Regulations For Thee, But Not For Me

by Hans Bader on October 4, 2012 · 1 comment

in Deregulate to Stimulate, Economy, Features, Labor, Legal, Regulation

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To liberals, regulations are great — until they ensnare a liberal politician. Then, suddenly there needs to be an exception to the regulation. An example of this is liberals’ curious insistence that left-wing law professor Elizabeth Warren did not need to comply with Massachusetts bar regulations requiring registration and licensing of lawyers, even though she handled many cases from her office in Massachusetts, including cases involving Massachusetts clients and Massachusetts state law.

As Jack Marshall notes at Ethics Alarms, “Elizabeth Warren operated a continuous Massachusetts law practice (and not just a sporadic Federal law practice) without a valid law license.” (The state bar rules require registration of lawyers who practice in federal court even if they do not represent Massachusetts clients at all, and do not practice law at all in Massachusetts state court.) Warren’s defenders wrongly argue that if she just practices in federal court, the state bar has no power or jurisdiction over her, since federal courts have the exclusive prerogative to regulate their own cases.

Essentially, this is a federal preemption argument, even though liberal politicians up to and including President Obama (as well as Professor Warren) have denounced federal preemption of concurrent state regulation as supposedly being a dangerous form of deregulation that harms consumers and public welfare. This sweeping preemption argument by Warren’s defenders ignores the fact that state bars have always asserted their jurisdiction to bring disciplinary proceedings over lawyers practicing in federal courts within their borders. (For examples of such jurisdiction being upheld, see In re Wade, 562 A.2d 936 (D.C. 1987); In re Bridges, 805  A.2d 233, 234-35 (D.C. 2002) (Maryland state authorities had jurisdiction over ethical breaches in federal courts).)

Even if Warren’s continuous law practice and Massachusetts law office did not require her to get a Massachusetts bar license (as a law professor convincingly argues she was required to do), she still has run afoul of Massachusetts bar rules stating that an attorney who is licensed in another state but has a physical office in Massachusetts must register with the state bar and pay dues equal to those that a licensed attorney pays. (Rule 4.02, Section 9.)

Lawyers collectively don’t buy Warren’s argument because they routinely act as if they are legally obligated to join state bars even when they practice solely in federal court. In Washington, D.C., there are thousands of lawyers who never practice in D.C. municipal courts, only in federal court. But they are admitted to the local D.C. bar, even when they handle only cases involving federal law, because they practice law in D.C. (D.C. bar rules specifically permit lawyers who practice in “specialized” courts, like patent and international-trade lawyers, to avoid joining the D.C. bar; but that doesn’t cover run-of-the-mill lawyers handling cases in federal court, like Professor Warren.)

As much as I would like to avoid paying any dues to the D.C. Bar, I joined it over a decade ago, to comply with D.C. Bar rules against the unauthorized practice of law — even though I practice only in federal court, never in D.C. municipal court, and was already a member of the bar of two states. I have spent well over $2,000 in admission and annual bar dues to be part of the D.C. bar, solely for this reason. I have always been advised by lawyers and bar employees that my prior admission to the bar of the U.S. Supreme Court, multiple federal appeals courts, and many federal district courts, in no way exempts me from having to join the D.C. Bar. This consistent advice conflicts with the claim of Warren’s defenders that those who practice in federal court need not join a state bar (a claim I doubt they will make in the future when someone else is accused of unauthorized practice of law).

The fact that I am legally obligated to join the D.C. Bar does not mean that these regulations are sensible or wise. I have advocated elsewhere that licensing of the legal profession be liberalized to not require licensing of most transactional or purely in-house lawyers, and to allow lawyers to be licensed if they have passed the bar exam, even if they have never attended law school. But bar regulations should be applied evenhandedly to everyone, regardless of ideology, with no exceptions. (Abraham Lincoln once argued that “The best way to get a bad law repealed is to enforce it strictly.”) That being said, I have explained elsewhere how deregulating the practice of law could both expand access to justice and create jobs.

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