A Final Word on the Elizabeth Warren UPL Story

Mark of New Jersey

Mark is a Founding Editor of The League of Ordinary Gentlemen, the predecessor of Ordinary Times.

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26 Responses

  1. Michael Drew says:

    I would think there would be some toldja so’s here, but apparently everyone’s cool with just moving on.

    Anyone who believes that “the [relevant, i.e. MA] media” is biased and would have treated this differently had it been a Republican obviously (like Mr. Marshall) already believed that anyway, and this uncontrolled experiment certainly isn’t inconsistent with it, but neither is it dispositive. You have to take on faith what they would have done. It seems to me that, with all the lawyers who have run for office in Massachusetts, what there is is simply a clear record of just not thinking that finding evidence of potential licensing problems in candidates’ practices (which then would have to be presented in terms of he says/she says accounts of possible interpretations of the relevant regulations) were attractive enough investigative targets in terms of reader interest and potential political impact to put the resources into investigating them.

    Marshall says that lawyers in Massachusetts tend to be Democrats or liberals or something, so I suppose that amounts to a de facto liberal bias if squint? OTOH, there are these things called primaries, where the competition in a place like MA can be every bit a fierce within the party as between them. I don’t know, but it just seems to me if I were a newspaper editor, I really don’t know that I’d know how to present these facts in a way that was 1. responsible to actual factual content, 2. responsible to the regulatory context in which they are ostensibly interesting to the public, while still telling a story that’s 3. clear and compelling and not completely buried under interpretive hedging (“under this person’s interpretation of professional regulations, these facts would constitute a violation, but under these, not,” etc.,), and 4. still actually newsworthy.

    In short: the lawyers still aren’t sure what the fact pattern here means. If I’m a responsible mainstream, “neutral-brand” local news publisher/broadcaster, I’m still not really sure what story I’m supposed to print here. (Whereas if this were about Scott Brown, obviously MSNBC would be reporting it out like crazy, just as Fox is. Which also seems fine to me — no one is confused about what kind of product these outlets claim to be delivering.)

    I’d be curious as to your thoughts on this part of the question, Mark, as it does make up a significant part of Marshall’s post (which I agree is quite judicious, though it kind of trails off into navelgazing about his own opinions and perspective on the matter in its second half).Report

    • wardsmith in reply to Michael Drew says:

      I only found this article on Fox’s website. That qualifies as “reporting it out like crazy”?

      Jacobsen wasn’t the one who outed Warren, she did that herself on a radio show. One of the interviewers was /himself/ a lawyer. Lawyers treat this differently than the great unwashed for the simple reason that they spend a lot of time and treasure getting that damn degree and subsequent license and are rather proud of it. My son is a CPA and works for a corp. where it isn’t needed at all, but there is no way in hell he’d let it lapse. Worked too hard for it, and would have to work hard again if he ever needed to replace it.

      That both Obama’s let their licenses lapse is indicative of /something/ probably at the very least that they have no intention of ever practicing law again. Hope this /politics/ thing works out for them…Report

      • Simply going inactive- as opposed to resigning entirely- isn’t really indicative of anything other than an intent to not actively practice law for the time being. Typically, when one simply goes inactive, all that is necessary to become active again is to just pay the dues for an active member and get a year’s worth of CLEs (which is a hell of a lot less than doing all the CLEs required to keep your license active year in, year out when you are actually practicing law in the relevant state). If you aren’t actually going to be practicing law with a license for more than a year or two and you live in a state with a CLE requirement that allows for inactive status, then there’s really no reason to keep the license active.Report

        • Wardsmith in reply to Mark Thompson says:

          My understanding is the Obamas resigned entirely.

          Inactive seems reasonable but what does that do to the requirement stipulated in your Op that a lawyer be in good standing? Is it technically possible that one is “inactive” AND in good standing? This might seem like minutiae to non-lawyers, but who other than lawyers live in minutia-land?Report

          • Tom Van Dyke in reply to Wardsmith says:

            Mr. Smith, I’m always happy to bag on all things Obama, but there’s no here here. check these things routinely as part of my work, took a quick look at this awhile back, and was satisfied that their withdrawal from the bar was routine.

            Elizabeth Warren was in violation of Texas bar ethics rules, however, at least the spirit of them—they hold that giving legal advice is still “the practice of law.”* I also linked to the Jack Marshall post MarkT links to today. The edges are getting rounded off this a bit as it goes on—or is buried.

            Or perhaps she’s in the clear—iirc, I read Lawrence Tribe said that even being inactive in a state bar makes you eligible to practice in federal court. Sounds weird to me, and maybe Tribe himself is in some administrative poo poo. Or mebbe he’s spot on.

            The Texas thing–a “mandatory” bar, as they put it—seems worth more inspection. Me, I’m about done with this unless something jumps out at me Columbo-like.

            “Oh, and just one more thing, sir—” 😉 Me, I think she just cuts corners, is all. Don’t we all.


            An attorney cannot request inactive status if he or she is a:

            Member engaged in providing private legal services in any state, whether such services are compensated or uncompensated. Such services include any actions or advice rendered to any person or entity in any matters connected with the law.


          • Yes, one can be inactive and in good standing- inactive status is something that the rules of the state in question specifically provide for and it doesn’t imply that the attorney did anything that would place them in bad standing. Being in bad standing (or “not in good standing”) typically means your license has been suspended by the state bar, and is also cause for other states to suspend your license to practice in those states. Simply going inactive in a state that has such a status has no effect on your ability to practice elsewhere, and lawyers go on inactive status all the time, especially if they move to a different state.

            I know you’ve linked to a story noting that Bill Clinton never went on inactive status in Arkansas, but so far as I can tell, Arkansas exempted attorneys living out of state from CLE requirements such that there would have been no reason for him to go inactive once he became President, and for most of his governorship there was no CLE requirement at all.

            There’s really nothing there on the Obamas.Report

      • Michael Drew in reply to wardsmith says:


        If Fox isn’t reporting on it much, what if anything would you say that might tell us? I’m honestly interested in your view of that.

        (Don’t have time to spell it out now, but in my view this is is the chief benefit that a partisan in addition to a neutral press gives us, and why I’m pretty cool with the basic setup as it has evolved.)Report

          • Michael Drew in reply to Tom Van Dyke says:

            Press that holds itself out as neutral. Yes, obviously various parts of it are only “neutral” (i.e., not really neutral) – in various directions. Other parts are actually pretty close.

            FWIW, I’m not saying it’s particularly laudable to either claim, nor even achieve, neutrality. I’m just describing what I see. And I see a partisan press pushing and pulling on a neutral – and “neutral” press. And I think it’s a pretty constructive arrangement.

            Obviously, we’d all like “neutral” to mean “what I think.” Or at least many of us would.Report

            • Tom Van Dyke in reply to Michael Drew says:

              Michael, we got too many quotes from Insiders admitting the “neutral” press ain’t neutral. Halperin, Evan Thomas, and most every ombudsman who’s ever worked at The New York Times or Washington Post. I like your paradigm of left and right tugging at the center, but it just ain’t so.

              Fortunately, The Truth Is Out There, even in the leftist media. Matt Drudge finds it every day, buried in the 15th paragraph and rewrites the headline. These reporters don’t lie, on the whole. It’s more that they control the spotlight—everything’s there on the public stage, but some things get the lights, other things remain in the relative dark.

              The CNN URL reads


              Boring. The CNN headline reads

              White House to contractors: Hold off on layoff warnings

              Boring. The Drudge link/followup reads:

              “Patently Illegal”


              Sen. Graham: Obama move on defense layoff notices ‘patently illegal’
              By Jeremy Herb – 10/01/12 02:45 PM ET

              Sen. Lindsey Graham (R-S.C.) says that he will do anything he can to block the Obama administration from reimbursing defense contractors for severance costs if the firms don’t send layoff notices to employees.

              The Obama administration issued guidance Friday that said defense firms’ costs would be covered if they have to layoff workers due to canceled contracts under the across-the-board cuts set to take effect Jan. 2.

              The layoff notices have become a politically charged issue because they could have come just four days ahead of the election because of a 60-day notice required by federal law for mass layoffs.
              Graham and other Republicans were livid after the Obama administration issued the guidance on Friday telling contractors that their legal costs would be covered due to canceled contracts under sequestration, but only if they did not issue layoff notices before sequestration occurs — and before the November election.</blockquote.

              Rockin'! So like, whatever. Read Drudge for a day or six and lemme know. I think it's all in the headline. Let the mainstream media establishment write the story and let Drudge do the headline, and that's what I call fair and balanced, baby!

              Do we have a deal?


    • That would be the part where I would tend to quibble with him, though it’s not worth focusing on too much since it’s such a hypothetical. It’s also tangential to the central issue. Otherwise, I would tend to agree with you.Report

      • Kazzy in reply to Mark Thompson says:

        As a non-lawyer who doesn’t know much about the case, the article seems fairly reasoned and nuanced. But I agree that hypotheticals of what WOULD happen if the shoe was on the other foot just do little for me. How are you supposed to argue about what may or may not happen in a hypothetical?Report

  2. MikeSchilling says:

    Clearly, the fact that Jacobson is a right-winger who made lots of accusations based on weak evidence before he found something that might be relevant is of no importance, while the non-falsifiable hypothetical about Scott Brown is vital. But what closes is the case is that Marshall gets the same vibe from Warren that he got from Charles Manson.Report

  3. Glyph says:

    I tried to read the linked article, but got sucked in by the background image instead. Anybody know what it’s called?


  4. Tom Van Dyke says:

    Mike wins again. 8-[D>Report

  5. damon says:

    Jack Marshall’s comment number 4: “4. It is also likely that at this moment, she herself is unsure whether she did or not” regarding whether or not she practiced law in MA is BS. I’m sorry, but if you’re an attorney, or frankly, any other “certified” profession, it’s your FREAKING responsibility to know this. Just like wardsmith said re his son’s CPA. Worked too damn hard not to either keep it up or know the status and the implications therein. I deal in a similiar area and anytime a new reg or policy comes out, it’s a full stop to understand what your new requirements are, if any. It’s….part….of…the…job.

    So that means, she’s lying, an idiot, or she’s SOOOO busy she’s got no time to really understand her status. This doesn’t strike me a someone you’d want to hire if they can’t even explain their basic status.

    For the record, I barely know of this woman and haven’t followed this story…Report