Follow-Up on Elizabeth Warren’s Federal Practice Question

In my first post on this I was trying to elicit information and discussion rather than taking a position and making an affirmative argument.  The whole arrangement just seemed odd to me–I just hadn’t heard of a lawyer who was not active under any state bar being able to represent a private third-party in litigation just because it was in federal court.  And I confess that until recently I hadn’t focused closely on the issue because I had assumed she was an active member of the New Jersey bar during the relevant time period, so while there were issues about the Massachusetts UPL question (about which I offer no opinion), it seemed to me that the federal practice issue must not be a big deal.  And I know that others have trod this ground before me but I’m trying to just figure it out.

As I noted in my update to my previous post, under Texas bar rules it appears that a person can be “inactive” but also in “good standing.”  And “good standing” doesn’t distinguish between being active and inactive, so the rules do in fact at first glance seem to contemplate what had me so puzzled–namely that a lawyer who was “inactive” under state bar rules could nevertheless conduct a full legal practice so long as it was entirely federal court (such as bankruptcy court).  Could that be?

But it turns out that there is another relevant provision of the Texas rules that readers have identified, which is not the definition of “good standing” but rather “active” versus “inactive.”  And, in particular, in Texas a lawyer who is actively representing clients (other than themselves) apparently is not eligible to go on “inactive” status.  Here’s the rule:

An attorney cannot request inactive status if he or she is a:

  • Member engaged in providing private legal services in any state, whether such services are compensated or uncompensated. Such services include any actions or advice rendered to any person or entity in any matters connected with the law. Such services do not include those rendered solely on behalf of a member’s own personal interests;
  • Member of the judiciary, including state, county, municipal, and all other governmental entities. This includes those considered to be administrative judges or judicial officers;
  • Member who is a law clerk, briefing attorney, law librarian, or engaged in an activity that requires researching or briefing the law;
  • Member whose job or position requires the person holding it to be an attorney or possess a law degree;
  • Member who is a full-time or part-time faculty member of any law school and who is either compensated or uncompensated; or
  • Member who is an elected official in a position that requires the member holding that position to be an attorney or possess a law degree

The above list contains primary examples, but is not exhaustive.

As Bill Jacobson has observed, Professor Warren apparently had been listed as “not eligible” to practice in Texas until recently when her status was changed to “inactive.”  And he poses the obvious question–which is what is the basis for Texas granting Warren “inactive” status?  I’m not implying that the Texas Bar has no basis–it just isn’t obvious to me from reading the rules what that basis may have been.  Perhaps I’m missing some other relevant provision that would seem to apply here.  But it did seem illogical to me that–without saying that Professor Warren was actually practicing law (a point addressed below)–that one could represent clients on an ongoing basis in federal court (essentially be actively engaged in the practice of law) while not being an active member of any state bar.  I know a lot of lawyers who only practice in federal court (bankruptcy law, for example) but I’ve never heard them claim that meant that they didn’t have to be active in a state bar.  Moreover, the law professor rule would seem to apply here (leaving aside the wisdom of that provision).

There is a second issue that I’ve been asked about.  Which is the question of whether Professor Warren was rendering legal advice or providing legal services or essentially was practicing law.  It has been pointed out, for example, that it is common practice for law professors to “put their names” on briefs as something more than clients so long as Counsel of Record is a member of the Supreme Court Bar (a different point from the “law professor as client not lawyer” example I gave in my initial post).  I’m not certain what that means but it seems like it might be relevant in the abstract.  I’m not sure how that might cut here.

Finally, some have argued that this is a trivial issue and others have argued it is more important for various reasons.  That seems to me to be a matter of subjective opinion on which people can make up their own minds–I’m just trying to find out whether there is any issue here in the first place and if so, what it is.

Obviously all these issues have been raised on blogs with a lot of low-brow bickering in the comments.  Maybe our readers here can help to actually illuminate the issues.

Update: I should clarify that I wasn’t implying and didn’t mean to imply that Professor Warren was “conducting a full legal practice” in federal court–I was framing a hypothetical to illustrate the point that it seemed unlikely to me that federal courts would be completely indifferent to one’s active status under state law, not making a statement about the facts here.  Which makes it a factual issue, I think.

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