How big a problem might this be?

A conservative legal blogger makes the case that Elizabeth Warren violated MA law by practicing law from Cambridge without being licensed in MA to do so.  I still say of course that she knows the relevant issues and will have a better voting record than Brown even if the worst spin on this is true, but I certainly hope she followed the law.  The right-wing blogosphere are already accusing the “liberal media” of conspiring to cover this up.  Can we get Elizabeth Warren’s side and/or neutral fact-checking on this issue pronto?

Recommended by patrick, amberpaw.


35 Comments . Leave a comment below.
  1. lots of questions marks at the end of conservative blogs ....

    This is what I found, blogger, but I leave it up to the legal scholars who post here:

    Massachusetts Rule of Professional Conduct 5.5(d), which states that:

    “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…are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.”

    The Official Comments to Rule 5.5(d) further elaborate to make explicit that 5.5(d) permits even “systematic and continuous presence in [Massachusetts] for the practice of law as well as provide legal services on a temporary basis.”

    • Reciprocity?

      I’m not inclined to chase my tail, proving a flimsy accusation incorrect. The standard republican MO is to dump some flim flam and, then, chuckling as thoughtful folks try to apply reason and logic toward an answer.


      • Indeed

        The standard republican MO is to dump some flim flam and, then, chuckling as thoughtful folks try to apply reason and logic toward an answer.

        … After which they then point to all the serious and thoughtful discussion and say “see! there must be something to it!”. It’s called ‘the triple Cheney’

  2. Doubt it

    It was litigation, so the place she was practicing was the court in which she was arguing– the US Supreme Court, and so that was the relevant bar admission. They don’t let you get to the table without being admitted first.

    What pure horsehockey this is.

  3. Reaction

    I’m a Warren supporter, but I do think that writing an amicus brief is the practice of law. So the question is: was it authorized? Here are some possibilities (I assume that she did some of the legal work in Massachusetts):

    1. If Warren was not admitted to the bar of any court, then she was engaged in the unauthorized practice of law.

    2. If Warren was admitted to the bar in another US jurisdiction, and if she was providing legal services in Massachusetts “on a temporary basis”, then her practice of law was authorized if (a) undertaken in association with a Massachusetts lawyer who “actively participates in the matter”; (b) she was admitted to the bar of the Supreme Court (or reasonably expected to be admitted); or (c) the brief-writing was reasonably related to her practice in a state where she was admitted to practice.

    This comes, by the way, from Rule 5.5(c) of the Massachusetts Rules of Professional Conduct. I don’t see that Rule 5.5(d)(2), which applies where the lawyer provides “services that the lawyer is authorized to provide by federal law or other law of this jurisdiction”, applies.

    So the first question is–was Warren admitted to another state’s bar at the relevant times? The second question is–if so, is it fair to characterize her legal services in Massachusetts as “on a temporary basis?” The third question is–if so, was she admitted to the Supreme Court bar or otherwise within one of the provisions of Rule 5.5(c)?

    This comment, by the way, does not constitute the practice of law!

  4. Scott Brown has been practicing statesmanship for years

    without a license.
    Now, as a real estate attorney for local bank(s) during the biggest mortgage giveaway since we settled the West, how many bogus deals do you suppose Scott has handled? Surely someone must know.
    Just sayin…

  5. I really hope

    that this is the best Team Brown has got. I really, really hope that’s the case. :D

  6. 3 words...

    My Cousin Vinnie.

    Judges have broad discression when allowing out-of-state lawyers to appear in court. Just being absent from an online search could indicate either a data error or imcomplete access to data.
    It would matter if the Judge was made aware of her “out of state” status and whether he/she allowed the representation.
    I believe this is call a house of cards that will probably fall apart upon review.

  7. C'mon guys

    This crud has no legs at all. Nada. No one who talks about this stuff is talking about it. I mean, that jackass at legalinsurrection? Really? He is the blogger of choice for the cheapskate wingnutterie and he gives his advice with a “Cornell” handle to boot.

    Naw, the fun news here is that Bi-partisan Brown, aka Guy Smiley, known around town as Mr. (jobs, jobs, jobs…) Moderate has made the bigtime on rightnet. Congratulations. Well played. (golf claps for the senator, fade to an empty chair)

  8. Excellent explanation of why this is a non-issue

    There was, quite simply, no violation. Good links, good discussion. Being admitted to the bar in any state, and then admitted to the United States Supreme Court bar it doesn’t matter where you do your reading and writing; there are more formalities to take care of to practice in a state court that differ.

  9. This is an idiotic non-issue

    Even the worthies at RedMassGroup have acknowledged it is an Issue for the Moron Vote.

  10. Of course it is... they all are.


  11. We'll see

    I don’t think it’s the Supreme Court case(s) that will be the issue.

    She’s going to have to reveal all the cases she worked on, and this will provide further fodder for the “helps corporations” Brown campaign theme.

    Or she can withhold that information and look like she’s hiding something.

    Or maybe she might have to spend a lot of time threading a needle looking like she’s defining “is”

    I know a couple of my non-political friends had already picked up some buzz. The next few days will tell. I’m sure everyone is frantically digging, and it’s too early to call it a “non-issue”

    • And then Brown

      will have to reveal all the cases he’s worked on or he can withhold them because he is hiding something.

      Or maybe he might have to spend a lot of time explaining his voting record which will look like he is defining what “is” is.

      Might be fun :)

      • baloney

        If the “other cases” are i n court, then her appearance is a public record. Spend the dough and search for yourself.

        • Really

          When everyone on BMG is always calling on Republicans to release information, like here

          Time for Brown to come clean on exactly who is funding his campaign

          Maybe that should be my standard reply, “search for yourself”

          • I did search for myself ...

            and I found that Brown did not properly identify employers in his federal donation submissions.

            The question was that now that I did search for myself and found how easy it was to identify the persons Brown is listing without employer information he needs to follow the law.

            Read much or is comprehension the problem?

          • BS

            BS, again.

            When it is a public record, then a request a release of information is BS. When the information is not a public record, then the request is not BS.

            This is not rocket science.

      • except that there is no question that Brown is licensed in MA

        though I believe his current status is “inactive”

    • Just another distraction

      By “non-political friends”, do you mean “low-information voters”? The question remains — which candidate will more effectively represent the people of Massachusetts in the US Senate. I see no relationship between “the cases she worked on” and this question.

      This is just another turd from the Scott Brown smear machine — anything to distract attention from his miserable performance as Senator.

      • I'm not saying it matters one bit to me

        If it’s gloves off for the Democrats, you have to expect gloves off for the Republicans, and anything that might possibly matter to anyone is fair game to put out there.

        More grade school (naughty) kid language from you on this. Is that really necessary? Do I ever use slang for excrement on my posts?

        I am merely pointing out that the people get to determine what is a “non-issue”

        I might mention that I felt the Warren Native American thing had legs, and here is the Warren Campaign in late September validating my point by releasing a commercial explaining it. She could be talking about what she would do as senator, but instead she’s talking about her parents’ wedding.

        • She's responding to an attack ad

          from Scott Brown. John Kerry learned the hard way that ignoring attack ads is not the best way to make them go away.

          Anyway, she has plenty of money to run both kinds of ads. So don’t fret. ;)

  12. And then there is today's Globe...

    page 1

    • For those who interested in the details of the LTV coal case

      Warren’s only involvement in that case (from 20 freaking years ago) was to help LTV’s lawyers on a petition for certiorari. That is the document filed by a party that loses in a lower court and wants the U.S. Supreme Court to hear the case. The Supreme Court declines to hear most cases – its docket is quite small – and so it was with the LTV case; the Supreme Court did not take the appeal.

      LTV had been in the coal business and owed money toward the Coal Act fund for the long-term health costs of miners. Warren’s position was that Coal Act claims against LTV, which was in bankruptcy at the time, should be handled exclusively in the bankruptcy proceedings, even if that meant the bankruptcy court reduced the amount it would pay into the Coal Act fund. As Warren’s campaign noted in in the Globe story, the LTV retirees were covered by the provisions of the Coal Act and would be have been paid from the industry fund regardless of whether LTV’s obligation to pay into the fund was reduced through bankruptcy.

      The United Mine Workers position was that allowing reduction of a company’s Coal Act liability in bankruptcy proceedings, then prohibiting future claims against that company, would encourage other companies to initiate bankruptcy proceedings also. As a result the Coal Act fund would not have enough money. Warren’s position was that if a company goes out of business entirely via bankruptcy (as opposed to reorganization), you can sue it afterward but you won’t be able to collect. No more assets after the bankruptcy court has distributed them all to creditors. So it’s better to make it clear to claimants they better make their claim within the bankruptcy proceedings. That’s the same principle she defended in the Travelers case.

      Her dispute in 1993 with the Rich Trumka of the UMW was thus on a very narrow issue, an honest disagreement about tactics between two people with the miners’ best interests in mind. We have those on here all the time. Warren, as an academic, is one of the nation’s foremost bankruptcy experts. It’s not surprising that she favors a solution within the bankruptcy process.

      This is complicated, but the key, for those who may be talking to voters about this, is this: “We are talking about companies in bankruptcy. In these cases Warren that people with claims against a company in bankruptcy court should make their claims in the bankruptcy proceedings. Because there’s a high chance there will be no money left to claim after the bankruptcy proceedings are done.”

      • That's a good summary

        Bankruptcy is built to handle “old” claims. The asbestos case we already talked about “old” that aren’t known at the time: people who were exposed but have not yet become sick.

        LTV was a little different. The Coal Act was a special fund to pay health benefits to retired mine workers, won by the workers through a series of difficult strikes. The problem was that there were a great many workers, and the healthcare got expensive. The original plan was that companies handle their own ex-employees, and the government would handle the former employees of defunct companies.

        In the 80s, a lot of mining and steel companies crashed. A series of companies went bankrupt; some tried to reorganize, which meant that there would continue to be an operating steel company. LTV was one that tried to reorganize.

        In 1992, the government tried to address the huge health benefit shortfall by making all operating companies liable for a share of the total bill, even though the total included former employees of other companies. LTV said, wait, we dealt with these old claims for health benefits in the bankruptcy, through which it made some payments, but less than it owed. This was the position taken, I would imagine, by EW in the cert petition.

        The cert petition was an appeal from an order that said “nope, this isn’t an old claim, but a new one– that must be paid in full by the reorganized company.” The UMW supported this decision because they wanted as much as possible paid into the fund.

        The imposition of old claims against the reorganized company was a factor in the failure of the reorganized company, which shut down all plants and folded completely in 2000.

        In the end, the health benefit fund was not paid in full, will not ever be paid in full, and there are 10 to 20 thousand fewer people working in the steel industry.

        In my view, that is not a very good outcome, which is why her position was the correct one, even though not successful.

        The difficult policy question is how to deal with the pension and benefit obligations of a formerly profitable industry with hundreds of thousands of employees once that industry ceases to exist.

        The manner in which Brown, personally, refers to this in today’s paper is grossly misleading. At this point he has driven me completely off the fence–from where I was leaning Brown less than a week ago– to the other side.

        • That's because you have integrity and a brain

          This desperate series of attacks by Scott Brown drives away voters who, like you, have integrity enough to care about at least the semblance of truth and brains enough to recognize when the truth is being flagrantly abused.

          None of us should be surprised — these lies and bigotry that underlies them has been at the core of the GOP/Scott Brown campaigns all along. The wager they are making is that these insulting attacks will attract more undecided voters than they drive away.

          I hope that a majority of those undecided voters, like you, have enough integrity and brains to instead flatly reject this sorry excuse for a candidate.

          In any case, welcome aboard!

        • Thank you, centralmassdad

          Until a week or two ago, this campaign for me was about liking what Elizabeth Warren stood for. I didn’t detest Scott Brown — I really really don’t like the current Republican party and so couldn’t vote for him now regardless, and some of his votes bothered me a lot (Blunt amendment, too pro financial industry, opposing Elana Kagan). I was annoyed that he was trying to hide being a Republican, and I didn’t think he was doing a particularly good job. But in general, I was motivated because I think Elizabeth Warren would be a great and sorely needed consumer advocate in the Senate, not because I “hate” Scott Brown.

          But I’m really appalled at the turn his campaign has taken. It is heartening that thoughtful people who may not agree with me on some policy issues are also turned off by the tactics he’s using. I really wish he would be talking about things that are important to people in Massachusetts and not just slinging mud and cheap shots and lies at his opponent.

        • Not a good outcome

          in the LTV case, where the company remained in business after bankruptcy but went out of business later following more claims. Not a good outcome if the company does not try to remain in business after bankruptcy, and there are no assets to pursue.

          What infuriates me is that Brown knows he’s being misleading, but is betting on the explanation of what really happened being too much detail for the voters he’s trying to reach. It’s really cynical.

          As Charlie Pierce put it:

          Warren’s work with the asbestos company — and, now, we learn, with a steel company — is perfectly consonant with her career as a consumer advocate, but you have to be familiar with bankruptcy law to understand why that’s the case. You can fudge the facts here with impunity, and firm in the knowledge that any explanation is going to sound like legal persiflage, especially to the low-info voters on whom you are relying.

          • Thanks

            I haven’t read Charlie Pierce in awhile, but that sums up my view.

            The truly unfortunate thing is the position taken by the UMW.

            The fund is something they fought very hard for, in an industry where management-labor fights are really ugly and painful. The bankruptcies of the companies were, and probably still are, making this much less of a victory than they thought they had won.

            Their view is that the companies– for whom they have never had any reason at all to trust– are just doing whatever is needed to avoid paying what they promised. Unfortunately, the arithmetic makes it extremely difficult for a diminished industry now employing hundreds to support the pension and benefits for retirees numbering in the tens and hundreds of thousands.

            The dilemma pitted present workers against retirees; present workers lost. Sadly, in the end, so did the retirees.

  13. Non-issue

    The overwhelming majority of the cases I saw mentioned on legal insurrection and other blogs were in the U.S. Supreme Court. As Amberpaw and others pointed out, Warren was admitted the U.S. Supreme Court bar when she put her name on briefs filed in that court. That’s all that’s needed. Doing the research and writing in Massachusetts or putting a Massachusetts address on a brief to the U.S. Supreme Court does not require admission to the state bar in Massachusetts.

    For the few cases in other courts, all more than ten years old, it depends on the case. She may well have been admitted pro hac vice – for the one case only. She wasn’t even counsel of record in any of these cases anyway.

    The new smear, not only in the Globe but screamed on the front page of today’s Herald, is more shameless Swift Boating. They want to make a strength, Warren’s long history of fighting for consumers and workers against corporate abuse, into a weakness. Brown and the GOP seem to hope that voters will buy the “Warren claims to be a champion for the average citizen but really is a shill for big corporate interests” because the true story is too complicated. I hope that won’t work here.

    • Makes sense

      “They want to make a strength, Warren’s long history of fighting for consumers and workers against corporate abuse, into a weakness.”

      Since Brown’s campaign manager is a Rovian acolyte, that he would use the tactics of his mentor in this race…

      You see, it worked once, so they keep on using it over and and over again, no matter how badly it fails.

      Brown must have seen this race as Warren’s to lose if he hired that guy to manage his campaign.

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