California Bar Journal
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Intentional UPL should be a felony
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President, State Bar of California
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Karen NobumotoAt 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.

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Con artists single out immigrants
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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.

An Armenian national posing as a former Immigration and Naturalization Service (INS) agent would lure foreign nationals, mainly Armenian and Japanese, promising an inside track in assisting them with their immigration status. This UPL provider, charging an average of $10,000, would file bogus claims for political asylum for Japanese nationals where no case for persecution could be made. When the INS discovered the falsehood, the client would end up in deportation proceedings.

In July the State Bar Board of Governors began to tackle this complex issue. Our goal is to curb UPL activities involving consumer harm as part of a balanced, collaborative effort to increase access to legal services and to the justice system. In addition to working with various agencies and law enforcement officials, we plan to develop a litigation handbook and continue to pursue investigations and disciplinary actions against lawyers who aid and abet UPL. As our president already mentioned, we also plan to propose statutory and rule amendments to enhance the enforcement of limitations on non-lawyer practice.

As part of our public protection responsibility, it is crucial that we educate the public, especially the immigrant communities, so they do not fall prey to unscrupulous UPL providers. Knowledge is power, and an educated public can make better informed decisions about their own legal assistance.

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