Florida Prosecutors Charge Leading Atheist Advocate With Unauthorized Practice of Law Due To The Use of Esquire

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

47 thoughts on “Florida Prosecutors Charge Leading Atheist Advocate With Unauthorized Practice of Law Due To The Use of Esquire”

  1. This is a case of a prosecutor gone wild. Gov. Scott Free is just as dirty as Gov. Scott Walker of Wisconsin.

  2. I live in Polk County and this sort of thing is typical of the good ol boy way of doing things. The sheriff is a grandstanding publicity hound who harasses anyone who bucks the established order or is imagined to have attacked the Baptist/Citrus-wealth oligarchy.

    He also personally decides what is illegal and threatens to bring charges against people who resist him even though their activity is not covered by any actual law prohibiting it.

    Simply making it known you are an atheist in Polk county is to invite active and serious harassment from the PCSO.

  3. I’d like to say I’m reasonably well educated and I had no idea the term ‘esquire’ had any relation to the law at all.

    I had thought it was some generic honorific that meant something like ‘young man’.

    In A Christmas Carol the eldest young Cratchit gets a letter addressed to Young Cratchit, Esq.

  4. i guess that means i’ll have to stop putting Bs. Ms. PhD. after my name. in all fairness for me it means Bullshit, Moreof same, and Piled higherand Deeper.

    (i think the lady’s expression on her mug shot says it all)

  5. I agree w Bruce. Part of that relates to having the government make reports on which laws it prosecutes and having a sunset provision on laws it doesn’t prosecute.

  6. As an attorney retired from practice I have occasionally signed letters with the honorific “Esq.” (for example, when writing my Congressman) simply to let the recipient know that I know something about the law. But I have always been careful when working in activist mode to let the reader know I’m representing no one but myself. Ms. Wachs should have been more careful – especially knowing the political climate in rural Florida.

    That said, it’s depressing to see one more case of a bullying prosecutor applying the club of the criminal law when a civil remedy would have been sufficient. (Like starting with a letter telling Ms. Wachs to knock it off with the “Esq.”) I agree with Mike Appleton: smells like retaliation. There ought to be a tort action for disproportionate prosecution – but then how would they ever enforce the laws against marijuana?

  7. As tomdarch notes above, there are many sound public policy reasons for prohibiting unlicensed persons from practicing various professions. The need for such regulation should not be in dispute.

    In the case of Ms. Wachs, however, it is pretty clear that the arrest was purely retaliatory. First,Polk County lies in a very conservative area of Florida between Tampa and Orlando. It is fairly rural and its population is not particularly open to the opinions of self-proclaimed atheists. If the Polk County sheriff does indeed make donations of taxpayer monies to churches and church organizations, I would not be surprised, but the beneficiaries of that munificence would resent the criticism from Ms. Wachs, or from any other godless individuals.

    Second, arrests for the unlicensed practice of law do not occur in the fashion described in this story. Typically an investigation is launched after a citizen complains to the Florida Bar. Frequently the person filing the complaint believes that he or she has been dealing with a lawyer and contacts the Bar for that very reason. A committee then investigates the complaint and, if appropriate, the Bar files an action to enjoin the offending party. Following a show cause hearing, the court enters an injunction prohibiting the defendant from engaging in the practice of law or advertising legal services to the public. It is only in the event that the injunction is violated that an arrest occurs, and the court can then punish the defendant for contempt. The aggrieved client must file a separate court action to recover any damages resulting from the fraud. In this case, of course, there was no complaint by a member of the public.

    Third, there is no evidence to suggest that Ms. Wachs was practicing law. The use of “Esq.” with her name is improper because that is associated with licensed attorneys by tradition. But that is insufficient in and of itself to constitute a crime.

    This case should be tossed out.

  8. Despite polling that indicates that Americans are opposed to many of our government’s policies, people are simply afraid to speak out. This does not bode well for our future.~Catch22oy
    fear, in this instance, apparently is justified. and a government that inspires fear in those who have called upon them to govern….should probably look a little closer at their own behavior …

  9. As an attorney in practice for way too long, I’ve always believed that the Esquire was a title identifying self-important fools–it is only coincidentally linked to the practice of law.

  10. Joeey LaRusso,

    “Gotta love Florida. The state’s new governor was the head of a health care company which paid the largest single fine in US history for medicare/medicaid fraud.”

    He transfered his new company, Solantic, to his wife for “ethical” reasons, and is now proposing mandatory drug testing for public employees and welfare recipients … and guess what company provides those services … now, let’s move along, nothing to see here …

  11. Gotta love Florida. The state’s new governor was the head of a health care company which paid the largest single fine in US history for medicare/medicaid fraud.
    We have all got to love a legal system where a person can have their company defraud the tax payer but serve no time- or even be charged. The millions of lawyers in this country should be opposed to this aspect of our system- if you have CEO somewhere near your name you can never be charged for anything.

  12. Your Royal Vileness,

    “You are late for your New Black Panthers meeting.”

    Proof positive of your rampant stupidity.

    Now, go continue failing in that joke you call a life.

  13. Awwww.

    Isn’t that special.

    How does your head fit up there with that perpetual stick, Tootles?

  14. Stazi Stamford

    You are late for your New Black Panthers meeting. They are running videos clips of King Samir Shabazz and have popped some corn for you.

    Now, run along.

  15. Woosty’s still a Cat
    1, April 1, 2011 at 11:45 am
    Blouise 1, April 1, 2011 at 11:31 am

    After breaking and entering this woman’s home and stealing her property, this is all the sheriff could find to charge her with?

    There are going to be plenty of “Esquires” in Florida who are going to have a hell of a good time playing with the Sheriff and the Florida State’s Attorney’s Office on this one.

    Not to mention that both are now the laughing stock of the entire nation.
    It will be interesting to see who gets played with by the “Esquires” in Florida….Florida has a funny way of turning might into right…


    I’ll take your word for it because I don’t know a lot about the day to day existence in Florida … of course the fact that this happened in the first place should be proof enough that your words are on target.

  16. catch22oy:

    “Despite polling that indicates that Americans are opposed to many of our government’s policies, people are simply afraid to speak out.”

    Its now stepping out in protest that seems to catch the eyes and the ears of the powers that be.

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