A Reply to Professor Jacobson

Professor Jacobson has responded to my post disputing his contention that Elizabeth Warren may have engaged in the unauthorized practice of law.  As explained below, I continue to believe the case that Professor Warren engaged in the unauthorized practice of law is weak.

But at the outset, 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.  That is an essential question because, to the extent Warren’s actions were not “systematic and continuous,” they would almost certainly constitute “temporary” activities fitting within the safe harbor provisions of Rule 5.5(c).

With that out of the way, Jacobson’s reply makes several points that I would like to address.

As noted above, Jacobson states that I skipped over his argument that Warren “maintained an “office for the practice of law” and had a “systematic and continuous presence” practicing law in violation of Rule 5.5(b).”  Although technically correct, it must be emphasized that my primary argument was that Warren seems to fall within the protections of Rule 5.5(d)(2), in which case whether she had a “systematic and continuous presence” would be immaterial since one who falls within 5.5(d)(2) is explicitly permitted to have such a presence.  Several commenters in my original post argued that my interpretation of 5.5(d)(2) is broader than its drafters contemplated, and I think they make a strong case to that effect; however, whatever its contemplated effects, 5.5(d)(2)’s actual language says what it says and is worded quite broadly – if federal law authorizes an attorney to provide services, the attorney may maintain even a systematic and continuous presence in Massachusetts for the limited purpose of providing those services.

Jacobson also claims that my argument that Warren is not alleged to have done anything that would constitute a violation of advertising restrictions, Rules 7.1 et seq, by “holding herself out” as a Massachusetts attorney is a straw man.  This is incorrect – Jacobson’s original post relied in part on Mass. Ethics Opinion 76-18, which dealt with advertising restrictions, for the proposition that Warren “has held her Cambridge office out to be her law office”; particularly in the context of citing an ethics opinion pertaining to advertising restrictions on out of state attorneys, the use of the phrase “held her Cambridge office out to be her law office” comes across as an accusation that Warren was advertising herself as a Massachusetts-licensed attorney, even if only on letterhead.

While not discussed in my original post, I should also mention that whether Warren “held herself out” as a Massachusetts attorney for advertising purposes (and there’s currently no evidence that she did) seems to me to be an important question for unauthorized practice of law analysis, and especially for purposes of determining whether her practice of law in Massachusetts was “systematic and continuous.”

Activity by Warren that is not “systematic and continuous” would inherently seem to fit within Rule 5.5’s broad and vague category of permissible “temporary” activity, which official comment 6 states may even include “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.”  Unfortunately, the phrase “systematic and continuous” is likewise undefined; however, official comment 4 provides an indication of the type of activity that is “systematic and continuous”:

“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).”

No other examples of a “systematic and continuous” presence are provided, and the clear theme running through what might constitute a “systematic and continuous” presence is one of holding oneself out to the public in a manner that the public might interpret as a claim to being admitted to practice in Massachusetts.  Admittedly, Comment 4 doesn’t contain any restrictions on the definition of “systematic and continuous” either, but the emphasis on how an attorney holds herself out gives a clear indication that the concern is primarily with how one presents oneself to the general public and potential clients.  This interpretation, furthermore, is consistent with the sole stated purpose of Rule 5.5’s prohibition on the unauthorized practice of law, which is that it “protects the public against rendition of legal services by unqualified persons.”

To the extent Warren actively marketed her services, she would thus have a clear UPL problem; but to the extent she simply passively accepted out of state clients for work in matters already pending in out of state federal courts (which seems likely given her reputation in the bankruptcy field), then I think it’s difficult to argue that she was engaged in the “systematic and continuous” practice of law in Massachusetts.  This conclusion is rendered even more likely by the fact that activities which “do not involve either rendering legal advice to or soliciting Massachusetts clients, or even engaging in a legal contest in a Massachusetts forum on behalf of an out-of-State client” are at most “at the very periphery” of what constitutes the practice of law in Massachusetts.  In re Chimko, 831 N.E.2d 316 (Mass. 2005).