Articles Posted in Unauthorized Practice of Law

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This case, while not discussing legal malpractice, is worth considering. The plaintiff, an administrator of an estate, filed a pro se wrongful death lawsuit against medical providers. It was undisputed that the pro se complaint was filed within the applicable statute of limitations period. After the statute of limitations ran, plaintiff retained a lawyer who filed an amended complaint. The Nebraska courts, in harsh rulings, dismissed the amended complaint. The Nebraska Supreme Court upheld the dismissal.

Why was the case dismissed if it was timely filed? The courts found that the pro se complaint was a nullity because it was not filed by an attorney. The court acknowledged the result was a harsh one, but essentially said it was too bad.

In my opinion, this ruling is unduly formalistic and old-fashioned. It is also poorly reasoned given the harm to plaintiff and the given the fact that the defendants were put on notice during the limitations period. In other words, a technical violation defeated a potentially valid lawsuit.

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The ARDC brought an unauthorized practice of law complaint against an attorney who allegedly failed to register to practice law. That, by itself, would not be interesting. The fact that the lawyer failed to register at any time after 1995 and handled numerous matters for clients during the next ten years is astonishing. The allegations, if true, are astonishing:

At all times alleged in this complaint, Supreme Court Rule 756(a) required that, on or before the first day of January of each year, attorneys admitted to practice law in Illinois (subject to certain exceptions that do not apply to Respondent in this matter) register and pay to the Attorney Registration and Disciplinary Commission (“the Commission”), any registration fee due according to the provisions of the Rule.

2. At all times set forth in this complaint, Supreme Court Rule 756(h) required the Administrator, on or after February 1 of each year, to remove from the roll of attorneys authorized to practice law in Illinois the name of any attorney who had not registered for that year as required by the Supreme Court Rules.

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The Minnesota Supreme Court has weighed in on the issue of the unauthorized practice of law. The question it considered is whether a complaint signed by a lawyer who was unlicensed is a nullity or whether the defect can be cured. This is an important question and it has been considered by other states.

The highlights of the court’s reasoning are as follows:

The Minnesota rules of court are clear on the need for pleadings such as a complaint to be signed by an attorney licensed in Minnesota. See Minn. R. Civ. P. 11.01; Minn. Gen. R. Prac. 5. A complaint lacking the signature of a Minnesota attorney is defective. The rules also require a summons to be “subscribed by the plaintiff or by the plaintiff’s attorney.” Minn. R. Civ. P. 4.01. In keeping with statutory requirements that attorneys not licensed in Minnesota may not practice in the state, see Minn. Stat. § 481.02, we conclude that the Rule 4.01 imperative that a summons be subscribed by the plaintiff “or by the plaintiff’s attorney” requires that a summons not subscribed by the plaintiff be subscribed by an attorney licensed to practice in Minnesota. Accordingly, a summons is defective if it is not subscribed by either the plaintiff or an attorney licensed to practice law in Minnesota. Here, both the summons and the complaint were defective.

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This case is captioned 2015 CO 61, Concerning the Application for Water Rights of the Town of Minturn: J. Tucker, Trustee v. Town of Minturn.

The Colorado Supreme Court held that a non-attorney trustee of a trust may not proceed pro se before the water court. The court reasoned that Tucker, a non-attorney, was acting not on his own behalf but was representing the rights of other people. Other courts have reached the same result. A trustee is a fiduciary who acts on behalf of others. He cannot act pro se for others. Instead, the trustee needs to retain a lawyer to represent the trust.

The ruling is consistent with long-standing practice and ethics rules. The trustee cannot proceed pro se because he is not licensed and may lack the training and experience to obtain the best result for his clients, the trust and its beneficiaries.

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Beery v. Chandler, Dist. Court, ED Missouri 2015 – Google Scholar.

Plaintiff sued his former personal injury lawyer for legal malpractice, alleging that the lawyer negligently advised him to reject a settlement offer. The lawyer sued for legal fees under breach of contract, quantum meruit and unjust enrichment theories. Plaintiff moved to dismiss the claim on the ground that the lawyer was not licensed in Missouri.  Plaintiff noted that the Missouri state court had denied the lawyer a lien on the recovery on the ground that the lawyer was not licensed.

The district court rejected that argument apparently on the ground that the lawyer was licensed in Illinois and appears to have done work on the case. There is some suggestion that the lawyer indicated on his stationery that he had an office in Missouri.