456 P.3d 1172
Wash.2020Background
- Naziyr Yishmael (nonlawyer) advised clients they could "homestead" in apparently abandoned/foreclosed homes, helped complete recorder filings, charged fees, and encouraged occupying properties; several clients were arrested and suffered significant losses.
- Yishmael was charged with multiple crimes including misdemeanor unlawful practice of law (RCW 2.48.180(2)(a)); he testified he advised clients but did not hold himself out as a lawyer and believed his conduct was lawful.
- At trial the court admitted and used GR 24 (court rule defining "practice of law") in jury instructions; the to-convict instruction did not require proof that Yishmael knowingly practiced law.
- Jury acquitted on theft charges but convicted on unlawful practice of law; sentenced to 364 days (with most suspended). Court of Appeals affirmed; Washington Supreme Court granted review.
- The Supreme Court affirmed: it held unlawful practice of law as charged is a strict liability offense, GR 24 use did not violate separation of powers or constitute an improper comment on evidence, the statute is not unconstitutionally vague as applied, and evidence was sufficient to sustain conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Yishmael) | Held |
|---|---|---|---|
| Whether unlawful practice of law (RCW 2.48.180(2)(a)) requires proof of mens rea/knowledge | Statute and context show legislature omitted mens rea for this subsection; three sibling subsections include knowledge language, and public‑welfare considerations support strict liability | Crime requires a knowledge element; common‑law tradition disfavors strict liability and omission is not dispositive; jury should have been instructed on knowledge | Held: subsection (2)(a) may be treated as strict liability here; no knowledge element required for conviction as charged. |
| Whether using GR 24 to define "practice of law" violates separation of powers | GR 24 is a judicially adopted, publicly available definition of the practice of law and is appropriately used to interpret the statute | Using a court rule to define a statutory crime unlawfully delegates legislative power and overrides legislative primacy to define crimes | Held: No separation of powers violation; courts routinely interpret and supplement statutes and have authority to define practice of law. |
| Whether quoting/applying GR 24 in jury instructions was an improper comment on the evidence | GR 24 supplied an accurate legal definition for the jury to apply | Use of the court rule improperly resolved factual issues for the jury | Held: Not an improper comment; the instruction accurately declared the law rather than resolving facts. |
| Whether RCW 2.48.180 is unconstitutionally vague as applied | The phrase "practice of law" is sufficiently defined by case law and GR 24; a person of ordinary intelligence could understand proscribed conduct | Vagueness shown by state's need for expert and disputed meaning; criminalizes broad/innocent conduct | Held: Statute is not unconstitutionally vague as applied to Yishmael's conduct. |
| Whether evidence was sufficient to convict | State: proof Yishmael gave legal advice and assisted with legal documents for fees satisfies the statutory definition | Yishmael: lack of knowledge/intent and equivocal conduct mean proof was insufficient | Held: Viewing evidence in prosecution's favor, evidence was sufficient to sustain conviction. |
Key Cases Cited
- Morissette v. United States, 342 U.S. 246 (1952) (strong presumption that crimes require a mental element)
- State v. Bash, 130 Wn.2d 594 (1996) (framework of factors to decide whether legislature intended strict liability)
- Hagen & Van Camp, P.S. v. Kassler Escrow, Inc., 96 Wn.2d 443 (1981) (state supreme court has exclusive power to regulate practice of law)
- State v. Mertens, 148 Wn.2d 820 (2003) (legislative omission of mens rea in related subsections can signal strict liability)
- State v. Chamberlain, 132 Wash. 520 (1925) (early prosecution addressing unauthorized practice of law)
- State v. Anderson, 141 Wn.2d 357 (2000) (analysis of strict liability factors and penalty importance)
- State v. Brush, 183 Wn.2d 550 (2015) (distinguishing proper legal instruction from improper comment on evidence)
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (knowledge of status element required where status, not conduct alone, makes otherwise innocent behavior criminal)
- Bain v. Metropolitan Mortgage Group, Inc., 175 Wn.2d 83 (2012) (background on adverse possession and related legal topics)