The Coolest Self-Portrait Photo Ever Taken (Open Thread)

From NASA’s picture of the day, astronaut Aki Hoshide’s self-portrait. I just am not getting tired of looking at this image.

That’s actually not the entire photo – click on the image to see the whole photo.

May as well make this an open thread!

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35 Responses to The Coolest Self-Portrait Photo Ever Taken (Open Thread)

  1. 1
    Eva says:

    OMFG. Yeah, not getting tired of it either. Nice find!

  2. 2
    nobody.really says:

    Is anyone else amused to hear that Modern Family won the Emmy for the “third straight year”?

  3. 4
    RonF says:

    That’s pretty cool.

  4. 5
    RonF says:

    Hm. There may be a new issue in the Massachusetts Senatorial race:

    She may have been practicing law for years without a license.

    The debate last Thursday night between Scott Brown and Elizabeth Warren covered ground mostly known to voters.

    But there was one subject most people watching probably did not know about, Elizabeth Warren’s private legal representation of The Travelers Insurance Company in an asbestos-related case.

    Brown brought the point up late in the debate, and hammered it:

    Warren attempted to deny her role, and referred to a Boston Globe article, but the Globe article supports Brown’s account. The Globe article indicated the representation was for a period of three years and Warren was paid $212,000. The case resulted in a Supreme Court victory for Travelers arising out of a bankruptcy case in New York.

    Whatever the political implications of the exchange, Warren’s representation of Travelers raises another big potential problem for Warren.

    Warren represented not just Travelers, but numerous other companies starting in the late 1990s working out of and using her Harvard Law School office in Cambridge, which she listed as her office of record on briefs filed with various courts. Warren, however, never has been licensed to practice law in Massachusetts.

    As detailed below, there are at least two provisions of Massachusetts law Warren may have violated. First, on a regular and continuing basis she used her Cambridge office for the practice of law without being licensed in Massachusetts. Second, in addition to operating an office for the practice of law without being licensed in Massachusetts, Warren actually practiced law in Massachusetts without being licensed.

    Warren refused to disclose the full extent of her private law practice when asked by The Boston Globe. If Warren denies that she has practiced law in Massachusetts without a license, Warren should disclose the full extent of her private law practice. The public has a right to assess whether Warren has failed to comply with the most basic requirement imposed on others, the need to become a member of the Bar of the Commonwealth of Massachusetts in order to practice law in and from Massachusetts.

    A lengthy treatment of this and numerous links at the link. The Warren campaign has no comment. Yet.

  5. 6
    gin-and-whiskey says:

    I don’t have time to research this in full, but I suspect this turns on a legal provision that isn’t obvious to laypeople.

    “Practicing in Massachusetts” for the purposes of licensing really means (in a simplified summary,) “practicing Massachusetts law on behalf of Mass. clients in Massachusetts state courts.”

    The things they mention–filing amicus briefs, appearing in federal court, etc.–would not require a Mass. law license. You might think that they do (as do most anti-warren commenters) but you’d be wrong.

    Update: Here’s another Mass. attorney (anti-warren, FWIW) who agrees with me:
    http://legalinsurrection.com/2012/09/elizabeth-warrens-law-license-problem/comment-page-2/#comment-375282

    Frankly, this is really a low blow by the Brown campaign. If Warren did what appears to happened here, there’s no reason that she would need a Mass. law license. This accusation seems designed to play to the misconceptions of laypeople, and reminds me of the “the candidate’s sister is a thespian” accusations of yore.

    Similarly, the demand that she turn over “all the cases she’s worked on” for Brown’s review is yet another low blow, because NO ATTORNEY ANYWHERE would give that more than a fuck you response. Brown knows that; the public doesn’t.

  6. 7
    RonF says:

    I wouldn’t say it’s that simple. Yes, there’s a commenter on that thread who agrees with you. But there are others that don’t. For example, others are saying that someone who is acting in the capacity of a lawyer and maintains an office for that purpose in Massachusetts has to be a member of the Massachusetts bar even if the cases and clients are out of the Commonwealth.

    I don’t think it’s a low blow, I think it’s a legitimate concern. She has come out and said that she does not have and has never had a Massachusetts law license. Her name appears as “of counsel” in at least a few high-profile cases. According to the posting and some comments the only way that you can practice law in Massachusetts without a Massachusetts law license is if a) you are licensed in another state and b) you get a member of the Massachusetts bar to apply to the court handling a given case for permission for you to act as a lawyer in that case for each case that you are involved in. That application (and whether it was accepted or denied) then becomes part of the public record in that case.

    It would certainly be inappropriate to ask Prof. Warren to divulge the details of what manner of advice she gave in a given case or how she did the work. But given that she’s involved in a Senatorial campaign I think it’s quite reasonable to ask that she divulge what cases she worked on to the point that it can be independently determined whether or not she was legally licensed to do so.

    I’m not a member of the Massachusetts bar (although I’ve been in quite a few) and have no legal training whatsoever. But it seems to me that this controversy is not simply baseless slander. There seems to be at least a legitimate dispute. I wonder whether this will get a thorough investigation prior to the election.

  7. 8
    gin-and-whiskey says:

    I wouldn’t say it’s that simple. Yes, there’s a commenter on that thread who agrees with you. But there are others that don’t. For example, others are saying that someone who is acting in the capacity of a lawyer and maintains an office for that purpose in Massachusetts has to be a member of the Massachusetts bar even if the cases and clients are out of the Commonwealth.

    So what? If the “others” aren’t lawyers (which most of them don’t appear to be) and ideally mass. lawyers then their opinions are, in this particular instance, of little value.

    For example, “maintains an office in the commonwealth” wouldn’t generally apply to a professor, because that’s not the type of office that the Rules are talking about.

    According to the posting and some comments the only way that you can practice law in Massachusetts without a Massachusetts law license is if a) you are licensed in another state and b) you get a member of the Massachusetts bar to apply to the court handling a given case for permission for you to act as a lawyer in that case for each case that you are involved in.

    Yes, I know that is what the post says. The post is wrong. The other comments are also wrong.

    Or, more specifically, when folks say:

    the only way that you can practice law in Massachusetts

    they are relying on particular definitions of “practice,” “law,” and “in Massachusetts” which are, in combination, incorrect.

    But given that she’s involved in a Senatorial campaign I think it’s quite reasonable to ask that she divulge what cases she worked on

    No, not at all.

    Nobody is entitled to know what cases I’m involved in, or what advice I give to my clients, or even who my clients are. The only way that they can know that is by reviewing the public records (or investigating me formally, which isn’t happening here.)

    Obviously, a lot of things are settled off the books without any record. Often, the lack of a record is appealing to all parties concerned. And even if something is a public record I generally have an obligation not to draw attention to it unless my clients want me to, because my primary duty is to clients and not to anyone else.

    This point is something which really displays the lack of knowledge of how things work in the legal arena. What you’re putting out as “reasonable” is anything but. Senatorial campaigns have shit-all to do with it–in fact, disclosing due to a campaign would create the type of REAL ethical violation that you’re claiming she should avoid.

    to the point that it can be independently determined whether or not she was legally licensed to do so.

    Heh. If you mean “indepedent = Brown” then I hope you’re laughing while you say it.

    The only independent folks who would give a shit are the Mass. Board of bar Overseers. Anyone (including you) is welcome to file a complaint with them; go nuts. If they think it’s relevant, they’ll investigate; if they think it’s a violation then they may choose to discipline.

    If they don’t think it’s relevant then it probably isn’t relevant. Not every violation merits an investigation, and most investigations don’t merit discipline. Similarly, cops don’t usually arrest folks for jaywalking.

  8. 9
    Grace Annam says:

    RonF:

    I wouldn’t say it’s that simple. Yes, there’s a commenter on that thread who agrees with you. But there are others that don’t.

    Ron, that is the weakest argument I’ve heard all month. I’ve met people who believe, firmly, that the 1969 moon landing was a hoax. They even produce Evidence, ha HA! *sounding trumpets*

    That doesn’t make them right, or credible, or unbiased.

    Grace

  9. 10
    Ampersand says:

    G&W wrote:

    The only independent folks who would give a shit are the Mass. Board of bar Overseers. […] If they don’t think it’s relevant then it probably isn’t relevant.

    From a news story:

    Michael Fredrickson, general counsel for the [Massachusetts 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.”

    Also, regarding revealing who her clients are, Warren is a bankruptcy specialist. It’s fairly obvious that if a company was at some point worried enough to hire a bankruptcy expert, that’s NOT something they want publicly revealed.

  10. 11
    RonF says:

    Nobody is entitled to know what cases I’m involved in, or what advice I give to my clients, or even who my clients are.

    Nobody is (in general) entitled to know how much money you make, either, but it seems to have been demanded of Mitt Romney quite forcefully by his opponents. Information that is generally considered private is often at issue in a political campaign for various reasons.

    Yes, I know that is what the post says. The post is wrong. The other comments are also wrong.

    That’s your opinion. Others differ. You may very well be right, but I’m interested in seeing what the authorities in the matter have to say. Especially on the topics of what constitutes “practice of law” and “in the Commonwealth of Massachusetts”.

    The only independent folks who would give a shit are the Mass. Board of bar Overseers. […] If they don’t think it’s relevant then it probably isn’t relevant.

    Such as, say, the Mass. Board of Bar Overseers. And whoever else is involved, I have no idea myself.

    Grace:

    Ron, that is the weakest argument I’ve heard all month. … That doesn’t make them right, or credible, or unbiased.

    I’m not making an argument. I’m pointing out that there’s an active debate on the matter and that one commenter’s opinion shouldn’t be considered conclusive – or unbiased or credible.

    Amp:

    … says he does not believe a law professor would be considered to have “a continuous presence” or “an office practicing law.”

    That’s not what’s at issue.

    “If they actually practice here – as some part-time law professors at some of the smaller schools do – they might,”

    That’s what’s at issue.

    “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.”

    So a professor at Harvard has special privileges over a professor at a smaller or less prestigious school? That’s the kind of equity that Prof. Warren stands for? Yeah, probably, come to think about it.

    I’m not aware that “dabble” is a legal term. And I propose that absent Prof. Warren revealing the cases she’s been involved in and at what level Mr. Fredrickson really doesn’t have enough information to make that judgement. She made $230,000 in 3 years off of one case. A case where she listed her Harvard office as her office for the purposes of the case. A quarter of a million dollars doesn’t sound like “dabbling” to me. That’s probably more than 90% of her potential constituents made for their entire income during that time period. What if it turns out that she’s made millions? I guess that if we pursue that line of reasoning we need a definition of “dabble”.

  11. 12
    RonF says:

    And since this is an open thread, I’ll put something completely different in here.

    Recently I found myself in an unexpected place with an unexpected amount of time on my hands. As I was making an 8-minute drive back to where I needed to be an hour later, I saw a comics shop that I’ve driven past many times before. On a whim I decided to stop in. I haven’t been a regular reader of comics since, say, 1972. I wanted to see what passes for comics these days.

    About once a year there’s a thread here about the depiction of women in comics. I have nothing to say because – I have nothing to say, at least nothing with any experience or information behind it. Having spent a half-hour in that shop all I can say now is “Wow, I see what you mean!” Someone’s getting their jollies both reading and writing/drawing this stuff, that’s for sure.

  12. 13
    Myca says:

    “When volunteers and employees were suspected of sexually abusing children, Boy Scout officials often didn’t tell police, files from 1970-91 reveal. In many cases they sought to hide the situation.”

    As much as I am unsurprised by yet more evidence of yet another homophobic organization being more protective of their public image then they are of innocent children, I really don’t think that this is a problem specific to the Boy Scouts or the Catholic Church. I think that this is a problem specific to right-wing authoritarian organizations that close ranks at the first sign of criticism.

    As long as you teach that the hierarchy is the most important thing, and that rules don’t need to make sense (which is what exclusion of LGBT folks and mandated theism does), you will encounter these problems.

    Furthermore, I suspect that the mindset that “the organization does so much good, and we don’t want to see that good suffer just because of this one thing … ” which we see all the time in discussions of BSA discrimination and bigotry, plays a large part.

    In any case, it’s sad. My dad and grandad were boy scouts. I was a boy scout (and was non-consensually stripped to my underwear and tied to a tree with nary word of opposition from our scoutmaster). My kids? No, I don’t think they will be. There are less damaging ways of teaching them about the outdoors.

    —Myca

  13. 14
    Grace Annam says:

    I’m not making an argument.

    Of course you are.

    An argument is a statement or series of statements to establish a proposition. It isn’t just gainsaying whatever the other person says.

    You said that a current issue in the race is that Elizabeth Warren might have been practicing law without a license. Gin-and-whiskey said that this seemed to him a dubious claim, one which probably turns on a point of law which it would be easy for a non-lawyer to misunderstand, but which he, as a lawyer, could make an educated guess. He elaborated on the nature of the technical issue. He cited an anti-Warren attorney who practices law in Massachusetts who agrees with his assessment of the issue. He went on to comment that this tactic was dirty pool. His post was concise, but clearly made several different points.

    You riposted with this counterargument: It’s not that simple.

    It’s not clear what “it” is, here, but let’s focus on your supporting evidence: Some people agree with gin-and-whiskey, but SOME DON’T! “Some” are offering the opinion that if she maintains a law office in Massachusetts, then she has to be licensed before the Massachusetts bar even if she actually practices law elsewhere.

    We don’t know who “some” are. Are they lawyers? This issue hinges on a highly technical legal point, and anyone with experience of the law knows not to rely on first appearances or “common sense”. Are they not lawyers at all? We don’t know. But we do know that gin-and-whiskey is a lawyer, and more than that, he has explained his reasoning and qualified it carefully. I’m inclined to give his argument more weight than the “some” you cite.

    “I’m not making an argument.” Okay. What were you doing, during those four paragraphs? Whistling “Dixie”? You weren’t making an effective argument, or a convincing argument. I’ll go that far with you.

    I wonder whether this will get a thorough investigation prior to the election.

    If it does, send parkas to hell. Less than two months for a RULING following a highly contentious investigation into a lawyer’s legal practice? I will be very surprised. Which is another thing which makes this maneuver look a lot like dirty pool: raise the question too close to the election to resolve it fairly, so it can just hang in the air, and in effect be decided by voters most of whom have no understanding of what is, at base, a question of administrative legal minutiae.

    Grace

  14. 15
    Ampersand says:

    You may very well be right, but I’m interested in seeing what the authorities in the matter have to say. Especially on the topics of what constitutes “practice of law” and “in the Commonwealth of Massachusetts”. […] Such as, say, the Mass. Board of Bar Overseers.

    But in fact, you weren’t interested in what the BBO said; you were very dismissive of it.

    If the General Council of the BBO doesn’t think that any rules were broken by Warren, then that seems to be the end of it, unless there’s new evidence still to come. Am I missing something here?

  15. 16
    nobody.really says:

    An argument is a statement or series of statements to establish a proposition. It isn’t just gainsaying whatever the other person says.

    Yes it is.

  16. 17
    RonF says:

    No, I was very interested in what they said. That’s why I read it. But I’m a little suspicious of the fact that he seemed to be acting on insufficient data. We’ve seen this phenomenon before. It’s kind of like a prosecutor deciding to not prosecute someone for having, say, shot an unarmed black kid prior to a sufficient investigation of the matter having been done. Once the investigation was done – a move you’ll remember I supported – the prosecutor’s opinion changed, and a prosecution ensued. What information other than what we all have read is the BBO counsel making this judgement on? Do you think it’s sufficient to do so? I don’t.

    The BBO counsel has already made a distinction between a professor at a 2nd or 3rd tier law school and a Harvard Law School professor. Perhaps he’s also a little worried about the implications of investigating someone who may well end up a Senator in a few months, and wants this to go away.

  17. 18
    RonF says:

    Grace:

    We don’t know who “some” are. Are they lawyers?

    Yes, actually. Notably the blog owner, poster of the original posting, who is a Professor of Law at Cornell University.

    If it does, send parkas to hell. Less than two months for a RULING following a highly contentious investigation into a lawyer’s legal practice?

    Hah. Hadn’t thought of that. Good point.

    Which is another thing which makes this maneuver look a lot like dirty pool: raise the question too close to the election to resolve it fairly, so it can just hang in the air, and in effect be decided by voters most of whom have no understanding of what is, at base, a question of administrative legal minutiae.

    That’s a valid viewpoint. It’s certainly possible. As that noted philosopher the late Chicago Mayor Washington once said, “Politics ain’t beanbag.” Or, it could be that it just came up. I wouldn’t be surprised if the Brown campaign has know about this for a long time and saved it for this point in the campaign, but I can’t say for sure.

    Coincidentally, it also highlights that someone who inveighs against the influence of corporations on the working man seems quite happy to take corporate money to help advance their interests. It’s not like she’s making minimum wage at Harvard and needs the money, after all.

  18. 19
    gin-and-whiskey says:

    RonF, either you’re not capable of understanding this issue (which I don’t believe,) or you are ignoring my posts (which I could believe, grudgingly,) or you are engaging in a game of selective perception of fairly epic proportions 9which seems the likely case.)

    Let’s go through this bit by bit:
    1) The law. If you haven’t read the Massachusetts rule AND the comments–have you?–then you (and others) have no real business participating in the discussion. You’d be arguing from ignorance. And on that subject, *HAVE* you previously read the things you’re arguing about? I have.

    Here it is, in case you have failed to read it for yourself, and in case you have been looking at the many sites which selectively quote paragraphs without noting other sections that modify or explain them. Don’t forget to read the commentary.
    http://www.mass.gov/obcbbo/rpc5.htm#Rule%205.5

    I would also direct your attention to Section 1.6, in particular comment 5A; and Section 8.5, in particular comment 5.

    2) Practical application of the law:

    Any lawyer who sends anything to a court must note an “office address.” That does not constitute “establishing an office” for the purposes of Rule 1.5. Similarly, listing an office address on a pleading does not constitute “holding out to the public” your bar membership.

    This isn’t really debatable, no matter how many right wing laypeople believe otherwise. If you think it’s debatable, I’ll explain it more… if you first explain your side of the argument. But hopefully you’ll trust me on this.

    3) The public record apparently doesn’t support the claim w/r/t actual appearances. I haven’t personally verified this, but we can reasonably conclude that because nobody has popped up with evidence.

    Believe it or not, there are relatively few Superior Courts in Massachusetts, and they all have computer systems. Moreover, every single filing in every single federal court case in the last decade is searchable on Pacer, a public database. If you want to know if Warren has practiced in Mass. state courts, the answer is to be found by logic: (a) The Brown campaign hates Warren; (b) the brown campaign raised this issue; (c) showing evidence would help Brown and hurt Warren; (d) Evidence is publicly available, for free or minimal cost; (e) Nobody from the Brown campaign has produced even a smidgen of direct evidence; so (f) No, she hasn’t actually broken the law here.

    4) This is a theme, but you have no idea what you’re talking about w/r/t brown’s attorney role. You said.

    someone who inveighs against the influence of corporations on the working man seems quite happy to take corporate money to help advance their interests

    Warren did the opposite. She entered a case and managed to ensure that consumers in certain settlements would be protected from corporations filing bankruptcy. Her work was, unsurprisingly, PRO-consumer. After she withdrew as counsel from the case, the company managed to change the outcome. Your portrayal is flatly, embarrassingly, wrong.

    5) Your calls for “investigation” are bizarre:
    a) An investigation requires some sort of reasonable suspicion on the part of the investigator.
    b) Reasonable suspicion requires some sort of evidence.
    c) even if there WAS evidence, nobody has filed a complaint.

    Again: this is functional proof of a bullshit claim. Do you think that Brown would hesitate to file a complaint that he thought he could actually win? Do you think that there’s not a single anti-Warren attorney out there who wouldn’t have forwarded a court filing to the Brown folks anonymously?

    It’s as if the Warren campaign was clamoring for cops to enter Brown’s home and search it without a warrant, just because his behavior on this issue suggests that he’s on crack.

    Moreover, you clearly have no idea what the rules of confidentiality have to do with your demands for disclosure–are you sensing a theme here?–and haven’t responded to my points in that area. You’re just repeating the same bullshit “I have no idea what I’m talking about, but i demand that my political opponents produce things that I’m not entitled to, so that they can attempt to disprove my claim” position.

    I normally have respect for you as an opponent, but that’s petering out quickly here.

  19. 20
    Myca says:

    “I have no idea what I’m talking about, but i demand that my political opponents produce things that I’m not entitled to, so that they can attempt to disprove my claim”.

    Heh. Sounds like the entirety of the birth-certificate controversy.

    —Myca

  20. 21
    Copyleft says:

    I noticed that too. “I invent new requirements in my head all the time, and I demand that my opponents meet them!”

  21. 22
    Ampersand says:

    But I’m a little suspicious of the fact that he seemed to be acting on insufficient data.

    No, if he opened a formal investigation — given the evidence we’ve seen — that would be acting on insufficient data. Because there is absolutely nothing here that warrants an investigation.

    There is nothing suspicious about a lawyer who specializes in Federal bankruptcy cases not having a license to practice Massachusetts law. even if she lives in Massachusetts. That is legal behavior.

    There is nothing suspicious about putting your office address on submissions to court. That’s not only legal behavior, it’s mandatory behavior.

    Can you point to one thing that you can show Warren has done, that is illegal, or breaks the rules in any way? Because as far as I can tell, you can’t. The reason you want her investigated isn’t that she’s done anything that objectively warrants an investigation, but because there’s no other way Scott Brown will win the election (if current polls are accurate).

    It’s kind of like a prosecutor deciding to not prosecute someone for having, say, shot an unarmed black kid prior to a sufficient investigation of the matter having been done.

    You’ve got to be kidding.

    If there’s a dead body on the ground, there is every reason to think the law has been broken. Maybe the deceased person broke the law against assault and was shot in self-defense, or maybe the person who shot him broke the law against murder. But in either case, there’s warrant for an investigation.

    You don’t have the slightest bit of evidence that Elizabeth Warren broke any laws. Do you really want to live in a society in which people are investigated without any evidence that a crime (or a broken rule) has taken place?

  22. 23
    RonF says:

    Seems like I’m not the only person to think the BBO’s general counsel’s remarks should be qualified in the face of a lack of information. So does the BBO’s general counsel.

    The statement seemed at odds with a plain reading of the statute and rules, as explained in my prior post. It also struck me as strange that the Board of Bar Overseers would issue such a casual determination without an investigation, particularly since Warren has refused media requests for full disclosure of the nature of her law practice.

    So I called Fredrickson [the BBO General Counsel – RonF] this morning to better understand his position and on whose behalf he was commenting. Fredrickson was perfectly pleasant, although he did express both at the start and the end that he did not want to be dragged into a political issue.

    Fredrickson confirmed that he did make the comments attributed to him in MLW, but also made clear that he was not speaking on behalf of the BBO. Fredrickson said it was his “personal reading” of the law, and that he was “not speaking on behalf of the Board of Bar Overseers.”

    Fredrickson also stated, in response to my question, that he was not speaking on behalf of the Bar Counsel, the office vested with investigatory and prosecutorial function at the BBO. Fredrickson did indicate, though, that as a practical matter registration issues usually are referred to him.

    Fredrickson stated that he did not purport to determine whether Warren violated the applicable law. He said he was just “speaking hypothetically” and not specifically as to Warren because “I know so little about Elizabeth Warren and her practice.”

    I then explored various legal positions expressed in the MLW interview. Fredrickson said he did not mean to suggest that there was any different standard for law professors, or that maintaining an “office for the practice of law” under the Rule 5.5(b)(1) required that it be an office exclusively or primarily for the practice of law.

    In short, Fredrickson’s opinion in no way could be deemed the position of the Board of Bar Overseers or a determination as to whether Warren herself complied with Massachusetts law.

    That post also responds to various other points that defenders of Prof. Warren have raised and that have been raised above.

    There is also new information that implicates Prof. Warren in having actually had been involved in a case regarding a Massachusetts client and Massachusetts law. It was in a Federal court, but Prof. Jacobsen holds that this is immaterial for the purposes of Massachusetts licensing law. That issue is discussed in the above link, and the particular case is discussed here.

    There appears to be a real controversy here. Previous defenders are now hedging their positions. It’s going to be interesting to see how this develops.

  23. 24
    gin-and-whiskey says:

    Is that your idea of a response to my post?

    Hell, I’ll stick with my first question:

    Have you read the Rules and commentary? Or not?

  24. 25
    Ampersand says:

    I believe Ron was responding to me, and it’s a very relevant response. Thanks for the update, Ron.

    However, when you write:

    There is also new information that implicates Prof. Warren in having actually had been involved in a case regarding a Massachusetts client and Massachusetts law. It was in a Federal court, but Prof. Jacobsen holds that this is immaterial for the purposes of Massachusetts licensing law.

    Prof. Jacobsen, in the link you provide, says “Warren’s name appears as one of the counsel of record.” Yet on the document Professor Jacobsen provides, Nesson and Schlichtmann are designated “COR,” but Warren isn’t — she’s designated as “NTC,” which, for no apparent reason, stands for “To Receive Notice.”

    G&W, or Mythago, or any other lawyer here — is there a legal difference that matters between COR and NTC? Is Jacobson being fair by describing Warren as COR on a case where she’s listed as NTC? This person claims it makes a lot of difference:

    There is a significant difference between receiving notice of filings and appearing as counsel of record. This isn’t the “smoking gun” that Jacobson is attempting to make it out to be. Lots of non-lawyers receive notice on PACER. Creditors in bankruptcies, for example, “receive notice.” Technical advisors receive notice. Mediators receive notice.

    The clerk entry doesn’t even indicate that she “appeared on behalf of” the party in that case. It merely states that she was “added” to the case. This also totally ignores the fact that she was licensed to practice law in New Jersey at the time of this case, and she was appearing in FEDERAL COURT. If she was admitted to the First Circuit, which . . . I can tell you from experience, most federal courts don’t allow you to appear unless you’re admitted, then none of this matters. I’m not licensed in New York, but I advise NY based clients regarding NY lawsuits dealing with the interpretation of NY law in NY federal courts *all the time.* Jacobson is trying to manufacture a controversy where none exists.

    But I have no idea if she’s right about that or not.

    I don’t know if Warren did something wrong or not. That Jacobson describes her as “council of record” when the document he cites to support that claim doesn’t appear to identify her as COR detracts from his credibility, imo.

    It doesn’t seem to me that Jacobson has made his case, frankly. (G&W makes some good points.) But I’m not a lawyer, and I’ve got a strong partisan motivation to want Warren to be innocent, so my opinion is suspect.

    So I’m sort of “wait and see” about this. Eventually, more authorities will weigh in.

  25. 26
    Ampersand says:

    Ron, the American Bar Association Journal contacted the BBO General council, and asked him about his comments to Jacobson (which you quoted).

    In a telephone interview with the ABA Journal on Wednesday afternoon, Fredrickson agreed that he was providing his personal view rather than speaking on behalf of the Board of Bar Overseers when he discussed Warren. However, when asked how he would advise the board, if his opinion were to be requested, he said he is not currently aware of any reason why she would need to be licensed in Massachusetts.

    “She’s a law professor who consults,” Frederickson said. “I don’t think that constitutes, as it’s been described to me, the unauthorized practice of law in Massachusetts.”

    Make of that what you will.

  26. 27
    gin-and-whiskey says:

    SCounsel of record is the person who is ultimately responsible for the case. they are responsible for whole thing.

    If there’s a problem, it falls on the counsel of record.

    COR is responsible for assuring that all other procedures are followed. For example, COR can hire paralegals and decide what tasks to delegate to them; they can hire out of state attorneys and delegate information to them; they can assign first years or senior partners or whatever. They hold the ball in the end.

    If there’s only one lawyer, then that lawyer is the counsel of record. If there’s more than one, then some of them may be appearing in an ancillary role. It would be perfectly OK for COR to hire a federal procedure specialist to advise on bankruptcy appeals, and a state law specialist to advise on state law. many of the people who give advice may not be lawyers or may not be barred in that jurisdiction: that’s OK, because it’s the COR’s job.

    note that in the above example, the federal procedure specialist isn’t advising on a Mass. law issue, and isn’t COR anyway, and doesn’t need a Mass. license.

    The actual case Ron cites repeats the “do these people even fucking read what they are writing?” meme. (Which makes me ask, again: did you read it, Ron?) Or is it a “take a position that you know nothing about based on the opinions of folks you haven’t vetted and who have an obvious agenda” thing again?

    First of all, it’s a federal appeal. The Brown folks are all “oh, it’s really a state court case in a Massachusetts court, because it implicated a Massachusetts question. Bullshit. This is a federal appeal.

    in fact, almost the entire appeal deals with federal law–bankruptcy code, etc. and the only comment at the end regards conversion w/r/t mass law.

    Don’t believe me? read the decision. It’s free.

  27. 28
    Ampersand says:

    From Ethics Alarms:

    Thus it must have been her New Jersey law license that made Warren eligible to appear in Federal Court. But there’s a problem there, too. New Jersey rules hold that a lawyer can only be a licensed attorney in good standing in New Jersey if that lawyer maintains a bona fide office for the practice of law. The office can be in any state, but it must qualify as a law office, or New Jersey’s license to practice law is no longer valid.

    This means that Warren is mired in a Catch 22. If, as her defenders and Warren have maintained, she was not engaged in the practice of law because her Harvard office did not constitute “a systematic and continuous presence in Massachusetts for the practice of law” (because Warren was just a typical Harvard law professor who now and then helped write a few briefs for the U.S. Supreme Court and out-of-state federal courts), then she could not meet New Jersey’s licensing requirements, and was practicing law without any valid law license in any state once she went on inactive status in Texas. If, in the alternative, her Harvard office was a bona fide office for the practice of law, rather than a place where she just “dabbled,” then she was practicing in Massachusetts without a Massachusetts license.

    I’m not a lawyer and incapable of judging if this is a good criticism of Warren, or if it’s omitting important stuff that would mitigate. But I thought it was interesting enough to be worth echoing.

  28. 29
    Ampersand says:

    G&W, thanks for your comments on “counsel of record.” So the distinction between COR and NTC is important.

    Just because I’m curious, let me ask: Any idea how it came to be that “NTC” stands for “To Receive Notice”?

  29. 30
    gin-and-whiskey says:

    “notice to counsel?” That’s 100% guess; I don’t actually know.

    Look: All of these things are about law. And law has multiple technicalities, of which two are really relevant here:
    1) Over time (or sometimes intentionally) words in law end up carrying definitions far away from the lay definition of that word.
    2) The laws themselves have a lot of internal conflicts, and the conflicts aren’t apparent unless you know where to look; and the resolution of the conflicts isn’t apparent.

    So for example, you might read the Florida bar rules and conclude that you need a Florida law license if you open up an office and do, say, patent work. And Florida will tell you that you need such a license. Except, well, you don’t; there’s an old Supreme Court case on that and it turns out that federal law preempts in such an instance.

    Or you might conclude that you can only talk about mass. law if you have a Mass. law license. Except you’d be wrong there, too: if Mass. law is incidental it’s generally not a licensing requirement. You would generally be just fine if you were in federal court and happened to touch on a state law issue.

    Or you might conclude that the standards of ONE court are generally applicable to ALL courts. Nope, wrong again.

    Or you might conclude that the definition of “practicing” law has to do with how much money you make, or how famous your case is. But it turns out that those things aren’t really true.

    That blogger, you may note, is quoting a lot of facts. But he’s performing a very unsophisticated barebones analysis, of the “the first amendment says you need to let me post on your blog” level. most of his analysis (if you can call it that) is spent arguing with cherry picked laypeople on the Warren team, not engaging the good arguments.

    For example: Folks bitch about the concept that she’s not a NJ lawyer anymore. they suggest that you have to be a state bar member to be in the federal courts.

    But of course, that’s not actually what the rule says. In most cases (varies by court) it says you have to be a state bar member to be ADMITTED to the court (see http://www.law.cornell.edu/rules/frap/rule_46) but it doesn’t actually cover whether you need to remain so. If you’re not disciplined (and nobody suggests Warren was) then it’s quite possible that you could remain a member of the first circuit bar forever, without any state licenses at all.

    And that makes me continue to ask: do these people know how to Google? It is not especially hard to find the facts, sure. But it is also similarly easy to find the rules which make the facts relevant, and–if you’re a law professor–it should not be difficult to find analysis.

  30. 31
    RonF says:

    Ethics Alarms has a “Jury Summation” treatment of the Warren law license issue. I’d recommend reading all of it, it’s long but not THAT long. I found these two (among others) of particular interest:

    6. The fact that Warren may have blundered into UPL between the varying requirements of her two bar memberships and her intermittent practice in Massachusetts does not make her unfit to practice law.

    7. It may, combined with her unwillingness to candidly and thoroughly reveal all documents that bear on the issue, call into question her fitness to be a U.S. Senator, especially one running on the proposition that regulations on another profession (the financial sector) need to be strictly followed and tightly enforced. It definitely is worth exploring and explaining to voters, which the mainstream media clearly does not intend to do.

  31. 32
    mythago says:

    Or is it a “take a position that you know nothing about based on the opinions of folks you haven’t vetted and who have an obvious agenda” thing again?

    That’s a rhetorical question, right?

    If I’m following this correctly, RonF (and the blogger he is citing) is saying that if you are physically located in State X but on involving yourself in federal cases, then you have to have a license to practice law in State X. Whahuh?

    The “law professor” thing, btw, makes Mr Marshall sound much more scholarly than he is; he was formerly adjunct faculty at the Washington College of Law at American University, but hasn’t been a law professor since 2008, and when he was, he taught legal ethics. Mostly he appears to be a pundit and blogger.

    “Notice to counsel” means nothing about who represents the parties in the case. It might mean that a particular law firm has an attorney in Boston who is the COR, but wants notice to go back to the firm’s main office in Miami. It might mean that there is a related action involving other people, and the attorneys for those other people want to know what’s going on in this case. It doesn’t mean that the person getting “notice” has represented that they are the attorney on behalf of a party.

  32. 33
    mythago says:

    RonF, I think we cross-posted, but from a summary recommended by the blogger you like, the UPL argument sounds pretty silly.

  33. 34
    gin-and-whiskey says:

    RonF, you’re a smart guy. Why fall for this?

    Compare these two questions:

    QUESTION 1: Is a layperson who provides bankruptcy advice “acting like a lawyer” enough that they should be required to have a law license of some kind? Let’s imagine that they’re a generally educated person working as a “credit counselor” after 40 hours of training, and that they give a lot of advice regarding federal bankruptcy filings, which are so complex I don’t do them any more.

    The answer to this question usually focuses on the definition of what they are doing, the effect on the public good, and so on. For a medical equivalent, it’s like asking “what sort of procedures can people perform without a medical license?”

    QUESTION 2: Is an attorney who doesn’t hold a bar license in State A, committing UPL in State A when that attorney does ___? What are the minimum requirements that the attorney must meet in order to be subject to State A’s admission rules?

    Unlike Question 1, the answer to this question focuses on a very separate and highly technical interpretation of state bar admission rules. For a medical equivalent, it’s like asking “under what circumstances should we permit a New Jersey-licensed MD to give medical advice while she’s in Maryland?”

    It’s highly technical because–at least in law–NOBODY suggests that it’s a bright line rule. There are many situations where a non-licensed lawyer can hear about, consult on, advise on, and otherwise interact with state law and NOT have to have a license.

    Attorneys routinely have clients from out of state and that is permitted under everyone’s rules. I’ve got clients with Maryland trusts and New York property and Massachusetts property and Massachusetts wills. But I’m not required to have anything other than a Mass. law license.

    I’m not trying to push for a particular answer to Question 2, because it’s clear that you lack the background knowledge to talk about it. But I’ll make a different point: Whether or not you understand the precise answer to Question 2, you can certainly see that QUESTIONS 1 AND 2 ARE NOT THE SAME. They are different analyses entirely, even though they both technically talk about “UPL.”

    And THAT’S because UPL violations are very different. There’s a difference between “practicing law without a J.D.;” “practicing law without paying your state bar fee, so you got administratively suspended and didn’t notice;” “practicing law while you’re on suspension for misconduct” and “practicing law with a good faith belief that bar registration was not needed, but you were, in retrospect, wrong.”

    Some of those will get you a letter; some will get you disbarred; others can get you jail time. Some of them aren’t really violations at all: vagueness is generally interpreted in favor of the accused party.

    Only a sophist would deliberately mix them up. Which brings me to my final point: People who cite cases and conclusions about question 1, and who suggest they’re determinative for question 2, are uneducated, deceptive, and/or assholes, or all three. When the person doing so is holding themselves out as a law professor, the “deceptive asshole” is probably most accurate.

  34. 35
    gin-and-whiskey says:

    Does anyone else here read Erfworld?

    The story line is brilliant recently.