Trial court’s jury instructions on the unlicensed practice of law were not overbroad and did not infringe on defendant’s right to freedom of speech. Holding himself out to be an attorney, Starski wrote a letter to the owner of a lumber business, claiming his “client” (codefendant Cornett) had been injured at the store and sought a financial settlement. This led to a prosecution for the unlawful practice of law (Bus. & Prof. Code, § 6126), which was also the basis for felony charges of attempted grand theft, conspiracy to commit the unlawful practice of law, and conspiracy to commit grand theft. The defendants were convicted and appealed. Starski, who was self-represented, raised a number of issues on appeal, including that the statement “I am a lawyer,” is protected speech. Held: Affirmed. In Howard v. Superior Court (1975) 52 Cal.App.3d 722, the court held the constitutional protection for free speech does not extend to the giving of legal advice by those not licensed to practice law. Contrary to Starski’s claim, this holding was not abrogated by U.S. v. Alvarez (2012) 132 S.Ct. 2537, in which a majority of the Court invalidated a federal statute making it a crime to falsely claim to be a recipient of the Medal of Honor, finding it constituted an overbroad, content-based suppression of pure speech. Even after Alvarez, content-based restrictions on speech are still permissible when the speech is integral to criminal conduct. Further, states have a compelling interest in the practice of professions within their boundaries and, as part of their power to protect the public health and safety, they have broad power to establish standards for licensing professionals. “[T]here is absolutely no doubt the six members of the Alvarez majority had any intention of eviscerating so significant an aspect of a state’s traditional power.”
The trial court was not required to instruct on the definition of “the practice of law.” Starski argued the instruction on the unauthorized practice of law was erroneous because it did not define what constitutes “the practice of law.” He further alleged that simply letting another person believe one is a licensed attorney is insufficient absent some evidence of a fraudulent claim that one is authorized to perform legal services in a court of law. However, a trial court only has a sua sponte duty to define technical terms that have a meaning peculiar to the law, not words that are commonly understood. The phrase “practicing law” has a sufficiently definite meaning and does not require further definition. The phrase encompasses not only legal representation in a court, but also dispensing legal advice and the preparation of instruments and contracts by which legal rights are secured. Purporting to represent someone, even if impliedly, while negotiating a settlement is the practice of law. It need not be shown the defendant made a fraudulent claim he is authorized to perform services in a court of law.
Substantial evidence supports Cornett’s conviction for conspiring to commit the unauthorized practice of law. Cornett claimed there was no evidence that he ever contacted the lumber company or was told that Starski was holding himself out as an attorney to that business. However, there was ample circumstantial evidence that Cornett knew of Starski’s history of successfully posing as an attorney in dealings with third parties, and that he agreed to become Starski’s “client” and allowed Starski to “represent” him in dealing with the lumber company. A conspiracy is often proved via circumstantial evidence. While mere association with the perpetrator of the crime does not prove criminal conspiracy, it may be considered by the jury in determining the nature of the conspiracy.
The trial court did not err in refusing to give Starski’s “claim of right” instruction. Starski requested a jury instruction to the effect that if there was a reasonable doubt about the prosecution’s claim that no injury actually occurred at the lumber company, then the jury must find the defendants not guilty of grand theft and conspiracy to commit grand theft. Although Starski labeled this his “claim of right” instruction, a claim of right is generally limited to a perpetrator who seeks in good faith to recover specific items of his personal property. The defense does not apply to situations involving sums representing an “unliquidated tort claim for personal injuries.” Moreover, the claim of right defense does not arise from “notoriously illegal transactions” such as the unlawful practice of law.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A145450.PDF