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MCLE Self-Assessment Test

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.