State Of Washington v. Naziyr Yishmael , 430 P.3d 279 ( 2018 )

FILED
COURT OF APPEALS DIV I
STATE OF WASHINGTON
2018 NOV 26 AM 10: 08
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 76802-6-1
Respondent, )
) DIVISION ONE
v. )
) PUBLISHED OPINION
NAZIYR YISHMAEL, )
)
Appellant. ) FILED: November 26, 2018
)
BECKER, J. — Appellant Naziyr Yishmael, a nonlawyer, offered a program
promoting the use of adverse possession to obtain ownership of houses. In
exchange for a fee, Yishmael provided members with advice on adverse
possession law, lists of houses in foreclosure, forms to use to make claims of
abandonment by the owners, and other services. A jury convicted him of the
unlawful practice of law. Affirming the conviction, we conclude the statute
defining the crime is not void for vagueness, the instruction defining the practice
of law was appropriately taken from a court rule, the practice of law by a
nonlawyer is a strict liability offense, and the evidence was sufficient.
FACTS
Before the real estate crash of the late 2000s, Yishmael worked as a
realtor. After the downturn, he founded an association and recruited members by
offering free seminars with PowerPoint presentations focusing on the legal
doctrine of adverse possession. He encouraged members to believe that they,
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could legally enter vacant homes, claim them as their own, and secure legal title
after 7 to 10 years of occupation.
Yishmael charged $7,000 to $8,000 for membership in his association.
Members were entitled to receive his advice on adverse possession, including
statutes and case law; listings of homes that were apparently abandoned or that
had "foreclosure" issues; and legal forms to aid them in making claims of adverse
possession. Yishmael promised to stand by and offer guidance if any legal
difficulties should arise.
Yishmael was not a lawyer. The advice he provided to association
members was largely erroneous, and the legal documents were effectively
meaningless.
Yishmael was arrested in April 2016. The State charged him with one
count of unlawful practice of law and several counts of theft, attempted theft,
conspiracy to commit theft, and offering false instruments for filing or record.
During the course of Yishmael's five-day trial, the State presented the
testimony of three former members of his association. When these individuals
met Yishmael, they were struggling to pay their monthly rent. Swayed by
Yishmael's explanation of adverse possession, they agreed to join his
association. They worked out installment plans with Yishmael and began paying
membership dues.
The three testified similarly about using a list provided by Yishmael to
identify vacant homes they were interested in owning. Yishmael in some cases
arranged to have a locksmith change the locks on the selected homes. The
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members moved into the homes they had decided to possess. On Yishmael's
advice, they posted "no trespassing" signs, filed documents with the recorder's
office, and paid for landscaping, repairs, and new appliances. All three testified
that they were visited by police officers. Two were arrested. One of them had
been offered $1,000 to move out; Yishmael offered to draft a counter-offer for
$3,000. Yishmael also advised him on how to deal with the criminal proceedings.
Yishmael's defense focused on challenging the theft charges. The facts
supporting the charge of unlawful practice went largely uncontested. The jury
convicted Yishmael of the unlawful practice of law and acquitted him on the other
charges. He was given a sentence of 364 days in jail, suspended on condition
that he spend five days in jail and report for 30 days of a community work
program.
ANALYSIS
Vagueness
After the defense rested, Yishmael moved to dismiss the charge of
unlawful practice of law on the grounds that the statute defining the crime is void
for vagueness. Yishmael contends the trial court erred by denying this motion.
Whether a former, shorter version of RCW 2.48.180 was void for
vagueness was considered in State v. Hunt, 75 Wash. App. 795, 801, 880 P.2d 96,
review denied, 125 Wash. 2d 1009, 889 P.2d 498 (1994). A statute violates
Fourteenth Amendment due process protections if it fails to provide a fair warning
of proscribed conduct. Hunt, 75 Wash. App. at 801. In analyzing whether a statute
is unconstitutionally vague, courts presume that a statute is constitutional; the
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burden is on the challenger to prove otherwise beyond a reasonable doubt.
Hunt, 75 Wash. App. at 801. Whether a statute is constitutional is reviewed de
novo. State v. Gresham, 173 Wash. 2d 405, 419, 269 P.3d 207(2012).
Although some uncertainty is constitutionally permissible, a statute is
unconstitutionally vague if(1) it does not define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct is
proscribed, or(2) it does not provide ascertainable standards of guilt to protect
against arbitrary enforcement. Hunt, 75 Wash. App. at 801; Spokane v. Douglass,
115 Wash. 2d 171, 178-79, 795 P.2d 693(1990).
The unlawful practice of law is a crime. A single violation is a gross
misdemeanor. RCW 2.48.180(3)(a). RCW 2.48.180(2) has five subsections
defining various ways in which the crime may be committed. The State charged
Yishmael under the first subsection, which states that the unlawful practice of law
occurs when a "nonlawyer practices law, or holds himself or herself out as
entitled to practice law." RCW 2.48.180(2)(a).
The statute does not define the "practice of law." Yishmael argues that
without a statutory definition of what it means to practice law, an average person
cannot understand what conduct the statute proscribes and penalizes. But
statutes are not read in a vacuum, nor is a statute void for vagueness "merely
because some terms are not defined." State v. Harrington, 181 Wash. App. 805,
824, 333 P.3d 410, review denied, 181 Wash. 2d 1016, 337 P.3d 326 (2014). When
a criminal statute does not define words alleged to be unconstitutionally vague,
"the reviewing court may 'look to existing law, ordinary usage, and the general
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purpose of the statute' to determine whether 'the statute meets constitutional
requirements of clarity." Hunt, 75 Wash. App. at 801, quoting State v. Russell, 69
Wash. App. 237, 245, 848 P.2d 743, review denied, 122 Wash. 2d 1003, 859 P.2d 603
(1993).
Although it may be difficult to define the "practice of law" precisely, the
term is not unconstitutionally vague when existing law and ordinary usage allow
an ordinary person to know that RCW 2.48.180 proscribes a defendant's
conduct. Hunt, 75 Wash. App. at 803. In Hunt, a man with no formal training
referred to himself as a paralegal and provided legal services such as
representing clients in negligence actions, conducting settlement negotiations,
preparing legal documents and liens, and dispensing legal advice. Hunt, 75 Wn.
App. at 797-98. Convicted of unlawful practice, he argued that the statutory
phrase "practice law" was unconstitutionally vague. Hunt, 75 Wash. App. at 800.
This court rejected his arguments, relying on a number of Washington cases
defining the practice of law. Hunt, 75 Wash. App. at 802, citing In re Droker and
Mulholland, 59 Wash. 2d 707, 719, 370 P.2d 242(1962); Washington State Bar
Ass'n v. Great W. Union Fed. Say. & Loan Ass'n, 91 Wash. 2d 48, 54, 586 P.2d 870
(1978); Hecomovich v. Nielsen, 10 Wash. App. 563, 571, 518 P.2d 1081, review
denied, 83 Wash. 2d 1012 (1974); Hagan & Van Camp, P.S. v. Kassler Escrow,
Inc., 96 Wash. 2d 443, 446-47, 635 P.2d 730 (1981). The cited cases hold that
preparing legal documents and providing legal advice constitute the practice of
law. Hunt, 75 Wash. App. at 802. We concluded that the defendant's conduct was
clearly proscribed by the definitions in these cases and he could not have
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reasonably been surprised by the application of the statute to his activities. Hunt
75 Wash. App. at 803-04.
In this case Yishmael provided legal advice, distributed purportedly
necessary legal documents, gave instructions on how to record the legal
documents, and sought to counsel the members of his association through any
resulting legal troubles. Although Yishmael compares his behavior to that of
teachers and newspaper reporters, his actions went beyond what ordinarily
occurs when those professionals talk about law. Ordinary usage, court rules,
and case law, including Hunt, were sufficient to warn Yishmael that his conduct
constituted the practice of law.
Yishmael attempts to distinguish this case from Hunt by claiming that
RCW 2.48.180 infringes upon his First Amendment rights. Because Yishmael's
briefing on this point is inadequate to permit meaningful review, we do not
consider it. Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wash. App. 474,
486, 254 P.3d 835(2011). We conclude that as applied to Yishmael's actions,
RCW 2.48.180 was not impermissibly vague.
Use of GR 24 to Define the Practice of Law
At trial, the State called David Boerner to testify on the definition of
"practicing law." Boerner is a professor emeritus at Seattle University. He
contributed to the drafting of GR 24, the general rule defining the practice of law,
as set forth by the Washington Supreme Court. The rule was adopted in 2001
and amended in 2002. Boerner testified that the practice of law is defined by GR
24. GR 24 was admitted as evidence. The relevant portion states the following:
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The practice of law is the application of legal principles and
judgment with regard to the circumstances or objectives of another
entity or person(s) which require the knowledge and skill of a
person trained in the law. This includes but is not limited to:
(1) Giving advice or counsel to others as to their legal rights or
the legal rights or responsibilities of others for fees or other
consideration.
(2) Selection, drafting, or completion of legal documents or
agreements which affect the legal rights of an entity or person(s).
(3) Representation of another entity or person(s) in a court, or
in a formal administrative adjudicative proceeding or other formal
dispute resolution process or in an administrative adjudicative
proceeding in which legal pleadings are filed or a record is
established as the basis for judicial review.
(4) Negotiation of legal rights or responsibilities on behalf of
another entity or person(s).
GR 24(a).
The State proposed that GR 24 be used to define the practice of law in a
jury instruction. At the State's suggestion, and over Yishmael's objection, the
trial court used GR 24 to formulate jury instruction 20:
The "practice of law" means the application of legal principles and
judgment with regard to the circumstances or objectives of another
entity or person(s) which requires the knowledge and skill of a
person trained in law. This includes giving advice or counsel to
others as to their legal rights or the legal rights or responsibilities of
others for fees or other consideration. It also includes the
selection, drafting, or completion of legal documents or agreements
which affect the legal rights of an entity or person(s).
Yishmael argues that by including language from GR 24 in the jury instruction,
the trial court effectively endorsed Boerner's testimony and thereby improperly
commented on the evidence.
This court reviews jury instructions de novo, within the context of jury
instructions as a whole. State v. Levy, 156 Wash. 2d 709, 721, 132 P.3d 1076
(2006). A judge may not instruct a jury that matters of fact have been
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No. 76802-6-1/8
established as a matter of law. Levy, 156 Wash. 2d at 721. But a jury instruction
that does no more than accurately state the law pertaining to an issue is not an
impermissible comment on the evidence. State v. Brush, 183 Wash. 2d 550, 557,
353 P.3d 213(2015). Here, the disputed instruction provided an accurate
definition of practicing law, as set forth by the Washington Supreme Court in GR
24. The fact that Boerner testified about GR 24 did not transform the instruction
into a comment on the evidence.
Separation of Powers
For the first time on appeal, Yishmael argues that RCW 2.48.180 is
unconstitutional under the separation of powers doctrine. His assignment of
error reads as follows:
The use of GR 24 to define an element of the crime of unlawful
practice of law is an improper delegation of legislative authority to
the judiciary and violates the separation of power doctrine.
This is an issue statement, not an assignment of error.
A party's assignments of error should include a "separate concise
statement of each error a party contends was made by the trial court, together
with the issues pertaining to the assignments of error." RAP 10.3(a)(4).
Assignments of error enable the reviewing court to pinpoint the time and place in
the record at which the trial court allegedly committed error. "Mistakes were
made" is not a satisfactory assignment of error.
Yishmael's assignment of error raises the separation of powers doctrine
as an abstract issue without specifying an error committed by the trial court. He
might be challenging jury instruction 20, or he might be challenging the statute.
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He alleges an improper delegation of legislative authority, but does not say who
did the delegating. By not assigning error to a specific decision made by the trial
court, Yishmael avoids acknowledging that he did not present the issue of
separation of powers to the trial court for a decision. He also avoids the
responsibility of explaining why he is entitled to raise the issue for the first time
on appeal.
As a general rule, an appellate court will not consider an issue raised for
the first time on appeal. RAP 2.5(a). There is an exception for manifest error
affecting a constitutional right. RAP 2.5(a). "The defendant must identify a
constitutional error and show how, in the context of the trial, the alleged error
actually affected the defendant's rights; it is this showing of actual prejudice that
makes the error "'manifest," allowing appellate review." State v. McFarland, 127
Wash. 2d 322, 333, 899 P.2d 1251 (1995), as amended (Sept. 13, 1995). Yishmael
does not attempt to make this showing.
As a result of Yishmael's failure to make a proper assignment of error, his
discussion of separation of powers is not susceptible to appellate review. The
separation of powers issue is not properly before this court and we decline to
address it.
Absence of Mens Rea Element
Of the five subsections defining the various ways the crime may be
committed, three contain a knowledge element:
(2) The following constitutes unlawful practice of law:
(a) A nonlawyer practices law, or holds himself or herself out as
entitled to practice law;
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(b) A legal provider holds an investment or ownership interest in a
business primarily engaged in the practice of law, knowing that a
nonlawyer holds an investment or ownership interest in the
business;
(c) A nonlawyer knowingly holds an investment or ownership
interest in a business primarily engaged in the practice of law;
(d) A legal provider works for a business that is primarily engaged in the
practice of law, knowing that a nonlawyer holds an investment or
ownership interest in the business; or
(e) A nonlawyer shares legal fees with a legal provider.
RCW 2.48.180(2)(emphasis added). The first subsection, under which Yishmael
was charged, does not specify a required mens rea. RCW 2.48.180(2)(a).
Yishmael proposed a jury instruction requiring the State to prove that he
"knowingly" practiced law. The trial court ruled that the word "knowingly" would
not be used in the instruction because it was not used in RCW 2.48.180(2)(a).
Yishmael contends the trial court erred by rejecting his proposed instruction.
Whether a mental element is an essential element of a crime is a matter to
be determined by the legislature. Criminal offenses with no mens rea are
generally disfavored. State v. Bash, 130 Wash. 2d 594, 606, 925 P.2d 978(1996).
Bash sets forth eight factors for consideration by a court when determining
whether an offense without a specified mens rea was intended by the legislature
as a strict liability crime:
(1) a statute's silence on a mental element is not dispositive of
legislative intent; the statute must be construed in light of the
background rules of the common law, and its conventional mens
rea element;(2) whether the crime can be characterized as a
"public welfare offense" created by the Legislature;(3) the extent to
which a strict liability reading of the statute would encompass
seemingly entirely innocent conduct;(4) and the harshness of the
penalty. Other considerations include:(5)the seriousness of the
harm to the public;(6) the ease or difficulty of the defendant
ascertaining the true facts;(7) relieving the prosecution of difficult
and time-consuming proof of fault where the Legislature thinks it
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important to stamp out harmful conduct at all costs,"even at the
cost of convicting innocent-minded and blameless people"; and (8)
the number of prosecutions to be expected.
Bash, 130 Wash. 2d at 605-06, quoting 1 WAYNE R. LAFAVE & AUSTIN W.SCOTT,
SUBSTANTIVE CRIMINAL LAW § 3.8, at 341-44 (1986).
To find legislative intent to impose strict liability, it is not necessary that all
Bash factors are aligned. See State v. Burch, 197 Wash. App. 382, 399, 389 P.3d
685 (2016), review denied, 188 Wash. 2d 1006, 393 P.3d 356(2017)(concluding
that vehicular homicide under the influence of alcohol or drugs is a strict liability
offense even though the Bash factors do not all point in that direction).
With respect to the unlawful practice of law as charged against Yishmael,
neither party identifies guidance found in the common law. This first Bash factor
does not favor or disfavor strict liability.
The second Bash factor looks at whether the crime is a public welfare
offense. Public welfare offenses, regulatory in nature, are often upheld as strict
liability crimes. Bash, 130 Wash. 2d at 607. They typically share certain
characteristics:
(1) they regulate "dangerous or deleterious devices or products or
obnoxious waste materials;"(2)they "heighten the duties of those
in control of particular industries, trades, properties or activities that
affect public health, safety or welfare;" and (3)they depend on no
mental element but consist only of forbidden acts or omissions."...
Public welfare statutes render criminal "a type of conduct that a
reasonable person should know is subject to stringent public
regulation and may seriously threaten the community's health or
safety." Thus, under such statutes, "a defendant can be convicted
even though he was unaware of the circumstances of his conduct
that made it illegal."
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Staples v. United States, 511 U.S. 600, 628-29, 1148. Ct. 1793, 1809, 128 L.
Ed. 2d 608(1994)(citations omitted). "Many violations of such regulations result
in no direct or immediate injury to person or property but merely create the
danger or probability of it which the law seeks to minimize." Morissette v. United
States, 342 U.S. 246, 255-56, 72S. Ct. 240, 96 L. Ed. 288(1952).
Case law and commentary indicate that RCW 2.48.180(2)(a) is a public
welfare offense. "The unauthorized practice of law is prohibited to protect the
public." Hunt, 75 Wash. App. at 803. "Defining 'the practice of law' lies at the heart
of any effort to protect the public from untrained and unregulated persons who
hold themselves out as able to offer advice and counsel in matters customarily
performed by lawyers." 2 KARL B. TEGLAND, WASHINGTON PRACTICE: RULES
PRACTICE GR 24 drafters' cmt. at 105 (8th ed. 2014). We conclude RCW
2.48.180(2)(a) is a public welfare offense. This factor weighs in favor of strict
liability.
The third factor considers whether strict liability would encompass
seemingly innocent conduct. Yishmael argues that the lack of a mens rea
element exposes professionals such as teachers and realtors to liability, but he
does not explain how their normal professional conduct would come within the
definition of practicing law. In addition, RCW 2.48.180(7) provides an affirmative
defense for conduct authorized by a professional license:
In a proceeding under this section it is a defense if proven by the
defendant by a preponderance of the evidence that, at the time of
the offense, the conduct alleged was authorized by the rules of
professional conduct or the admission to practice rules, or
Washington business and professions licensing statutes or rules.
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Providing an affirmative defense ameliorates the harshness of a strict liability
crime. State v. Deer, 175 Wash. 2d 725, 735, 287 P.3d 539 (2012), cert. denied,
568 U.S. 1148, 133 S. Ct. 991, 184 L. Ed. 2d 770(2013). The third factor weighs
in favor of strict liability.
The harshness of the penalty is the fourth factor. "'Other things being
equal, the greater the possible punishment, the more likely some fault is
required; and, conversely, the lighter the possible punishment, the more likely the
legislature meant to impose liability without fault." Bash, 130 Wash. 2d at 608-09,
quoting 1 LAFAVE & Sco-rr § 3.8, at 343. There is no bright line rule for when a
punishment is severe enough to weigh against strict liability, but courts have
hinted that punishing an offense as a felony is incompatible with strict liability.
Bash, 130 Wash. 2d at 609. In this case, a single violation is a gross misdemeanor.
It is true that subsequent violations are punishable as Class C felonies under
RCW 2.48.180(3)(b), but if there are subsequent violations, the offender has
already learned from the first prosecution that the unauthorized practice of law is
a criminal offense. This fourth factor weighs in favor of strict liability.
The fifth factor looks at the seriousness of harm to the public. The
potential harm of the unlawful practice of law is significant. The drafters'
comments to GR 24 state that the "public has no recourse for poor, illegal, or
negligent performance" of legal services by a nonlawyer. 2 TEGLAND, supra,, at
105. Yishmael's "clients" were in some cases arrested, all were exposed to
potential felony charges as a result of following his advice, and the rightful
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owners of properties selected for the scheme experienced property losses and
criminal trespass. This factor weighs in favor of strict liability.
The sixth factor is the ease or difficulty of the defendant ascertaining the
true facts. GR 24 is a publicly available court rule defining the practice of law. It
would not have been difficult for Yishmael to read it and learn that the services
he was offering constituted the practice of law. This factor weighs in favor of
strict liability.
Yishmael testified that he did read RCW 2.48.180 before beginning his
adverse possession program and concluded that what he planned to do would
not violate the statute. He said he understood that practicing law was "assisting
someone with court documents and representing them in court." He now argues
that the State should be required to prove he knew his services constituted the
practice of law. This argument illustrates the significance of the seventh factor,
which considers the difficulty of proving intent. In the face of Yishmael's
testimony that he subjectively interpreted the statute as not being a bar to his
conduct, it would have been difficult for the State to prove that he practiced law
knowingly. See State v. Mertens, 148 Wash. 2d 820, 830,64 P.3d 633(2003)
(commercial fishing without a license is a strict liability crime; if proof of intent
were required, a defendant could easily evade conviction by claiming
noncommercial intent, thereby circumventing personal daily limits and potentially
placing undue pressure on natural resources). The seventh factor weighs in
favor of strict liability.
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The final factor looks at the number of prosecutions. There are few
appellate opinions on the criminal prosecution of unlawful practice of law. It is
reasonable to infer that criminal prosecutions for this offense are rare. This factor
weighs in favor of strict liability.
Taken together, the Bash factors support the conclusion that the
legislature intended a nonlawyer's practice of law to be a strict liability crime.
The legislature's decision to use the words "knowing" and "knowingly" in
subsections (b), (c), and (d) of RCW 2.48.180(2), but not in subsection (a), is
further evidence of that intent. See Mertens, 148 Wash. 2d at 826 (statute listed five
alternative means, only one of which contained a mens rea element, the other
four were strict liability crimes). "When drafting a statute, if the Legislature uses
specific language in one instance and dissimilar language in another, a
difference in legislative intent may be inferred." Matter of Sietz, 124 Wash. 2d 645,
651, 880 P.2d 34 (1994). Had the legislature intended to limit punishment to
nonlawyers who knowingly practice law, the legislature clearly would have done
SO.
We conclude that the practice of law by a nonlawyer is a strict liability
offense. The trial court properly refused Yishmael's request to require the State
to prove that he "knowingly" practiced law.
Sufficiency of the Evidence
Yishmael challenges the sufficiency of the evidence underlying his
conviction. The test for determining the sufficiency of the evidence is whether,
after viewing the evidence in the light most favorable to the State, a rational trier
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of fact could have found guilt beyond a reasonable doubt. State v. Salinas, 119
Wash. 2d 192, 201, 829 P.2d 1068 (1992).
Yishmael was charged under the first subsection of the relevant statute,
which states that the unlawful practice of law occurs in two circumstances: when
a nonlawyer practices law, or when a nonlawyer holds himself or herself out as
entitled to practice law. RCW 2.48.180(2)(a). Yishmael emphasizes that he did
not hold himself out to be an attorney.
Although the information originally charged Yishmael both with practicing
law and with holding himself out as a lawyer, the trial court granted Yishmael's
motion to dismiss the holding out charge. The court did not include it in the jury
instructions and ordered the parties not to argue about whether Yishmael held
himself out as a lawyer. Thus, Yishmael was convicted only for practicing law as
a nonlawyer. The evidence was sufficient to support that conviction.
STATEMENT OF ADDITIONAL GROUNDS
In a statement of additional grounds, Yishmael argues that RCW
2.48.180(1)'s definition of nonlawyer is confusing. The statute defines nonlawyer
as:
"Nonlawyer" means a person to whom the Washington supreme
court has granted a limited authorization to practice law but who
practices law outside that authorization, and a person who is not an
active member in good standing of the state bar, including persons
who are disbarred or suspended from membership.
RCW 2.48.180(1)(b)(emphasis added). Yishmael claims the emphasized "and"
is a qualifier to the overall definition, not a separate definition. This argument is
inconsistent with this court's previous holding that the definition specifies two
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categories of nonlawyers, not one. State v. Janda, 174 Wash. App. 229, 234, 298
P.3d 751 (2012), cert. denied, 571 U.S. 881, 134 S. Ct. 221, 187 L. Ed. 2d 144
(2013). Yishmael was convicted as a nonlawyer under a definition that a
nonlawyer "means a person who is not an active member in good standing of the
state bar." RCW 2.48.180(1)(b).
The conviction is affirmed.
WE CONCUR:
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