Elizabeth Warren and UPL?

Without taking sides in the partisan election, I wanted to pass on something forwarded to me from a partisan politcal blog. There's an account floating around that Harvard professor and senatorial candidate Elizabeth Warren was practicing law in Massachusetts without a law license there. I don't quite see the UPL unless more facts emerge. It appears that most of her appearences were in federal appellate matters and as far as I can tell none of the appearances were in ordinary Massachusetts state court matters. Assuming that that her appearances were in those tribunals, that she listed her office as being in Cambridge, that substantial portions (or all) of her work on the cases was done in Massachusetts, that she was not licensed in Massachusetts, and that she was licensed somewhere else (Texas or New Jersey, say), would Massachusetts consider that UPL? I still don't see the UPL. She could have been admitted pro hac vice in the various litigations without needing a Massachusetts license and that would be the typical fact pattern.

National Review Online repeats the allegation of UPL but the readers quickly steered that author to the type of analysis I've been offering here. Of course, it wouldn't surprise me either way if Warren did or did not perfectly button down her various federal court appearances. And normally you'd have to have some active licence to appear pro hac vice in federal court. [edit added 9/26: Just to clarify, because of some responses I've gotten, yes, I'm assuming that Warren was properly admitted in all those federal appearances. If she wasn't, there is an issue for the federal courts and for Massachusetts, although I don't predict that this would be an actual priority for the Massachusetts bar overseers.]

UPDATE: Here's Massachusetts rule 5.5. The problem with applying it to Warren is that (b)(1) and (d)(2) suggest that we'd have to check on federal law to see if there's a problem. Suppose that Warren had a valid Texas license and was appearing in some federal case in New York or before SCOTUS with the permission of that court. She wouldn't be engaging in UPL, would she? Couldn't she argue that her appearance was approved by federal law under (d)(2)? Comment [18] provides, "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."

Or could she argue that her practice in Massachusetts was temporary as opposed to systematic and continuous? (See 5.5(c))  (h/t: Legal Profession Blog) Comment [6] provides, "There is no single test to determine whether a lawyer's services are provided on a "temporary basis" in this jurisdiction, and may therefore be permissible under paragraph (c). Services may be "temporary" even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation."

This post has been edited over the day as I've come across various commentary that furthered the analysis.

UPDATE 9/27:

I did not expect this topic to take off the way it has. Although some commenters have suggested that the issue is blown out of proportion, I have found the exercise to be educational and worthwhile. I know that I’ve learned a lot.

The blog, Legal Insurrection, suggested that Elizabeth Warren has been practicing law in Massachusetts through what we call, “unauthorized practice of law” or UPL. What first caught my attention about the claim is that the cases in which Elizabeth Warren appeared were federal appellate cases. Admission to a federal bar and a state bar are separate, independent events. (Although any particular federal court may insist that its admission requires a valid state license.) So, I asserted that if we assume that Elizabeth Warren properly obtained admission into those federal courts, her practice of law in those courts (and in preparation for appearing before those courts) would be lawful under federal law. As I’ve noted, I have no idea whether those applications were done correctly or not. For now, I just assumed that they were.

If Warren was properly admitted to those federal courts, she has two strong arguments as to why she did not commit UPL under Massachusetts law. First, there is federal authority, beginning with the Sperry case, that federal courts and agencies have sweeping authority to permit admission and practice before them — even if that behavior might otherwise be considered UPL by the state licensing boards.

Second, the Massachusetts rule itself appears to carve out an exception such that any practice permitted by federal law is not deemed UPL under state law. That exception is found in rule 5.5 (d) of the Massachusetts rules.

More recently, the Legal Insurrection blog uncovered a representation in a federal appellate court within Massachusetts during which Elizabeth Warren argued state law. The new criticism of Warren appears to be that the federal appellate practice is UPL because she maintains an office Massachusetts and, further, that even if Warren was properly before the federal appellate court she was not permitted to represent a Massachusetts resident and argue matters of state law there.

That second argument is a distinction that I have not found in the case law I have read to date. If there is a case raising that distinction, I would be grateful to learn about it.

In Sperry v. Florida Ex. Rel. Florida Bar, 373 U.S. 379 (1963), the United State Supreme Court appeared to permit the lawyer (a patent lawyer located in Florida, where he had no license) to advise his clients about federal patent law and about state law incident to his federal practice:

“We  [**1325] do not question the determination that under Florida law the preparation and prosecution of patent applications for others constitutes the practice of law. Greenough v. Tax Assessors, 331 U.S. 486; Murdock v. Memphis, 20 Wall. 590. Such conduct inevitably requires the practitioner to consider and advise his clients as to the patentability of their inventions under the statutory criteria, 35 U. S. C. §§ 101-103, 161, 171, as well as to consider the advisability of relying upon alternative forms of protection which may be available under state law.” (emphasis added)

Subsequent federal cases have broadly upheld the right of federal courts to control admission and practice before those courts, and have concluded that any state laws impinging on that control are preempted. The following string of cites are from a well-done article by Ron Minkoff (who is a great guy, very experienced in these issues, and, apparently, someone who disagrees with me on this state vs. federal issue!). See, e.g., Surrick v. Killion, 449 F.3d 520 (3rd Cir. 2006); “Theard v. U.S., 354 U.S. 278 (1957) (disbarment in state court does not automatically result in disbarment in federal court); In re Desilets, 291 F.3d 925 (6th Cir. 2002) (attorney admitted in Michigan federal court may recover fees for handling bankruptcy matters there, even though he was not admitted in Michigan state court); In re Mary Poole, 222 F.3d 616 (9th Cir. 2000) (attorney admitted in Arizona federal court but not in Arizona state court may practice bankruptcy law in District of Arizona; the exercise of bankruptcy power is exclusively federal).”  (To find Ron Minkoff’s article, just google, Minkoff US courts v. the 50 States)

Minkoff’s article cites some state cases that come right up the edge of asserting the power to regulate the practice of lawyers in federal proceedings. But, for example, in Matter of Perello, 270 Ind. 390 (1979), the state court noted that the local federal courts had adopted a rule that admission to the federal courts required a valid Indiana license, so the case never dealt with a true conflict between state and federal admissions. (Some federal courts do indeed require a valid state license at the time of admission to the federal court or even throughout the duration of practice before the federal court. That’s why I’ve offered an argument based upon the assumption that Warren’s admissions and appearances in federal court were been properly done.) 

Likewise, in Attorney Grievance Comm. of Maryland v. Harris-Smith, 356 Md. 72 (1999), the lawyer had held herself out as a generally available, licensed lawyer in Maryland rather than limit her practice to federal appearances. [added 9/28: By visiting the Overlawyered site, I also learned about In the Matter of the Reinstatment of Mooreland-Rucker, a case from the Oklahoma Spureme Court analyzing whether a practice in Texas focusing on federal bankruptcy was UPL. The fact pattern is similar to the Harris-Smith case, in that the attorney was drumming up local clients and advising them about their debt and financial situation. The Oklahoma court makes a few comments about the inability of states to regulate federal practice, but then goes on to conclude (in dicta?) that the practice at issue would be UPL under Texas law. If I were advocating against Warren, I'd certainly cite the case. But I don't think it resolves the issue of whether Warren's federal appellate appearances were UPL. First, if it is broadly construed it strikes me as counter to the federal cases I've cited above. Second, it may be dicta, in that it's a forward-looking opinion under the laws of a different state. Third, if the case is given a reasonably narrow construction, it can be distinguished from the Warren situation. The concern in Harris-Smith and Mooreland-Rucker is that the lawyer is building a local practice of locally resident clients that involves giving the full range of advice that debtors counsel typically give to their clients. In contrast, Warren's practice appears to be limited to federal appellate appearances permitted under the rules of those appellate courts. I'm still of the belief that so long as she did her applications properly, those appellate appearances aren't within the regulatory scope of the state bars.]

Finally, I have come across an older Massachusetts case that may well be superseded by subsequent rules and developments. But it illustrates the type of restraint that I think is proper for state bars and that I predict would govern in this matter if Warren her applications correctly. In re Lyons, 301 Mass. 30; 16 N.E.2d 74; 1938 Mass. LEXIS 990. In that case, the court did need to discuss whether the state had the power to regulate appearances before federal courts. There is language back and forth on the issue but in the end the court modified the injunction against the attorney so that:

“The references to proceedings in bankruptcy and to the District Court of the United States will remain in paragraphs 9 and 12 of the order, but the wording of those paragraphs will be modified by adding a statement or proviso that they shall not affect the exercise by the respondents of any privilege which they now possess or may acquire under any statute, rule, order or established practice of the Federal government or of its courts con-trolling methods of practice in respect to matters within Federal jurisdiction.” Id at 13.

In short, while I concede that I haven’t read every case in this area, and that there are non-frivolous arguments to the contrary, it’s still my belief that if Warren’s admission to federal court was proper, the fact that she argued some state law there does not mean she committed UPL. If I’m wrong about that, please let me know. Politely!

[added 9/28: In a private conversation, a reader stressed that it's important to note that we have not seen any of Warren's clients complain or any allegation that the public is in danger as a result of Warren's appellate work. I agree that that's very important. Still, the issue of proper admisisons is important to the legal system.]

[added 9/30: I've seen that the general counsel for the Massachusetts Board of Bar Overseeers, Michael Fredrickson, is quoted  as saying that Prof. Warren's office at the law school might not be properly considered a law office under the releveant rules. In offering that view, Fredrickson was not officially speaking for the BBO and it would be the BBO prosecutors, not Fredrickson, who would make the important decisions. Conceding all that, Fredrickson's quote sounds to me like the right analysis and is consistent with my posts above. Fredrickson was quoted as saying, “'If they [law professors] actually practice here -- as some part-time law professors at some of the smaller schools do -- they might [have a continuous presence or an office practicing law],' 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.'” I think that's right, based on the facts that have come out to date and it's consistent with what I said up above. If, on the other hand, it were shown that Warren had a litigation secretary, paralegals, etc., I suppose the result could be different. And it could be different if she was busily engaged drumming up local clients for a law practice being run out of her faculty office. But we've seen nothing to support any of those notions. She appears to "parachute" into federal court at the appellate stage -- which is a very different set of facts.]

[update 10/1: Warren released a list of some legal matters she working on, found by her campaign after some online searching. The Boston Globe has the story. If that list is all or most of her legal matters, it strengthens my opinions that she has no UPL issue, assuming she did her admisssions properly. (At this point, I'm assuming that her opponents will dig into the court records to see if she handled her federal court admissions correctly. If they turn up anthing, I'm sure we will hear about it.]

[Update 10/3: It looks like Scott Brown is now claiming that Warren has a UPL issue. The NPR reporter, Fred Thys, told me that he checked with the Texas bar and he therefore wrote:

"She has been licensed to practice in Texas since 1986. Her license has always been inactive, but she pays her inactive dues, and that allows her to be in good standing with the Supreme Court of Texas. The Supreme Court of Texas confirms that Warren is in good standing with the court. That good standing allows her to practice before the Supreme Court, which also allows her to appear before the lower federal appeals courts."

I'm not sure that every bar has defined inactive status to be "in good standing," but if Texas does then presumably Warren could represent that she's in good standing. I don't know the pro hac vice standard for every federal court in the US, but it seems to me that many of them ask if you're "in good standing" with a state bar and some of them ask if you're a member of the SCOTUS bar. In either of those cases, Warren would appear to have a solid basis for admission.]

Comment

This post has been edited over the day as I've come across various commentary that furthered the analysis.

Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice Of Law

(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

(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.

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.

(d) 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: (1) are provided to the lawyer's employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

[1] A lawyer may practice law in this jurisdiction only if admitted to practice generally or if authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer's direct action or by the lawyer assisting another person.

[2] Limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. This Rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.

[3] A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies.

[4] Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous, for example by placing a name on the office door or letterhead of another lawyer without qualification, even if the lawyer is not physically present here. A lawyer not admitted to practice in this jurisdiction must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1(a) and 7.5(b).

[5] There are occasions in which a lawyer admitted to practice in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of the lawyer's clients, the public or the courts. Paragraph (c) identifies four such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. With the exception of paragraphs (d)(1) and (d)(2), this Rule does not authorize a lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice generally here.

[6] There is no single test to determine whether a lawyer's services are provided on a "temporary basis" in this jurisdiction, and may therefore be permissible under paragraph (c). Services may be "temporary" even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.

[7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States. The word "admitted" in paragraph (c) and (d) means the lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.

[8] Paragraph (c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this jurisdiction. For this paragraph to apply, however, the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client.

[9] Lawyers not admitted to practice generally in this jurisdiction may be authorized by law or order of a tribunal or an administrative agency to appear before the tribunal or agency. This authority may be granted pursuant to formal rules governing admission pro hac vice or pursuant to informal practice of the tribunal or agency. Under paragraph (c)(2), a lawyer does not violate this Rule when the lawyer appears before a tribunal or agency pursuant to such authority. To the extent that a court rule or other law of this jurisdiction requires a lawyer who is not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing before a tribunal or administrative agency, this Rule requires the lawyer to obtain that authority.

[10] Paragraph (c)(2) also provides that a lawyer rendering services in this jurisdiction on a temporary basis does not violate this Rule when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, a lawyer admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects to be authorized to appear, including taking depositions in this jurisdiction.

[11] When a lawyer has been or reasonably expects to be admitted to appear before a court or administrative agency, paragraph (c)(2) also permits conduct by lawyers who are associated with that lawyer in the matter, but who do not expect to appear before the court or administrative agency. For example, subordinate lawyers may conduct research, review documents, and attend meetings with witnesses in support of the lawyer responsible for the litigation.

[12] Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require.

[13] Paragraph (c)(4) permits a lawyer admitted in another jurisdiction to provide certain legal services on a temporary basis in this jurisdiction that arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted but are not within paragraphs (c)(2) or (c)(3). These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.

[14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer's client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer's work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client's activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer's recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.

[15] Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice in another United States jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law as well as provide legal services on a temporary basis. Except as provided in paragraphs (d)(1) and (d)(2), a lawyer who is admitted to practice law in another jurisdiction and who establishes an office or other systematic or continuous presence in this jurisdiction must become admitted to practice law generally in this jurisdiction.

[16] Paragraph (d)(1) applies to a lawyer who is employed by a client to provide legal services to the client or its organizational affiliates, i.e., entities that control, are controlled by, or are under common control with the employer. This paragraph does not authorize the provision of personal legal services to the employer's officers or employees that are unrelated to their employment. The paragraph applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. The nature of the relationship between the lawyer and client provides a sufficient safeguard that the lawyer is competent to advise regarding the matters for which the lawyer is employed.

[17] If an employed lawyer establishes an office or other systematic presence in this jurisdiction for the purpose of rendering legal services to the employer, the lawyer may be subject to registration or other requirements, including assessments for appropriate fees and charges.

[18] 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.

[19] A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a).

[20] In some circumstances, a lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) may have to inform the client that the lawyer is not admitted to practice law in this jurisdiction. For example, that may be required when the representation occurs primarily in this jurisdiction and requires knowledge of the law of this jurisdiction. See Rule 1.4(b).

[21] Paragraphs (c) and (d) do not authorize communications advertising legal services to prospective clients in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers may communicate the availability of their services to prospective clients in this jurisdiction is governed by Rules 7.1 to 7.5.

Corresponding ABA Model Rule. Rule identical to Model Rule 5.5, as amended in 2002; comments substantially similar.

Corresponding Former Massachusetts Rule. DR 3 101.

Comments

[Alberto Bernabe]

This is interesting but isn't the relevant question whether her law practice involved appearances in Massachusetts courts or counseling clients on state law matters? It seems to me that as long as her "practice" was participating in amici briefs in federal court litigation in cases that did not generally arise out of Massachusetts law the argument for UPL is weak.

[Alberto Bernabe]

By the way, this reminded me of the Republicans attempt to go after Sonia Sotomayor for supposedly violating the rules because many years ago she called her practice "Sotomayor and associates" (or something like that) when in fact she did not fact any associates. I posted something about that rumor in my blog and days later got a call from a Republican senate aide looking for more information (obviously to confront her during her confirmation hearings). For whatever reason, they dropped the issue and nothing happened, though. (If you are interested in that story, let me know and I will send you the links.)

[anon]

I don't know anything about Sotomayor and Assoc, but it is my understanding that in AZ if you have no Assoc, but use a name like that, you are in violation of the the Bar's rule(s).

[John Steele]

Alberto, I posted about the "Sotomayor and Associates" issue. It's deceptive and misleading, but it was a small mistake by a young lawyer, followed by decades of significant accomplishment. The WH issued a very quibbling, unconvincing quasi-defense. Quite properly, the issue went nowhere at the hearings.

[Alberto Bernabe]

I agree. I thought it was ridiculous that the republicans were looking into that issue as a way to oppose a Supreme Court candidate.

But let's get back to the Elizabeth Warren question. Am I off on this one? I am not an expert on the UPL question, so I am curious to hear what other think. Like I said, from what I read in the link you posted, I don't think she was practicing law in violation of the UPL rules.

[John Steele]

Alberto, presumably when she appeared in those federal cases, she was admitted pro hac in those courts on the basis of a valid license from some state other than Massachusetts. Assuming that's true, in all those situations, my sense is that she's ok under (d)(2).

[Greg]

Perhaps I'm misreading the allegations, but I think the claim is that she wasn't an active member of any bar, therefore the pro hac admission doesn't cure the problem. Moreover, if she was admitted, the argument is that she was maintaining an active legal practice in multiple matters, not just the Travelers case.

This is the link for the allegations: http://legalinsurrection.com/2012/09/elizabeth-warrens-law-license-problem/

A quote: "It is unclear whether during the years she represented Travelers and others Warren was actively licensed anywhere."

The analysis is actually fairly lengthy, addressing many of the issues being discussed here. I don't know if the conclusions are correct, but the post is detailed.

[John Steele]

Greg, thanks for posting and as you note my analysis assumes that she had some active license somewhere. If she had no active license, then, yes, (d)(2) would seem unavailable as a justification for her conduct.

I wonder how she could have appeared pro hac vice in any or all of those cases if she had no active license. Normally the pro hac rules require that and the lawyer applying for pro hac admission has to cover that point in the application. (I'm not pre-judging here, but it's not unheard of for a lawyer to botch the pro hac admission form.)

I suppose that there is also a very unlikely and far-fetched defense for her if she had no active license at all and if the federal courts nonetheless admitted her pro hac vice. (We had a case like that out of the Third Circuit a few years back when a lawyer was suspended/disbarred in Pennsylvania but continued to practice in federal court.) That is, perhaps she'd then argue that so long as she was doing what the federal court permitted her to do, federal law (being the supreme law of the land) trumps state law to the contrary. This is similar to the justification that patent lawyers use, but note that patent lawyers do have to have an active license from the PTO before they can ignore state bar regulations.

[Alberto Bernabe]

I agree with John. I think I read somewhere that she is admitted in other states which is why I think the argument against her is weak.

[William T. Barker]

If she had some active license somewhere, that could have permitted her to obtain (and, perhaps, still retain) admission to practice in a federal appellate court (which the discussion suggests is where the matter was then pending). Once admitted by the federal court, it would not be necessary for her to maintain the state license which was the basis of her admission. See William T. Barker, Extrajurisdictional Practice by Lawyers, 56 BUS. LAW. 1501 (2001); Surrick v. Killion, 449 F.3d 520 (3rd Cir. 2006)

[John Steele]

William, thanks. That's exactly the type of reasoning that, iirc, was in the Pennsylvania case.

[Ken MacIver]

While a member of the Rhode Island bar many years ago, I became a member of the Federal District Court for the District of Rhode Island and of the First Circuit Court of Appeals. I moved to Massachusetts more than thirty years ago and could still appear in and practice in either court, although I am no longer a member of the state bar of Rhode Island. The base question seems posed by somebody looking for a cause in all the wrong places, as the old song goes.

[Rick Underwood]

Why doesn't she just join the Mass. Bar? Too good to do so? She certainly has the money. Also, I suspect anybody who wants to know the official answer can ask for an advisory opinion from the Mass. Bar. As for politics, it runs both ways. Is nobody questioning her because of politics?

My experience in this area (I have some) tells me that it all depends on who you are, which is sad.

[Patrick S. O'Donnell]

http://ordinary-gentlemen.com/blog/2012/09/no-elizabeth-warren-did-not-engage-in-the-unauthorized-practice-of-law/

[Rob P.]

Seems to me that there's a question whether a professor's office is an "office [established] ...for the practice of law," or whether instead, the practice of law is incidental to the office. At least one MA court (in an entirely different context, zoning) has found that a lawyer receiving occasional clients in his home was not "use of his residence for the practice of law." Town of Lexington v. Govenar, 295 Mass. 31, 3 N.E.2d 19 (Mass., 1936). An argument could be made (and I'm sure would be if the BBO were to investigate) that the use of the office in Mass for drafting briefs to be filed in Federal Court (permitted assuming she was admitted in some state) was incidental to the professor's primary job of teaching.

[Caldwell Hancock]

The admission of attorneys to practice in federal courts is regulated solely by those courts. If the federal court admits her either fully, or pro hac on application, or permits a lawyer or non-lawyer or law professor to appear in any matter even on behalf of a "client" the state has no power to regulate practice in those courts. Federal Preemption and SUpremacy prohibit a state's efforts to interfere with the pool of persons allowed to "practice" before the feds.

example: feds permit non-lawyers to represent taxpayers in IRS matters that clearly involve UPL under state rules.

State is required to provide for an exception in the Warren case if the feds are content with her role.

[Arthur P.]

Of course, so much of this is speculation because she has not given out the simple dates of when she was active or went inactive in NJ.

If she was an active member of the NJ bar (or TX, though press reports suggest that is off the table) duing the periods in question, she might then plausibly argue that, for MA bar purposes, (c) applies because she was only providing legal services on a "temporary basis" - a stretch, but might be arguable for a part-time practice, or (d)(2), the "federal law" exception, if, as appears to be the case, the federal courts required that one be admitted somewhere. (Some seem to argue that practicing federal law means you don't have to be admitted anywhere, but I understand that at least some of these federal courts required active bar membership somewhere.) These would seem to be her best arguments, and if she was an active member of a bar somewhere, I would guess that the grey areas notwithstanding, this issue will go away. Prof. Jacobson or others may still have an issue about the distinction establishing an office and practicing federal law, but I don't think those are much of a fault so long as her practice was subject to the regulation of some state bar so she can clearly claim half the criteria and make a plausible claim for the second half.

However, if she was not an active member of any bar at the relevant times, then she would need to rely entirely on (b) and that she was not "systematic and continuous presence in this jurisdiction for the practice of law". That seems a much harder argument to make when she has made hundreds of thousands of dollars writing briefs from her one office in MA. And I think that does carry overtones of breaking, rather than stretching, a rule, and is a more serious matter. I don't think anyone believes that if they were to do the same and not be a prominent professor that the MA bar would not require them to be admitted.

Finally, as to the arguments that 5.3 applied and she was acting as a non-lawyer, I do not see how that passes the blush test.

And why could she not be bothered to keep active in at least one of the bar associations? Sure, CLE is a pain, but if anyone ought to be able to speak at a few conferences and get it out of the way by signing a sheet of paper at the back of the room, it ought to be a law professor.

[Monroe Freedman]

It surprises me that so much commentary has been expended on such a relatively unimportant issue, which apparently was raised in the first place to embarrass a candidate for the Senate in a race that has matters at stake that could affect the future of the country.

[Arthur P.]

Actually, these issues should be pretty interesting to any lawyer in a large firm with multiple offices or clients in states where one does not have an office, or in a corporation with multiple offices. Setting aside the politics of the situation, which we should, it is asking a lot of questions that counsel have been curious about (and largely avoided) for years. Like the extent of the federal law exemption. Warren might have a good exemption. The facts (which we don't have all of) will tell. As to how unimportant it all is, that seems a question for the voters, not the lawyers.

[luagha]

Is there a way to search and find out if she ever completed the pro hac vice application at all?

[Patrick S. O'Donnell]

I second Monroe's comment, which was the motivation behind my link. The fear and ire on the Right raised by Warren's candidacy speaks volumes on the consequences of speaking truth to power in electoral politics.

[Jack Marshall]

http://legalinsurrection.com/2012/09/no-mass-board-of-bar-overseers-has-not-exonerated-elizabeth-warren/#more

I don't know whether Prof. Jacobson has a legitimate point of not; it seems clear that a few questions need to be answered. I am surprised, however, that whether or not a lawyer who is a candidate for the U.S. Senate followed the ethics rules of her state bar (and mine) would be seen by any of the worthies on this distinguished blog as "relatively unimportant" because of the political orientation of the lawyer involved. Character and professionalism is always important, especially in positions of high elected office. That there is already reason to question Prof. Warren's honesty makes this all the more important, and I don't see what "speaking truth to power" has to do with the price of mustard at all.

[John Steele]

I take the position that, regardless of partisan politics, an allegation of UPL against a senatorial candidate is news worthy. I'm disappointed that the initial story, written by someone who teaches law at Cornell, missed the obvious issues. I wonder if he spoke to anyone who practices in our field -- which would have either quashed the story or given it a very different feel.

[Monroe Freedman]

This is the 24th comment on this issue. By contrast, on a lawyers' ethics blog, there is only one comment on Steve Gillers' post on Confidentiality, Privilege, and Strickland, and, as I recall, no comments on my post about cheating by potential lawyers in law school.

[Rain City Lawyer]

I am not a Mass. lawyer. That disclaimer aside, in my experience, courts will not typically grant a "pro hac" application if the attorney has previously worked on more than a couple of cases in the jurisdiction. They don't like people who evade the requirements of local bar membership by repeatedly seeking pro hac status. They want the annual fee (and CLE commitment)! Further, many court rules make a lawyer ineligible for pro hac status if the lawyer maintains an office in the jurisdiction -- again, to avoid a "getting-the-milk-for-free-without-buying-the-cow" problem. Prof. Warren's Cambridge office and frequent appearances in Mass. would, in my experience, have prevented routine admittance. Federal appellate admission standards, of course, may differ significantly.

[Patrick S. O'Donnell]

Given the politics (hence the myriad possible motivations), one should not assume or presume allegations of this sort are newsworthy without some further confirmation or evidence that they do amount to "newsworthiness." As you note, had an expert in the field been consulted this "would have either quashed the story or given it a very different feel." Indeed.

[Contrarian]

There are a couple of problems with relying on the elements of Rule 5.5 that you've been citing. The first is history: Professor Jacobson showed that Professor Warren had appeared on briefs as far back as 1998. The safe harbor provisions of MR 5.5 were adopted by the ABA in 2002, and don't seem to have been adopted by Massachusetts as late as 2006. (See Superaudio Ltd. Part. v. Winstar Radio Prods., 466 Mass 330 (Mass. 2006). So even if these safe harbors did apply, they can't apply retrospectively.

Those citing Rule 5.5(d)(2) run into the problem that no court analyzing that rule (of which, admittedly, there aren't many) has ever held that admission to a federal bar in a foreign state allows a lawyer to continuously practice in a home state, so long as that practice is only before the foreign court. As I commented at another site:

"[T]his mostly comes up in the context of statutes particularly authorizing practice. See Iowa Supreme Court Attorney Disciplinary Bd. v. Carpenter (Iowa 2010) (noting that an immigration attorney can practice under Rule 5.5(d)(2) due to 8 C.F.R. 1292.1). But I can find nothing suggesting that mere admission to a foreign bar gives an attorney the right to continuously practice in a local jurisdiction, and I can find no law or rule comparable to 8 C.F.R. 1292.1 allowing practice before the Supreme Court. The theory seems to be that Supreme Court Rule 5, or maybe 9, but neither of those give a positive right of representation.

Applying Rule 5.5(d)(2) in that situation seems quite a stretch. By that logic, an associate admitted in New York and to S.D.N.Y. can join a Boston firm, move to Boston, and never join the local bar, so long as he only ever works on S.D.N.Y. cases. Indeed, any attorney admitted to any bar of a foreign federal court would be probably be allowed to practice.

There isn’t a lot of case law on this–unsurprisingly, since MR 5.5(d)(2) is relatively new, and these cases don’t come up much–but none of the ABA reports on the rules suggested this was a possibility. (See, e.g., http://www.americanbar.org/content/dam/aba/migrated/mjp_final_interim_report_2.authcheckdam.pdf)

I’ve found no case in any U.S. jurisdiction applying ABA MR 5.5(d)(2) in this manner. Typical cases imply that, so long as an attorney with a foreign office is licensed in a foreign jurisdiction, and admitted to a federal court in the home state, the home state’s unauthorized practice laws do not apply to such attorney. See, e.g., IN RE QUARM, (N.D. Ohio Bankr. 2011) (noting that district court for Northern District of Ohio allows admission of non-Ohio attorneys). But the opposite concept–that admission to N.D. Ohio allows one to set up an office in any MR 5.5(d)(2) state and practice continuously, so long as one only practices before the foreign court–does not seem to have precedent."

This leaves Rule 5.5(c)(2). But while "temporary basis" holds a fairly broad definition, I haven't found a case in any jurisdiction holding that over fifteen years of practice, in which a person has been paid multiple hundreds of thousands of dollars, fits within any of the 5.5(c) categories. And as noted above, 5.5(c)(2) would only apply to the later cases in any event.

[John Steele]

Contrarian, thanks for the analysis.

As you know, patent lawyers (who can do trials within the PTO system), immigration lawyers, and other lawyers making exclusively federal appearances have long relied upon their admittance to the federal tribunal and take the position (correctly in my view) that as a matter of constitutional law the state UPL laws cannot forbid what the federal tribunal has expressly permitted. (Sperry v. Florida)

That argument doesn't rely upon any permission that is created or granted by 5.5 and I think it's appropriate to read the relevant portion of 5.5 as simply conceding what was always the case: federal practice and appearances are permitted (or forbidden) by federal law, not state law.

If Warren was properly admitted to practice before various federal appellate tribunals then she just doesn't need the permission of Massachusetts for that. None of the cases you cite seem to hold otherwise. If there are such cases, I would be grateful if you could forward them.

As for the distinction between "systematic and continuous" and "temporary," I concede that they are terms of art we can argue about. (Which is why my original comments about that provision were phrased as questions.) I see that someone within the Massachusetts Board of Bar Overseers was quoted as saying that a professor doing amicus brief out of a law school building isn't "systematic and continuous," and I also saw that the Professor Jacobson disagrees with that reading. I bet that most state bars would consider Prof. Warren's practice something not worth investigating unless a client complained, but at the same time I acknowledge that the bar's decisions about prosecutorial priorities is a different analysis than the analysis about strict compliance with law.

[Contrarian]

John,

Thank you for the compliment. I don't think Sperry gets you to the goal line, however. Contrary to your statement, Sperry does not rely on admission to the bar of a tribunal to trump state law. Rather, it relies upon specific statutes that authorize practice before that tribunal. I noted as much when I cited the Carpenter case, above. But after some searching, I can't find a case even implying that mere admission to a foreign federal bar--absent statutory authorization--goes so far as to say that a state bar has no authority to regulate a resident attorney simply because they only engage in federal practice.

My impression is that this doesn't come up very often--really, who but Warren's clients, who seem happy, would care if she weren't running for office--and thus case law is sparse. Sadly, I don't have free Lexis or Westlaw access, but I would suspect that the Restatement of the Law Governing Lawyers would be useful in resolving this. (There's only so much one can find out on Google Scholar.)

There is a 2002 case, In re Desilets, that actually does go this far. (291 F.3d 925) But it is still not precisely on point: the case doesn't hold that Wisconsin would have no grounds to discipline the attorney in that case.

As for the comment from the GC of the MA BBO, I wouldn't give it much weight. It looks like an off-the-cuff statement made after a single call from a journalist. When Jacobson called him, he pretty dramatically walked back his statements. (Which isn't surprising--this isn't a fight I'd want to get into as part of my job.)

[Richard W. Painter]

If she has an active bar membership somewhere, I have trouble seeing the unauthorized practice argument with respect to her appearing on amicus briefs or consulting with lawyers --- as opposed to with clients not otherwise represented -- from her office in Cambridge.

Her not joining the Massachusetts bar suggests some disengagement with Massachusetts that is perhaps typical of Harvard faculty. Voters can decide if she is engaged with the Commonwealth in some other ways and/or whether it is more important that she is engageed with issues of national importance (whether her views on those issues are right or wrong is yet another question).

[Arthur P.]

Similar to patent law in Sperry v. Florida, in the tax realm, persons other than attorneys (CPAs and other persons enrolled before the IRS) can practice - before the IRS. But I've never seen someone holding themelves out as a tax attorney - as opposed to, say, an enrolled agent - maintain that this means that they do not need to be licensed by the bar in some state, probably the state where they have their office, because the (d)(2) exemption (and the (c)(4) one as well) still require admission to another jurisdiction. I suspect that there are few immigration lawyers, and other lawyers making exclusively federal appearances that rely on some broad federal preemption to any state licensing as well, as opposed to being admitted in at least one jurisdiction and relying on (d)(2) or (c)(4), whether they have thought of it or are just doing it because everyone else does. I think this is why in Warren's case, whether she was an active lawyer in NJ in the relevant period is an important fact that we don't seem to know.

[CockleCove]

I'm puzzled by LegalInsurrection's claim that "Warren’s Texas Bar information indicates she is not eligible to be licensed in Texas."

Inactive status there is not the equivalent of her resignation without prejudice in New Jersey. As an inactive member, she presumably has been paying the inactive member dues of $50/year to the Texas State Bar (non-payment of inactive member dues is a ground for administrative suspension). Inactive members continue to receive the Texas State Bar Journal & remain eligible for the State Bar's insurance plans.

Reinstatement as an active member of the Texas Bar basically requires nothing more than filling out a quickie form & paying the higher, active member dues:
http://www.texasbar.com/Content/NavigationMenu/ForLawyers/MembershipInfoandServices/CommonLawyerRequests/Reinst_Inactive_Stat.htm

[John William Nelson]

Contrarian states: "Applying Rule 5.5(d)(2) in that situation seems quite a stretch. By that logic, an associate admitted in New York and to S.D.N.Y. can join a Boston firm, move to Boston, and never join the local bar, so long as he only ever works on S.D.N.Y. cases."

This is, in fact, how it often happens. And it's fine. (Although the firm will require the associate to take the Massachusetts bar at some point because they will want him to be able to do depositions and appearances as necessary.) In fact, this is how the American lawyers in London get around the UPL issue.

I think the more serious question is whether she was actively licensed anywhere during her briefs. When did she go on Texas inactive? And when was she active/inactive in New Jersey?

While there is an argument to be made that she could practice in the federal courts before which she was admitted even if she was inactive in the state courts, I'd say this is a bit disingenuous and does not track the spirit of the licensing rules.

[Monroe Freedman]

I confess that I'm no fan of UP rules. I think anyone should be allowed to offer legal services, as long as there's no misrepresentation regarding background and qualifications. So I'm all the more surprised that this relatively inconsequential issue (more a guild rule than an ethics rule) is probably setting a record on this blog for comments.

[Contrarian]

Mr. Nelson--I'll admit to little knowledge of the UPL law in London, but I'm not sure that "It works in London, so it must work in Boston" is particularly apt. And other than In re Desilets and the Marcone case in the Third Circuit, I can't find any authority suggesting that a "federal only" practice is allowable, and does not subject a lawyer to their local bar's regulation. If you have authority for it being fine, I'd really love to see it.

By the way, it was pointed out to me that we may be able to pretty easily take the whole partisanship thing off the table. What Warren has done may or may not be wrong, but it's probably not unique. Professor Barnett, before he was at Georgetown, was at Boston College, and does not appear to have been a member of the MA bar. He did a fair amount of high profile (although, from his CV, it appears mostly pro bono) litigation during that period. So it's not like Warren is the only prof who might have fallen afoul of these rules.

[John Steele]

Contrarian, yes, I'm betting that all across the country, there are some law profs are taking a second look at this issue! Especially at Harvard. It would be interesting to see how that shakes out.

[John Steele]

Contrarian, I've noticed this short 2007 article by Ron Mikoff, quite usefully discussing some cases on this issue you and I have been debating: the degree to which an admission to a federal court renders practice before that court immune from state regulation. (As I've noted before, for now I'm assuming that all of Warren's pro hac admissions were done correctly.)

Minkoff gathers the cases I've been thinking of (Sperry; Theard; Desilets; Mary Poole; etc.) but also cites a 1979 Indiana case (270 Ind. 390 (1979)) a Maryland case (356 Md. 72 (1999)) and some federal cases have deferred to state admission decisions. I haven't had the time to read those cases but wanted to get them out there.

To find Minkoff's article, google:

minkoff us courts v. the 50 states - new mjp issues

and click on the first result.

[Rick Underwood]

All this ink spilled over a question that could be answered by the Mass. Bar.

When I graduated I got a job as a federal trial judge's clerk. The Rules said I had to join the Ohio Bar. I took the bar exam. I then took a District Court exam and was admitted to the District. I was then admitted to the 6th Circuit. After practicing in Ohio I was invited to join the faculty at UK. In 1984 or 85 I was asked to Chair the State Ethics Committee and the State UP Committee. I suggested that I should probably join the Kentucky Bar :-) ! So I went through the motions and paid the money. I paid to do stuff for the Bar! I did not think that was too much for me to do given the service opportunity.

Why can't people simply find out what the rules are and follow them like the rest of us? Why does this have to end up being a question - either way - about politics?

I do not want to play the politics of envy game, but EW apparently made twice my annual salary on one case. Why doesn't she just join the Mass. Bar? She can probably do it on motion.

Anyone want to comment on that? It just seems so obvious.

[Still holding my breath here]

Sperry doesn't really get you far, folks (for those still citing or holding to it).

Yes, a patent lawyer can practice from any jurisdiction in his/her practice before the USPTO, but that practice is NOT the "practice of law".

In this practice, he or she may do not one iota more than a registered non-lawyer (i.e., a registered patent agent who is not a lawyer). The moment the patent lawyer strays from strict patent preparation and prosecution before the USPTO (which is what the patent agent also can do), he or she must be barred where practicing else face that jurisdiction's UPL regulation.

As for (soon to be Sen.) Warren herself, I have no opinion. Good luck to her.

[Arthur P.]

It was said: "Some federal courts do indeed require a valid state license at the time of admission to the federal court or even throughout the duration of practice before the federal court. That’s why I’ve offered an argument based upon the assumption that Warren’s admissions and appearances in federal court were been properly done."

But why is it reasonable to make that assumption? It should be easily answered when Warren was an active or eligible member of the NJ bar at the relevant times. However, press reports suggest she was not. (By the standards of much legal opinion practice, for example, there needs to be reason to make assumptions. You can't just assume a fact to get to the desired result. Ask Paul Daugerdas.) If the opposite assumption is made - which appears more supportable on current facts - 5.5(c) and (d) would seem to be unavailable, with the only other possible exemption being that of not having a "systematic and continuous presence in this jurisdiction for the practice of law" under (b)(2), which I'm not sure passes the blush test.

Also, did this federal case cited by Jacobson involve Massachusetts law only as an subsidiary matter to a federal law matter such as patent, federal tax or the like? If not, I don't see why Sperry would be pertinent just because a federal court is involved.

By the way, in the press reports, Prof. Tribe appeared to suggest that Warren was only filing Supreme Court briefs and that is why she did not have to be licensed in MA. I know that one cannot control what a reporter writes, but if that is not the case as now appears, should he not clarify whether he has the same opinion in light of these other cases (which I would have thought he'd have considered before opining)?

[John Steele]

Arthur P., thanks for commenting.

My assumption isn't meant to be "reasonable" in the sense that I expect or predict it to be true. It's an assumption because (1) I haven't heard anyone yet claim that her applications were defective, and (2) I certainly don't have the time to track down all her appearances, look at her applications, compare them to the facts, and compare them to the admissions rules of those courts. It is my sense that some people are busily doing that right now and if something turns up I am sure we will hear about it. As I've noted, I wouldn't bet a dollar either way on whether she's done her federal admissions correctly.

There is also now an interesting untangling of one of the issues into two strands. One strand focuses simply on whether the federal tribunal has granted admission that preempts state law under the Supremacy Clause. The other strand focuses on whether the arguments in the federal tribunal are matters of state law. As I've noted in the update, Sperry itself says that patent lawyers need to advise on state law that might protect IP. You can find that same authorization in the PTO's position on what counts as practice before the PTO. (To be specific, both Sperry and the PTO position are that patent lawyers can advise clients on trade secrets law (which is state law) and trademark (which is both state and federal)). I've yet to see a case holding that a lawyer arguing to a federal tribunal cannot argue state law without committing UPL. And that holding wouldn't make sense to me.

[John Steele]

Still Holding My Breath Here,

Thanks for commenting here.

The Sperry case expressly says that the patent lawyer may advise on alternate forms of protection under state law. See the quote up above. The PTO regs also make it clear. In any case, I've been focusing on Warren's appearances in federal court appellate matters. If she's been advising and consulting on state law outside of the appearances, yes, that sure sounds like UPL. But to date I haven't seen any claims that that is what she's been up to.

[Contrarian]

John,

Agreed that this has been an interesting conversation and I've learned a lot. Thanks for providing a forum for reasoned discussion of this issue without acrimony. It's very nice, and has allowed extraneous issues (such as 5.5(d)(2)) to get weeded out. Also, that Minkoff article is really good.

Having read the same cases, I simply can't believe that Sperry should be taken as far as you suggest, or that Diselets is rightly decided. (Certainly the dissent is more convincing.) Sperry was based on a statute much more broadly-written than the standard rule of court admissions that was actually passed by a nationwide legislative body. A reading of Sperry that applied to court rules effectively guts the ability of state bars to regulate lawyer conduct. Simply the idea that a district Court in Michigan, whose jurisdiction extends through only a part of the state, can via local rule overturn the licensing laws of every state in the union seems blinkered as a matter of policy.*

That said, I'd certainly admit it's a much more open issue than I'd originally thought. I agree that the "bombshell" of Warren working on a case in Massachusetts federal court doesn't change my conclusions much.

*The unintended consequences of such a policy, especially given that most law is transactional, could fill hours of "what if" scenarios. Although it does suggest one solution for the cash crunch in the federal courts. If, say, the Western District of Michigan decided to (a) admit any person, attorney or not, before its courts, and (b) state that those people could advertise as attorneys, its budget would burst with the fees from non-attorneys seeking licenses so that they could work on wills, trusts, or whatever. If all one wants to do is crank out trusts and estates, it's pretty easy to specify that W.D. Mich. is the exclusive forum for disputes, and that's a heck of a lot cheaper than going to law school.

[Steve]

But if you're sitting in an office in Massachusetts, handling trusts and estates issues, then you're practicing law in Massachusetts. If you're sitting in an office in Massachusetts, filing briefs in a case in the W.D. Mich., then you're practicing law in the W.D. Mich. Massachusetts has an interest in regulating you if you're holding yourself out to the public, engaging in attorney advertising, etc. But they have much of an interest in regulating how you handle a case before the W.D. Mich. The court can take care of that itself.

In the law firm context, it's an incredibly common practice for the letterhead from the MA office to have a disclosure that such-and-such attorney is *admitted only in NY. If it's illegal for that person to show up to work in MA every day, even though they're only working on NY matters, then many thousands of lawyers are breaking the rules in a rather brazen fashion, and the rules in question would have to be ones I've never heard of.

[Inquisitive Inquisitor]

Apparently Prof. Warren has been "inactive in the NJ Bar for a very very long time." Apparently those are her own words from a radio interview she did recently, replayed in the video provided by Prof. Jacobson here: http://legalinsurrection.com/2012/09/elizabeth-warrens-law-license-problem-on-fox-news-today/

The radio interview runs from about 0:39 to the one minute mark, and it's the only thing really worth watching in the video clip.

Accordingly, since she has also been inactive in TX since 1992, she was engaging in federal practice without an active law license in any state (I'll admit I don't know the exact date she went inactive in NJ, but she doesn't make it sound recent). Thus, there are essentially two questions: (1) Whether she was engaged in a law practice out of her Cambridge office, and (2) whether an attorney with no active state law license can practice law before federal courts. I don't know the answers for sure, but it seems silly to assume she had an active license in NJ or TX when it is increasingly clear she did not.

Interestingly, I was wondering why she was worried about CLE credits, given that in most states, professors receive considerable CLE credit for teaching (in NY it's 1 hour of CLE for 50 minutes of teaching). This generally covers everything but ethics. However, NJ's new CLE rules (up until a few years ago, NJ attorneys had to take substantial CLE courses in their first 3 years, including graded homework, in a program called ICLE, but had no CLE responsibilities thereafter) specifically provide that professors do not receive CLE credit for teaching classes.

Doubly strange, NJ indicates that they don't have an inactive status: http://www.judiciary.state.nj.us/cpf/internetfaq.htm#inactive. And note that teaching law is not considered retirement for purposes of being exempt from dues.

[John Steele]

Inquisitive Inquisitor, thanks commenting and for that information.

Tracking Warren's federal court admissions takes that kind of painstaking detail. As just one example, I saw one commenter make the claim that First Circuit admission can be premised upon a membership in the SCOTUS bar and that the initial application to SCOTUS admission requires an active state license -- but once you're in the SCOTUS bar you don't have to maintain your state license. Now, I don't know if that's accurate or not. But if all that is true, then her appearance before the First Circuit could have been proper without an active state license. (Note: I'm leaving aside the heavily bruited issue of whether her school office would be considered a continuous and systematic law office.)

[Contrarian]

Steve--

I think your reasoning runs afoul of the logic of Desilets: it is not necessarily true that "If you're sitting in an office in Massachusetts, handling trusts and estates issues, then you're practicing law in Massachusetts." After all, I can specify in every trust or will that I write that it is (a) governed by the law of the Western District of Michigan, and that any suit under such agreement must be brought in same. There's no limiting principle in any of these cases that suggests that transactional work is judged strictly by the territory in which one is practicing, but litigation is judged by the court before whom the briefs are filed. That would make little sense in any case: even if the act of filing a brief were itself not UPL, counseling about the underlying law would be no different from counseling about a transaction.

As for the law firms you mention, it's hard to say anything without some examples. Most of the "asterisk" lawyers I've seen on letterhead have been individuals who recently moved and are awaiting admission to the local bar. In that sense, they're normally considered to be practicing "under" their MA-admitted partners while they wait. But unless HLS is one large law partnership (and I suspect it isn't set up as such, though I don't know), Warren has no partners on whose admission she can ride coattails. If you've seen a single-attorney office with an "admitted only in New York" asterisk, it would be relevant--are you aware of one?

[Trotsky]

I think that distinguishing the argument of federal law from the argument of state law when properly admitted to practice before a federal court is a complete canard. If the case is applying Maltese law under choice of law, an attorney not admitted in Malta is not committing Maltese defalcation by arguing the points of law.

It comes down to the rules of the federal bar admission. From comity, they should restrict practice to those admitted in the geographical area, but absent that, the federal court admission prevails under the Supremacy Clause, as the federal court is ordained and established by federal statute pursuant to an express Constitutional provision.

Now, although this gives the attorney safe harbor in the instant matter, it's not a remission of the fault in the eyes of the state bar, and could certainly influence subsequent admission decisions.

Interesting, though - what if a question of state law was certified to the State Supreme Court and they requested oral arguments? Tricky.

(I've no idea if a State Supreme Court would actually ask for oral arguments, as I'm waiting on admission to a Bar myself, and have never actually practiced. Nor was any of that legal advice. Don't rely.)

[John Steele]

Trotsky, I agree with you on that. I've seen no case law cited in support of the distinction and it makes no sense to me.

[William T. Barker]

An admission to practice in federal court is (like an admission to practice in a state) a license to do so. What federal law has authorized, state law may not forbid. But a license to practice in a federal court grants only a narrow authorization: it does not allow any form of transactional practice (except settlement of claims that might have been brought in the admitting court).