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Attorney files suit against Eviction Defense Center

By Hank SimsDaily Planet correspondent
Saturday September 08, 2001

An El Cerrito attorney has filed suit against a non-profit organization that provides legal assistance to low-income Berkeley residents, and promises a large campaign against what he claims is a conspiracy to defraud poor citizens by offering shoddy legal services. 

The attorney, Andrew Shalaby, charges Oakland’s Eviction Defense Center with “ghostwriting,” or anonymously preparing documents for parties who act as their own lawyers in court. He believes that the process was made illegal last year, when the California legislature instituted a system to regulate the independent paralegal industry. 

His opponents, though, argue that lawyers are perfectly within their rights to write cases for “pro per” parties – people who represent themselves in legal cases. They believe that Shalaby’s true motive is to harass the EDC, and ultimately to limit the kinds of services that places like it provide. 

“What Mr. Shalaby is trying to do is prevent poor tenants from getting any help at all,” said Robert Salinas, the attorney representing Ira Jacobowitz, a member of the EDC’s board of directors. “It is disgusting.” 

So far, the courts have agreed with the EDC, but Shalaby has persisted in his claim and threatens to take the case to the California Supreme Court and to the federal court system. 

The city’s Rent Stabilization Board grants the EDC $52,000 per year in exchange for counseling provided to low-income Berkeley citizens who find themselves in legal disputes with their landlords. The rent board also funds two other organizations – the East Bay Community Law Center and Housing Rights, Inc. – for similar services. 

According to Shalaby, the Eviction Defense Center illegally acts as a “legal document assistant (LDA),” or an independent paralegal. 

The California Business and Professions Code requires LDA’s to register and, in the county in which they operate, post a bond and put their names and addresses on all documents they prepare. They are not allowed to dispense legal advice. The majority of LDA’s work in fields like divorce, bankruptcy and estate planning. 

The whole matter began last year, when Shalaby was retained by a Berkeley landlord when he began eviction proceedings against a tenant. The tenant decided to fight the eviction, and to act as her own attorney.  

The Superior Court heard the case on Oct. 27, 2000. The tenant showed up in court with a demurrer – a request for the court to dismiss a suit – which argued that the eviction order did not comply with Berkeley’s Rent Stabilization and Eviction for Good Cause Ordinance. The document was written by the EDC. Shalaby held that it was “frivolous,” and that that the tenant and the EDC should be held responsible for his attorney fees. 

The court ruled for Shalaby in the case, but did not award him his fees. However, it denied the motion to recover fees “without prejudice,” a standard legal ruling meaning that Shalaby could take up the matter later if he so chose. 

He then sued the EDC and Anne Omura, an attorney and EDC employee, to recover the $5,000 his client spent on the case. Shalaby held that the EDC was operating as LDA’s, despite being attorneys, and should be held accountable for work they did.  

“They misrepresented the law, they misrepresented the facts, and they deserve sanctions,” he said in an interview. 

Instead, a judge ruled that his case constituted a SLAPP suit – one that sought to deny the defendants their constitutional rights – and awarded $31,000 to the EDC. Shalaby has since re-filed the case with Jacobowitz as an additional defendant, and asked the court to stay payment of the $31,000. He has been unsuccessful on all counts.  

Shalaby alleged that the various judges who have heard motions and previous incarnations of his claim have been biased by their connections to the defendants. One judge, he claimed, has been Jacobowitz’ friend for many years, and another communicated privately with Jacobowitz about the case before ruling in Jacobowitz’ favor. 

Shalaby has asked the California Supreme Court to hear the case because it is a “case of first impression” – one dealing with a matter that has not been decided before in the courts. What is the difference between an LDA and an attorney who writes documents? 

“The trouble with Mr. Shalaby’s suggestion that it is a matter of first impression is that there are a number of things that have not been ruled on in the courts,” said Jacobowitz. “For instance, the sun comes up, the sun goes back down. The reason that these things are not ruled on is that they are a matter of common sense.” 

“Mr. Shalaby has every right to ask the Supreme Court to review what has happened. To me, it does not seem likely that he will get a review, except the review by the (state’s) First District Court of Appeals that he is legally entitled to.” 

Asked to comment, Tiela Chalmers, managing attorney the San Francisco Bar Association’s Volunteer Legal Services Program, said that her impression was that Shalaby’s intention was to hinder the ability of low-income residents to defend themselves. 

“Generally, lawyers who represent landlords hate places like the EDC,” she said. “They’d prefer tenants to have no legal representation whatsoever.”