; perhaps he is a Democrat and went overboard to try to help his party’s candidate. The reality, of course, is that Warren did not “dabble in the practice of law.” She earned hundreds of thousands of dollars practicing law in Massachusetts, and even argued at least one case in the United States Supreme Court while listing her Cambridge office as her only law office address. That is not, by anyone’s definition, dabbling.

Professor Jacobson contacted Michael Fredrickson, who backtracked rapidly:

Fredrickson stated that he did not purport to determine whether Warren violated the applicable law. He said he was just “speaking hypothetically” and not specifically as to Warren because “I know so little about Elizabeth Warren and her practice.”

I then explored various legal positions expressed in the MLW interview. Fredrickson said he did not mean to suggest that there was any different standard for law professors, or that maintaining an “office for the practice of law” under the Rule 5.5(b)(1) required that it be an office exclusively or primarily for the practice of law.

In short, Fredrickson’s opinion in no way could be deemed the position of the Board of Bar Overseers or a determination as to whether Warren herself complied with Massachusetts law.

One might think that Warren could speak for herself; she is, after all, a law professor. But this is the best her campaign has come up with so far:

Warren, who successfully argued the asbestos case before the Supreme Court, said in a statement Monday that she never claimed that she had a law license in Massachusetts or “hung out a shingle” there.

So she admits she doesn’t have a Massachusetts license. As for never claiming that she “hung out a shingle” in Massachusetts, this is simply false, as she has signed any number of briefs, including briefs in the United States Supreme Court, with the address of her Massachusetts office.

Warren has a license to practice in federal courts and the Supreme Court and never broke any laws, according to her campaign.

This really is an admission of guilt. There is no such thing as a “license to practice in federal courts and the Supreme Court.” Only states issue licenses to practice law. One can be admitted to practice in a particular court, state or federal, but that admission must always be predicated on first being licensed to practice in one or more states. I know all about this, as I have handled cases in 17 states and have been admitted to practice in any number of federal district and appellate courts. You cannot be admitted to practice in any federal court unless you first affirm that you are licensed to practice, and are in good standing, in a particular state.

The fact that the Warren campaign tries to confuse this issue, relying on the ignorance of the average reader, is an admission that Warren has no valid argument in her own defense. It would be interesting to track down the filings that Warren made with the U.S. Supreme Court and various other federal courts to see what she said about being licensed to practice law. My guess is that she never referred to Massachusetts, but rather claimed to be licensed either in Texas or in New Jersey, where she was, in fact, licensed at one time. Those licenses would enable her to practice in New Jersey, or Texas, but they would not allow her to practice law out of an office in Massachusetts.

Other liberals have advanced far-fetched arguments in Warren’s defense. A site called The League of Ordinary Gentlemen cites Rule 5.5 (d)(2):

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.

Well, sure: that provision merely says that it is acceptable to practice law in Massachusetts to the extent that such practice is authorized by a federal statute or other applicable law. The Comment to this section adds:

Paragraph (d)(2) recognizes that a lawyer may provide legal services in this jurisdiction even though not admitted when the lawyer is authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent.

This section is one that frequently applies to my own law practice. I provide legal services in jurisdictions where I am not admitted to practice all the time, under the pro hac vice rules of the local state and federal courts. Under those rules, I can apply to practice in the courts of other states, including Massachusetts, as long as I am licensed and in good standing in Minnesota, and agree to abide by the ethics rules of those states. But you can’t practice under pro hac rules in the state where you reside, and no one claims that this exception applies to Elizabeth Warren’s practice in Massachusetts. So the question is, what “federal law or other law of this jurisdiction” would allow Warren to practice law in Massachusetts, even though she doesn’t have a Massachusetts law license? Neither she nor her supporters have suggested any such law that might apply.

Maybe someone eventually will come up with a plausible theory on which Elizabeth Warren has not been practicing law illegally in Massachusetts for some years, but so far no one has advanced any such theory. Criminal penalties apply, I believe, to the unauthorized practice of law in Massachusetts, as in other states. Meanwhile, Massachusetts Democrats may be looking back longingly on the days when Marsha Coakley was their Senate candidate.

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