|
 At
the State Bar, public protection is our Number 1 priority. We
don't take lightly attorneys who violate their compacts with
clients. And we certainly don't look the other way when attorneys
illegally dip into settlement funds or otherwise harm their
clients.
We should do no less when it comes to
non-attorneys who delve into the unauthorized practice of law and harm
unsuspecting Californians. In fact, we should do more by working with
the legislature to increase the criminal penalties that are now on the
books regarding UPL.
The current law categorizing UPL as a misdemeanor
is understandable. It was written years ago with the intent of
stopping paralegals who sometimes went too far in their intention of
helping people.
But this should not apply to the non-lawyer who
engages in intentional misrepresentation - the person who, for
example puts an "Esquire" next to his name on the business card
and/or willfully and maliciously holds himself or herself out to be a
lawyer, or who tells unsuspecting clients his services include
appearing in court on their behalf. This is certainly not misdemeanor
behavior, and the criminal penalties need to reflect that.
The charge should be strong enough to reflect
this egregious behavior. If the unauthorized practice of law involving
intentional misrepresentation was a felony, then prosecutors
throughout the state would be motivated to pursue these miscreants. As
a felony, the charge would be strong enough for district attorneys
throughout the state to seek convictions for this form of fraud. The
sentencing structure then would deter these miscreants from harming
unsuspecting people who believe they are hiring legitimate legal
representation.
This form of unauthorized practice of law is
willful and intentional. These people knowingly set out to deceive the
public. They have not passed the bar. Many have not attended even one
day of law school. Under current criminal laws, one of the only means
of prosecuting this form of fraud as a felony is by charging grand
theft by false pretenses. But sometimes the harm to consumers does not
involve an exchange of money in excess of $400, precluding pursuing a
felony grand theft conviction.
For example, in one of my last cases before
becoming State Bar president where I prosecuted an individual for
unauthorized practice of law, one of the victims suffered harm that
did not result in an exchange of monies in excess of $400. He was
unable to pursue what he believed to be a legitimate claim after his
encounter with the individual being prosecuted for UPL because the
defendant never returned his original documentation to him. Thus he
had no felony recourse within the criminal court system.
This is but one example of the type of harm that
our consumers face when dealing with individuals who intentionally
represent themselves as attorneys. My colleague and fellow board
of governor member Maria Villa will share with you some of the
egregious harm caused within the immigrant communities.
|
Newly
arrived immigrants seeking to comply with the laws of this country
are preyed upon by con artists who take advantage of language
barriers and confusion in terminology, place deceptive ads and
promise "insider" contacts. Mr. Lin was a minister
in China. To escape religious persecution he came to America
seeking religious freedom. After arriving, he went to a legal
services business advertised in a Chinese newspaper. For $10,000,
the business promised him a green card. Mr. Lin borrowed half
of the fee money. The green card never arrived. When Mr. Lin
took an American-born friend to assist him in obtaining the
green card or his money back, an agent of the business yelled
at Mr. Lin’s friend and shoved her down a stairway.