Yesterday we mentioned the latest issue to arise in the contentious Massachusetts Senate race between incumbent Scott Brown and Elizabeth Warren, the Harvard law professor turned political candidate and national celebrity. On his blog, Legal Insurrection, Professor William Jacobson of Cornell Law School effectively accused Warren of engaging in the unauthorized practice of law in Massachusetts.
Are the accusations valid? Let’s hear from some experts — and from you, through a pair of reader polls….
You can learn more about Professor Jacobson’s claims in yesterday’s story or by reading his full post over at Legal Insurrection. The gist of his argument is that she was practicing law in Massachusetts, out of her office at Harvard Law School, even though she has never been licensed to practice in Massachusetts.
There’s no dispute that Warren lacks a Massachusetts law license; she admitted as much in a radio interview yesterday. But that’s not conclusive on the issue of unauthorized practice. In some updates to yesterday’s story, we noted various possible defenses, including claims that (1) she participated only in federal cases and did not practice Massachusetts law and (2) her work was confined to consulting with admitted counsel.
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.
But, of course, the debate will probably rage on for a while. Check out the comments to the Mass Lawyers Weekly piece, in which readers express disagreement with Michael Fredrickson and Larry Tribe.
Professor Jacobson isn’t giving up either. Yesterday he took to the airwaves to make his case against Warren, and he has also promised further commentary on the “incorrect defenses” being raised on Warren’s behalf.
Readers, what do you think? Please debate in the comments and take our two reader polls (the first to see where you fall in the Senate race, the second to measure your views on the law license debate):
Warren law license matter called non-issue [The Docket / Massachusetts Lawyer Weekly]
Warren never licensed to practice law in Massachusetts [Washington Examiner]
Elizabeth Warren’s law license problem [Legal Insurrection]
The Professor: Elizabeth Warren’s long journey into politics [New Yorker]
The Elitist: Elizabeth Warren Goes to Hollywood [YouTube]
Elizabeth Warren was key in asbestos case [Boston Globe]