I had been meaning to write a post about how Sperry v. Florida, 373 U.S. 379 (1963), does not necessarily apply to Elizabeth Warren’s bankruptcy work. Sperry had been cited by many of Warren’s defenders to say that her work in Massachusetts is completely legitimate, even without a Massachusetts license, since she was practising federal law and federal law trumps state regulations via the Supremacy Clause.
First, Sperry is about a patent agent who was licensed before the USPTO to prosecute patent applications. Mr. Sperry lived in Florida, was not licensed in any jurisdiction, but called himself a “patent attorney”, advised clients as to patentability, drafted patent applications, and prosecuted patents before the USPTO. The state of Florida attempted to require Mr. Perry to cease performing any of these functions within its state, on the grounds that the federal permission to call oneself a “patent agent” and do such work only applied in Washington, D.C.
The state of Florida lost that one – the only thing it won was the right to require Mr. Sperry to call himself a “patent agent” as opposed to a “patent attorney,” the former being within the confines of the federal government to determine, the latter being a state designation.
Most of this is because patent law is entirely a federal matter. There is no such thing as “state patent law”; a state cannot (unlike with trademarks) protect as patented any invention, make determinations of infringement on patented works, or otherwise deal with patentable subject matter. Ergo, the state of Florida cannot prevent someone who has been licensed by the federal government from dealing with these entirely federal issues. Supremacy Clause 101.
Elizabeth Warren’s situation is analytically and pragmatically different.
Mr. Sperry lost the right to call himself a patent attorney when not a member of the Florida (or any) bar. Elizabeth Warren is neither a member of the Massachusetts bar, nor (as far as we know) registered with the Board of Bar Overseers as an attorney licensed in a different jurisdiction but having an office here. The Supremacy Clause does not apply to how states regulate who can call themselves attorneys while in its borders – Sperry told us that.
Moreover, bankruptcy law is not an entirely federal matter. It functions more like energy law, in which there is an interplay between state and federal governments. Florida, for example, has an unlimited homestead exemption for bankruptcy; Massachusetts has its own exemptions. Thus, to suggest that Warren was not dealing with any state law because she worked in bankruptcy strains credulity. Once state law applies, the Supremacy Clause response is not a slam-dunk.
So that was the post I was so going to write today. Then I read Legal Insurrection this morning. Today, the amazing Prof. William Jacobson brought us hard evidence of this interplay between federal and state bankruptcy law:
I consider that test irrelevant, but in any event, Warren did represent a Massachusetts client in Massachusetts on a Massachusetts legal issue.
The case was an appeal in the First Circuit Court of Appeals in Boston in the case of Cadle Company v. Schlictmann.
The case involved a dispute as to a lien on a contingent fee earned by Beverly, Massachusetts lawyer Jan R. Schlichtmann, who was the subject of the film A Civil Action. The issue in the case was whether a creditor or Schlictmann was entitled to the contingency fee earned in a case which started prior to Schlictmann’s personal bankruptcy but did not conclude until long after the bankruptcy.
The lien enforcement arose out of state law. Even though there were bankruptcy related issues, the question was whether the state law lien survived. As noted on the court docket and in the ultimate decision, the case only was in federal court because of what is called “diversity jurisdiction,” which permits a plaintiff to file in federal court if the plaintiff is a citizen of a different state than any of the defendants, and the dollar amount exceeds a minimum threshold (now $75,000).
Well, to anyone who had the slightest inkling of the fact that bankruptcy law involves state issues, this isn’t a surprise. But if you want to cling to a 1963 case dealing with patents, knowing that no American state in the history of ever has created its own patent law, and apply it to the federal/state bankruptcy arena, then scream “Supremacy Clause!”, well, you’re either a total law-ignorant nitwit, or Larry Tribe.