BANKS v. DEPT. OF CONSUMER & REG. AFFAIRS, 91-AA-883

• Decision Date: 06 December 1993
• Docket Number: No. 91-AA-883,91-AA-883
• Court: D.C. Court of Appeals
• Parties: Simon BANKS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMER AND REGULATORY AFFAIRS, Respondent.

634 A.2d 433

Simon BANKS, Petitioner, v. DISTRICT OF COLUMBIA DEPARTMENT OF CONSUMERAND REGULATORY AFFAIRS, Respondent.

No. 91-AA-883.

District of Columbia Court of Appeals.

Argued September 22, 1993.

Decided December 6, 1993.

Simon Banks, pro se.

Mary L. Wilson, Asst. Corp. Counsel, with whom John Payton, Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, were on the brief, for respondent.

Before FERREN and SCHWELB, Associate Judges, and PRYOR, Senior Judge.

FERREN, Associate Judge:

Petitioner Simon Banks, who is not a lawyer, seeks reversal of a decision of the Department of Consumer and Regulatory Affairs (DCRA), which concluded that Banks had committed six unlawful trade practices in violation of the Consumer Protection Procedures Act, D.C.Code § 28-3904 (1991), by rendering legal advice to the complainant, Glenard N. Hodges. DCRA ordered Banks to pay $800 in compensatory damages plus interest to Hodges, $175 in court costs, $1,500 in civil penalties ($250 for each violation), and the reasonable costs expended by DCRA. See D.C.Code §§ 28-3903(a)(13), -3905(g)(2), -3905(g)(4), -3905(i)(3) (1991). Banks contends that DCRA exceeded its statutory authority.¹ Pursuant to D.C.Code § 28-3905(i)(1) (1991), we review this decision under the District of Columbia Administrative Procedure Act, D.C.Code § 1-1510 (1992). We affirm in part and reverse in part.

I.

In 1987, this court, in response to a petition by its Committee on Unauthorized Practice of Law, concluded that Banks had violated the court's rule prohibiting the unauthorized practice of law, D.C.App.R. 49(b). See In re Banks, 561 A.2d 158 (D.C. 1987). Banks had graduated from law school in 1975 but had never become a member of any bar. Id. at 159.² This court permanently enjoined Banks from practicing law in the District of Columbia and from holding himself out to the public as someone authorized to practice law in the District. Id. at 167-68. In particular, we enjoined Banks from representing himself as a "lawyer," "attorney," "counsel," "advocate," "administrative law judge," or "administrative trial advocate." Id. at 168.

Glenard Hodges filed a complaint against Banks on June 28, 1989, with DCRA's Office of Compliance. In that complaint, Hodges claimed that on May 31, 1989, he had paid Banks, who was doing business as "Job Protectors," $800 to file a harassment complaint with Hodges' employer. Hodges also asserted that he had cancelled Banks' services before Banks performed any work, that Banks had promised to refund Hodges' money, and that Hodges had never received the refund.

A DCRA investigator conducted a telephone interview with Hodges around March 7, 1990, and interviewed Banks on June 7, 1990. The investigator's report, completed on August 14, 1990, determined that there was enough evidence that Banks had committed trade practice violations to warrant referral to the Enforcement Division of DCRA's Office of Compliance. On January 23, 1991, that Office filed a petition with DCRA's Office of Adjudication alleging that Banks had violated the Consumer Protection Procedures Act and seeking relief on Hodges' behalf. The petition specifically claimed that Banks had "charged Complainant legal fees[,] . . . told Complainant that he knows the law[,] . . . that he was an expert in job protection[,] . . . [and] that he does basically everything that a lawyer does."

The Office of Adjudication held a hearing on April 22, 1991. Although Banks was served with a summons, he did not appear at the hearing. Hodges testified that he had been having problems with his job at the Washington Metropolitan Area Transit Authority and that he had telephoned Job Protectors for help in May 1989. During this phone conversation, Banks told Hodges that there would be a $50 consultation fee, and Hodges agreed to meet with Banks.

Hodges then testified to the events that took place at his meeting with Banks on May 29, 1989. Banks told Hodges that Hodges had an Equal Employment Opportunity (EEO) case and that Banks would begin preparing the package to file with EEO. Banks added that Hodges' situation was critical, time was of the essence, and they had to start immediately. Banks also told Hodges that Banks was an "administrative advocate," that he had worked for a judge, and that he was handling a number of cases. Banks said that Hodges did not need a lawyer because Banks was an expert in this particular field. When asked whether he thought Banks was a lawyer, Hodges responded:

He — no, well I don't think he was a lawyer per se, but I thought he was like a legal representative or someone with experience in this particular field of Job Protectors, you know, the filing of the motions and the write-ups and to get me through without paying — because what he indicated to me I did not necessarily need a lawyer because he knew more about this type of thing than anybody else. That is what his profession was, Job Protectors.

Hodges paid Banks the $50 "consultation fee" during their May 29 meeting. At their second meeting, Hodges explained the details of his situation to Banks, and Banks asked Hodges for $2,000 to handle the case. Banks ultimately accepted an $800 down payment. Hodges paid it with $150 in cash and a $650 check, which had a notation in the memo portion that the check was for "legal fees." The check was made payable to the order of"Job Protectors." Banks did not provide a written contract for the services, but he told Hodges that he would prepare a contract later, after he had prepared the initial papers. According to Hodges, "as soon as [Banks] got those initial papers we would get a contract and draw up a contract for the balance of the [$]2,000.00."

Later that day, Hodges received a telephone call from his bank informing him that Banks was trying to cash the check that Hodges had written. Hodges' bank informed him that Banks was getting belligerent and upset because the bank refused to cash the check without identification that proved that Banks was authorized to cash checks for Job Protectors. The bank went ahead and cashed the check for Banks, but Hodges became very "suspicious" and "uncomfortable" that Banks needed the money so badly that he had to cash the check immediately. Hodges then called Banks to cancel their arrangement and get his money back. Banks agreed to mail Hodges a refund within "a couple of days." A week later, Hodges contacted Banks again because he had not received the money. Banks again promised to mail a check to Hodges. Hodges never received any money from Banks, and Hodges attempted but was unable to contact Banks again.

Based on this record, DCRA concluded that Banks had committed six unlawful trade practices. Specifically: "[Banks'] use of the title 'administrative advocate' and rendering of legal advice misrepresented that his services had a sponsorship, approval, certification, characteristic, and were of a particular standard, or quality when it did not in violation of D.C.Code § 28-3904(a), (b) and (d)."

Furthermore, "[Banks] accepted $800.00 as partial payment for services he did not render in violation of D.C.Code § 28-3904(e); failed to provide Complainant with a written contract in violation of D.C.Code § 28-3904(q); and failed to remit Complainant's money in the amount of $800.00 in violation of D.C.Code § 28-3904(u)."³

DCRA ordered Banks to pay $800 plus interest to Hodges; to pay $175 to the District as court costs; and to pay the District a civil penalty of $250 for each of the six trade practice violations he committed, for a total assessment of $1,500.

II.

A.

Banks contends that DCRA exceeded its statutory authority in ruling that he committed trade practice violations. His argument is premised on the belief that only this court has jurisdiction over issues concerning the practice of law and, failing that, on the contention that his actions did not amount to unlawful trade practices under the Act. See supra note 3.

This court has the "inherent and exclusive authority to define and regulate the practice of law in the District of Columbia." Brookens v. Committee on Unauthorized Practice of Law, 538 A.2d 1120, 1125 (D.C. 1988); see D.C.Code § 11-2501 et seq. (1989). In addition, this court's rules reflect our authority over the practice of law in this jurisdiction. See D.C.App.R. 46-50.

This court also exercises some authority over the unauthorized practice of law by nonlawyers, see D.C.App.R. 49, but there is no statutory or other authority to the effect that our power over the unauthorized practice of law is exclusive. Although the Consumer Protection Procedures Act excludes from its purview the "professional services of . . . lawyers," D.C.Code § 28-3903(c)(2)(C) (1991), there is no statutory exclusion barring application of the Act to nonlawyers who purport to practice law. Nor do the Act's prohibitions against deceptive trade practices interfere with this court's authority to regulate the practice of law. We see no reason, therefore, why the Act should not apply to nonlawyers who purport to practice law.

The Act defines "trade practice" as "any act which does or would create, alter, repair, furnish, make available, provide information about, or, directly or indirectly, solicit or offer for or effectuate, a sale, lease or transfer, of consumer goods or services." D.C.Code § 28-3901(a)(6) (1991). "Goods and services" are defined as "any and all parts of the economic output of society, at any stage or related or necessary point in the economic process, and includes consumer credit, franchises, business opportunities, real estate transactions, and consumer services of all types." D.C.Code § 28-3901(a)(7) (1991). We agree with DCRA that the performance of legal services is an act that "make[s] available," or "provide[s] information about," a "service[]" that is "part[] of the economic output of society." The performance of legal services, therefore, is a "trade practice" under the Act.

B.

DCRA...