The following letter speaks for itself:
McNAMARA & ASSOCIATES
COUNSELORS
AT LAW
Frank
L. McNamara, Jr.
Tel: (978) 333-9608
|
October 12, 2012
|
53 Wilder Road
Bolton, Massachusetts 01740
***
155 Federal Street, Suite 1300
Boston, MA 02110
|
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
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).
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