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.