I’m going to expand on Prof. Jacobson’s excellent work by filling in a few details peculiar to law licensing in Massachusetts.
Thanks, Prof., for saving me the trouble of pointing out the absurdity of the Mass Lawyer’s Weekly article about the whole debacle. I find it bizarre that they would argue that Liz Warren doesn’t need to be licensed here because she’s a law professor. Michael Frederickson’s argument is that people who falsely claim to be 1/32d Cherokee don’t need to be licensed to practise law in any jurisdiction, ever. Let’s exonerate her!
The issue is not that Elizabeth Warren filed a few briefs before the Supreme Court or was teaching law here. The issue is that she gave legal advice to companies (and, perhaps, individuals) while residing in Massachusetts and maintaining a law office here.
Massachusetts Rules Regarding In-House Counsel
An attorney who is not licensed in Massachusetts but wants to work as in-house counsel for a corporation must register with the Board of Bar Overseers. MA Supreme Judicial Court Rule 4.02, Section 9 states, in pertinent part:
(a) Any attorney who is admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, and who wishes to engage in the practice of law as in-house counsel in the Commonwealth of Massachusetts shall advise the Board by (i) filing an appropriate annual registration statement that he or she will limit legal practice in Massachusetts to engaging in the practice of law as in-house counsel, and (ii) identifying the organization on whose behalf the legal services are provided. [….]
(b) As used in this section 9, “to engage in the practice of law as in-house counsel” means to provide on behalf of a single organization (including a governmental entity) or its organizational affiliates any legal services that constitute the practice of law.
So even if you argue that Elizabeth Warren was only working on federal matters (fine), had active law license(s) in Texas and/or New Jersey, and was only working as in-house counsel, she still needed to register with the Board of Bar Overseers.
Further explanatory notes are provided here:
You must register under “in-house counsel status” if you work as in-house counsel for a corporation or other organization, are not admitted in Massachusetts, and your principal office is in Massachusetts or you otherwise maintain a systematic and continuous presence in Massachusetts on behalf of the corporation.
Furthermore, attorneys who have been licensed in another jurisdiction for between five and fifty years, but are registered in Massachusetts, must pay an annual fee of $351.
Notice that this does not talk about the location of the corporation, but of the attorney and the attorney’s office. Going back to Prof. Jacobson’s excellent work, we see that Elizabeth Warren was here and maintained her office here while working for corporations.
Reciprocity in Massachusetts
Massachusetts gives reciprocity to almost any attorney who has been licensed and active for at least five of the last seven years. If you have not failed the MA bar exam, have been practising or teaching law for the last five years, are licensed in at least one other jurisdiction, managed to scrape by with at least an 86 on the MPRE, and can cough up $1,015 in fees, you too can be licensed in Massachusetts.
Further, MA has no mandatory CLE requirements, and annual dues are the same as for those who are “registered” but not licensed in the Commonwealth.
So why would Elizabeth Warren live here for decades and neither register nor apply for admission on motion? Texas has continuing legal education requirements. So does New Jersey. For $1,015, Elizabeth Warren could have gotten licensed in Massachusetts, avoided ever being forced to take a CLE course, and have complied with all of Massachusetts’ requirements regarding representing people and corporations.