The most famously questionable part of the Elizabeth Warren mythos is her purported Cherokee heritage. (Insert your favorite Fauxcahontas joke here.) But there are other parts of the Warren oeuvre that are equally debatable; if Scott Brown’s camp has its way, Warren’s honesty will take another hit, and the story of Liz the People’s Champion will be as suspect as the Sacajawarren saga. The freshman senator has a lot to work with. From allegedly practicing law without a license to fighting for huge corporations, the various chapters in Warren’s populist narrative don’t always stand up to scrutiny.
First, there’s the question of whether or not Warren ever should have been able to practice law in Massachusetts. William Jacobson, a professor at Cornell Law School, went through a lot of paperwork and concluded on Legal Insurrection, a law blog, that Warren never had the legal right to practice in her home state. She’s been licensed to practice only in Texas and New Jersey, but she used her Cambridge office as her law office, potentially violating state law. That’s troubling to many of her peers in the legal profession — Massachusetts Lawyers Weekly asked in an online poll, “Should U.S. Senate candidate Elizabeth Warren be investigated for possibly practicing law without a license?” Eighty-two percent of the respondents (1,074 votes) voted “Yes.” Ouch.
Luckily for Warren, though, one of her most important peers disagrees with the 87 percent: Michael Fredrickson, general counsel for the Massachusetts Board of Bar Overseers. He told Massachusetts Lawyers Weekly that he didn’t see any problem with Warren’s unlicensed status. “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,” he said in defense of Warren.
But that comment is troubling in and of itself, at least in Jacobson’s view. Fredrickson later stated that his defense of Warren represented only his personal opinion, but Jacobson argues that it’s impossible for him to comment on the issue without implicitly putting the weight of his position behind his comments. “There’s no such thing as a personal opinion” in a situation like this, Jacobson says. The Massachusetts GOP agrees: Bob Maginn, their chairman, sent a letter to the chief justice of the Supreme Judicial Court asking its members “to issue a statement recognizing the lack of authority and enforceability of Mr. Fredrickson’s personal views.” Fredrickson’s comments “appear to advance a partisan agenda that is inconsistent with any agency within the judicial branch,” he wrote. It will be interesting to see how taboo the appearance of partisanship is in Massachusetts.
The next question is: What kind of legal work was Warren practicing without the benefit of a license? Two cases in particular have drawn state and national attention, threatening to undermine her status as a working-class champion. One of those cases, which Brown brought up in his first debate with Warren, involves a settlement between Travelers Insurance and asbestos victims. The case went to the Supreme Court, and Travelers paid Warren $212,000 for her work between 2008 and 2010. The settlement won the corporation permanent immunity from lawsuits in exchange for establishing a $500 million trust fund for asbestos victims, as the Boston Globe reported. But afterward, when Warren was no longer involved in the case, a court order let the corporation off the hook, and it never paid into the fund. Warren may not have foreseen that outcome, but that didn’t help the workers suing her client. “Regardless of her motives, the case has turned out disastrous for the victims, leaving room for Brown and others to argue that she should have been more suspicious of Travelers’ motives,” wrote Noah Bierman for the Globe.
Warren’s campaign just released two ads defending her work for Travelers. In one of them, the wife of a man who died of mesothelioma because of asbestos exposure defends Warren’s work, saying, “Elizabeth Warren went all the way to the Supreme Court to try to get more money for asbestos victims and families.” In another ad, a relative of a mesothelioma victim says, “Elizabeth did go to the Supreme Court, and she fought for us.” This makes no sense. It’s absurd to argue that Travelers hired Warren to extract as much money from them as possible. She was paid to defend the corporation, not the victims, as Jacobson points out. She may have managed to help broker a settlement that was amenable to both parties, but it’s disingenuous to say Warren went to the Supreme Court as some sort of double agent or corporate saboteur working to defend someone other than her client. And if she somehow managed to put the interests of the claimants above the interest of her client, she violated legal ethics and didn’t do her job as an attorney. This line of defense places Warren in a catch-22, and her spin machine deserves bookoodles of credit for helping her weather this.
Warren’s legal work put her on the side opposite workers’ interests in another case as well. The Boston Globe reported that Warren was paid $10,000 in the 1990s to write a petition for a Supreme Court case defending LTV Steel from a congressional mandate to pay into a fund that would cover health care for retired coal miners and their families. Warren’s camp argues that the benefits weren’t in jeopardy and that a win for LTV Steel would have protected “a principle that could protect less powerful people who have claims against bankrupt companies,” according to the Globe. But the Clinton administration and the then-president of the United Mine Workers were on the opposite side of Warren. The coal miners won, which may have prevented an ugly Travelers Insurance–style fallout for Warren.
Because of the messiness of these cases, Brown has asked Warren to release the names of her corporate legal clients. In a letter to his opponent, he cited these two cases as well as Warren’s refusal to release her Harvard personnel files and six years of tax returns as grounds for questioning her commitment to transparency and the middle class. She has yet to release a complete list of names, though, which keeps voters from learning more about cases she consulted on without being listed on the docket. She consulted for Dow Chemical, for instance, when one of its subsidiaries, Dow Corning, went bankrupt under financial pressure from a group of women suing because of health problems caused by its breast implants. (The Boston Globe dug into the case and has a piece on it here.) Warren’s camp contends that because she helped set up a trust for the victims, she never worked against them. “Well of course that’s nonsense,” Jacobson tells National Review Online. “When you represent a client, you represent that client. There might be important legal principles, but your duty is to represent that client the best you can.” He pointed out that ten years ago, her going rate was $700 per hour, although she gave some of her clients a $25-per-hour discount. She’s not getting paid $675 by these corporate entities in order to work against their interests, he argues.
And the sources of her financial support indicate who her top constituents could be in Washington. The bipartisan Center for Responsive Politics shows that eleven of her top 20 contributors are law firms’ PACs or members. And some of these firms don’t seem to exactly champion underdogs; Faruqi & Faruqi recently drew criticism for discriminating against small shareholders in a class-action suit, and lawyers for Brown Rudnick LLP “charged a higher rate for the time spent preparing fee applications than for their substantive legal work,” AsiaOne Business reported. And, according to Reuters, an attorney for another of her top funding sources was forced to resign for dramatically inflating fees. Yet another of her top supporters, Dewey & LeBoeuf, is going through bankruptcy. None of this reflects poorly on Warren’s character — politicians certainly aren’t guilty for their supporters’ sins. It does suggest that these big-dollar contributors — some of whom may not care as much about the little guy as Warren purports to — expect to gain a lot if she wins.
The interests of workers don’t seem to have mattered much to Warren when there was a good payday at the end of the line. Add to that her possible illegal law practice and her refusal to provide more information on her work, and Massachusetts voters have grounds to question her honesty and whether or not Warren really deserves her image as a blue-collar hero.
— Betsy Woodruff is a William F. Buckley Fellow at the National Review Institute.