Warren Law License Controversy Could Surface in Debate

The controversy surrounding Democratic Senate challenger Elizabeth Warren’s Massachusetts law license may play a role in Monday night’s debate between Warren and incumbent Republican Senator Scott Brown. 

Last Monday, William Jacobson broke the Elizabeth Warren Massachusetts law license problem story at Legal Insurrection. That afternoon,  Massachusetts Lawyers Weekly used an interview with Massachusetts Board of Bar Overseers General Counsel Michael Fredrickson to plant the false meme that the charges had been thoroughly investigated and Ms. Warren had been exonerated:

Michael Fredrickson, general counsel for the [Board of Bar Overseers], says he does not believe a law professor would be considered to have “a continuous presence” or “an office practicing law.”

“If they actually practice here – as some part-time law professors at some of the smaller schools do – they might,” Fredrickson says. “But being a professor at one of the large schools, their office is a professor’s office, and the fact that they tend to dabble in the practice of law doesn’t run afoul of our rule. I don’t think Elizabeth Warren would fall within that, such that she would have to register here.”

Fredrickson’s public comments came within hours of the publication of the story that Warren might have a law license problem, before it was even known whether the Massachusetts Board of Bar Overseers had received a complaint about Ms. Warren or if it had determined whether or not an investigation was warranted.

Though the article gave the impression Fredrickson was speaking in an official capacity on behalf of the Massachusetts Board of Bar Overseers, Fredrickson later acknowledged that he was speaking not for the Board of Bar Overseers in an official capacity, but only expressing his “personal views.” 

Fredrickson also acknowledged that he made his comments last Monday that have been reported as an exoneration of Ms. Warren with little knowledge of the details of her law practice or licensing issues.

Subsequently, additional information has been presented suggesting that Warren has even more serious law license problems in Massachusetts. Based on that information and other breaking news, a recent poll at Mass Lawyers weekly readers indicates that 80% believe there is sufficient evidence for the Board of Bar Overseers to undertake a formal investigation.

The Board of Bar Overseers, where Fredrickson serves as General Counsel, is not the only organization with authority to investigate questions of unethical or illegal activities by attorneys. Both the Board of Bar Overssers and the Office of the Bar Counsel,  were established by the Supreme Judicial Court of Massachusetts in 1974 and given responsibility in these areas:

The Board of Bar Overseers and the Office of the Bar Counsel were established by the Supreme Judicial Court in 1974 as independent administrative bodies to investigate and evaluate complaints against lawyers. Although both the Board and Bar Counsel are official bodies subject to the supervision of the Supreme Judicial Court, no public funds are spent to support them. The Bar Counsel’s and the Board’s expenses come solely from the annual registration fees paid by lawyers. . . 

The Office of Bar Counsel (OBC) was established . . . as an independent administrative body to investigate, evaluate and prosecute complaints against lawyers. The OBC is not a voluntary bar association or trade group. Although the office is an official body subject to the supervision of the Court, no public funds are appropriated for its expenses. The Office of Bar Counsel is entirely supported by the annual registration fees paid by lawyers. . . 

The Board of Bar Overseers was established . . . as an independent administrative body to investigate and evaluate complaints against lawyers. Although both the Board is an official body subject to the supervision of the Supreme Judicial Court, no public funds are spent to support it. The Board’s expenses come solely from the annual registration fees paid by lawyers.

Michael Fredrickson is the General Counsel for the BBO, Constance Vecchione is the lead attorney for the Office of Bar Counsel. Fredrickson has previously stated that the two organizations usually work very closely on investigations.

Jacobson pointed out it was unusual for someone in Fredrickson’s position to be commenting publicly, particularly before there had been an investigation.  

Breitbart spoke with Fredrickson on Monday, who refused to comment in an official capacity as General Counsel of the BBO, saying only that “my personal comment is that I will not be commenting further about this matter in a personal capacity.”

Phone calls to Constance Vecchione, head of the Office of Bar Counsel, were not returned.

A week after Fredrickson’s comments gave the entire world the impression that Ms. Warren had been exonerated by the BBO, the following questions of BBO have been asked and remain unanswered:

1. Has the BBO received a formal complaint that E Warren may have engaged in the unauthorized practice of law?

2. Has the BBO undertaken a formal investigation into charges that E Warren may have engaged in the unauthorized practice of law?

3. Will Fredrickson face discipline for publicly commenting on the E Warren case, when BBO rules say all investigations must be conducted without public comment?

4. In the event BBO has undertaken an investigation of Ms. Warren, will Fredrickson be required to recuse himself from that investigation?

The recusal rules of the Supreme Judicial Court of Massachusetts suggest that he may be required to do so:

On June 22, 2011, the Supreme Judicial Court amended the rules concerning recusal of members of the Board of Bar Overseers, as well as of hearing officers including hearing committee (“HC”) or hearing panel (“HP”) members and special hearing officers (“SHOs”). The revisions, which are effective September 1, 2011, both consolidate and add to existing provisions on recusal and provide in substance the following:

Board members, HC members or SHOs shall disqualify themselves in any matter in which their impartiality might reasonably be questioned, where “impartiality” means absence of bias or prejudice for or against a party, and maintaining an open mind when considering issues involved in the matter. (emphasis added)

Board members, HC members or SHOs are disqualified when they have personal knowledge of disputed evidentiary facts, when they have a financial interest in the outcome of the matter, or where they have previously expressed a view on the outcome.

The Board Chair is not disqualified from subsequent consideration or decision of a matter solely on the ground that he or she ruled on a motion or an appeal in the capacity of Chair.

A Board member who was the reviewing Board member in the decision to institute disciplinary proceedings in a matter under Section 2.8 of the Board Rules, or who was a SHO, HP, or HC member, is disqualified from later participating in the Board’s deliberations and its voting on the matter. However, a Board member who was a member of an Appeal Panel, is not disqualified from participating in subsequent deliberations and voting by the Board.

In the televised debate tonight between Warren and Brown, Warren may point to Fredrickson’s “personal comments” made last Monday as evidence of her exoneration. Brown, in contrast, may call for a thorough and formal investigation of these charges by unbiased investigators at the Massachusetts Board of Bar Overseers and the Office of Bar Counsel.