No, Elizabeth Warren Did Not Engage in the Unauthorized Practice of Law
[UPDATED BELOW; FOLLOW UP POST HERE and HERE]
At Legal In.sur.rec.tion, Professor Jacobson contends that Elizabeth Warren, the Massachusetts Senate candidate, liberal firebrand, and Harvard law professor, has engaged or appears to have engaged in the unauthorized practice of law in the state of Massachusetts. In support, Professor Jacobson points to numerous briefs either filed by Ms. Warren or with her listed as being “of counsel” in various federal courts around the country in which her office address is listed as being in Massachusetts. As Ms. Warren is not, and does not appear to have ever been, licensed to practice law in Massachusetts, but instead appears to have been licensed only in New Jersey and/or Texas at all pertinent times, Professor Jacobson argues that Ms. Warren’s actions constituted the unauthorized practice of law in violation of Massachusetts law.
If Professor Jacobson’s analysis is correct, this is an extraordinarily serious charge for which Professor Warren should be held accountable both at the ballot box and before the appropriate ethics panel. However, and with all due respect to Professor Jacobson, none of the facts alleged would constitute the unauthorized practice of law nor any other violation of relevant ethics rules.
In making his arguments, Professor Jacobson makes a fatal error by assuming that merely preparing legal briefs in (seemingly non-Massachusetts) federal cases or providing advice on federal law while located in Massachusetts and maintaining a primary office in Massachusetts constitutes the “practice of law in Massachusetts.” Although he cites several cases for this proposition, these cases do not go nearly as far as Professor Jacobson assumes, as they each involve cases wholly within the jurisdiction of the Massachusetts courts, specifically Massachusetts real estate transactions and Massachusetts probate matters.
He further errs in deeming “on point” a 1976 case in which the Massachusetts state bar issued an ethics opinion prohibiting a law firm from listing a “Boston Office” address on its letterhead where the firm lacked any Massachusetts-admitted attorneys but instead sought to claim that a Massachusetts firm with which it had a relationship falling short of an “associate” or “partnership” relationship constituted its “Boston Office.” This case, however, is not “on point,” as it is not an unauthorized practice of law case but is instead a misleading communications case in which the firm was prohibited from “holding itself out to the public” as having a Massachusetts office. Jacobson incorrectly assumes that merely listing an office location in a court filing, rather than a communication “to the public” constitutes “holding oneself out to the public” as being licensed in the jurisdiction in which one’s office is located.
But most importantly, Professor Jacobson ignores 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 such an attorney to have even a “systematic and continuous presence in [Massachusetts] for the practice of law as well as provide legal services on a temporary basis.”
As the cases to which Professor Jacobson has drawn our attention are entirely cases from the federal courts, and indeed appear to be cases lying even outside the jurisdiction of the Massachusetts federal courts, and as there seems to be no allegation that Professor Warren was unauthorized to appear in those cases, the Massachusetts Rules of Professional Conduct appear to explicitly exempt Professor Warren’s actions in those cases from the prohibitions on the unauthorized practice of law.
Although it is true that Rule 5.5(d) does “not authorize communications advertising legal services to prospective clients in [Massachusetts] by lawyers who are admitted to practice in other jurisdictions,” merely listing the location of one’s office in an official court filing in which one is properly authorized to appear cannot possibly be construed as a “communication advertising legal services.” To hold otherwise would be to make Rule 5.5(d) meaningless since attorneys are typically required to list their office addresses in official court filings, and in fact I am aware of no authority that stands for the proposition that an official court filing may constitute an “advertisement for legal services” merely because it lists the attorney’s office address.
UPDATE 9/24 10:45 PM: Suggesting the same conclusion as my analysis here, please see this article from Massachusetts Lawyers Weekly, which includes a quote from the General Counsel for the Massachusetts Board of Bar Overseers that also suggests there is no UPL issue here, albeit for reasons that do not even require going as far in the analysis as I have.
UPDATE 2 9/26: I’m closing comments at this point, as I don’t have time to respond to any more comments and as the comments are increasingly repeating arguments addressed elsewhere in the thread. After almost 2 days and 200 comments, the thread has run it’s course.
UPDATE 4 9/27: Professor Jacobson has uncovered new facts that I view as a gamechanger. Although I stand by my above analysis as applied to the facts known at the time, Professor Jacobson’s discovery this morning answers my objections to his arguments.
[Edit: Via Memeorandum]
[Edit 2: I corrected a grammatical error in the sixth paragraph by inserting the phrase “an attorney to have.” I also inserted the word “such” to clarify that the comment only applies to an attorney who meets the conditions of 5.5(d).]