For how long will Warren defenders maintain the charade that she did not practice law in Massachusetts?

In my post on September 24, Elizabeth Warren’s law license problem, I detailed how Elizabeth Warren had used her Harvard office in Cambridge for the practice of law for over a decade in numerous cases in which she appeared as “Of Counsel” or counsel, and how she identified that office in filings with various courts.

Even though Warren refused to disclose the full extent of her legal practice, I argued that her use of the office in Cambridge for the practice of law, and her systematic and continuous presence in Massachusetts for the practice of law, would be a violation of Massachusetts law since she was not licensed in Massachusetts.

In response, defenders of Warren tried to make distinctions which make no difference to whether Warren improperly maintained an office for the practice of law or a systematic and continuous presence in Massachusetts for the practice of law.

Warren defenders argued that if she only represented non-Massachusetts clients in non-Massachusetts cases which did not involve Massachusetts law, she was not practicing law “in Massachusetts” even if she was practicing law in Cambridge. Other strawman arguments included that as long as Warren complied with federal court admission requirements, Massachusetts could not require her to be licensed. For reasons I have explained, those arguments are wrong.

Warren defenders were bolstered by the unusual “personal” commentary offered by Michael Fredrickson, the General Counsel of the Massachusetts Board of Bar Overseers which seemingly exonerated Warren, even though Fredrickson admitted he was just “speaking hypothetically” and not specifically as to Warren because “I know so little about Elizabeth Warren and her practice.”

Despite the pushback, the point of my original post is growing stronger with each passing day. Even the author of a post at The League of Ordinary Gentlemen, which has been cited as the definitive rebuttal, has admitted:

… I want to make clear that I agree with Jack Marshall that Jacobson’s allegations are being treated with insufficient seriousness by Warren’s sympathizers. That neither she nor her campaign have directly responded to the allegations is disappointing and irresponsible at minimum. In the last few days, my post has been linked far and wide as if it were the definitive debunking of Jacobson’s allegations. While I stand by my arguments, neither my original post nor my additional arguments below are exactly a detailed ethics opinion, either. In particular, as Jacobson’s response correctly notes, I did not attempt to address his central argument that Professor Warren maintained a “systematic and continuous” presence in Massachusetts for the practice of law….

Similarly, Jack Marshall at Ethics Alarm writes:

… I am dismayed, if not shocked, that the legal establishment, as well as legal ethicists who should know better, are letting their political biases dictate their analysis. It is true that Jacobson is an openly conservative blogger as well as a long-time critic of Warren, but he raises legitimate questions that deserve to be taken at face value, whatever their source. The fact Fredrickson, the BBO General Counsel, felt it necessary to personally defend Warren in the absence of sufficient facts strongly suggests a pro-Warren bias in the disciplinary system, where it really shouldn’t matter who breaks the rules, but whether or not they have.

In just the last few days even more information has come forward which supports my original position. We learned that Warren represented to the Texas Bar that her “primary practice location” was in Cambridge.

We also learned that Warren had a law practice going beyond brief writing, including being hired to provide legal advice to various creditors’ committees in bankruptcy cases, in which she represented to the Court that her “Billing Statement is in the same form regularly used by Professor Warren to bill her clients” and in which the work was performed, at $675 per hour as of 2002, from her Cambridge office. There will be more such examples detailed in coming days.

Yet still, Warren defenders persist in defending on the basis that Warren just wrote a few Briefs for out of state cases and never did anything for a Massachusetts client in Massachusetts, much less on a Massachusetts issue of law.

I consider that test irrelevant, but in any event, Warren did represent a Massachusetts client in Massachusetts on a Massachusetts legal issue.

The case was an appeal in the First Circuit Court of Appeals in Boston in the case of Cadle Company v. Schlictmann.

The case involved a dispute as to a lien on a contingent fee earned by Beverly, Massachusetts lawyer Jan R. Schlichtmann, who was the subject of the film A Civil Action. The issue in the case was whether a creditor or Schlictmann was entitled to the contingency fee earned in a case which started prior to Schlictmann’s personal bankruptcy but did not conclude until long after the bankruptcy.

The lien enforcement arose out of state law. Even though there were bankruptcy related issues, the question was whether the state law lien survived. As noted on the court docket and in the ultimate decision, the case only was in federal court because of what is called “diversity jurisdiction,” which permits a plaintiff to file in federal court if the plaintiff is a citizen of a different state than any of the defendants, and the dollar amount exceeds a minimum threshold (now $75,000).

The First Circuit ruled in favor of the creditor.

Based on the First Circuit docket available through PACER, it appears that Warren and three other Harvard Law professors were brought in to try to convince the First Circuit to reconsider its decision. The Schlichtmann representation is not a case previously disclosed by the Warren campaign.

Warren specifically entered an appearance:

Warren’s name appears as one of the counsel of record:

The docket entry leaves some unanswered questions, specifically on what basis and using what license Warren entered her appearance. There does not appear to be any request by Warren for permission to appear in the case. Perhaps some enterprising reader can dig out the First Circuit appearance rules as they existed in August 2001, when Warren entered her appearance.

Regardless, the issue is not whether Warren was authorized under First Circuit rules to enter an appearance in the First Circuit. That is the strawman issue used by Warren defenders to distract.

The issue is whether Warren defenders can continue to maintain the charade that she did not maintain an office for the practice of law, or maintain a “systematic and continuous presence” in Massachusetts for the practice of law.

Warren defenders have proposed the standard that Warren never represented a Massachusetts client in Massachusetts or on any issue involving Massachusetts state law. Now we know she did.

Update: Elizabeth Warren defender: “With this bombshell, I would no longer view the case against her as weak”



