View Full Version : 1%'er lawyer had no license to practice law!

09-26-2012, 09:50 AM
<div class="ubbcode-block"><div class="ubbcode-header">Quote:</div><div class="ubbcode-body">Elizabeth Warren, who is running for U.S. Senate from Massachusetts and has taught law in Massachusetts for nearly two decades, may never have obtained a license to practice law there, and may be unlicensed to practice anywhere at the moment, new evidence suggests.

The surprise issue to emerge from last Thursday's Massachusetts Senate debate between incumbent Republican Senator Scott Brown and Democratic challenger Elizabeth Warren was Brown's charge that Warren's legal work for Travelers Insurance put her squarely on the side of the "one percent" she has attacked so vigorously throughout her campaign.

The Boston Globe reported that Warren was paid $212,000 over three years from 2008 to 2010 for "of counsel" legal work for Travelers in a case that the company won when it reached the Supreme Court in 2009. Travelers' attorneys persuaded the Court that their client did not have to pay a number of asbestos claims.

Now, as William Jacobson reports at Legal Insurrection, the Travelers Insurance issue may have legs.

Jacobson notes that, though Warren operated a law practice from her Cambridge office for more than a decade, she never obtained a license to practice law in Massachusetts.

Earlier in her career, Professor Warren was licensed to practice law in New Jersey, where she lived briefly after graduating from Rutgers School of Law in 1976, and Texas, where she lived from 1978 to 1987 while teaching at the University of Houston and University of Texas. In a 2008 resume, Professor Warren stated that she was a member of the Bar in both New Jersey and Texas. However, she is currently not listed as eligible to practice law in either state.
Breitbart News asked Jennifer Nash, the Communications Director at Simpson, Thacher, and Bartlett, the New York law firm that defended Travelers in its Supreme Court case and hired Professor Warren to act "of counsel" in their brief to the Court, to comment on Professor Jacobson's story, but we have not received a response yet.

Specifically, we asked Ms. Nash if she could tell us in which state Professor Warren had beenlicensed to practice law when she provided legal services to Simpson, Thacher, and Bartlett and Travelers Insurance.

Jacobson reports that Warren voluntarily withdrew from the practice of law in the State of New Jersey on September 11, 2012. That tactic merely prevents anyone from finding out when her eligibility to practice law in New Jersey ended.
Jacobson concludes his carefully researched article by stating that if Warren was practicing law from her Cambridge office, she violated Massachusetts law:
"[T]here is no authority which exempts from the licensing requirements an attorney domiciled in Massachusetts using a Massachusetts office but who offers legal advice and services only to out-of-state clients and as to non-Massachusetts law."

Jacobson notes that the Warren campaign has offered no comment on his report.
The Massachusetts Board of Bar Overseers grants law licenses to practice in the Commonwealth of Massachusetts and enforces penalties against attorneys who violate its rules. Breitbart News left a voice mail message on Monday with Karen O' Toole, Associate General Counsel at the Board of Bar Overseers for comment on whether the Board intends to investigate Ms. Warren's conduct, but has not yet received a response.</div></div>

HOLY HYPOCRITE BATMAN ... THIS CALLS FOR DOUBLETHINK TO DISMISS! (http://www.breitbart.com/Big-Government/2012/09/24/Does-Elizabeth-Warren-Have-a-Law-License-Problem)

09-26-2012, 10:53 AM
This is an issue almost perfectly ill-suited to discussion by us lay people. Apparently, having a law license or education doesn't much equip others to reach a definitive answer, because it's a vague area of the law.

Yes, the nuances are such things as what is the LEGAL meaning of the plain English phrases 'practicing law' or 'having a law office.' Nuances that you have shown yourself entirely unable to draw, from past difficulties with far less nuanced subjects.

So what we really are left with is popping the popcorn and watching the experts weigh in. Have they, on both sides?

Yep. This guy, the first author of the charge, is a credible expert, perhaps. (Not sure he's entirely up to speed on MASSACHUSETTS LAW, which is the factor in this case, but still, an expert, little doubt of that.)

And then you have these people disputing the charge, who are also experts:

<div class="ubbcode-block"><div class="ubbcode-header">Quote:</div><div class="ubbcode-body">In the wake of the controversy, Massachusetts Lawyers Weekly reached out to various experts to get their opinions on the matter. Let’s hear from the most important one first:

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 [Board of Bar Overseers], 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.”

That would seem to settle that. Such comment from the GC of the Massachusetts Board of Bar Overseers sends a pretty strong smoke signal that Warren is in the clear.

If that’s not enough for you, Mass Lawyers Weekly reached out to one of Warren’s most distinguished colleagues at HLS, Professor Laurence Tribe (a legal academic who practices a fair amount):

“The fact that Charles [Fried] and I happen to be licensed in Massachusetts is immaterial. That wasn’t the reason I could practice in the U.S. Supreme Court. I was an inactive member of the California bar as well, which was all that was needed,” Tribe says.

Tribe adds that Warren fully met all of the Supreme Court’s requirements for filing briefs and petitions with that court.

“This was not and could not be a violation of any Massachusetts rule,” Tribe says. “In fact, any state rule that interfered with a federal filing would be null and void under the Supremacy Clause of Article VI of the United States Constitution. Elizabeth complied with all applicable federal rules.”

So the general counsel of the Board of Bar Overseers and a leading light of legal academia both believe that Warren stands in compliance. It looks like she has dodged the arrow on this issue. </div></div> From the Above The Law legal blog (http://abovethelaw.com/2012/09/an-update-on-the-elizabeth-warren-law-license-controversy/)

Or not, your mileage may vary.

09-26-2012, 11:25 AM
In general, one would think the General Counsel to the Massachusetts Board of Bar Overseers would be more knowledgeable about Massachusetts bar practices than an associate professor of law from Cornell University (located in NY).

However, and be that as it may, if there is a real concern here, then there could be an official complaint filed with the MA bar, for their official response. For some reason, that has not been done here by the Cornell professor, although he would be able to do that.

But it may be actually quite clear why he has no case, and why he will therefore not file, to have the matter dismissed. And somewhat hilariously, the typical bar penalty for a grave offense is... disbarment. Which is hard to do to a person not admitted to the MA bar, no?

<div class="ubbcode-block"><div class="ubbcode-header">Quote:</div><div class="ubbcode-body">Here’s a good comment on Jacobson’s post from a Massachusetts lawyer, Edward Wiest:

If the work in question was confined to consulting with admitted counsel (e.g., attorneys for asbestos insurers), as long as Prof. Warren did not file a sole appearance for a client, nor provide services to “laypersons”, she would likely be within the safe harbor of ABA Model Rule 5.5 (c)(1), as adopted in the Massachusetts Rules of Professional Responsibility (permitting non-Massachusetts lawyers to provide “legal” services “undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter”.) Furthermore, _if_ Professor Warren’s work were limited to consultative services in the form of providing or guiding research and writing for trial/appellate/amici counsel, it would be little different from that of a “law student intern” permitted to assist an admitted attorney under ABA Model Rule 5.3, Comment [1], as adopted in Massachusetts.

IIRC, the scope of the activities of Haavaad law professors as more or less permanent consultants to one or several law firms (notwithstanding Harvard’s prohibition of its law faculty holding “of counsel” positions on law firm letterhead) has always been a source of bemusement/irritation to people inside and outside the Law School. If (for whatever reason), Professor Warren had ceased to be a member of any state bar, she should have received credit for her assistance to counsel of record by footnote (as customary for “nonlawyers”), rather than through “of counsel” credit on the cover of the brief (I doubt she would care as long as the checks cleared). I would hope that the limited resources I contribute to the Massachusetts bar disciplinary system would be directed to more serious threats to the public than this.

UPDATE (2:30 PM): There’s additional discussion of possible defenses over at the National Review Online (gavel bang: commenter). As one NRO reader notes, “The post indicates that this is a federal case. You do not need to be licensed to practice law in Massachusetts to practice law in federal courts located in Massachusetts or anywhere else. Federal courts decide who can practice before them, and individual states can’t tell federal courts that an attorney cannot practice before them.” </div></div>

Here (http://abovethelaw.com/2012/09/does-elizabeth-warren-have-a-law-license-problem/)

09-27-2012, 08:26 AM
Basically what you are saying in this defense is that you are fine with loopholes and getting around the rules as long as it is a (D), Warren. LOL, even when it is for those nasty 1%'ers. However, if a (R), let's say Romney, chooses to abide by the law and also take advantages of loopholes, well that is just plain horrible.

EDIT: Forgot to add my thoughts on the subject...As far as law is concerned, it is definitely as confusing as the IRS tax code. If she was abusing, lightly or not, her position as a professor but still working within the guidelines of the law/rules then fine, good for her. Take advantage as long as you can. The question I have is how does the university feel about allowing their staff to use University facilties to make money on the side? Do they require some sort of percentage paid back to the university? That would only be fair. I know every employer is different though and if I was using my laptop from work to make money on the side (especially any COI which this could easily be considered) I would be in trouble. Just wondering if all universities allow this and it is standard? Is it standard across all disciplines? Can a network engineer for the university use the university network to host his own profitable websites?

All these questions are moot if her side job was done for free.


09-27-2012, 08:39 AM
No, not at all. This wouldn't be a loophole, anyway. It would be the LAW concerning the practice of law and who needs a license in what situation.

I'm saying file a complaint if they want. Apparently, by some predictions, it will not fly, by the rules.

Which is why they will not file this. They get to claim an offense that wouldn't hold up, and never have to admit it wouldn't hold up (which would eliminate it as an issue, if officially ruled ok).

09-28-2012, 05:31 PM
It looks like Warren, the a liberal who acts as though the rules only apply to the little people, is in big trouble for practicing without a license. Of course, this wouldn't be the first time that a liberal get away with breaking the law and getting away with it, so we'll have to wait for the final verdict. Let's all hope she down for this.

09-28-2012, 05:37 PM
Big trouble?

From an out of state law professor's blog entry?

Not much trouble with that. That man has no enforcement powers.

09-28-2012, 05:44 PM
Just relaying the latest news from reliable sources.

http://www.americanthinker.com/blog/2012...aw_license.html (http://www.americanthinker.com/blog/2012/09/gamechanger_elizabeth_warren_practiced_law_in_mass achusetts_court_without_law_license.html)

09-28-2012, 06:33 PM
Still shamless ...

09-28-2012, 06:46 PM
I hadn't known of this latest development, which apparently came up yesterday or so.

Perhaps it is what you think it will be, and perhaps it isn't.

What do you think is the penalty for this offense, if real?

09-28-2012, 07:46 PM
<div class="ubbcode-block"><div class="ubbcode-header">Originally Posted By: LWW</div><div class="ubbcode-body">Still shamless ... </div></div>

Yes, and thanks for noticing I avoid shams. And ShamWows.

09-28-2012, 07:56 PM
<div class="ubbcode-block"><div class="ubbcode-header">Originally Posted By: llotter</div><div class="ubbcode-body">It looks like Warren, the a liberal who acts as though the rules only apply to the little people, is in big trouble for practicing without a license. Of course, this wouldn't be the first time that a liberal get away with breaking the law and getting away with it, so we'll have to wait for the final verdict. Let's all hope she down for this. </div></div>

Lots of heat and little light on the blogs.

Here's a comment I thought pertinent from one such blog discussion:

<div class="ubbcode-block"><div class="ubbcode-header">Quote:</div><div class="ubbcode-body">John L | September 27, 2012 at 4:35 pm

Of course no one has every fact and getting an airtight answer on something like this requires more care and attention than anyone just reading through a blog (or following a campaign) will be able to provide. But a few initial reactions:

1. In my experience most attorney misconduct charges are brought by people with litigation or political axes to grind and don’t involve conduct that even remotely could be thought to cause anyone any harm. This flap seems fully in line with that experience.

2. There is a lot of ad hominem here about the BBO guy as being part of some kind of liberal conspiracy, but his basic point that she doesn’t have a law office she has a professor’s office from which she sometimes gets involved in cases is highly plausible and not contradicted by anything here. Also, from what I can see she’s not lead counsel on these cases she is in a specialized or consulting capacity with lots of other folks on the case who are barred. So to the extent the input of a lawyer barred in the jurisdiction is needed she will have that.

3. I would not be surprised at all if law professors or others not in full time private practice (see point 2) are sometimes unaware of all of the ins and outs of all the practice rules. Look at Judge Griffith; he was GC at BYU and it turns out he wasn’t in good standing anywhere for 10 years. But he got on the bench and none of it was really seen as any big problem.

This just doesn’t seem like a big deal. No one in any of her cases seems to have raised any issue, even though as noted above litigation opponents often have similar incentives to try to make something out of nothing. </div></div>

Looking up the info on Judge Griffith, his conduct with regard to the legal niceties of bar membership for practicing law (as the General Counsel of BYU for years without a Utah bar membership or state licensure), while seemingly as or more outrageous than that alleged of Warren, finds nonetheless he was confirmed to a life time position on the federal bench as a W nominee, by a strongly bipartisan vote (including by a yea vote by then-Sen. Obama), while suffering no sanctions of any kind.

<div class="ubbcode-block"><div class="ubbcode-header">Quote:</div><div class="ubbcode-body">On June 14, 2005, the Senate confirmed Griffith by a vote of 73-24.[7] Twenty Democrats joined fifty-three Republicans in voting for Griffith’s confirmation. (Two Republicans and one Independent did not vote.) Democrats voting for confirmation included Barack Obama, Joe Biden, Minority Leader Harry Reid, and Minority Whip Dick Durbin. Despite earlier criticisms of Griffith, the Washington Post endorsed his nomination, noting that he was “widely respected by people in both parties” as a “sober lawyer with an open mind.”[8] </div></div>

09-29-2012, 01:19 PM
I am not a fan of professional licensing but I would bet a lot that Warren is. I would think that she should suffer the usual penalty for the offense and I certainly think that the voters in MA should clearly be made aware of her disregard of the law or rules. In all likelihood, she lied about her supposed Indian heritage to become a Harvard professor through affirmative action so she should get her just desserts. It was this same racist program that allowed The Moron to get into Harvard.

09-29-2012, 02:02 PM
Yes, the laws about accreditation to the bar are a scam of that guild, designed to limit entry into the market and maintain a higher fee structure to the public by limiting the supply of people able to do lawyering.

It doesn't even get that job done, really, as the paralegals can do, and do, most all of everything the licensed lawyer does, without any license.

It then gets blessed and put forward under the licensed attorney's name and credentials, but still is the work of someone without that license, who is NEVER accused of practicing without a license (but they have).

Some LEGITIMATE issues are that people receive adequately competent counsel, that no misrepresentations as to education or qualifications are made to the clients, and that someone is held accountable under professional sanctions for official misconduct, stealing client trust funds, etc.

The exact way that a paralegal skates on the 'no license for practicing law' (UPL) is how even non-attorneys, or attorneys without licenses in a given state, can appear as 'of counsel' or as expert witness advisors-- so long as there IS a licensed attorney that is the lead, who is responsible for it all, and etc.

A couple of other things: EW could have been made a member of the bar by motion or application and without passing the bar exam. It was literally just some paperwork to be accomplished, and then of course to pay the money (~$600), and then keep paying the money annually and take the continuing law education credit units (paying some money). (Mostly, this is all about money-grubbing from the bar.)

There have been no complaints from her clients about her counsel, and no complaints of any kind from anyone. (The usual reasons the bar gets involved.)

If there is a law concerning this situation in MA, and presuming her expert witness form of counsel isn't allowable under the paralegal exception since she worked under a lead counsel who was properly licensed, then I think there still would be statute of limitations problem to bringing that charge.

Finally, as this is a vague legal area (I had no idea how vague until I read the disputing sides), it is really only a POLITICAL matter in the context of an election. Therefore, it is something for the voters there to decide whether to make part of their calculations, or to ignore it.

In a comparable situation (but really, a worse one, I think), for Judge Griffith, the technical issues and technical violations in his case did not prevent partisan opponents on the Democratic side from joining in supporting him, for the abundant other reasons they found, and the de minimus technical nature of the offenses.

I expect something like the treatment of Griffith in this case.