Unauthorized practice of law - a couple recent court decisions

Posted Wednesday, May 22, 2013 by Ed Harper

I provided some instruction regarding the practice of law in the State of Washington and found [two (2) recent cases] that shed light on the “unauthorized” aspect of this phrase. The term or definition of “practice of law” is “(t)he rendition of services requiring the knowledge and application of legal principles and technique to serve the interests of another with his consent”. Edwards v. Hert, 504 P.2d 407, 416. This means in a sense, if one is going to be advising and then acting for another, they should be prepared and trained and thus have the necessary skill and understanding of a trained professional.

A person may represent themselves in any legal situation. The Latin terms “Pro Se” or “Pro Per” means acting “for one’s self” or “for himself”. Courts will often allow one to advocate or argue their own position. This is not “illegal” but does have other problems. However, as the adage goes, “one who represents themselves, may have a fool for a client”.

The pro se exception does not apply to a layperson who receives some form of compensation for such legal services. This means that a person may not represent another, or provide any type of advice similar to what an attorney would provide. In Bowers v. Transamerica, 100 Wn.2d 581, 675 P.2d 193 (1983) the court held that non-lawyers who practice law without a license are liable for mistakes as if they were lawyers. This means, if a person convinces another to follow their mistaken advice, they stand in position to be sued. The non-lawyer would be held to a standard just as a lawyer. The term, “Professional Negligence” is a term of art for a person who has the special skills (a doctor, lawyer, accountant, etc.) and is required to possess and exercise the knowledge and skill of a member of the profession.

The unauthorized practice of law can be found in both civil and criminal law.

The unauthorized practice of law can be utilized as a defense to avoid a contract with a non-lawyer. In an unpublished case decided in 2013, Spoelstra v. Gahn, No. 67141-3-I the Court of Appeals of the State of Washington upheld the trial court’s finding of Daniel Gahn’s liability to Mr. and Mrs. Spoelstra. Mr. Gahn (a non-lawyer) had performed some legal work and then convinced the Spoelstra’s to sign over a promissory deed on property they owned, in exchange for attorney fees for work he had performed and would perform in the future, even though he was not an attorney. The court held Mr. Gahn was not entitled to any attorney fees, and quieted title on the Spoelstra’s property as Mr. Gahn was not a lawyer. Thus, Mr. Gahn could not enforce the alleged contract as he was practicing law without a license.

Additionally, one can be prosecuted by the State for the unauthorized practice of law. In State v. Janda, No. 68456-6-I (2013) the Court of Appeals Div. 1 upheld the conviction of Steven Janda (a non-lawyer) for two (2) counts of unlawful practice of law and two (2) counts of first degree theft. Mr. Janda while running a business called “Evergreen Paralegal Services” provided estate planning advice and prepared legal documents as well. The State charged Mr. Janda with practicing law without a license, and theft. He decided to represent himself in this criminal matter and he was found guilty on these four (4) counts.

Mr. Janda’s primary argument was that he could not be charged with violating the “unauthorized practice of law” statute as he was never an attorney. Thus, he did not fall within the plain meaning of the term “not active attorney”. The appellate court was not persuaded with this argument, and upheld the conviction from the trial court.

Hopefully, Mr. Janda will learn his lesson and stop providing legal advice as he is not licensed to do so.

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