Committee on Unauthorized Practice of Law

Sharon D. Nelson, chair

The Standing Committee on Unauthorized Practice of Law (Committee) is charged with two duties: 1) it investigates complaints alleging that individuals or business entities are engaged in the unauthorized practice of law; and 2) it issues opinions as to whether specific conduct constitutes the unauthorized practice of law.

This fiscal year, seventy-three (73) new UPL investigations were opened and of these new complaints, twenty-eight (28) have been closed with five (5) resulting in a signed letter agreement. Of these new complaints, none (0) have been referred to the Office of the Attorney General for civil prosecution, to a commonwealth’s attorneys for criminal prosecution or to the U.S. Attorney’s Office.

A total of fifty-seven (57) investigations were carried over from prior fiscal years. Of these, the Committee referred three complaints to the Office of the Attorney General. Two resulted in injunctive relief. The Committee referred six matters, all involving the same respondent, Howard Deiner, to the Arlington County Commonwealth Attorney’s office, who successfully prosecuted him for UPL as well as fraud and taking money from clients under false pretenses. The Committee sent twenty-four complaints involving Howard R. Shmuckler, a disbarred D.C. lawyer, to the U.S. Attorney’s Office in Alexandria for possible prosecution. Mr. Shmuckler was holding out as a lawyer in Virginia and was operating a mortgage and debt counseling business when his license in D.C. had been suspended. One of the UPL complainants pursued a separate lawsuit against Mr. Shmuckler in Fairfax County Circuit Court. The bar/UPL staff assisted the complainant’s counsel, providing access to the UPL investigations and assistance of the bar investigator who conducted the investigations. The jury in this case returned verdicts totaling almost $700,000.

During this year, Assistant Ethics Counsel also reviewed and answered thirty-three (33) complaints in which counsel determined that, based on the information provided, there was no unauthorized practice of law in Virginia warranting a formal investigation by the Committee.

The Committee received no new opinion requests in fiscal 2010.

The Committee drafted revisions to two Virginia Code sections that effect the prosecution and enforcement of the unauthorized practice of law and prepared a proposal to present to the General Assembly in support of a bill to enact these revisions. Specifically, the Committee is proposing revisions to § 19.2-8 of the Code of Virginia that will extend the statute of limitation for misdemeanor prosecution of a violation of unauthorized practice of law from one year to two years from the date of the discovery of the offense by the complainant, but in no case later than five years from occurrence of the offense. In addition, the Committee is proposing revisions to § 54.1-3904 of the Code of Virginia to allow a court to order any person convicted of practicing law without being authorized or licensed to pay restitution. Further, under this statute, greater civil penalties will be available through a civil injunction proceeding pursuant to §8.01-637 of the Code of Virginia. Any person, partnership, corporation or any other entity engaging in the unauthorized practice of law will be subject to a civil penalty of at least $200, but not more than $5,000 per violation, with each unlawful act constituting a separate violation. Council of the Virginia State Bar is expected to consider the proposal at its meeting in October and the proposal will be put on track for presentation to the General Assembly in 2011.

The Committee continued work on its public service information project aimed at educating immigrants in the Hispanic and Asian communities in Virginia about the dangers of immigration fraud and dealing with unauthorized immigration consultants. Working with the VSB Publications Department, the Committee approved the creation of posters, brochures and palm cards in English, Vietnamese and Korean. These materials provide information of how to contact the Department of Justice to verify whether a person or organization is licensed or authorized to provide immigration services and give general precautions when dealing with immigration legal services providers.  These materials are now available free, in downloadable form, through the VSB website. In addition, again with assistance of VSB Publications Department, the Committee sent this information to more than 60 statewide legal services and community service/non-profit organizations to be used /distributed to their various constituencies.

I would like to thank the Committee members — Vice Chair David P. Bogardus, Robert R. Bock, Wells H. Byrnes Sr., Adam D. Elfenbein, John E. Graham, Christine L. Poarch, Edward L. Weiner, and Sean C. Workowski for their hard work and dedication to the mission of the Committee during the past year.

Updated: Jun 23, 2011