State v. Yishmael

• Decision Date: 26 November 2018
• Docket Number: No. 76802-6-I,76802-6-I
• Citation: 430 P.3d 279
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Naziyr YISHMAEL, Appellant.

430 P.3d 279

STATE of Washington, Respondent,

v.Naziyr YISHMAEL, Appellant.

No. 76802-6-I

Court of Appeals of Washington, Division 1.

FILED: November 26, 2018

Travis Stearns, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-3647, for Appellant.

Jennifer Paige Joseph, King County Prosecutor's Office, Prosecuting Attorney King County, King County Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Becker, J.

¶ 1 Appellant Naziyr Yishmael, a nonlawyer, offered a program promoting the use of adverse possession to obtain ownership of houses. In exchange for a fee, Yishmael provided members with advice on adverse possession law, lists of houses in foreclosure, forms to use to make claims of abandonment by the owners, and other services. A jury convicted him of the unlawful practice of law. Affirming the conviction, we conclude the statute defining the crime is not void for vagueness, the instruction defining the practice of law was appropriately taken from a court rule, the practice of law by a nonlawyer is a strict liability offense, and the evidence was sufficient.

FACTS

¶ 2 Before the real estate crash of the late 2000s, Yishmael worked as a realtor. After the downturn, he founded an association and recruited members by offering free seminars with PowerPoint presentations focusing on the legal doctrine of adverse possession. He encouraged members to believe that they could legally enter vacant homes, claim them as their own, and secure legal title after 7 to 10 years of occupation.

¶ 3 Yishmael charged $7,000 to $8,000 for membership in his association. Members were entitled to receive his advice on adverse possession, including statutes and case law; listings of homes that were apparently abandoned or that had "foreclosure" issues; and legal forms to aid them in making claims of adverse possession. Yishmael promised to stand by and offer guidance if any legal difficulties should arise.

¶ 4 Yishmael was not a lawyer. The advice he provided to association members was largely erroneous, and the legal documents were effectively meaningless.

¶ 5 Yishmael was arrested in April 2016. The State charged him with one count of unlawful practice of law and several counts of theft, attempted theft, conspiracy to commit theft, and offering false instruments for filing or record.

¶ 6 During the course of Yishmael’s five-day trial, the State presented the testimony of three former members of his association. When these individuals met Yishmael, they were struggling to pay their monthly rent. Swayed by Yishmael’s explanation of adverse possession, they agreed to join his association. They worked out installment plans with Yishmael and began paying membership dues.

¶ 7 The three testified similarly about using a list provided by Yishmael to identify vacant homes they were interested in owning. Yishmael in some cases arranged to have a locksmith change the locks on the selected homes. The members moved into the homes they had decided to possess. On Yishmael’s advice, they posted "no trespassing" signs, filed documents with the recorder’s office, and paid for landscaping, repairs, and new appliances. All three testified that they were visited by police officers. Two were arrested. One of them had been offered $1,000 to move out; Yishmael offered to draft a counter-offer for $3,000. Yishmael also advised him on how to deal with the criminal proceedings.

¶ 8 Yishmael’s defense focused on challenging the theft charges. The facts supporting the charge of unlawful practice went largely uncontested. The jury convicted Yishmael of the unlawful practice of law and acquitted him on the other charges. He was given a sentence of 364 days in jail, suspended on condition that he spend five days in jail and report for 30 days of a community work program.

ANALYSIS

Vagueness

¶ 9 After the defense rested, Yishmael moved to dismiss the charge of unlawful practice of law on the grounds that the statute defining the crime is void for vagueness. Yishmael contends the trial court erred by denying this motion.

¶ 10 Whether a former, shorter version of RCW 2.48.180 was void for vagueness was considered in State v. Hunt, 75 Wash. App. 795, 801, 880 P.2d 96, review denied, 125 Wash.2d 1009, 889 P.2d 498 (1994). A statute violates Fourteenth Amendment due process protections if it fails to provide a fair warning of proscribed conduct. Hunt, 75 Wash. App. at 801, 880 P.2d 96. In analyzing whether a statute is unconstitutionally vague, courts presume that a statute is constitutional; the burden is on the challenger to prove otherwise beyond a reasonable doubt. Hunt, 75 Wash. App. at 801, 880 P.2d 96. Whether a statute is constitutional is reviewed de novo. State v. Gresham, 173 Wash.2d 405, 419, 269 P.3d 207 (2012).

¶ 11 Although some uncertainty is constitutionally permissible, a statute is unconstitutionally vague if (1) it does not define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed, or (2) it does not provide ascertainable standards of guilt to protect against arbitrary enforcement. Hunt, 75 Wash. App. at 801, 880 P.2d 96 ; Spokane v. Douglass, 115 Wash.2d 171, 178-79, 795 P.2d 693 (1990).

¶ 12 The unlawful practice of law is a crime. A single violation is a gross misdemeanor. RCW 2.48.180(3)(a). RCW 2.48.180(2) has five subsections defining various ways in which the crime may be committed. The State charged Yishmael under the first subsection, which states that the unlawful practice of law occurs when a "nonlawyer practices law, or holds himself or herself out as entitled to practice law." RCW 2.48.180(2)(a).

¶ 13 The statute does not define the "practice of law." Yishmael argues that without a statutory definition of what it means to practice law, an average person cannot understand what conduct the statute proscribes and penalizes. But statutes are not read in a vacuum, nor is a statute void for vagueness "merely because some terms are not defined." State v. Harrington, 181 Wash. App. 805, 824, 333 P.3d 410. review denied, 181 Wash.2d 1016, 337 P.3d 326 (2014). When a criminal statute does not define words alleged to be unconstitutionally vague, "the reviewing court may ‘look to existing law, ordinary usage, and the general purpose of the statute’ to determine whether ‘the statute meets constitutional requirements of clarity.’ " Hunt, 75 Wash. App. at 801, 880 P.2d 96, quoting State v. Russell, 69 Wash. App. 237, 245, 848 P.2d 743, review denied, 122 Wash.2d 1003, 859 P.2d 603 (1993).

¶ 14 Although it may be difficult to define the "practice of law" precisely, the term is not unconstitutionally vague when existing law and ordinary usage allow an ordinary person to know that RCW 2.48.180 proscribes a defendant’s conduct. Hunt, 75 Wash. App. at 803, 880 P.2d 96. In Hunt, a man with no formal training referred to himself as a paralegal and provided legal services such as representing clients in negligence actions, conducting settlement negotiations, preparing legal documents and liens, and dispensing legal advice. Hunt, 75 Wash. App. at 797-98, 880 P.2d 96. Convicted of unlawful practice, he argued that the statutory phrase "practice law" was unconstitutionally vague. Hunt, 75 Wash. App. at 800, 880 P.2d 96. This court rejected his arguments, relying on a number of Washington cases defining the practice of law. Hunt, 75 Wash. App. at 802, 880 P.2d 96, citing In re Droker and Mulholland, 59 Wash.2d 707, 719, 370 P.2d 242 (1962) ; Washington State Bar Ass’n v. Great W. Union Fed. Sav. & Loan Ass’n, 91 Wash.2d 48, 54, 586 P.2d 870 (1978) ; Hecomovich v. Nielsen, 10 Wash. App. 563, 571, 518 P.2d 1081, review denied, 83 Wash.2d 1012, 1974 WL 45287 (1974) ; Hagan & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wash.2d 443, 446-47, 635 P.2d 730 (1981). The cited cases hold that preparing legal documents and providing legal advice constitute the practice of law. Hunt, 75 Wash. App. at 802, 880 P.2d 96. We concluded that the defendant’s conduct was clearly proscribed by the definitions in these cases and he could not have reasonably been surprised by the application of the statute to his activities. Hunt, 75 Wash. App. at 803-04, 880 P.2d 96.

¶ 15 In this case Yishmael provided legal advice, distributed purportedly necessary legal documents, gave instructions on how to record the legal documents, and sought to counsel the members of his association through any resulting legal troubles. Although Yishmael compares his behavior to that of teachers and newspaper reporters, his actions went beyond what ordinarily occurs when those professionals talk about law. Ordinary usage, court rules, and case law, including Hunt, were sufficient to warn Yishmael that his conduct constituted the practice of law.

¶ 16 Yishmael attempts to distinguish this case from Hunt by claiming that RCW 2.48.180 infringes upon his First Amendment rights. Because Yishmael’s briefing on this point is inadequate to permit meaningful review, we do not consider it. Norcon Builders. LLC v. GMP Homes VG. LLC, 161 Wash. App. 474, 486, 254 P.3d 835 (2011). We conclude that as applied to Yishmael’s actions, RCW 2.48.180 was not impermissibly vague.

Use of GR 24 to Define the Practice of Law

¶ 17 At trial, the State called David Boerner to testify on the definition of "practicing law." Boerner is a professor emeritus at Seattle University. He contributed to the drafting of GR 24, the general rule defining the practice of law, as set forth by the Washington Supreme Court. The rule was adopted in 2001 and amended in 2002. Boerner testified that the practice of law is defined by GR 24. GR 24 was admitted as evidence. The relevant portion states the following:

The practice of law is the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s) which require the knowledge and skill of a

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