New State Bar unit to focus on non-lawyers who flout
immigration law
By Laura Ernde
Staff Writer
The State Bar is creating a new investigative unit to crack
down on non-lawyers who are defrauding consumers by giving bad legal advice.
A State Bar committee last month approved the hiring of a team to investigate and bring civil injunctions against those
engaged in the unauthorized practice of law.
Although it’s a crime for non-lawyers to give legal
advice, law enforcement agencies lack the resources to prosecute many of those
who harm consumers, State Bar CEO Joseph Dunn said.
Under current law, the State Bar has the power to seek court
orders to shut down businesses that are practicing law without a license. Gov.
Jerry Brown vetoed a bill last year (AB 888) that would have expanded that
authority by allowing the recovery of fines and penalties. Dunn said the bar
will seek similar legislation this year.
Dunn said the new unit would be “fully engaged from day
one,” focusing on complaints from consumers about notarios and immigration
consultants. When Congress began debating federal immigration reform, law enforcement
raised concerns that undocumented immigrants are being targeted by scammers
making false promises of citizenship. In response, the bar sponsored AB 1159,
which made
it illegal for lawyers or consultants to take money for services related to
federal immigration reform until Congress acts.
“In a state like California, one can anticipate that it’s an
area ripe for problems,” said Trustee Dennis Mangers, a non-lawyer who chairs
the bar’s newly formed Unauthorized Practice of Law (UPL) Oversight Committee.
The committee, comprised of a majority of non-lawyer members
of the Board of Trustees, approved the creation of the UPL unit in the bar’s
Office of General Counsel after hearing presentations about the history and
antitrust implications of the bar’s participation in UPL enforcement.
Deputy CEO Robert Hawley said in the early 1980s, the bar had a UPL unit that investigated nearly 1,500 complaints, mostly from lawyers about non-lawyers. But California
and other states scaled back their enforcement efforts after the Federal Trade Commission
viewed some bar efforts as a campaign to limit competition, even though the
intent was to ensure clients got quality representation. Hawley said a
“watershed moment” came with the 1975 U.S. Supreme Court decision in Goldfarb v.
Virginia State Bar 421 U.S. 773 (1975), which held that setting a
minimum fee for an attorney’s assistance in a real estate transaction violated
the Sherman Antitrust Act.
About a dozen state bars still maintain efforts to curb the
unlicensed practice of law, with Florida leading the largest charge. Some
states encountered setbacks when they unsuccessfully argued that do-it-yourself
publishers of legal information and documents such as Nolo Press and more recently LegalZoom Inc. were giving legal advice, he
said.
The bar’s civil powers are grounded in a 2000 state law
sponsored by Dunn when he was a senator. Likewise, the law spells out what immigration
consultants are allowed to do, Mangers said. AB 1159 prohibits non-lawyers
from using the term “notario,” a Spanish word used in some Latin American
countries to describe people who have legal training and can represent others
in government proceedings.
Mistakes in the immigration context can have devastating
consequences, such as deportation, and immigration lawyers said it’s often
difficult for them to undo the damage non-lawyers have done, Dunn said.
Trustee Gwen Moore asked whether the law gives any recourse
for consumers who got bad advice. Dunn answered that since immigration law is a
federal issue, states cannot provide a “safe harbor” to those who are harmed.
Based on case law, the State Bar’s Office of General Counsel
recommended best practices for the new UPL unit that include a clearly
articulated policy for enforcement actions, creation of an oversight committee
made up of a substantial number of non-lawyers and a focus on activities that can
cause client harm.
“We believe we’re on pretty solid ground,” Dunn said.
The bar’s lawyer discipline unit, the Office of Chief Trial
Counsel, will continue to investigate UPL complaints involving lawyers. Both
units will work in cooperation with law enforcement.