The hotly contested Senate race in Massachusetts recently touched the legal world. Critics accuse Democratic candidate Elizabeth Warren of engaging in the unauthorized practice of law in Massachusetts because she wrote a number of amicus briefs filed in federal appeals court from her office at Harvard Law School. State ethics rules prohibit a lawyer who is not licensed in state from establishing “an office or other systematic and continuous presence in this jurisdiction for the practice of law.”
While Warren’s work on corporate bankruptcy cases may seem removed from the legal needs of everyday people, this incident illustrates a broader concern: many state ethics rules are still based around the idea that a lawyer’s practice is inexorably linked to their physical location. What matters is not the lawyer’s familiarity with state law or whether they are licensed to appear in court, but where the desk they worked at was physically located.
As Responsive Law has previously noted, basing a system around an attorney’s office address hinders consumers’ access to legal resources. Consumers across state lines are prevented from seeking out otherwise competent and accredited attorneys if that attorney isn’t near a certain location. For example, if a person in Connecticut goes into foreclosure, they could not have their longtime attorney work on the case if the attorney is currently attending a conference in Massachusetts. Even if the attorney is registered with the Connecticut Bar and familiar with Connecticut law, the attorney cannot provide services in Massachusetts unless they have an office there. In order to do any work on the foreclosure case, the attorney must drop everything and return to Connecticut. The consumer either would have wait and hope for the attorney’s speedy return or go through the process of finding another attorney. These restrictions diminish access to legal resources by making it inconvenient and expensive to conduct legal business across state lines by forcing attorneys to constantly travel instead of working online.
These days, both consumers and attorneys are constantly on the move. Rules that hold that a physical office is integral to the practice of law restrict access and raise the costs of legal services whiling doing nothing to protect consumers from actual frauds and charlatans. This system should be abandoned for one that allows for better virtual access to law. An attorney’s competence and familiarity with the law, and not the location where they do their research and writing, should be the relevant factor when a consumer decides whose legal service is best for them. At a time when legal resources are prohibitively expensive and inaccessible to so many, states like Massachusetts should adopt rules that drive down costs through competition and enhance consumer choices. Consumers should not have their choices artificially restricted based on where a lawyer has their mail delivered.
Will Downes, a law student at Georgetown University Law Center, is a Responsive Law intern.