Legal Ethics

Cornell Prof Stirs UPL Debate Over Elizabeth Warren's Legal Work

  • Print.

Updated: A Massachusetts legal publication asked the general counsel for the state’s Board of Bar Overseers whether professor professor Elizabeth Warren could possibly be involved in unauthorized practice of law in Massachusetts because she uses her Harvard Law School office as a home base for writing amicus briefs filed in federal appeals courts.

Warren’s doing so poses no UPL problem, BBO general counsel Michael Fredrickson told Massachusetts Lawyers Weekly for a Monday post on The Docket blog.

Referring to a state legal ethics rule that prohibits a lawyer from establishing “an office or other systematic and continuous presence in this jurisdiction for the practice of law,” he said that a law professor who doesn’t practice law regularly or have a “continuous presence” for that purpose, doesn’t fall within the scope of activity for which the ethics rule requires a state law license.

“If they actually practice here—as some part-time law professors at some of the smaller schools do—they might,” said Fredrickson, referring to the need to get a state law license. “But being a professor at one of the large schools, their office is a professor’s office, and the fact that they tend to dabble in the practice of law doesn’t run afoul of our rule. I don’t think Elizabeth Warren would fall within that, such that she would have to register here.”

Warren, who is running as a Democrat for a U.S. Senate seat, was also defended concerning Jacobson’s UPL accusation by her Harvard colleague, Laurence H. Tribe in the Docket post.

What the article calls a “political rock” was first thrown at Warren in a Monday post on Legal Insurrection by William A. Jacobson, an assistant clinical professor at Cornell Law School, the Docket post says. In the Legal Insurrection post, Jacobson treats the Massachusetts legal ethics rule as a bright-line division, saying that Warren was either practicing law from her Harvard Law School office in Cambridge, Mass., or not practicing law there.

After the Docket post was published, Jacobson contacted Fredrickson directly. In a Tuesday post at Legal Insurrection, Jacobson wrote that Fredrickson told him that while registration matters are usually referred to him, his comments to Massachusetts Lawyers Weekly were his “personal reading” of the law and that he was not speaking on behalf of the Board of Bar Overseers. Jacobson also wrote that Fredrickson told him that he was speaking hypothetically and not specifically about Warren because he knew “so little about Elizabeth Warren and her practice.”

In a telephone interview with the ABA Journal on Wednesday afternoon, Fredrickson agreed that he was providing his personal view rather than speaking on behalf of the Board of Bar Overseers when he discussed Warren. However, when asked how he would advise the board, if his opinion were to be requested, he said he is not currently aware of any reason why she would need to be licensed in Massachusetts.

“She’s a law professor who consults,” Frederickson said. “I don’t think that constitutes, as it’s been described to me, the unauthorized practice of law in Massachusetts.”

Discussion of the UPL question has also made headlines on the Legal Ethics Forum, which reached a conclusion similar to Fredrickson’s, the Legal Profession Blog and Media Matters for America.

Updated Sept. 26 to note Jacobson’s interview with Fredrickson and include comment made by Fredrickson to ABA Journal.

Give us feedback, share a story tip or update, or report an error.