William Jacobson of Cornell Commits Egregious Ethical Lapse in Smear Against Elizabeth Warren

William Jacobson of Cornell Commits Egregious Ethical Lapse in Smear Against Elizabeth Warren

At Legal In.sur.rec.tion, Professor Jacobson contends that Elizabeth Warren, the Massachusetts Senate candidate, liberal firebrand, and Harvard law professor, has  engaged or appears to have engaged in the unauthorized practice of law in the state of Massachusetts.  In support, Professor Jacobson points to numerous briefs either filed by Ms. Warren or with her listed as being “of counsel” in various federal courts around the country in which her office address is listed as being in Massachusetts.  As Ms. Warren is not, and does not appear to have ever been, licensed to practice law in Massachusetts, but instead appears to have been licensed only in New Jersey and/or Texas at all pertinent times, Professor Jacobson argues that Ms. Warren’s actions constituted the unauthorized practice of law in violation of Massachusetts law.

If Professor Jacobson’s analysis is correct, this is an extraordinarily serious charge for which Professor Warren should be held accountable both at the ballot box and before the appropriate ethics panel.  However, and with all due respect to Professor Jacobson, none of the facts alleged would constitute the unauthorized practice of law nor any other violation of relevant ethics rules.

In making his arguments, Professor Jacobson makes a fatal error by assuming that merely preparing legal briefs in (seemingly non-Massachusetts) federal cases or providing advice on federal law while located in Massachusetts and maintaining a primary office in Massachusetts constitutes the “practice of law in Massachusetts.”    Although he cites several cases for this proposition, these cases do not go nearly as far as Professor Jacobson assumes, as they each involve cases wholly within the jurisdiction of the Massachusetts courts, specifically Massachusetts real estate transactions and Massachusetts probate matters.

He further errs in deeming “on point” a 1976 case in which the Massachusetts state bar issued an ethics opinion prohibiting a law firm from listing a “Boston Office” address on its letterhead where the firm lacked any Massachusetts-admitted attorneys but instead sought to claim that a Massachusetts firm with which it had a relationship falling short of an “associate” or “partnership” relationship constituted its “Boston Office.”   This case, however, is not “on point,” as it is not an unauthorized practice of law case but is instead a misleading communications case in which the firm was prohibited from “holding itself out to the public” as having a Massachusetts office.  Jacobson incorrectly assumes that merely listing an office location in a court filing, rather than a communication “to the public” constitutes “holding oneself out to the public” as being licensed in the jurisdiction in which one’s office is located.

But most importantly, Professor Jacobson ignores Massachusetts Rule of Professional Conduct 5.5(d), which states that:

    “A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that…are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.”

The Official Comments to Rule 5.5(d) further elaborate to make explicit that 5.5(d) permits such an attorney to have even a “systematic and continuous presence in [Massachusetts] for the practice of law as well as provide legal services on a temporary basis.”

As the cases to which Professor Jacobson has drawn our attention are entirely cases from the federal courts, and indeed appear to be cases lying even outside the jurisdiction of the Massachusetts federal courts, and as there seems to be no allegation that Professor Warren was unauthorized to appear in those cases, the Massachusetts Rules of Professional Conduct appear to explicitly exempt Professor Warren’s actions in those cases from the prohibitions on the unauthorized practice of law.

Although it is true that Rule 5.5(d) does “not authorize communications advertising legal services to prospective clients in [Massachusetts] by lawyers who are admitted to practice in other jurisdictions,” merely listing the location of one’s office in an official court filing in which one is properly authorized to appear cannot possibly be construed as a “communication advertising legal services.”   To hold otherwise would be to make Rule 5.5(d) meaningless since attorneys are typically required to list their office addresses in official court filings, and in fact I am aware of no authority that stands for the proposition that an official court filing may constitute an “advertisement for legal services” merely because it lists the attorney’s office address.

UPDATE 9/24 10:45 PM: Suggesting the same conclusion as my analysis here, please see this article from Massachusetts Lawyers Weekly, which includes a quote from the General Counsel for the Massachusetts Board of Bar Overseers that also suggests there is no UPL issue here, albeit for reasons that do not even require going as far in the analysis as I have.

Jacobson seems to become both a semi-stalker of Warren and attack dog for the poor defenseless Scott Brown. In doing  so with such zeal that he has maliciously disregarded the truth, he may be guilty of libel - knowingly making false statements that smear someone character in a way that damages their reputation. Since Jacobson is in New York it might be incumbent on the New York Bar Association to open an inquiry into Jacobson's sleazy and unethical behavior. Cornell University should also consider taking appropriate action against Jacobson for scurrilous behavior that also reflects on the university.

Conservative Group Claims Obama Has ‘Communist Beliefs,’ Compares His Policies To Hitler’s
This  conveniently ignores the fact that real life Nazis are part of the Republican Party

Fox Wins Straw-Man Argument Against Taxing Millionaires At 100 Percent. Who does a wuss pick a fight with, a straw-man. That is why Republicans set up arguments that were never made and show everyone how right they were. Its the only way they can win. If they had to be truthful, ethical and argue with facts, they would lose. Very sad commentary on the integrity of the right-wing conservative movement.

There Were Many Lies In Romney's Convention Speech, This Is The Biggest

There Were Many Lies In Romney's Convention Speech, This Is The Biggest

Who knew that Mitt Romney was such a fan of Barack Obama's 2008 campaign?

"How many days have you woken up feeling that something really special was happening in America?" Romney told thousands of Republican delegates, alternates and hangers-on Thursday night. "Many of you felt that way on Election Day four years ago. Hope and Change had a powerful appeal."

Speaking of the "fresh excitement about the possibilities of a new president" Americans felt upon Obama's election, the man who will now seek to prevent the Democratic president's reelection told the 40th Republican National Convention about how much he had hoped Obama would succeed "because I wanted America to succeed."

But it wasn't just that citizens wanted America to succeed. As Romney noted: "Every family in America wanted this to be a time when they could get ahead a little more, put aside a little more for college, do more for their elderly mom who’s living alone now or give a little more to their church or charity… This was the hope and change America voted for.”

In this, Romney was right.

When Americans went to the polls in 2008, the clear majority voted for Barack Obama because they wanted a president who would address the economic missteps and misdeeds that had caused a stock market meltdown on the eve of the election -- handing the new president what even one of his harshest critics, Republican vice president nominee Paul Ryan, admitted in his Wednesday night acceptance speech was "a crisis."

The response to that crisis, Americans hoped, would do more than just bring a measure of stability to the markets. They hoped that it would bring a measure of prosperity to them and to their communities.

Unfortunately, Obama and his party did not have partners in addressing the crisis.

While Romney says he wanted Obama to succeed, Rush Limbaugh said before the new president was inaugurated in January, 2009, "I hope Obama fails." Senate Republican Leader Mitch McConnell, R-Kentucky, said on behalf of the president's legislative partners: "The single most important thing we want to achieve is for President Obama to be a one-term president."

Paul Ryan saw to it: rallying opposition to a stimulus that was designed to jumpstart the economy, opposing health-care reforms that mirrored those Romney implemented as the governor of Massachusetts, and refusing even the most minimal compromises as the nation's credit-rating was threatened during a absurd fight over whether to raise borrowing limits that Democratic and Republican presidents had raised in the past.

Even in the rare instances where Obama put the needs of the nation -- and the moment -- above politics, other members of "the loyal opposition" merely opposed. One of them even argued against providing the support that was needed to preserve the American auto industry, writing an article that declared: "Let Detroit Go Bankrupt."

Who was that guy?

Oh, right, Mitt Romney.

Much was made of the web of deception that Paul Ryan wove with his acceptance speech on Wednesday night,. But Romney actually tried to one-up his running-mate.

The man who stood before the convention of his party and declared that he wanted Barack Obama to succeed campaigned against Obama's election in 2008 -- attacking the Democratic nominee and his supporters for proposing "timid, liberal empty gestures."

Throughout Obama's first-term, Romney was a steady critic -- not just of auto bailouts but of virtually all of the policies of the new administration. He never demanded, as Wendell Willkie did after the 1940 elections, that Republicans recognize the necessity of working with a Democratic president. Like Ryan, Romney abandoned the traditional "one nation" Republicanism of Dwight Eisenhower and a former Michigan governor named George Romney, which argued that Republicans could and should work with Democrats, especially in tough times.

On a night that was all about telling Mitt Romney's story, with reflections on his humane service with his church, on his not so humane service with Bain Capital and of his moderate Republican service as governor of Massachusetts (well, except for the Romneycare part), Romney and his enthusiasts had plenty to say about Obama's failings. Even in speeches that were ostensibly about Romney's business acumen, there were sharp, at times unrelenting "they just don't get it" attacks on the president.

Then, Romney went for the jugular with lines like: "President Obama promised to slow the rise of the oceans and to heal the planet. My promise is to help you and your family."

Applause.

"To the majority of Americans who now believe that the future will not be better than the past," he told a crowd filled , 'I can guarantee you this: if Barack Obama is re-elected, you will be right.'"

Thunderous applause.

That just does not sound like a guy who wanted Barack Obama to succeed.

It sounds more like a guy who formed part of a partisan opposition that did everything in its power to make Obama "a one-term president."

Three years into the first Obama term, veteran Washington watchers Thomas Mann (who works for a think tank packed with former Republican White House aides) and Norman Ornstein (who works for Dick Cheney's old think tank) wrote an article titled: "Let’s just say it: The Republicans are the problem."

"We have been studying Washington politics and Congress for more than 40 years, and never have we seen them this dysfunctional. In our past writings, we have criticized both parties when we believed it was warranted. Today, however, we have no choice but to acknowledge that the core of the problem lies with the Republican Party," observed Mann and Ornstein.

"The GOP has become an insurgent outlier in American politics. It is ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition," they continued. "When one party moves this far from the mainstream, it makes it nearly impossible for the political system to deal constructively with the country’s challenges."

The Republican Party of Teddy Roosevelt and Wendell Willkie, of Dwight Eisenhower and George Romney, of Gerald Ford, and, yes, of Ronald Reagan, never moved so far from the mainstream that it would not cooperate and compromise when it came time to do right by America.

But the party that Mitt Romney now leads moved so far that it was, indeed, "nearly impossible for the political system to deal constructively with the country’s challenges."

They did not achieve Limbaugh's dream of forcing an Obama failure. But they made the president's tenure dramatically harder, and the prospect for renewal dramatically more difficult to achieve. And, now, Mitt Romney says: "Today the time has come for us to put the disappointments of the last four years behind us. To put aside the divisiveness and the recriminations. To forget about what might have been and to look ahead to what can be."

Or, it could be a time to consider the successes that might have been if the party that has nominated Mitt Romney for president and Paul Romney for vice president was not "an insurgent outlier in American politics. (that was) ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science."

"You might have asked yourself over these last years whether this is the America we want," Romney said in his acceptance speech.

Yes, Americans might have asked just that.

 Most voters know that President Obama inherited the worse recession since 1929. Ironically or maybe not, Romney inherited a small economic slump when he was governor of Massachusetts. In his RNC speech he holds Obama responsible not not fixing a catastrophe caused by Republicans, yet it was Mitt who complained as governor that he should not be blamed for not fixing the economy left by his predecessor - a Republican by the way. Republicans did everything in their power to make Obama and the USA fail. Senate Republican leader Mitch McConnell (R-KY) famously confused about the Republican tactics on the debt ceiling negotiations - McConnell Debt Ceiling Strategy: 'I Refuse To Help Obama Reelection' . This is the same anti-American fanatic that voted to raise the debt ceiling seven times under the Bush administration. Mr. Romney, supposedly a shining example of values, has the values of an old Soviet propagandist, Fact check: Mitt Romney's convention speech. Mitt is no more than George Bush with a better haircut. Romney represents all that is wrong with the conservative movement - their agenda is about catering to the compliants of billionaires who want even more money and ethnocetric women haters.

In An Internet Littered With Misinformation About The GM and Chrysler Bailouts Some Useful Links

In An Internet Littered With Misinformation About The GM and Chrysler Bailouts Some Useful Links

The restructuring of the bankrupt General Motors Corp. and Chrysler LLC in 2009 through the creation of new companies formed with assets purchased from the bankrupt firms was highly successful. Today, they are profitable, investing in America and creating jobs.

The decision to save GM and Chrysler prevented an economic catastrophe that would have thrown the nation into a full-blown depression, resulting in dozens of additional bankruptcies in the auto industry and across industrial America. Instead, today the auto industry is helping lead our nation's economic recovery.

When people insist that GM and Chrysler should have been restructured with private funds, we must remember that no entity besides the U.S. Treasury would provide financing. Without the Treasury, "Let Detroit Go Bankrupt" would have become "Force Detroit to Liquidate."

U.S. Bankruptcy Judge Arthur J. Gonzales found exactly that when authorizing the sale of Chrysler LLC's assets to the new Chrysler: "The Sale Transaction is the only alternative to liquidation available to the Debtors."

Likewise, the claim that Chrysler's secured creditors got less than they were entitled to is laid to rest by the judge in the Sale Order: "The Sale Transaction will provide a greater recovery for the Debtors' creditors than would be provided by any other practical available alternative, including, without limitation, liquidation whether under Chapter 11 or Chapter 7 of the Bankruptcy Code."

The Chrysler creditors group agreed, with over 90 percent supporting the sale as ordered, while the U.S. Appeals Court and the Supreme Court rejected challenges to the Sale Order.

That hasn't stopped critics like the Heritage Foundation from repeating the rejected claim that the UAW retiree health care trusts received more than they were entitled to under the principles of bankruptcy when compared to unsecured creditors.

But the comparison is hardly apt. The creditors' recovery is still occurring as a part of the bankruptcy process, while the health care funding was approved by the court under the specific part of the bankruptcy code that deals with retirees.

GM and Chrysler prudently bargained new contracts with the employees (and suppliers) they needed to be successful as newly formed entities. That amounts to good business judgment that is difficult to second guess when both companies are performing better than they have in decades.

Critics also like to forget the significant sacrifices made by UAW members. Plants were closed, and tens of thousands lost their jobs. Experienced workers gave up raises, cost-of-living increases, bonuses, vacation pay, overtime pay, holidays and break time, while those hired since 2007 work for lower pay and benefits. Retiree health care liabilities were shifted to the retiree trusts; retirees lost vision and dental coverage, and face increased out-of-pocket costs.

In 2011 UAW members approved new collective bargaining agreements with the domestic automakers that contain no raises but the possibility of increased at-risk compensation through profit sharing.

In return, the companies are investing in U.S facilities to create at least 20,000 new direct jobs, resulting in tens of thousands of jobs at businesses supported by the auto industry nationwide.

Who knows here or how they start, but a favorite myth of the anti-American conservatives web sites is that the gov'mint gave Chrysler to Italian automaker Fiat. Sounds crazy, because it is - Truth Squad: Did government give automakers to UAW, Fiat?

Obama Auto Bailout Has Created 10 Times More Jobs Than Romney Ever Did


Assessment of Tax Revenue Generated by the Automotive Sector (pdf) - "In 2010, the production, sales and service, and use of the automobile contributed $91.5 billion to state government tax revenues and at least $43 billion to federal government tax revenues.". Sometimes links go dead. If that should happen try using Google to search for the title of the hyperlink.

Another myth: Bush and Obama should not have helped out Detroit auto makers because auto workers make too much money. These critics think that Mitt Romney's vulture capitalism and offshore bank accounts are fine. So we're talking about critics who have their facts wrong and some wacky unpatriotic values. Auto Worker Salaries. If unions by nature of just being unions make bad cars and make car companies less competitive than conservative critics need to explain why Germany and japan has stronger unions than the U.S. Governments in both both countries have also helped out their auto industries.