State v. Yishmael

• Decision Date: 06 February 2020
• Docket Number: No. 96775-0,96775-0
• Citation: 456 P.3d 1172
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Naziyr YISHMAEL, Petitioner.

456 P.3d 1172

STATE of Washington, Respondent,

v.Naziyr YISHMAEL, Petitioner.

No. 96775-0

Supreme Court of Washington.

Argued September 10, 2019

Filed February 06, 2020

Travis Steams, Washington Appellate Project, 1511 3rd Avenue, Suite 610, for Petitioner.

Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Avenue, Suite W554, Jennifer H. Atchison, King County Prosecutor's Office, 500 4th Avenue, Suite 900, Seattle, WA 98104-2316, for Respondent.

González, J.

¶1 Admission to the practice of law requires years of graduate level study either with a practicing lawyer or at a law school. It requires passage of a rigorous bar examination on a wide range of topics. In addition, bar applicants must satisfy character and fitness requirements. Once admitted, lawyers join a noble profession and become officers of the court, obligated to conduct themselves ethically under the Rules of Professional Conduct. When lawyers break the rules, they are subject to discipline. When lawfully practicing attorneys cause harm, malpractice insurance and the victims’ compensation fund can provide some relief for their clients.

¶2 By contrast, the unlawful practice of law often causes harm without any of the protections for malpractice by lawyers. Because these harms are predictable, the unlawful practice of law is a crime. RCW 2.48.180(3). This case is illustrative. Victims in this case became homeless, were jailed, and lost almost everything they owned.

¶3 This court has the "exclusive power to regulate the practice of law," and in accordance with constitutional separation of powers principles, our legislature has not attempted to define the "practice of law." Hagen & Van Camp, P.S. v. Kassler Escrow, Inc. , 96 Wash.2d 443, 445, 635 P.2d 730 (1981) (citing WASH. CONST. art. IV, § 1 ). The "practice of law," however, has been defined in common law and, more recently, a court rule, GR 24.

¶4 Naziyr Yishmael, who is not an attorney, advised clients that they could "homestead" in apparently abandoned properties and, after a period of time, acquire title through adverse possession. After some of his clients were arrested for taking up residence in other people’s houses, he was charged with and convicted of misdemeanor unlawful practice of law. He contends his conviction must be reversed for five reasons. He contends the jury was improperly instructed that the unlawful practice of law is a strict liability offense. He contends the court’s use of GR 24 to define the practice of law violates separation of powers; he contends this use amounts to a comment on the evidence. He contends that the statute is unconstitutionally vague. Finally, he contends that there was insufficient evidence presented to sustain his conviction. Finding no error, we affirm.

FACTS

¶5 In October 2014, four people were arrested. They were among many people who had been advised by Yishmael that they could take up residence in apparently abandoned foreclosed homes and, by changing the locks, moving in, improving the properties, and filing a variety of papers with the recorder’s office, acquire title through adverse possession. Yishmael charged $7,000-$8,000 for his advice and assistance in adversely possessing homes. His clients also spent thousands of dollars repairing and improving the properties. Some lost almost everything they owned.

¶6 Yishmael was charged with several crimes, including theft and the unlawful practice of law. He testified in his own defense. Yishmael did not dispute that he gave his clients advice on homesteading, adverse possession, and talking with police who might challenge his clients’ right to be in the homes, and that he offered assistance in completing documents to be filed with the county recorder’s office. He also testified that he never held himself out to be a lawyer and, based on his review of the unlawful practice of law statutes in Title 2 RCW, he did not believe he was practicing law.

¶7 Both sides offered expert testimony from law professors. Professor David Boerner testified at length about the meaning of "practice of law." Boerner was a member of the committee that defined the practice of law and proposed GR 24 to codify that definition. Professor Gregory Silverman testified at length on adverse possession, foreclosure, and this court’s opinion in Bain v. Metropolitan Mortgage Group, Inc. , 175 Wash.2d 83, 285 P.3d 34 (2012).

¶8 During trial, Yishmael moved to dismiss the unlawful practice of law charge. He argued that the statute violated the First Amendment to the United States Constitution and was unconstitutionally vague. He also objected to the admission of GR 24 and its use in crafting the jury instructions. Yishmael proposed instructions that would have required the State to establish he "unlawfully and knowingly practiced law, or held himself out as entitled to practice law." Clerk’s Papers (CP) at 512. Ultimately, the jury was instructed that "[a] person commits the crime of Unlawful Practice of Law when, not being an active member of the State Bar, he practices law." CP at 550. The jury was also instructed that

[t]he "practice of law" means the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s) which requires the knowledge and skill of a person trained in law. This includes giving advice or counsel to others as to their legal rights or the legal rights or responsibilities of others for fees or other consideration. It also includes the selection, drafting, or completion of legal documents or agreements which affect the legal rights of an entity or person(s).

CP at 552. This definition largely mirrors the first two provisions of GR 24. The to-convict instruction did not require the jury to find Yishmael knowingly practiced law.

¶9 The jury acquitted Yishmael of the theft and theft-related charges. It found him guilty of the unlawful practice of law charge. Yishmael was sentenced to 364 days in jail with all but 5 days suspended. The Court of Appeals affirmed, and we granted review. State v. Yishmael , 193 Wash.2d 1002, 438 P.3d 114 (2019).

ANALYSIS

¶10 The first four issues in this case present questions of law that are reviewed de novo. Dreiling v. Jain , 151 Wash.2d 900, 908, 93 P.3d 861 (2004) (citing Rivett v. City of Tacoma , 123 Wash.2d 573, 578, 870 P.2d 299 (1994), overruled in part on other grounds by Chong Yim v. City of Seattle , 194 Wash.2d 682, 451 P.3d 694 (2019) ). Yishmael also challenges the sufficiency of the evidence, which has a more deferential standard that we will discuss below.

1. Strict Liability

¶11 First, we must decide whether the unlawful practice of law, as charged here, is a strict liability offense. If not, then the State was improperly relieved of the burden of proving Yishmael acted with knowledge and reversal would be required. Historically, strict liability offenses were disfavored in our legal traditions. At the time our nation was founded, crimes "generally constituted only from concurrence of an evil-meaning mind with an evil-doing hand." Morissette v. United States , 342 U.S. 246, 251, 72 S. Ct. 240, 96 L. Ed. 288 (1952). Requiring the State to prove both a bad act and a bad intent goes back many more centuries. Id. at 250 n.4, 72 S.Ct. 240 (citing 2 FREDERICK POLLACK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I, at 448-511 (2d ed. 1899)).

¶12 But under our constitutional system, our legislature has the plenary power to criminalize conduct regardless of whether the actor intended wrongdoing. State v. Bash , 130 Wash.2d 594, 604, 925 P.2d 978 (1996) (citing State v. Rivas , 126 Wash.2d 443, 452, 896 P.2d 57 (1995) ). We call these crimes strict liability crimes. See, e.g., State v. Bradshaw , 152 Wash.2d 528, 532, 98 P.3d 1190 (2004). As our society has become more and more complicated, our legislatures have created more strict liability offenses as a matter of policy. Morissette , 342 U.S. at 255, 72 S.Ct. 240. Generally, legislatures create strict liability offenses to protect the public from the harms that have come with modem life by putting the burden of care on those in the best position to avoid those harms. Id. As Justice Robert Jackson summarized the legislative justification for the creation of strict liability offenses, "The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities." Id. at 256, 72 S. Ct. 240.

¶13 Yishmael contends that unlawful practice of law is not a strict liability offense and that the jury should have been instructed that the State had to prove that he knowingly (and not just unlawfully) practiced law. This turns, ultimately, on whether the legislature intended to create a strict liability crime. To determine the legislature’s intent, we start with the language of the statute, the statute’s context, and the interplay with related statutes.

Dep’t of Ecology v. Campbell & Gwinn, LLC , 146 Wash.2d 1, 11, 43 P.3d 4 (2002) (quoting 2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 48A:16, at 809-10 (6th ed. 2000)).

¶14 The legislature has criminalized the unlawful practice of law in the state bar act, ch. 2.48 RCW. Under the act, it is the unlawful practice of law when

(a) A nonlawyer practices law, or holds himself or herself out as entitled to practice law;

(b) A legal provider holds an investment or ownership interest in a business primarily engaged in the practice of law, knowing that a nonlawyer holds an investment or ownership interest in the business;

(c) A nonlawyer knowingly holds an investment or ownership interest in a business primarily engaged in the practice of law;

(d) A legal provider works for a business that is primarily engaged in the practice of law, knowing that a nonlawyer holds an investment or ownership interest in the business; or

(e) A

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