7 Cal. App. 5th 215
Cal. Ct. App.2017Background
- Edward Starski (not a licensed attorney) sent demand and settlement letters on letterhead "Edward Starski, Esq." demanding money from Mendo Mill on behalf of Larry Cornett, who had signed a release; Starski also engaged in a recorded pretext call with the business asserting he represented Cornett.
- Investigators found documents and emails at Starski’s home and computers indicating he used attorney-style letterhead and described himself as an attorney at times; Starski admitted he was not a licensed attorney but claimed authority under a power of attorney.
- Cornett initially gave inconsistent accounts about whether an injury occurred at Mendo Mill and later testified variably; he signed the settlement agreement drafted by Starski.
- Both defendants were tried; jury convicted Starski of misdemeanor unauthorized practice of law (Bus. & Prof. Code § 6126), and both Starski and Cornett of attempted grand theft and conspiracies; probation was granted.
- On appeal, Starski argued instructional overbreadth/First Amendment error re: § 6126 and sought a "claim-of-right" instruction for attempted/conspiracy grand theft; Cornett challenged sufficiency of evidence for conspiracy to commit unauthorized practice of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that Cornett conspired to commit unauthorized practice of law | Evidence (letters, settlement signed by Cornett, pretext call, relationship with Starski) supports an inference of agreement and participation | Cornett had no direct contact with Mendo Mill and lacked proof he agreed to Starski’s misrepresentations | Conviction affirmed; substantial circumstantial evidence supported conspiracy verdict |
| Whether jury instructions on § 6126 were overbroad / violated First Amendment | Instructions correctly required holding oneself out or practicing law in a transaction, and protected State interest in regulating legal practice | Instructions were overbroad and criminalize false speech protected by Alvarez | Instructions upheld; unauthorized-practice regulation is permissible where speech is integral to wrongful commercial or fraudulent conduct |
| Whether the court erred by not defining "practice of law" more narrowly | No duty to define commonly understood nontechnical terms; existing definitions (Merchants Protective, Birbrower) suffice | Court should have required proof of fraud or courtroom-authorized services; Alvarez protects false claims | No error; existing case law defines practice of law to include legal advice, settlement negotiation, drafting legal instruments |
| Refusal to give "claim-of-right" instruction on attempted grand theft/conspiracy | Defendants argued reasonable doubt about whether injury occurred negated intent for theft; claim-of-right would have supported acquittal | The claim-of-right defense does not apply to unliquidated or disputed tort claims or to collecting sums via criminal process | Refusal proper: claim-of-right inapplicable to unliquidated personal injury claims and would be inconsistent with defendants’ theories |
Key Cases Cited
- Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal.4th 119 (Cal. 1998) (state law recognizing that practice of law includes legal advice, instrument preparation, and settlement negotiation)
- Merchants Protective Corp. v. State, 189 Cal. 531 (Cal. 1922) (historic definition of "practice of law" including advice and preparation of legal instruments)
- United States v. Alvarez, 567 U.S. 709 (U.S. 2012) (invalidated statute criminalizing false claims of Medal of Honor; discussed limits on punishing false speech)
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (U.S. 1949) (speech integral to criminal or tortious conduct may be regulated)
- Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (U.S. 1978) (states may prohibit in-person solicitation by nonlawyers/lawyers to protect the public)
- Florida Bar v. Went For It, Inc., 515 U.S. 618 (U.S. 1995) (states' compelling interest in regulating professions and restricting some commercial speech)
- Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626 (U.S. 1985) (government may regulate commercial speech that is false, deceptive, or misleading)
- Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (U.S. 1980) (commercial speech doctrines and permissible regulation)
- People v. Barnett, 17 Cal.4th 1044 (Cal. 1998) (claim-of-right defense does not apply to unliquidated tort claims)