Friday, July 24, 2009

Harvard stymies student's participation in Tenenbaum defense

Harvard Law School has threatened disciplinary charges against the sole remaining law student on Joel Tenenbaum's defense team should she actively participate in Tenenbaum's trial, which gets under way in federal court in Boston Monday.

Debbie Rosenbaum, a joint Harvard Law School/Harvard Business School student who has served at Team Tenenbaum's PR lead (Ars Technica called her work "shockingly effective"), has been participating in Tenenbaum's defense under a special provision of the District of Massachusetts Local Rules that permits law students to appear in federal court, provided they are under the supervision of a member of the bar and have fulfilled certain academic requirements. See D. Mass. Local Rule 83.5.1(b) ("Student Practice Rule").

Among Rule 83.5.1(b)'s requirements for student practice is a letter from the dean of the student's law school, attesting to the student's "character, legal ability, and training." On Feb. 17, 2009, then-Dean Elena Kagan (now Solicitor General of the United States) submitted such a letter on behalf of Rosenbaum and four other students. Rosenbaum has completed two years of Harvard Law School, with one remaining. The four other students graduated in June 2009 and are no longer participating in Tenenbaum's defense.

Rosenbaum had planned to be a full participant in the Tenenbaum trial, possibly conducting opening or closing arguments and examining witnesses. But on June 29, Lisa Dealy, HLS Assistant Dean for Clinical and Pro Bono Programs, informed Tenenbaum's lead counsel, Professor Charles Nesson, that "certification has concluded" for all of his students, including Rosenbaum. In subsequent emails, Dealy wrote to Rosenbaum, "Without certification, you cant appear in court" (June 29) and "you are not certified to appear in court, notwithstanding the language that indicates certification is granted until such time as you graduate" (July 10).

Rosenbaum subsequently appealed to new Dean Martha Minow, but her entreaty was denied on July 21. Nesson then asked Minnow, "do i understand this to mean that if debbie assisting me is ok with the federal district court then it's ok with you?" To which Minow responded, "No, that is incorrect. The clinical office decision stands as the opinion of the law school, subject only to a different decision by the federal district court."

And a representative of the office of Dean of Students wrote Rosenbaum in a July 13 email that she could face serious repercussions if she participates in the trial, including being called before the law school's internal disciplinary body, known as the "ad board," as well as malpractice and bar admission issues:
Unfortunately, it appears as though you can sit at the desk with Nessen [sic], but [sic] might subject yourself to malpractice, ad board and character and fitness problems if you engage in lawyerly conduct.
But Harvard has not notified the court that Kagan's February certification letter is no longer valid, and it appears that Rosenbaum has fulfilled all of the Local Rules' requirements for student practice. Under Rule 83.5.1(b)(5), while a 2L, it was necessary for Rosenbaum to have been "currently participating in a law school clinical instruction program" (which she was, during the school year). But Rosenbaum is now a "senior law student" (defined in (b)(3) as "a student who has completed successfully the next-to-the-last year of law school study"), and (b)(1), which applies to "senior law students," does not contain a requirement of current enrollment in a clinical program. It is not clear what internal Harvard rule, if any, Rosenbaum may be violating should she proceed to represent Tenenbaum in court.

In an interview today, Rosenbaum said that, given Harvard's position, she is not sure whether she will now play a speaking role at Tenenbaum's trial. "I will talk to Professor Nesson this weekend and consider the best course of action for our client," she said. "It's so late in the game that I'm not sure he will change the design" of the defense plans. Rosenbaum said Nesson will take the lead at the trial, with possible assistance from Matthew Feingold and Matthew Kamholtz.

Rosenbaum called Harvard's handling of the certification issue "inexcusable," adding that it's "
unacceptable for a top-ranked law school ... to interpret the rule so narrowly that they inhibit their students from representing indigent clients."

Rosenbaum said she has "lived and breathed and eaten this case" since joining the defense team in September 2008, and spent more time representing Tenenbaum during the academic year than she spent on her traditional coursework. "I'm not trying to practice law without a license or proceed outside the scope of the law. I'm well within my rights," she said. Rosenbaum said that, even if she does not actively participate in the proceedings, she intends to sit at counsel table, work behind the scenes, and "oversee all media and press outreach."

Yesterday I emailed a representative of Harvard's Office of Clinical and Pro Bono Programs who has been handling Rosenbaum's certification issues, requesting comment. I have not yet received any response, but will post an update if I do. The last communication from that office to Rosenbaum, an email of July 23, states:
It is not for the Law School to decide whether you are permitted to practice before the Court. Rather, that decision rests with the Court.

At the time HLS wrote to the Court, you were a 2L and there was an ongoing clinical instruction program. There is no longer such an independent clinical; the clinical program ended with the spring semester. You can represent to the Court, of course, that you are entering your third year at HLS. But the decision concerning whether you are permitted to participate in the trial is one for the Court.
While this latest email appears to soften Harvard's position a bit, the school has not rescinded its warning of possible disciplinary action against Rosenbaum.


  1. It seems silly of HLS after allowing this to go on would pull the rug out from under Ms. Rosenbaum at the final stages.

    I think Harvard is under a lot of pressure from alumni to disassociate itself from this case--not because of a disagreement with the representation, but the way it has been handled. I know this is not what Ms. Rosenbaum wants to hear right now--and again, I would support her right to be on Nesson's team if that is what she wants--but HLS may be doing her a favor in the long term. There is little doubt that the circus surrounding this case will be a black mark on the resumes of the students involved. The defendant's filings have been so atrocious that potential employers may well wonder: a) how much the student was involved in the filing; b) how well Harvard is educating its students; and, c) what kind of ethical duty the student had to stop some of the frivolous filings before they went out even if they were not bar members yet--it's abundantly clear that the only reason Tenenbaum/Nesson haven't rung up six-figures in sanctions at this point is because the Judge chose Professor Nesson and can't really penalize the defendant for her choice.

    Ms. Rosenbaum may not care at all about those rumblings, however. Or for that matter what the big law firms think of this case. (Although, as a side note, I am somewhat shocked that there is a law firm out there that wouldn't have pulled a summer associate aside and given her a stern warning about some of Ms. Rosenbaum's twitter posts).

    In any case, the choice should be Ms. Rosenbaum's at this point, not HLS's. And if she wants to be involved, she's come this far. She should be able to see it through. Frankly, I'd love to see her try the case: the defense would probably make more sense than the "sharing is natural to digital natives" stuff we are going to hear next week.

  2. How about a simpler explanation than RIAA pressure? Maybe HLS just doesn't want to set a precedent of having its students appear in court ostensibly under the law school's auspices when, in fact, the student may not be enrolled in a clinical program and therefore may not be subject to any oversight by the law school.


  4. @Anonymous 2:33:

    Two things in response to your "simpler explanation":

    1) Rosenbaum is under the supervision/oversight of a tenured faculty member, Prof. Nesson. If HLS doesn't trust Nesson to supervise students, they should say so directly.

    2) The federal court's local rule does not require current enrollment in a clinical program for those, like Rosenbaum, who have finished their 2L year.

  5. Ben: HLS can't censure Nesson or say he's incapable of oversight; he's (1) a local legend and (more importantly)(2) tenured. Administrations don't pull out the rug from under tenured profs, period, even if richly deserved. So whether or not Nesson is right, they aren't going to go after him.

    (This is not to comment on Nesson's strategy as deserving of censure or not; to paraphrase Lessig, his 'every idea seems crazy- for about a year.')

  6. Query what liability HLS may face for acting outside the local rules to deprive an indigent of representation by threats of disciplinary action and/or character and fitness interference.

  7. Anon 2:01, students know what they do may have consequences with future employers. I've had this discussion with Debbie and others. The school trusts them with this decision.

    Ben and Anon 2:33, in Fall 2008 and Spring 2009, Nesson has been trusted to supervise her, so the hypothetical, "He's not being trusted and HLS won't come out and say," is moot anyway.

    Anon 2:33, I really don't suspect any ulterior motives like HLS wanting to save face. HLS has a rule. The rule is more restrictive than the Local Rules, probably out of caution for the students and the school itself as much as anything.

  8. Speaking to that last email from Havard, SJC Rule 3:03 is similar to the federal rule. I submitted an appellate brief in the Appeals Court on behalf of the commonwealth as a 2L enrolled in a clinical course, but did not argue it until my third year when the course had already finished. The school never submitted any addtional certifications as far as I know, and I did not have any problems.

  9. Did Rosenbaum seriously just refer to Tenenbaum as an "indigent client?" This is a further example of the blatant manipulation of the media upon which the Nesson team has based their litigation strategy.

  10. Anon 5:10. Maybe you didn't read the law. Client indigence is REQUIRED for a student lawyer to practice. So referring to Tenenbaum as "indigent" is either media manipulation OR um... REQUIRED for her to be allowed to practice.

  11. Hmm, perhaps that's yet another rule Nesson et al just didn't see the need to comply with. As Judge Gertner recently pointed out, there has never been any showing that Tenenbaum is indigent.


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