There is a disturbing case out of Florida where EllenBeth Wachs, 48, the legal coordinator for the Atheists of Florida had been arrested for unauthorized practice of law because she signed letters using “Esq.” for esquire.

Wachs notes that her group had just launched an unpopular protest of prayers at public meetings at Polk County as well as criticizing donations by the Polk County Sheriff’s Office to churches. What followed was a raid on her house, seizure of things like her computer, and a criminal charge. I must confess some skepticism about the charge.

Fla. Stat. sec. 454.23 states:

Penalties.—Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The State’s Attorney’s Office charges that Wachs formerly practiced law in Pennsylvania, but she retired from that state’s bar around 1997 — and is not a member of the Florida bar. Since the law states that a person cannot use “”a name, title, addition or description” to imply that they are a practicing lawyer without authorization, the prosecutors have stated that they found numerous letters including “Esq.” after her signature.

Ironically, Esquire comes from England where it merely designates a person of distinction. It is based on old French for shield barrier, or “esquier.” It is not unheard of for prosecutors to cite the use of the notation as evidence of the unauthorized practice of law. However, I am unaware of a case where it was the core allegation. Notably, “In the Matter of Wyrick,” (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 83, the bar cited the use of Esquire by the accused but only viewed it as problematic when combined with express representations of being a practicing lawyer.

In Office of Disciplinary Counsel v. Brown, 99 Ohio St.3d 114, 2003 Ohio 2568, 789 N.E.2d 210 (2003), the Ohio Supreme Court addressed a case where this matter arose. The Court expressly did not prohibit him from using “J.D.” or “Juris Doctor” or “esquire.” It was the fact that these titles were used as part of an ongoing scheme to induce the belief of authorized practice that led to the individual’s charge:

In 2003, when considering prior charges of unauthorized practice of law against respondent, this court declined to enjoin respondent from using “J.D.” or “Esq.” in connection with his name. Disciplinary Counsel v. Brown, 99 Ohio St. 3d 114, 2003 Ohio 2568, 789 N.E.2d 210, P 12, fn. 1. [*6] However, we expressly admonished respondent that he risked punishment for contempt for continuing to engage in the unauthorized practice of law. Id. Clearly, respondent has not heeded this admonishment, nor has he heeded this court’s injunction prohibiting him from engaging in the unauthorized practice of law. Respondent’s use of the term “Esq.” in connection with his name on his office stationery and business cards is misleading. His use of the term was one of the factors that induced a federal judge, a practicing lawyer, a school teacher, and a city prosecutor into believing that he was an attorney. As the board concluded, the record in this case included substantial credible evidence that respondent’s use of the term “Esq.” induced clients to believe that he was a lawyer, a misunderstanding that he was aware of and failed to correct.

The federal court in In Re William J. Patton, 1998 U.S. Dist. LEXIS 17662 (1998), did state”

Patton’s use of the title “Esquire,” which in our experience is used exclusively by attorneys, in itself appears to constitute a violation of this statute. We note, again, however, that we reached the conclusion that Patton was engaged in the unauthorized practice of law in the 9/23 Order without reference to his abuse of the title “Esquire.”

It is not uncommon for individuals (who are first found to be practicing without a license) to be barred from the use of the term. Thus, in In re Banks, 561 A.2d 158, 166-67 (D.C. 1987), the court imposed the following limitation:

FURTHER ORDERED that respondent is hereby permanently enjoined and restrained specifically from:

* * *

(2) Using such terms to describe himself or his qualifications as “lawyer,” “attorney,” “counsel,” “counselor,” “Esquire,” “advocate,” or any abbreviation of the foregoing terms, or any other term or description which reasonably denotes that respondent is licensed to practice law in the District of Columbia;

There seems in my view a general thrust to the couple of dozen or so cases dealing with such labels. I find it highly disturbing to see the simple use of Esquire as the grounds for an action. I do not view the term as denoting a practicing lawyers in and of itself. These cases almost uniformly cite the use of the title in a highly contextual sense where the cause of the action is based on clear assertions of practice. Esquire, it seems to me, can denote a lawyer (trained in the law) as opposed to an attorney licensed for practice. The key is context.

The context here could not be more disturbing given Wachs’ involvement in an unpopular exercise of free speech. To combine that context with such a weak basis for a charge of unauthorized practice raises flags of retaliatory action.

Source: The Ledger

Jonathan Turley