by Fritz Mulhauser
Winning reversal this spring on four counts of criminal contempt, Benoit Brookens could close the door on his 30-year prosecution for unauthorized practice of law (UPL) in the District of Columbia. Pursued for decades by an army of government attorneys, he was never once charged with harming anyone. His story illustrates the need for the work of Responsive Law.
Once a licensed attorney in Wisconsin and Pennsylvania, Brookens did not apply for admission to the D.C. Bar when he moved to D.C. in the 1970s. As in most states, D.C. courts have the power to decide who may “practice law” there, a term notoriously hard to define but usually prohibiting anyone but those with a D.C. law license calling themselves an attorney, filing court papers, or appearing before judges.
Without D.C. Bar admission, Brookens started helping neighbors in his building with rental disputes a few times a year in the 1980s, including going to court and bringing disputes to a city office that hears tenants’ concerns about their landlords. No problems surfaced and court records don’t show what got him on the radar of the UPL patrol. Stanford researchers Deborah Rhode and Lucy Ricca in a 2014 national UPL study found most enforcement starts with a complaint by an attorney—perhaps motivated mostly by losing business.
After facing charges in 1986 covering a few infractions a year since 1979, Brookens was convicted in a proceeding that didn’t surface any account of injured members of the public. Still, the court found that he violated the letter of the rules and ordered him to stay out of court, not file court papers, and not put “Esq.” after his name on stationery, checks or phone listings (all of which he had done). The court did say he was not guilty of any offense for appearing in non-court situations, as rules permitted tenants to have any help they chose in forums outside of court.
UPL: Protecting Consumers' Rights or Attorneys' Businesses?
But UPL prosecutors never sleep. By 2011, 25 years after the original 1986 injunction, they went to court with a new portfolio of 19 counts of “contempt,” claiming that Brookens violated the original court order by continuing to help fellow tenants in non-court appearances between 1996 and 2005. He was again convicted on four counts (though the court generously suspended its six-month jail sentence).
Reversing all the convictions this April, the D.C. Court of Appeals brought the saga to an end at last. The court tossed half the counts as stale, beyond the “statute of limitations” requiring prompt prosecution of crimes, and the other half as just wrong. The court lectured the UPL police that Brookens simply had not violated the 1986 injunction because it never prohibited non-court appearances. The rules broadened in 1998 to include prohibition on such appearances by non-DC attorneys but “the new language cannot be read into the 1986 injunction” said the appellate court—that is, Brookens was not charged with violating the new rule, only with violating his own injunction which, of course, had been silent on the matter, as his appearances were legal at that time.
No facts were ever submitted showing Brookens was unqualified or unethical. What public interest was protected by this 30-year prosecution? Responsive Law will continue to advocate for sensible rules to enlarge consumers’ access to their choice of qualified low-cost sources of legal assistance.
Fritz Mulhauser is a member on Responsive Law's Board of Directors
Read more about UPL here.