Virginia Lawyers Weekly

VIRGINIA BEACH—The Virginia State Bar Council will ask the General Assembly to make the unauthorized practice of law a felony if the misconduct results in economic harm.

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.

Robert V. Ward of Bristol, the chairman of the Standing Committee on the Unauthorized Practice of Law, told the VSB Council June 18 that the committee has no interest in making a felon of the typical person who engages in the unauthorized practice of law.

That person usually is trying to help someone by drafting a will or providing some other advice that the law requires to come from a lawyer. A letter advising the person of the illegality usually eliminates the problem, he said.

But in some cases, especially those involving immigrants or prison inmates, those persons may take hundreds or thousands of dollars to perform services that require legal training, he said.

They include those 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.

Although such persons might be guilty of larceny by false pretenses or some other felony, the offenses can be difficult to prosecute without the assistance of the victim, who may no longer be in the country, Ward said.

Moreover, the statute of limitations for misdemeanors is a year, and the time for bringing a charge might well have lapsed by the time the offense is discovered and investigated, he said.

Prosecutors are more likely to respond to a request to bring charges with the higher penalty, he said.

Council approved submitting the proposed amendments to Virginia Code § 54.1-3904 to the General Assembly at its next session.
In other matters at the June 18 meeting, council:

• Approved a change to Rule of Professional Conduct 1.17 that would allow an attorney to sell an area of his or her practice and retain other parts of the practice in the same geographical area.

The rule now generally requires an attorney who has sold a practice to stop practicing altogether in the geographic area in which the attorney had practiced.

The proposed rule also would require an attorney to sell the entire practice or area of practice to prevent the buyer from selecting only the most attractive or lucrative cases at the expense of clients with less appealing matters. The measure is designed to protect clients who might find it difficult to retain substitute counsel.

However, the Committee on Legal Ethics said “sole practitioners and their clients are often unreasonably discriminated against when the attorney’s practice is terminated” because another attorney in a firm typically takes over a client’s case when an attorney retires. The client of a retiring sole practitioner must employ another attorney or firm.

The committee noted that attorneys in firms may sell their practices indirectly through retirement agreements that have the effect of rewarding the lawyer for the value of his or her practice.

Assistant Ethics Counsel Leslie A.T. Haley told council that the proposal is designed largely to cure an inconsistency in the rule that allows attorneys to sell part of their practices but requires them to give up their entire practices in a geographical area if they do so.

The measure passed by a vote of 60 to 2, with one abstention, despite a suggestion that another way to handle the inconsistency that would provide more protection to clients would be to bar the sale of part of a practice altogether.

Kenneth E. Labowitz of Alexandria wondered just how big a problem there is. “Are we really talking about algebra?” he asked. “It doesn’t exist except in the 10th grade.”

• Eliminated the Standing Committee on Legal Advertising and Solicitation. Haley told the council that much of the work of tracking advertising now is done by VSB staff and that any problems can be handled by the Standing Committee on Legal Ethics.

Daniel L. Rosenthal of Henrico County, a former chairman of SCOLAS, said the public perception of lawyers is influenced by advertising. “The profession has too much at stake to let this slide completely,” he said and questioned whether the ethics committee has the capacity to take on advertising.

Despite that reservation, the council voted 58-1-4 to kill the committee.

• Removed the requirement for annual notification by mail of an attorney’s mandatory continuing legal education status. The information is available on the VSB Web site and eliminating the mailing will save about $14,000 a year. A member can ask to receive the information by first-class mail.

• Approved the appointment of W. David Harless of Richmond, Sharon D. Nelson of Fairfax and George W. Shanks of Luray to the executive committee. The terms of Irving M. Blank of Richmond, Michael C. Guanzon of Danville and M. Janet Palmer of Richmond will expire June 30. Blank will remain on the EC as president-elect.

Lesley A. Pate, who practices in Washington, will join the EC as president of the Young Lawyers Conference. John G. Mizell Jr. of Richmond and Gifford R. Hampshire of Manassas will join the EC as presidents, respectively, of the Senior Lawyers Conference and the Conference of Local Bar Associations.

• Learned that the VSB had a surplus in its budget this year and likely will have one next year. Bar dues were last increased to $250 annually in 2000, with the expectation that they would have to be increased within seven years.

Incoming VSB President Jon D. Huddleston praised Executive Director Karen A. Gould for her work in reducing VSB costs but lamented that the budget is in balance largely because staff, along with other state employees, will not get a raise before July 2010.

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