Call Me (Nonlawyer) Yishmael

The Washington State Supreme Court affirmed a criminal conviction for unauthorized practice of law in an opinion authored by Justice Gonzalez

 Admission to the practice of law requires years of graduate level study either with a practicing lawyer or at a law school. It requires passage of a rigorous bar examination on a wide range of topics. In addition, bar applicants must satisfy character and fitness requirements. Once admitted, lawyers join a noble profession and become officers of the court, obligated to conduct themselves ethically under the Rules of Professional Conduct. When lawyers break the rules, they are subject to discipline. When lawfully practicing attorneys cause harm, malpractice insurance and the victims’ compensation fund can provide some relief for their clients.

By contrast, the unlawful practice of law often causes harm without any of the protections for malpractice by lawyers. Because these harms are predictable, the unlawful practice of law is a crime. RCW 2.48.180(3). This case is illustrative. Victims in this case became homeless, were jailed, and lost almost everything they owned.

This court has the “exclusive power to regulate the practice of law,” and in accordance with constitutional separation of powers principles, our legislature has not attempted to define the “practice of law.” Hagen & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wn.2d 443, 445, 635 P.2d 730 (1981) (citing Wash. Const, art. IV, § 1). The “practice of law,” however, has been defined in common law and, more recently, a court rule, GR 24.

Naziyr Yishmael, who is not an attorney, advised clients that they could “homestead” in apparently abandoned properties and, after a period of time, acquire title through adverse possession. After some of his clients were arrested for taking up residence in other people’s houses, he was charged with and convicted of misdemeanor unlawful practice of law. He contends his conviction must be reversed for five reasons. He contends the jury was improperly instructed that the unlawful practice of law is a strict liability offense. He contends the court’s use of GR 24 to define the practice of law violates separation of powers; he contends this use amounts to a comment on the evidence. He contends that the statute is unconstitutionally vague.

Finally, he contends that there was insufficient evidence presented to sustain his conviction. Finding no error, we affirm.

GR 24 is the court rule defining the practice of law. 

The State had charged him with other offenses as well

The jury acquitted Yishmael of the theft and theft-related charges. It found him guilty of the unlawful practice of law charge. Yishmael was sentenced to 364 days in jail with all but 5 days suspended. The Court of Appeals affirmed, and we granted review. State v. Yishmael, 193 Wn.2d 1002 (2019).

The court majority rejected his contentions

We hold that the unlawful practice of law, as charged here, is a strict liability offense. We hold that the use of GR 24 did not violate separation of powers and did not constitute an unconstitutional comment on the evidence. We find that the statute is not unconstitutionally vague as applied to Yishmael’s conduct. Finally, we find the State presented sufficient evidence to sustain the conviction.

Justice Wiggins dissented

For centuries, the common law has held antipathy for strict liability crimes. As our discussion will show, the proper treatment of Naziyr Yishmaei’s case would lead this court to hold that the crime of practicing law as a nonlawyer has a knowledge element…

The majority also opens up the possibility that this law criminalizes far more than just Yishmael’s activities. Under the majority’s decision, it may be a crime to merely give someone the most basic legal advice without any payment or consideration. Nothing in the statute, the court rule, or our precedent indicates that such an outcome is warranted. Further, the First Amendment to the United States Constitution cautions strongly against it.

He concludes

I would hold the crime of unlawful practice of law requires proof of knowledge as Yishmael argues. The trial court erred by refusing to include this element in its jury instructions. We should therefore reverse and remand to the trial court for a new trial on this charge because this error was not harmless. We should not broaden the reach of this statute beyond the legislature’s Intent and stretch It to encompass constitutionally protected speech. We should instead carefully cabin the reach of the law to the legislature’s intent.

I respectfully dissent.

Seattle PI reported on the criminal case. (Mike Frisch)