The case for a political hygienic cleansing

If you were to ask me for one piece to read before casting your presidential ballot on November 6, I would, as of this date, unhesitatingly recommend that you read the following National Review piece by Mark Steyn:

http://www.nationalreview.com/articles/331806/incredible-shrinking-president-mark-steyn#


I wish that I had written it. 

Neutral Principles And The Overpaid Professoriat

The following letter speaks for itself:

McNAMARA & ASSOCIATES

COUNSELORS AT LAW

Frank L. McNamara, Jr.           Tel:  (978) 333-9608           franklmcnamara@gmail.com

October 12, 2012

53 Wilder Road Bolton, Massachusetts 01740 *** 155 Federal Street, Suite 1300 Boston, MA 02110

Constance V. Vecchione
Bar Counsel
Office of the Bar Counsel
99 High Street
Boston, Massachusetts 02110

            Re: Complaint Against Elizabeth A. Warren For Unauthorized Practice Of Law

Dear Bar Counsel Vecchione:  

            You may be aware of recent news stories questioning whether Elizabeth A. Warren (“Professor Warren”), Leo Gottlieb Professor of Law at Harvard Law School, may have engaged in the unauthorized practice of law in violation of the provisions of Rule 5.5 of the Massachusetts Rules of Professional Conduct (the “Rules”) that treat of that subject. The gravamen of the charge is that the activities of Professor Warren during the period from 1995 to the present (the “Investigatory Period”), during which she (i) was a member of the faculty of the Harvard Law School, (ii) continuously occupied business addresses on premises in Cambridge, Massachusetts owned by Harvard University, and (iii) regularly provided legal services to clients from whom she received remuneration, rose to the level of “establish[ing] an office or other systematic and continuous presence in this jurisdiction for the practice of law” within the meaning of Rule 5.5. If so, then Professor Warren may have engaged in the unauthorized practice of law in violation of Rule 5.5, as she is not now and has never been admitted to practice law in Massachusetts. 

            At first blush, this charge may strike some (including, apparently, even the Board’s general counsel) as a matter of trivial concern.[1] Nevertheless I submit that most lawyers admitted to practice in Massachusetts would consider axiomatic the idea that there are very important public interests [2] served by the requirement that the practice of law be limited to persons who are duly licensed to practice in the Commonwealth, and that those interests ought to be zealously protected by the Board of Bar Overseers (the “Board”) and by the Office of Bar Counsel (“Bar Counsel”).

            I would further submit that most lawyers licensed in Massachusetts have few doubts about the role that Bar Counsel has played over the years in fostering the reputation that our profession currently enjoys in the eyes of the general public. What does appear to be in doubt is whether the lofty notion that “the law is not a respecter of persons” any longer has validity. Simply put, there is a growing cynicism, infecting even our own profession, that attributes of wealth, social position, celebrity, political affiliation, and having the right friends in high places all result in the application of two sets of rules: one for lawyers of eminent stature like Professor Warren, and another for the more humble practitioners among us who are required to respond even to the most facially frivolous complaints.

            Therefore, in the event that Bar Counsel has not, on her own initiative, already begun an investigation into the very public allegations that Professor Warren may have engaged in the unauthorized practice of law in the Commonwealth during the Investigatory Period,[3] this letter will serve as a formal request that she do so, in accordance with the provisions of Rule 4:01 of the Rules of the Supreme Judicial Court.  

I. The Record

            While the record concerning this matter is by no means fully developed, based in part upon the reluctance of Professor Warren to disclose fully and publicly the nature and extent of her legal practice during the Investigatory Period, the pertinent facts compiled to date from public documents may be summarized as follows:

            During the Investigatory Period (1995 to date), Professor Warren held the position of Leo Gottlieb Professor of Law at Harvard Law School. During that period she provided legal services for clients within and without Massachusetts. In return for these legal services, Professor Warren received remuneration apart from her salary as a law school professor. She performed these legal services while occupying offices of Harvard University in Cambridge located at 1563 Massachusetts Avenue, 1575 Massachusetts Avenue, and 200 Hauser Hall. These Cambridge addresses were listed by Professor Warren as her official business addresses in court filings to which her name was affixed as lead counsel, amicus curiae, or of counsel in no fewer than fifteen (15) cases pending in various courts, including the Supreme Court of the United States, the United States Court of Appeals, and the United States Bankruptcy Court. 

            Most of the legal services performed by Professor Warren appear to have involved federal litigation outside this jurisdiction, and for non-Massachusetts clients. But at least one of the matters in which she was engaged was before the First Circuit Court of Appeals in Boston on behalf of a Massachusetts client.[4]

            While the precise scope, nature  and frequency of the legal services that Professor Warren performed for her clients out of her offices in Cambridge during the Investigatory Period is not yet known, on the public record compiled to date it appears that these included the drafting, filing, and serving of briefs and other filings, the rendering of legal advice both to Massachusetts and non-Massachusetts clients, the performing of legal research, the keeping of time records, the generation of bills and correspondence (presumably on a letterhead containing Professor Warren’s business address), and other indicia of legal practice. The bulk of this work appears to have been provided in Massachusetts; there is nothing in the record suggesting that Professor Warren established an office for the practice of law in a jurisdiction outside the Commonwealth. 

            The public record further establishes that at times during the Investigatory Period, Professor Warren was licensed to practice in the states of New Jersey and Texas, and that at some point during the Investigatory Period she informed the State Bar of Texas that her “Primary Practice Location” was in Cambridge, Massachusetts. At no time during the Investigatory Period, or during any other period, has Professor Warren been admitted to practice law in the Commonwealth of Massachusetts.

II. The Applicable Law

            Rule 5.5 of the Rules provides in pertinent part as follows:

            (b) A lawyer who is not admitted to practice in this jurisdiction shall not:

                        (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law ….

            While there are many ancillary questions that will require examination, the central one is whether Professor Warren at any time during the Investigatory Period establish[ed] an office or other systematic and continuous presence in this jurisdiction for the practice of law” within the meaning of Rule 5.5. On the record to date, and in view of the showings that have historically triggered Bar Counsel inquiry, this is, at a minimum, a fair question, and one that Bar Counsel should promptly investigate in the interests of clarity, neutral principles, and justice. 

                                                           
                                                            Very truly yours,


                                                            Frank L. McNamara, Jr.

---

[1] See the comments of Michael Frederickson, General Counsel to the Board of Bar Overseers, as reported in an article entitled “Warren Law License Matter Called Non-issue,” appearing in the issue of Massachusetts Lawyers Weekly dated September 24, 2012.

[2] Among them are that the public be protected against “rendition of legal services by unqualified persons”.  See Comment [2] to Rule 5.5 of the Rules.

[3] Section 7 (1) of Rule 4:01 (Bar Discipline) of the Bar Rules promulgated by the Massachusetts Supreme Judicial Court provides in pertinent part as follows: “The Bar Counsel (1) shall investigate all matters involving alleged misconduct by a lawyer coming to his or her attention from any source ….” 

[4] See Cadle Company v. Schlichtmann, 267 F. 3d 14 (!st Cir. 2001).

Chow Time

In a break from all Elizabeth Warren, all the time, the Boston Globe of October 9 featured a front page story (http://www.bostonglobe.com/metro/2012/10/09/chinese-family-lawsuit-former-harvard-professor-promised-admissions-help-took-million/7tfbug9YlmW5LR4EqumIFN/story.html) about a Hong Kong family named Chow who paid $2,000,000 to a college consultant and former member of the Harvard faculty named Zimny who was supposed to get their two sons into Harvard. He didn't. The Chows are now suing Zimny in U. S. District Court for fraud. 

All sides in this morality play deserve each other's throats.

First, you have the helicopter parents, more accurately the ""Blackhawk Down" parents, the Asian version of which can be especially hovering and obnoxious. They normally produce 2.0 children whom they regard as ornaments to their own success. At least one of these usually develops nicely into what has become a much lampooned figure on the American prep school and collegiate scene: the bright, driven, personality-challenged, highly micro-managed Asian Loser who took the SATs a dozen times. 

Then you have the academic charlatans like Zimny. Is it any wonder that people like him would stride into the void which nature abhors and exploit frantic gullibles like the Chows? Or that they would pay him for the privilege? Of course the Chows thought that they could buy their way into Harvard and other schools like Harvard, because .... 

The so-called elite colleges and universities like Fair Harvard, pioneers of such concepts as the "stretch gift" and the "development" candidate, provide the environment for this sort of absurd drama. Anyone familiar with Ivy League admissions knows two things:

First, that the ranks of Ivy League graduates are filled with examples of undeserving sons and daughters of the plutocracy (Where do you think all this money comes from that pays people like Elizabeth Warren and others $350,000 per year to teach one course?)  This is not necessarily a bad thing. These "C" students provide much color. Besides, they frequently go on to provide jobs for the "A" and "B" students.

Second, the sustained preference for money over Veritas over the long haul erodes the spirit of an institution, prompting the following correct observation, certainly accurate in Harvard's case: reputation lags performance; it lags it on the way up, and it lags it on the way down.

But the academic bubble of the past 40 year is, happily, about to burst, as more and more parents come to realize about schools like Harvard something of what the Chows came to realize about Zimny: the payment of $55,000 per year in tuition for 4 years is a hoax that buys only a label and a smug sense of security, not an education. 

The First Debate

The first presidential debate held on Wednesday, October 3 was, quite simply, Romney's best debate performance ever. Although he is not naturally quick on his feet, and his efforts at spontaneity have the air of concocted impromptu, Romney demonstrated what every trial lawyer knows: the value of good preparation. Among other things, good prep imparts confidence. By comparison, the President seemed tentative, plodding, unfocused, listless, and epistemologically naked. Romney had been criticized by some for taking time off in August to prepare for the debates in Vermont, but it paid off. 

In fact, the Great Golfer's debate performance was so lackluster that even his liberal sycophants in the mainstream media were grousing. We now learn that Obama had spent a good deal of time in the weeks before the debate in the company of Il Pomperoso, Senator John F. Kerry, the President's "debate coach". Perhaps that is why Obama appeared so uncomfortable and displayed a hunted look. In any event, whatever Republicans are paying Kerry, it is not enough. Keep doing what you are doing, Senator "Liveshot". 

Of course the next day (yesterday) on the campaign trail, the President (following mouth-to-mouth resuscitation by his handlers) performed a volte-face and came out swinging, like a boxer emerging from his corner after a bad round. With an aggressive combination of counter-punches, a refocused Obama in an appearance in Nevada criticized Romney for his plans to eliminate PBS and Big Bird, and for his "irresponsible 5 trillion dollar tax cut". (Obama and the Democrats seem only to demonstrate fiscal concern on the income side, never on the spending side.) 

But these after-the-fact apercus and zingers were a day late and 5 trillion dollars short. Obama should have conceived and deployed them on his feet during the debate the night before. And the fact that he did not underscores another observation that is frequently made about the President: untethered from his teleprompter, beyond radio contact with  his speechwriters,  forced to fly “on the unpinioned wing", Obama is not an impressive orator. In fact, he is the opposite: he is slow on his feet; he is not "quick"; he appears to lack that root system of culture and contemplation, literature and the arts, anecdote and rich human experience upon which the Muse of great speakers (and great conversationalists) draws in order to inspire her subject, especially when the rhetorical going gets tough. My guess is that Our Leader, a man whose entire career seems founded on pretty words, paradoxically does not read books. And when even words fail a man whose only hard skill is the recitation of words, he fails indeed.