Elder Law Blog

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Charging for Unauthorized Practice of Law is Theft by Deception

In Marks v. State, 280 Ga. 70 (2005), Ron Russo befriended Leonard Stewart, an 89 year old elder. Russo identified himself as a lawyer, providing advice that had the effect of impovershing Stewart. Among other things, Russo offered to do legal work in exchange for Stewarts 1990 automobile. Russo caused Stewart to make changes to his bank accounts, and ran up charges on Stewart's credit cards.

After bank officials became concerned, they referred the matter to the District Attorney's office, who investigated. When Russo identified himself to bank officials as Stewart's attorney, police were onhand to arrest Russo.

Russo was indicted on four counts of violating OCGA § 30-5-8 (a) (1) (exploitation of an elder person) of the “Disabled Adults and Elder Persons Protections Act,” OCGA § 30-5-1 et seq. He was also charged with theft by deception, OCGA § 16-8-3, in that he obtained Mr. Stewart's Oldsmobile by deceitful means by taking possession of the vehicle and title in payment for legal services when Marks was not an attorney.

The theft by deception charge hinged on Russo charging for the unauthorized practice of law. Russo defended the charges by arguing that OCGA § 15-19-51, which prohibits unauthorized pratice of law, is unconstitutional. The Georgia Supreme Court rejected Russo's argument. "In denying this challenge, the trial court correctly determined that [Russo] does not have a First Amendment right to engage in speech which is calculated to deceive or mislead people into thinking he is qualified to practice law." The right to practice law is a special privilege conferred by the State. This Court has decreed that the legal process must be projected through the courts according to established practice by lawyers who are of high character, skilled in the profession, dedicated to the interest of their clients, and in the spirit of public service. In the orderly process of the administration of justice, any retreat from those principles would be a disservice to the public. Russo's argument that he had a First Amendment right to hold himself out as an attorney is wholly specious.

When considering how broad this potential criminal conduct might be, a 2005 advisory opinion from the Georgia Supreme Court is instructive. In re UPL Advisory Opinion 2003-1, 280 Ga. 121 (2005), involved a company providing advice to debtors regarding how they could work out credit disputes. The specific issue presented to the Court was whether the following hypothetical constitutes the unlicensed practice of law:

An attorney representing a creditor on an account files a lawsuit against a debtor. The attorney receives a letter and agency power of attorney from a company stating that it has been authorized to act as the agent for the debtor in settlement negotiations. Is the company engaged in the unlicensed practice of law? Is the individual directing the company engaged in the unauthorized practice of law?

The Court's opinion indicated that, through public courthouse records, the company learned of a pending debt collection lawsuit; typically the debt ranges from $ 500 to $8,000. The company contacted the debtor by letter and offered to be of assistance. The letter contained a statement that the company is a “non-attorney mediation firm” and the debtor is told to disregard the letter if he has retained or intends to retain an attorney. If the debtor responded, he was informed that the company, if retained, would contact the creditor's attorney and attempt to negotiate a payment schedule. The company representative then would meet with the debtor to assess the debtor's means and ability to pay the debt. The debtor signed a limited power of attorney authorizing the company to act on his behalf to effect a payment plan with the creditor. The company advised the debtor that it is not a law firm and cannot advise the debtor on any legal issues now pending or which may arise. The company generally received a fee for its services.

In pertinent part OCGA § 15-19-50 defines the practice of law as: “(5) The giving of any legal advice; and (6) Any action taken for others in any matter connected with the law.” Under the specific facts of this case, the company was required to exercise legal judgment to assess the validity and value of a creditor's claim, evaluate procedural and evidentiary issues which may affect the outcome of the litigation, and advise clients as to their legal rights and obligations with regard to the debt and reasonableness of a settlement offer. Thus, under OCGA § 15-19-50, the company and non-lawyer representing the company are engaging in the unauthorized practice of law.

The unauthorized practice of law is a crime. It is also a crime to assist someone else in the unauthorized practice of law. If you are a victim of this type of criminal wrongdoing, you should report the crime to the police, or to the State Bar of Georgia. For more information regarding the unauthorized practice of law, see https://www.gabar.org/committeesprogramssections/programs/upl/

A Tale of Two Trusts
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