A law professor is accusing U.S. Senate candidate Elizabeth Warren of having practiced law without a license in Massachusetts.

The political rock was thrown by Cornell Law School’s William A. Jacobson on his blog LegalInsurrection.com. In a Sept. 24 post, he claims that, by serving of counsel on a U.S. Supreme Court case and helping write amicus briefs in several others, Warren was practicing law. And she was practicing law in Massachusetts, he says, because she listed her Harvard Law School address on her briefs.

Jacobson takes considerable pains to make his case, posting images of the cover pages of the Supreme Court briefs to show Warren’s Cambridge address, checking with the Massachusetts Board of Bar Overseers, and, among other things, quoting from Supreme Judicial Court decisions that discuss what practicing law means in Massachusetts.

He even notes that two of Warren’s prestigious colleagues at Harvard – Laurence H. Tribe and Charles Fried – are licensed to practice law in Massachusetts.

“Yet Warren, who was not and never was licensed to practice law in Massachusetts, has held her Cambridge office out to be her law office for the purpose of providing legal representation,” Jacobson blogs.

He counts two violations: operating a law office and practicing law without a license to do so in Massachusetts.

Fried tells Lawyers Weekly he doesn’t know whether he needs a license to practice law in Massachusetts in order to file Supreme Court briefs, but Tribe says Jacobson is plain wrong.

“The fact that Charles and I happen to be licensed in Massachusetts is immaterial. That wasn’t the reason I could practice in the U.S. Supreme Court. I was an inactive member of the California bar as well, which was all that was needed,” Tribe says.

Tribe adds that Warren fully met all of the Supreme Court’s requirements for filing briefs and petitions with that court.

“This was not and could not be a violation of any Massachusetts rule,” Tribe says. “In fact, any state rule that interfered with a federal filing would be null and void under the Supremacy Clause of Article VI of the United States Constitution. Elizabeth complied with all applicable federal rules.”

Rule 5.5 of the Massachusetts Rules of Professional Conduct states that an attorney cannot, without a license to practice in Massachusetts, “establish an office or other systematic and continuous presence in this jurisdiction for the practice of law.” It also states an attorney cannot, without a license, “hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.”

Michael Fredrickson, general counsel for the BBO, says he does not believe a law professor would be considered to have “a continuous presence” or “an office practicing law.”

“If they actually practice here – as some part-time law professors at some of the smaller schools do – they might,” 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.”

But Jacobson questions why the BBO hasn’t launched a full investigation.

“The rules do not provide any exception for law professors or part-time law professors,” Jacobson says. “If they’re maintaining an office for the practice of law, they have to have a license.”

Jacobson says he has not filed a formal complaint with the BBO.

“I published my findings of fact and conclusions of law,” he says, “and if the Board of Bar Overseers wants to address it, they are aware of it.”

– Lisa Keen