Virginia Lawyers Weekly

The Virginia State Bar’s Standing Committee on the Unauthorized Practice of Law wants to make an “egregious” UPL violation a felony.

The committee is recommending that the VSB Council take up the issue at its June meeting and ask the General Assembly to amend Virginia Code § 54.1-3904 to provide for the enhanced penalty.

Under the proposed legislation, UPL would become a Class 6 felony when someone practices law without a license, knowingly creates a false impression that he or she is licensed to practice law, derives a benefit from such conduct and causes a person to suffer a loss of $200 or more.

A disbarred attorney who knowingly creates the false impression that he is still licensed and derives a benefit from such conduct also would be guilty of a Class 6 felony.

“Absent some economic harm, it remains a misdemeanor,” said VSB Ethics Counsel James M. McCauley.

The maximum penalty for a Class 1 misdemeanor is 12 months in jail and/or a $2,500 fine. A Class 6 felony allows that punishment, or, in the alternative, a prison term of up to five years.

McCauley said an impetus for the proposal is the practice of persons who hold themselves out as “notarios” who can obtain citizenship or green cards from U.S. Immigration Services.

In some Latin American countries, notarios have the authority to perform some legal acts.

In this country, however, they have no such authority and cannot appear before the agency as attorneys, McCauley said.

“They’re taking people’s money with no intent to perform,” he said. Their conduct in many instances is close to larceny by false pretenses, he said.

Their customers are at risk of being deported or separated from their families when offenders “don’t do what they claim they can do,” McCauley said.

In many instances, “they’re charging as much if not more than what immigration lawyers would charge,” he added.

A disbarred lawyer who continues to take money for carrying out legal services that he is not authorized to perform is in much the same category, McCauley said.

The proposal is available on the VSB Web site at http://www.vsb.org/ site/regulation/penalty-upl-felony.

Comments on the proposal should be sent by June 11 to Karen A. Gould, Executive Director, Virginia State Bar, 707 E. Main St., Suite 1500, Richmond, VA 23219-2800.

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