One of the most exciting U.S. Senate races this fall is the battle taking place in Massachusetts between Scott Brown and Elizabeth Warren. Even though my personal politics are closer to those of Brown — a moderate, socially liberal Republican — I must admit to a weakness for Warren.
How could I not love Liz Warren? She’s a Harvard Law School professor, a brilliant legal mind. She’s a fabulous, fierce female; even her critics concede that she’s a formidable foe. And thanks to her viral video and her star turn at the DNC, she’s a national celebrity. The Brown campaign has tried to use this against her, but not very effectively. After watching this Scott Brown ad, I just wanted to vote for Warren even more.
According to the latest polling data, Warren holds a slight lead. But could that edge be eroded by the latest controversy, concerning whether Warren has engaged in the unauthorized practice of law?
Let’s check out the allegations, which are being leveled against Brown by a Cornell law professor….
Meet William Jacobson, a clinical professor of law and director of the Securities Law Clinic at Cornell Law School. Before entering academia, Professor Jacobson practiced civil litigation and arbitration in Providence, Rhode Island. He’s a 1984 graduate of Harvard Law School, the longtime academic home of Professor Warren.
currently contributes to is the founder of the Legal Insurrection website, where this morning he posted a detailed analysis of whether Professor Warren might have engaged in the unauthorized practice of law. Based on his review of extensive documentary evidence and his own reporting, including interviews of state bar officials in different jurisdictions, Jacobson makes the following claims:
1. Warren Is Not Licensed To Practice Law In Massachusetts.
2. Warren Used Her Cambridge Office [at Harvard Law School] as Her Law Office.
3. Warren Was Practicing Law From Her Cambridge Office.
4. If Warren Was Practicing Law From Her Cambridge Office, She Violated Massachusetts Law.
5. Harvard Law School Warns Its Students Against The Unauthorized Practice of Law.
6. Warren’s Possible Practice Of Law Without A License Requires Full Disclosure Prior To The Election.
According to Professor Jacobson, Elizabeth Warren engaged in the practice of law while in Massachusetts, primarily through the writing and filing of briefs, even though she lacked a Massachusetts law license. One of her most notable cases involved representing The Travelers Insurance Company in asbestos-related litigation, for which she was paid $212,000. These allegations seem — to me, at least — more substantial than the “Fauxcahontas” controversy over Warren’s claim of Native American ancestry.
Here’s how Professor Jacobson concludes:
I detail above the facts and law which lead me to the conclusion that Warren has practiced law in Massachusetts without a license in violation of Massachusetts law for well over a decade. I expect Warren will disagree, and I welcome a discussion of the facts and the law.
I doubt that will happen. Instead, and similar to how her campaign tried to demonize me and the Cherokee women who questioned her supposed Native American ancestry, I expect Warren’s campaign will attempt to deflect these serious issues by attacking the messenger.
Warren should disclose the full scope of her private law practice. Perhaps there are facts not publicly available which will demonstrate that Warren was not engaged in the practice of law in Massachusetts when she earned $212,000 from Travelers, plus other fees from others who sought out her legal expertise dating back to the 1990s.
The voters of Massachusetts are entitled to know, before they vote, whether one of the candidates for Senate has not been following the rules which apply to everyone else.
Read Jacobson’s full post over at Legal Insurrection. Is he missing anything? Do you see possible defenses for Professor Warren?
Speaking for myself, I hope this is all some sort of misunderstanding. The Senate can be such a boring body these days, thanks to the departures of such larger-than-life figures as Barack Obama, Hillary Clinton, Ted Kennedy, and Daniel Patrick Moynihan. It’s in desperate need of a starpower injection — and who better to add some glitz and glamor than Warren the Woman Warrior?
UPDATE (2:15 PM): 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 , 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.”
UPDATE (9/24/2012, 10:15 AM): The general counsel of the Massachusetts Board of Bar Overseers shares his views on the Liz Warren law license controversy.
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]