State v. Janda
State v. Janda
Opinion of the Court
¶1 — Steven Janda was convicted of two counts of unlawful practice of law and two counts of first degree theft. He contends his convictions must be reversed
BACKGROUND
¶2 Janda has never been a lawyer, but for years he operated a business providing estate planning services. In 1997, the state attorney general’s office warned him that his business constituted the unauthorized practice of law and an unfair practice under the Consumer Protection Act, chapter 19.86 RCW. He signed an agreement acknowledging both allegations and promising to cease providing the services. He did not.
¶3 In 2004, the State Practice of Law Board determined Janda continued to practice law without a license. He entered into a cease and desist agreement. Again, he did not cease his practices.
¶4 This prosecution stems from Janda’s provision of estate planning services to two families. In 1994, Irene and Dale Frelin contacted Janda because of a newspaper advertisement.
¶5 In 2008, Janda also provided services for Mary McGraw, whose son contacted Janda for help because McGraw was elderly and suffering from dementia. Janda prepared documents including a living trust. McGraw died, and Janda charged for administration of her estate but failed to perform any services. McGraw’s son sought advice from attorney Peter Perron, who eventually filed a complaint against Janda. The Practice of Law Board contacted the Kent Police Department.
¶6 The State charged Janda with two counts of unlawful practice of law and two counts of first degree theft. Janda moved to dismiss the unlawful practice counts,
DISCUSSION
¶7 Janda’s central argument is that the unlawful practice statute does not apply to him because he has never been a member of the Washington State Bar Association. We review questions of statutory interpretation de novo.
“Nonlawyer” means ... a person who is not an active member in good standing of the state bar, including persons who are disbarred or suspended from membership.
¶8 When a statute is plain and unambiguous, we derive its meaning from the words of the statute itself.
¶9 Chapter 2.48 RCW provides for the organization of the Washington State Bar Association and its board of governors. RCW 2.48.130 provides for bar membership fees for “active members,” and RCW 2.48.140 provides a fee for “inactive members.” RCW 2.48.170 provides that “[n]o person shall practice law in this state ... unless he or she shall be an active member” of the state bar.
¶10 RCW 2.48.180 criminalizes unlawful practice. RCW 2.48.180(2)(a) provides 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(1) defines two categories of “nonlawyers”: persons who are authorized by the Washington Supreme Court to engage in a limited practice of law but who engage in practice outside that authorization, or any person who is not an active member of the bar in good standing.
¶11 Nothing in the language of these statutes supports Janda’s interpretation. A person can plainly be “not an active member in good standing” by being not active, or not a member, or a member who is not in good standing. The
¶12 Janda also argues that by permitting the State to introduce into evidence GR 24, which defines the practice of law, the court relieved the State of its burden to prove the essential elements of the crime. But it is the province of the Washington Supreme Court to define what constitutes the practice of law, and it has done so by way of GR 24.
¶13 For the first time on appeal, Janda challenges jury instruction 7, which stated:
The Defendant is charged in Counts I and II of the Information with the Unlawful Practice of Law. A person commits the crime of the Unlawful Practice of Law when, not being an active member of the State Bar, he practices law or holds himself out as entitled to practice law.[10 ]
Under RAP 2.5(a)(3), we review a claim of error not raised below only where the error is manifest and affects a constitutional right. It is manifest if the defendant shows actual and identifiable prejudice.
¶14 Janda claims the use of the word “person” instead of “nonlawyer” misstates an essential element of the offense and falsely instructed the jury that “any person could
¶15 Also for the first time on appeal, and without citation to relevant authority,
¶16 Janda next contends his victims should be charged with criminal solicitation under RCW 9A.08.020(3) because they hired him to perform illegal services.
¶17 Also for the first time on appeal, Janda contends the court improperly allowed the jury to aggregate transactions to reach the threshold for first degree theft.
¶18 Janda also contends the evidence was not sufficient to support his convictions. In a challenge to the sufficiency of the evidence, all reasonable inferences are drawn in favor of the State.
¶19 Here, the State had to prove that Janda practiced law or held himself out as entitled to practice law while he was not an active member of the state bar in good standing.
The “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 the 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 docu*238 ments or agreements which affect the legal rights of an entity or person(s).[20 ]
The State’s evidence of Janda’s unlawful practice of law, delineated above, was more than sufficient.
¶20 To support the first degree theft charges, the State was required to prove that Janda, by color of aid or deception, wrongfully obtained over $1,500 from each victim as part of a common scheme or plan resulting from a single, continuing criminal impulse or intent.
¶21 Relying on State v. Mermis,
¶22 Frelin wrote Janda seven checks totaling over $9,000. McGraw paid Janda $750 to draft legal documents and $950 for Janda’s promise to administer McGraw’s
¶23 Finally, Janda challenges the orders prohibiting him from contacting Frelin, Frelin’s daughter Julie Kanikkberg, McGraw, and Perron. He argues there was no evidence warranting the orders because he abided by a pretrial order prohibiting contact with Frelin, he has no criminal history, and he “has never had an adverse encounter with her or any of the other persons listed in the no contact provision in the judgment and sentence.”
¶24 Imposition of orders prohibiting contact with crime victims or witnesses is a matter for the trial court’s discretion.
¶25 Affirmed in all respects.
Reconsideration denied October 26, 2012.
Janda advertised his business as Evergreen Paralegal Services.
Janda represented himself below, as he does here.
State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001).
State v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010) (quoting State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2006)).
State v. Tili, 139 Wn.2d 107, 115, 985 P.2d 365 (1999).
Janda’s jurisdiction arguments are murky. He poses this question: “Is it possible to be born into the state bar act under the Equal Protection provision of the Fourteenth Amendment?” Appellant’s Br. at 1.
Short v. Demopolis, 103 Wn.2d 52, 62, 691 P.2d 163 (1984) (“The Supreme Court has an exclusive, inherent power to admit, enroll, discipline, and disbar attorneys.”); see also Graham v. State Bar Ass’n, 86 Wn.2d 624, 631, 548 P.2d 310 (1976) (regulation of the practice of law is within inherent power of Supreme Court).
Clerk’s Papers at 265.
State v. King, 167 Wn.2d 324, 329, 219 P.3d 642 (2009).
Appellant’s Br. at 33.
State v. Kroll, 87 Wn.2d 829, 838, 558 P.2d 173 (1976) (“Assignments of error unsupported by citation authority will not be considered on appeal unless well taken on their face.”).
Janda poses the issue as follows: “Hypothetical. If Bonnie pays Clyde to rob a bank for her, is Bonnie liable for the robbery, too . . . ?” Appellant’s Br. at 4.
Former RCW 9A.56.050(1) (Laws of 1998, ch. 236, § 4), applicable at the time of the offenses at issue, limited third degree theft to theft of property not exceeding $250 in value. Former RCW 9A.56.010(18)(c) (Laws of 2006, ch. 277, § 4) provided in pertinent part, “IWlhenever any series of transactions which constitute theft, would, when considered separately, constitute theft in the third degree because of value, and said series of transactions are a part of a criminal episode or a common scheme or plan, then the transactions may be aggregated in one count and the
State v. Barton, 28 Wn. App. 690, 694, 626 P.2d 509 (1981) (five acts of second degree theft properly aggregated under the common law to charge one count of first degree theft); see also State v. Kinneman, 120 Wn. App. 327, 340, 84 P.3d 882 (2003) (“The aggregation cases permit, but do not require, the State to aggregate charges in order to charge a defendant with a higher degree of a crime when the State believes a single scheme can be proved.”).
State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995).
RCW 2.48.180; see also State v. Hunt, 75 Wn. App. 795, 800, 880 P.2d 96 (1994).
Clerk’s Papers at 267. Janda also contends the court’s instruction was improperly based upon GR 24, which is not a statute and therefore not a standard for defining practice of law. As indicated above, this is incorrect.
Former RCW 9A.56.030(l)(a) (Laws op 2007, ch. 199, §3); RCW 9A.56-,020(l)(b); State v. Garman, 100 Wn. App. 307, 316-17, 984 P.2d 453 (1999).
Garman, 100 Wn. App. at 315; State v. Vining, 2 Wn. App. 802, 808-09, 472 P.2d 564 (1970).
Garman, 100 Wn. App. at 315.
105 Wn. App. 738, 20 P.3d 1044 (2001).
Appellant’s Br. at 43.
Mermis, 105 Wn. App. at 745-46.
Appellant’s Br. at 41.
RCW 9.94A.505(8); State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
Reference
- Full Case Name
- The State of Washington v. Steven Andrew Janda
- Cited By
- 3 cases
- Status
- Published