Most of the discussion about Elizabeth Warren’s law practice has focused on the question of whether she violated UPL laws by practicing in Massachusetts without a Massachusetts license.
But there is another issue that I’ve been wondering about. As her defenders have noted, her practice has been in federal court, including the Supreme Court. Under Rule 5 of the Supreme Court Rules, in order to practice one must file a certificate “evidencing the applicant’s admission to practice there and the applicant’s current good standing.” Perhaps the definition of this term varies from state to state, but I’ve always understood the term “current good standing” to mean that one is active in some state’s bar. Here’s the Connecticut rule, for example:
3. What does “good standing” mean? Can I practice law if I am not in good standing?
Good standing means the attorney 1)has been admitted to the bar of this state; 2) has registered with the Statewide Grievance Committee in compliance with Section 2-27(d) of the Connecticut Practice Book; 3) is in compliance with Client Security Fund requirements; and 4) is not under suspension, on inactive status, disbarred or resigned from the Connecticut bar.
Warren is a member of the Texas Bar, but apparently was either “not eligible” or “inactive” since 1992.
Warren was also a member of the bar in New Jersey, but resigned her license on Sept. 11, 2012, on the basis that the CLE requirements had changed and become too onerous.
But it turns out she apparently wasn’t active in New Jersey either. In a radio interview she said, ““I’ve been inactive in the New Jersey bar for a very, very long time and they had changes in their Continuing Legal Education and I couldn’t go down to New Jersey and take –”. One issue is, that unless the rule has been changed very recently, there appears to be no “inactive” status for the New Jersey bar–it simply means that she was ineligible to practice in New Jersey (note the caveat–I don’t know how long this has been the rule in New Jersey). But even if she could be inactive, she wouldn’t qualify as being in current good standing for purposes of federal court.
In short, to practice in federal court (or at least the Supreme Court) it appears that a lawyer must be active in some state bar. Warren hadn’t been active in Texas since 1992 and hadn’t been active in New Jersey for “a very, very long time.” So even if she practiced only in federal court, if she was representing private clients, wasn’t she required to be active in some state’s bar?
Note finally that this differs from the typical situation in which law profs may be involved in a case. Many of us are signatories to amicus briefs filed on behalf of law professors. But in those cases the professors are the clients and they have a licensed lawyer filing on their behalf. They are not, as Warren was in the Travelers case, the lawyer representing a private client in court. So while it is common for unlicensed law professors to put their names on briefs in federal courts, that is only because they are the clients.
Update: Thanks to readers, who pointed me to some useful sources that indicate that being on inactive status in Texas apparently does qualify one as being in good standing under Texas law, apparently making her eligible to practice in the U.S. Supreme Court and federal law. I had checked with a couple legal ethics people before I posted and they thought that one would be required to be eligible to practice in state court to practice in federal court. Thank you to the Texas readers who pointed me to the relevant rules.