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You may recall that Virginia has been permitting non-attorney
employees of the Division of Child Support Enforcement to complete,
sign, and file legal pleadings in violation of Virginia law and that i
filed a federal lawsuit asking the Court to declare the resulting
orders as void and unenforceable.
In December, the lawsuit was dismissed because the federal court said
we court individually seek relief from state courts. In fact, many
cases brought by non-attorney employees of DCSE have been tossed
solely because non-attorneys signed the pleadings.
Knowing that there are, potentially, in excess of one million
unenforceable child support orders solely the fault of Virginia's
Office of the Attorney General, the A.G. requested the introduction of
House Bill 1382 and Senate Bill 788. the bills may be found here:
http://leg1.state.va.us/cgi-bin/legp504.exe?ses=081&typ=bil&val=hb1382
http://leg1.state.va.us/cgi-bin/legp504.exe?ses=081&typ=bil&val=sb788
While the legislature can grant the ability to practice law to
whomever they wish, I believe the retroactive aspect of this
legislation, which bars courts from declaring the past 20 years of
these orders void solely because a non-attorney signed the pleading
which caused the order is illegal.
Because the federal court dismissed the case against Virginia because
the judge said we could seek relief in state court, do I have grounds
to ask the court to reopen the federal case when the Governor has not
yet signed the legislation into law?
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On Mar 7, 7:02 am, David Briggman <brigg...@gmail.com> wrote:
While the legislature can grant the ability to practice law to
whomever they wish, I believe the retroactive aspect of this
legislation, which bars courts from declaring the past 20 years of
these orders void solely because a non-attorney signed the pleading
which caused the order is illegal.
Because the federal court dismissed the case against Virginia because
the judge said we could seek relief in state court, do I have grounds
to ask the court to reopen the federal case when the Governor has not
yet signed the legislation into law?
I don't think there is federal jurisdiction over this case. I'm
surprised the case wasn't tossed on that ground (although maybe it
was, but you misunderstood the ruling).
The US District Courts have original jurisdiction over cases arising
under federal law, and over some cases between citizens of different
states. It doesn't sound to me like your case qualifies for either
category, so I don't see any federal jurisdiction.
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David,
You object to the way that Virginia operates it's Child Support Division,
specifically in allowing non-lawyer State employees to file pleadings. You
sued over this in federal court and lost. The reason that you lost is that
you failed to sue in the State court first and so were placing this matter
in the wrong court. The State AG is addressing this issue by proposed (but
not as yet passed) legislation that retroactively recognizes the legality of
this Child Support procedure. You seem to believe that the retroactivity is
illegal and wish to head back to federal court. You ask for advice.
You really need to get a lawyer. You filed your suit in the wrong
(federal) court. The court told you this very clearly. Rather than taking
your case to the appropriate Starte court you now want to go back to federal
court. The result will be the same. You can not sue over this matter in
federal court until you have exhausted the State venues. Filing a suit is
federal court will be a waste of time and money.
It seems to me that now is not a good time for a suit. The new
legislation has not passed. So suing about the retroactive clause is silly
since it does not yet exist as law. And persuing your old suit in State
court may become moot if during your suit the new legislation is approved.
Good luck,
Dave M.
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In article <7kb2t351t2rbbl5r0ndc6uddtps625mv4u@4ax.com>,
David Briggman <briggman@gmail.com> wrote:
You may recall that Virginia has been permitting non-attorney
employees of the Division of Child Support Enforcement to complete,
sign, and file legal pleadings in violation of Virginia law and that i
filed a federal lawsuit asking the Court to declare the resulting
orders as void and unenforceable.
[[ snip remainder ]]
You believe the A.G-requested statute to be illegal.
I understand your outrage, and belief that it goes against 'fairness',
*BUT* on _WHAT_ *legal*basis* is your belief of 'illegality' founded?
Is it contrary to a clause in the U.S. Constitution? If so, which one?
Is it contrary to some U.S. Statute? if so, which one?
Is it contrary to a clause in the Virginia Constitution? if so, which one?`
absent that, just what do you base your case on?
And what makes you think it is a matter of federal jurisdiction?
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On Fri, 07 Mar 2008 07:02:30 -0500, David Briggman <briggman@gmail.com> wrote:
You may recall that Virginia has been permitting non-attorney
employees of the Division of Child Support Enforcement to complete,
sign, and file legal pleadings in violation of Virginia law and that i
filed a federal lawsuit asking the Court to declare the resulting
orders as void and unenforceable.
In December, the lawsuit was dismissed because the federal court said
we court individually seek relief from state courts. In fact, many
I doubt it said anything quite this meaningless. For one thing, to the extent
you're attempting to attack state decisions with a federal lawsuit, it would
seem to be barred by Rooker-Feldman (a doctrine prohibiting doing this),
among other things.
cases brought by non-attorney employees of DCSE have been tossed
solely because non-attorneys signed the pleadings.
That's within the state's power.
Knowing that there are, potentially, in excess of one million
unenforceable child support orders solely the fault of Virginia's
Office of the Attorney General, the A.G. requested the introduction of
House Bill 1382 and Senate Bill 788. the bills may be found here:
http://leg1.state.va.us/cgi-bin/legp504.exe?ses=081&typ=bil&val=hb1382
http://leg1.state.va.us/cgi-bin/legp504.exe?ses=081&typ=bil&val=sb788
While the legislature can grant the ability to practice law to
whomever they wish,
They most certainly can not, at least not legally. The power to
grant licenses to practice law is in the courts, bar association, or
other such body. The legislature does not have this power
to grant.
I believe the retroactive aspect of this
legislation, which bars courts from declaring the past 20 years of
these orders void solely because a non-attorney signed the pleading
which caused the order is illegal.
What may cause it to be illegal, if you are correctly characterizing
it as authorizing the practice of law (and motion practice by non-attorneys
certainly looks like practice of law at first glance), is that the legislature
has no power to license lawyers.
While I'm not sure how Virginia does it, licensing lawyers is not a
legislative function.
It may, however, be within the power of the courts to tolerate
non-attorney representatives of such agencies. They certainly
appear to be doing it.
The general rule, though, unless there's a different rule with respect
to these state employees, is that filings and motions by non-attorneys
(except the self-represented) are of no legal effect.
Because the federal court dismissed the case against Virginia because
the judge said we could seek relief in state court, do I have grounds
to ask the court to reopen the federal case when the Governor has not
yet signed the legislation into law?
If that's all you have, I don't see why.
None of this is legal advice of any kind. My practical advice is that it would
probably be simpler and cheaper to pay whatever obligation is resulting
in all this litigation, however interesting it may be from a theoretical
perspective.
Some random quotes on the subject:
"A pleading signed by a foreign attorney who is not authorized to practice law
in the Commonwealth of Virginia is invalid and has no legal effect."
Nerri v. Adu-Gyamfi, 270 Va. 28, 2005 Va. LEXIS 59 (Va., June 9, 2005, Decided )
"Requirements for pleadings filed in the circuit courts are governed by the
Rules of the Virginia Supreme Court. Pursuant to Va. Sup. Ct. R. 1:4(c), counsel
or an unrepresented party who files a pleading shall sign it and state his
address. Under Va. Sup. Ct. R. Rule 1A:4, pleadings or other papers required to
be served must be endorsed by a member of the Virginia State Bar, except where a
party is representing himself. Failure to conform to this rule renders the
pleading or paper 'invalid.'"
"The Rules of the Virginia Supreme Court are very clear concerning situations
involving the unauthorized practice of law. Unauthorized Practice Rule (UPR)
1-101(A) provides that a non-lawyer, with or without compensation, shall not
represent the interest of another before a tribunal, otherwise than in the
presentation of facts, figures or factual conclusions, as distinguished from
legal conclusions. Consistent with this and other requirements articulated in
the Unauthorized Practice Rules, the Virginia Supreme Court has set forth strict
procedures regarding the filing of pleadings in an effort to protect the rights
of litigants and to assure the efficient administration of justice in the
Commonwealth's courts. UPR Rules 1A:4 and 1:4(c) mandate that pleadings filed in
Virginia courts contain the signature of a member of the Virginia State Bar,
unless a party endorses the pleading pro se.Rule 1:4(c)'s requirement that all
pleadings be endorsed either by counsel or an unrepresented party must be read
in conjunction with Rule 1A:4."
Roubik v. White, 47 Va. Cir. 90, 1998 Va. Cir. LEXIS 280 (Va. Cir. Ct., August
6, 1998, Decided )
"A pleading signed by one who is not a duly licensed attorney and is acting in a
representative capacity is invalid and without legal effect."
"Pleadings may only be filed by one of two persons: an attorney who is
authorized to practice law in Virginia, or a party, acting pro se."
Jones v. Jones, 49 Va. App. 31, 2006 Va. App. LEXIS 475 (Va. Ct. App., October
24, 2006, Decided )
It's puzzling why they allow this in this case.
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In article <ui25t3hrtpie6cvjp16j8ocn3o6siohme1@4ax.com>,
henri <henri@nowhere.com> wrote:
On Fri, 07 Mar 2008 07:02:30 -0500, David Briggman <briggman@gmail.com> wrote:
While the legislature can grant the ability to practice law to
whomever they wish,
They most certainly can not, at least not legally. The power to
grant licenses to practice law is in the courts, bar association, or
other such body. The legislature does not have this power
to grant.
The legislature defines what is illegal, including whether
unauthorized practice of law is illegal, and exactly how it's
defined. In some states, the legislature has said that real estate
agents are allowed to fill out certain paperwork for their clients.
In other states, the legislature has said they aren't.
If the legislature says (and the governor signs) a law to the effect
of "people in the following situation are permitted to do the things
listed here, even though without this law that would be UPL" then
that's the case. Whether or not you want to consider that a "license
to practice law" is irrelevant.
Seth
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On Fri, 07 Mar 2008 07:02:30 -0500, David Briggman
<briggman@gmail.com> wrote:
You may recall that Virginia has been permitting non-attorney
employees of the Division of Child Support Enforcement to complete,
sign, and file legal pleadings in violation of Virginia law and that i
filed a federal lawsuit asking the Court to declare the resulting
orders as void and unenforceable.
Even if you were, for the sake of argument, to win, wouldn't you be
then ordered to pay the same child support you are supposed to pay
now, along with a retroactive order to pay everything you were
supposed to have paid but didn't under the prior invalid support
order? So where would you save any money?
You have one or more children. Don't you want to support them? I
think you should. If your ex-wife isn't spending the money you've
sent on the children, including their share of the rent etc., that is
another issue that should be handled directly.
Why not take the money that would be spent on legal fees and put it in
a college fund for your child(ren)? Why not spend the time that
this would take you and work overtime or get a second job and make
some more money and put that in their college fund? Assuming they
have enough to live on now.
If you are inclined to email me
for some reason, remove NOPSAM :-)
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On Mar 8, 8:57 am, "David L. Martel" <marte...@earthlink.net> wrote:
It seems to me that now is not a good time for a suit. The new
legislation has not passed. So suing about the retroactive clause is silly
since it does not yet exist as law. And persuing your old suit in State
court may become moot if during your suit the new legislation is approved.
Actually, the legislation has passed and it has now been signed into
law, effective 7/1/08.
If that is the case and the state has blocked the ability for state
judges to rule the orders as void, why couldn't one go into federal
court to challenge the constitutionality of the state statute which
blocks our access?
Thanks for your comments, Dave.
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David Briggman <briggman@gmail.com> wrote:
If that is the case and the state has blocked the ability for
state judges to rule the orders as void, why couldn't one go into
federal court to challenge the constitutionality of the state
statute which blocks our access?
The constitution generally prohibits suing a state in federal court.
So you'd have to address the constitutionality of the statute in state
court.
Stu
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On Mar 11, 3:58 am, David Briggman <brigg...@gmail.com> wrote:
Actually, the legislation has passed and it has now been signed into
law, effective 7/1/08.
If that is the case and the state has blocked the ability for state
judges to rule the orders as void, why couldn't one go into federal
court to challenge the constitutionality of the state statute which
blocks our access?
The Federal court said you need to seek relief in State court first.
Have you done so? What was the ruling?
What is the basis for your Federal lawsuit? What are the specific
citations that support your suit?
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In article <dcpct3la0m03olu40q2vk4998dcg3osahs@4ax.com>,
Actually, the legislation has passed and it has now been signed into
law, effective 7/1/08.
If that is the case and the state has blocked the ability for state
judges to rule the orders as void, why couldn't one go into federal
court to challenge the constitutionality of the state statute which
blocks our access?
*WHAT* precept of federal law do you believe the state law violates?
_EXACTLY_ what provision of the U.S. Constitution do you believe this
action is contrary to?
What legal basis, other than "I don't like what the state did" do you
have for your challenge?
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On Mar 12, 7:01 am, Stuart Bronstein <spamt...@lexregia.com> wrote:
David Briggman <brigg...@gmail.com> wrote:
The constitution generally prohibits suing a state in federal court.
So you'd have to address the constitutionality of the statute in state
court.
Stuart, aren't the constitutionality of state statutes challenged
regular in U.S. District Court?
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On Mar 12, 7:01 am, bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
*WHAT* precept of federal law do you believe the state law violates?
_EXACTLY_ what provision of the U.S. Constitution do you believe this
action is contrary to?
14th Amendment, due process clause.
We have numerous Virginia cases which states that only two parties can
sign legal pleadings, and henri named a few of them, above. If the
pleadings weren't legal, neither are the resulting orders.
We have one case henri didn't mention, Jones v. DCSE, from the Court
of Appeals of Virginia back in 1994, which dismissed an appeal by DCSE
on grounds that a non-attorney for DCSE signed the Notice of Appeal.
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bonomi@host122.r-bonomi.com (Robert Bonomi) wrote:
If that is the case and the state has blocked the ability for
state judges to rule the orders as void, why couldn't one go into
federal court to challenge the constitutionality of the state
statute which blocks our access?
*WHAT* precept of federal law do you believe the state law
violates?
_EXACTLY_ what provision of the U.S. Constitution do you believe
this action is contrary to?
What legal basis, other than "I don't like what the state did" do
you have for your challenge?
If the state actually prevented someone from having a meaningful
hearing, that's a deprivation of due process. But irrespective of
state law, state courts are qualified to rule on that kind of issue.
Stu
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On Tue, 11 Mar 2008 06:58:14 -0400, sethb@panix.com (Seth) wrote:
In article <ui25t3hrtpie6cvjp16j8ocn3o6siohme1@4ax.com>,
henri <henri@nowhere.com> wrote:
The legislature defines what is illegal, including whether
unauthorized practice of law is illegal, and exactly how it's
defined.
No, they most certainly do not. The practice of law is a matter within
the power of the judiciary branch and no other, except to the extent
the judiciary may occasionally tolerate such encroachment.
It is a matter of separation of powers.
"The power to admit and to discipline attorneys rests in the judiciary. An
attorney is an officer of the court and whether a person shall be admitted or
disciplined is a judicial, and not a legislative, question." Hustedt v.
Workers' Comp. Appeals Bd., 30 Cal. 3d 329 (Cal. 1981)
"Court's authority to define the practice of law is inherent, and the
legislative branch has no right to limit the inherent powers of the judicial
branch of the government." Cleveland Bar Ass'n v. Picklo, 96 Ohio St. 3d 195
(Ohio 2002)
You can find similar cases in most states.
The Supreme Court has found the same, as cited in Hustedt and many,
many other cases.
"[Attorneys] are officers of the court, admitted as such by its order, upon
evidence of their possessing sufficient legal learning and fair private
character. . . . The order of admission is the judgment of the court that the
parties possess the requisite qualifications as attorneys and counsellors, and
are entitled to appear as such and conduct causes therein. From its entry the
parties become officers of the court, and are responsible to it for professional
misconduct. They hold their office during good behavior, and can only be
deprived of it for misconduct ascertained and declared by the judgment of the
court . . . . Their admission or their exclusion . . . is the exercise of a
judicial power." ( Ex Parte Garland (1866) 71 U.S. (4 Wall.) 333, 378-379 [18
L.Ed. 366, 370].)
In some states, the legislature has said that real estate
agents are allowed to fill out certain paperwork for their clients.
In other states, the legislature has said they aren't.
"The power to discipline those licensed to practice law is vested with the
court. It includes the power to integrate the bar by rule of court. The power to
define what constitutes the practice of law is likewise lodged with the court."
State ex rel. Johnson v. Childe, 139 Neb. 91 (Neb. 1941)
Such legislation is routinely struck down as unconstitutional, as in
Cleveland Bar Association v. Picklo, 772 N.E.2d 1187 (Ohio 2002) (statute
authorizing landlord's agent to file cases in court unconstitutional),
Sharood v. Hatfield, 296 Minn. 416 (statute purporting to appropriate attorney
registration fees "unconstitutional assumption of judicial power by the
legislature"), Cantor v. Brading, 494 S.W.2d 139 (Tenn. Ct. App. 1973)
(statute allowing disbarred attorneys to apply for reinstatement held
unconstitutional), West Va. State Bar v. Earley, 144 W. Va. 504 (W. Va. 1959)
(legislature powerless to authorize laymen to practice law).
I could string cite a couple pages if I felt like it. While courts sometimes
tolerate legislation in the area, they do not generally have to, and
they generally only tolerate such legislation when it sanctions conduct
already subject to professional discipline.
If the legislature says (and the governor signs) a law to the effect
of "people in the following situation are permitted to do the things
listed here, even though without this law that would be UPL" then
that's the case. Whether or not you want to consider that a "license
to practice law" is irrelevant.
They are free to pass such laws and then they will be invalidated as a
matter of course, if the judiciary, in its sole discretion, chooses to
do so in its plenary authority.
Indeed, as you sagely point out, what I choose to consider it is irrelevant.
What is relevant is the opinions of the courts, which are nearly unanimous
in stating that the licensing and regulation of attorneys is a matter within
the nearly exclusive domain of the judiciary.
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Wed, 12 Mar 2008 07:01:17 -0400 from Stuart Bronstein
<spamtrap@lexregia.com>:
David Briggman <briggman@gmail.com> wrote:
The constitution generally prohibits suing a state in federal court.
So you'd have to address the constitutionality of the statute in state
court.
I am sure you did not mean what you said. The Constitution does not
"generally prohibit suing a state in Federal court".
The Constitution grants judicial power to the Federal court system
over "all Cases, in Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made, or which shall be
made, under their Authority".
Citizens can sue their own or another state in Federal court on
Federal questions. If the state statute is allegedly unconstitutional
under the US Constitution, the Federal courts have power to
adjudicate. (I believe the Federal courts may require the citizen to
sue first in state court. State judges have all sworn to uphold the
US Constitution in any conflict with state laws.)
It is true that the Federal courts won't get involved in the
constitutionality of a state statute under the state constitution, if
there is no Federal question. Maybe that is what you meant, but it's
not apparent from the context that you quoted. And even there, it's
not quite right to say the Constitution "prohibits" suing a state in
Federal court over a state matter. Rather, the Constitution grants no
power to Federal courts in such questions.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
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On Mar 7, 8:02 am, David Briggman <brigg...@gmail.com> wrote:
In December, the lawsuit was dismissed because the federal court said
we court individually seek relief from state courts. In fact, many
cases brought by non-attorney employees of DCSE have been tossed
solely because non-attorneys signed the pleadings.
OK, I read the judge's opinion, which is available here:
http://tinyurl.com/yr2ps4
It seems that you did properly invoke federal jurisdiction under 42
USC 1983. However, the court dismissed all your federal claims for
various reasons. At that point, only claims based on state law
remained, so the court dismissed those claims WITHOUT PREJUDICE
because there remained no federal claims in the case (i.e., it did not
address the merits of those claims because it surrendered
jurisdiction).
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On Mar 13, 7:05 am, David Briggman <brigg...@gmail.com> wrote:
_EXACTLY_ what provision of the U.S. Constitution do you believe this
action is contrary to?
14th Amendment, due process clause.
We have numerous Virginia cases which states that only two parties can
sign legal pleadings, and henri named a few of them, above. If the
pleadings weren't legal, neither are the resulting orders.
First, your conclusion does not follow from your premises. The fact
that a non-lawyer signed a pleading does not make the pleading void.
The pleading may be vulnerable to objection, but lack of a timely
objection waives any defect (of course, I'm addressing the merits of
the case, rather than the federal jurisdictional basis, which arises
based on what you plead, even if your case is meritless).
Second, even if your argument is correct, that's not a due process
violation. If the only defect in the proceeding is that a pleading
was signed by a non-attorney, how did that deprive the defendant of
due process of law? Stated differently, if the defendant got all the
notices and hearings that he was entitled to, how does the fact that
the plaintiff's pleading was signed by a non-lawyer diminish the
process that was afforded the defendant?
I suppose that if you had framed your case as a due process violation,
you could have invoked federal jurisdiction. Maybe you did and maybe
you didn't - I haven't seen the pleadings or the judge's opinion
dismissing the case. But that's water under the bridge. The fact is
that your case has already been dismissed, so your federal options are
limited to an appeal because you don't get a do-over (i.e., you cannot
re-file new claims on the same events), although you could ask the
court for leave to amend your complaint to state a federal claim.
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Stan Brown <the_stan_brown@fastmail.fm> wrote:
Stuart Bronstein <spamtrap@lexregia.com>:
I am sure you did not mean what you said. The Constitution does
not "generally prohibit suing a state in Federal court".
The Constitution grants judicial power to the Federal court system
over "all Cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority".
Take a look at Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721
(2003), in which a state was sued for violation of a federal statute.
The Supreme Court said,
"For over a century now, we have made clear that the Constitution
does not provide for federal jurisdiction over suits against
nonconsenting States. [Citations].
"Congress may, however, abrogate such immunity in federal court if it
makes its intention to abrogate unmistakably clear in the language of
the statute and acts pursuant to a valid exercise of its power under
5 of the Fourteenth Amendment."
That is the "general" rule. It's based on the 11th Amendment, which
says,
"The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State."
In Board of Trustees, Univ. of Alabama v. Garrett 531 U.S. 356 (2001)
the Court said,
"Although by its terms the Amendment applies only to suits against a
State by citizens of another State, our cases have extended the
Amendment's applicability to suits by citizens against their own
States. [Citations] The ultimate guarantee of the Eleventh Amendment
is that nonconsenting States may not be sued by private individuals
in federal court."
Stu
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On Fri, 14 Mar 2008 06:03:40 -0400, A Michigan Attorney <miattorney@gmail.com>
wrote:
On Mar 13, 7:05 am, David Briggman <brigg...@gmail.com> wrote:
_EXACTLY_ what provision of the U.S. Constitution do you believe this
action is contrary to?
14th Amendment, due process clause.
We have numerous Virginia cases which states that only two parties can
sign legal pleadings, and henri named a few of them, above. If the
pleadings weren't legal, neither are the resulting orders.
First, your conclusion does not follow from your premises. The fact
that a non-lawyer signed a pleading does not make the pleading void.
Actually, at least some cases in Virginia seem to say exactly that.
"Requirements for pleadings filed in the circuit courts are governed by the
Rules of the Virginia Supreme Court. Pursuant to Va. Sup. Ct. R. 1:4(c), counsel
or an unrepresented party who files a pleading shall sign it and state his
address. Under Va. Sup. Ct. R. Rule 1A:4, pleadings or other papers required to
be served must be endorsed by a member of the Virginia State Bar, except where a
party is representing himself. Failure to conform to this rule renders the
pleading or paper 'invalid.'" Roubik v. White, 47 Va. Cir. 90, 1998 Va. Cir.
LEXIS 280 (Va. Cir. Ct., August 6, 1998, Decided ) "A pleading signed by a
foreign attorney who is not authorized to practice law in Virginia is invalid
and has no legal effect." Jones v. Jones, 49 Va. App. 31, 2006 Va. App. LEXIS
475 (Va. Ct. App., October 24, 2006, Decided )
The pleading may be vulnerable to objection, but lack of a timely
objection waives any defect (of course, I'm addressing the merits of
the case, rather than the federal jurisdictional basis, which arises
based on what you plead, even if your case is meritless).
The federal case seems here to be Briggman v. Commonwealth, 526 F. Supp. 2d 590
(2007).
Second, even if your argument is correct, that's not a due process
violation. If the only defect in the proceeding is that a pleading
was signed by a non-attorney, how did that deprive the defendant of
due process of law? Stated differently, if the defendant got all the
notices and hearings that he was entitled to, how does the fact that
the plaintiff's pleading was signed by a non-lawyer diminish the
process that was afforded the defendant?
I can think of at least one argument, which is that lawyers are subject to
professional discipline, which guarantees a certain standard of behavior
not usually exacted upon non-attorneys. Part of due process is having
an adversary's representative subject to such a professional code of
conduct.
Allowing a government agency to have nonlawyers engage in motion
practice and otherwise practice law without having to worry about professional
sanctions if their tactics are out of line could be seen as depriving a
litigant of due process.
I suppose that if you had framed your case as a due process violation,
you could have invoked federal jurisdiction. Maybe you did and maybe
you didn't - I haven't seen the pleadings or the judge's opinion
dismissing the case. But that's water under the bridge. The fact is
that your case has already been dismissed, so your federal options are
limited to an appeal because you don't get a do-over (i.e., you cannot
re-file new claims on the same events), although you could ask the
court for leave to amend your complaint to state a federal claim.
Looks like this case was drop-kicked pursuant to Rooker-Feldman,
Younger abstention, the Eleventh Amendment, and FRCP 12(b)(6)
(failure to state a cause of action).
I'm not sure what reasoning the state court used in rejecting his
claims. The claim that it is improper for nonattorneys to file
motions and otherwise practice law doesn't seem frivolous, unless
the issue was somehow inadvertently or otherwise waived.
(Perhaps the pro se OP did not realize the nonattorney representative
issue raised any constitutional issue at the time of the original case
and therefore did not timely object.)
The case raises some interesting issues, but issues that wouldn't seem
easy to raise or argue for a pro se, especially one distracted by
sideshows like conspiracy claims. One fact, that DCSE appears to have
stopped using nonattorney representatives pending the passing of
legislation to authorize such practice of law by nonattorneys by the
Virginia legislature, seems to indicate they realize their previous
behavior was improper. (And the statute itself seems very likely to
fall within exclusive judicial power, in which case it might itself be struck
down as unconstitutional, though courts and bars have on occasion
tolerated such incursions.)
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henri <henri@nowhere.com> wrote:
A Michigan Attorney <miattorney@gmail.com> wrote:
Actually, at least some cases in Virginia seem to say exactly
that.
"Requirements for pleadings filed in the circuit courts are
governed by the Rules of the Virginia Supreme Court. Pursuant to
Va. Sup. Ct. R. 1:4(c), counsel or an unrepresented party who
files a pleading shall sign it and state his address. Under Va.
Sup. Ct. R. Rule 1A:4, pleadings or other papers required to be
served must be endorsed by a member of the Virginia State Bar,
except where a party is representing himself.
The last phrase is critical in this case" "except where the party is
representing himself." When a government employee is representing the
government, in effect the government is representing itself. So that
exeption could well apply.
On the other hand that rule may not apply to non-governmental
organizations. I don't know the rule in VA, but in California
corporations, for example, are not allowed to represent themselves
except in small claims court.
Allowing a government agency to have nonlawyers engage in motion
practice and otherwise practice law without having to worry about
professional sanctions if their tactics are out of line could be
seen as depriving a litigant of due process.
The opposing party is denied due process because the opposing party is
represented by someone who isn't qualified? I'd think yo'd rejoice
because your lawyer would have a better chance of taking them to the
cleaners.
I'm not sure what reasoning the state court used in rejecting his
claims. The claim that it is improper for nonattorneys to file
motions and otherwise practice law doesn't seem frivolous, unless
the issue was somehow inadvertently or otherwise waived.
Maybe it would be similar to attempts to disqualify the opposing
attorney for, say, conflict of interest. As long as it's not a
conflict of interest involving the objecting party, it's really none of
his business.
Stu
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In article <bj2it397lgfc87e0rqdpuvef9kl69ulbrt@4ax.com>,
henri <henri@nowhere.com> wrote:
On Tue, 11 Mar 2008 06:58:14 -0400, sethb@panix.com (Seth) wrote:
No, they most certainly do not. The practice of law is a matter within
the power of the judiciary branch and no other, except to the extent
the judiciary may occasionally tolerate such encroachment.
Suppose the legislature passes a law that says "Anybody can write a
will for somebody else and charge for doing so." Can a court convict
a person who does that? Of what? Suppose the legislature specifies
that any penalty for UPL in such a case is limited to a fine of $.01
with no add-ons.
"The power to admit and to discipline attorneys rests in the
judiciary.
What does that have to do with what non-attorneys are permitted to do?
"Court's authority to define the practice of law is inherent, and the
legislative branch has no right to limit the inherent powers of the judicial
branch of the government." Cleveland Bar Ass'n v. Picklo, 96 Ohio St. 3d 195
(Ohio 2002)
In some states, the legislature has said that real estate
agents are allowed to fill out certain paperwork for their clients.
In other states, the legislature has said they aren't.
"The power to discipline those licensed to practice law is vested with the
court. It includes the power to integrate the bar by rule of court. The power to
define what constitutes the practice of law is likewise lodged with the court."
State ex rel. Johnson v. Childe, 139 Neb. 91 (Neb. 1941)
Such legislation is routinely struck down as unconstitutional, as in
Cleveland Bar Association v. Picklo, 772 N.E.2d 1187 (Ohio 2002) (statute
authorizing landlord's agent to file cases in court unconstitutional),
Sharood v. Hatfield, 296 Minn. 416 (statute purporting to appropriate attorney
registration fees "unconstitutional assumption of judicial power by the
legislature"), Cantor v. Brading, 494 S.W.2d 139 (Tenn. Ct. App. 1973)
(statute allowing disbarred attorneys to apply for reinstatement held
unconstitutional), West Va. State Bar v. Earley, 144 W. Va. 504 (W. Va. 1959)
(legislature powerless to authorize laymen to practice law).
I believe those all apply to practicing law *in court*.
If the legislature says (and the governor signs) a law to the effect
of "people in the following situation are permitted to do the things
listed here, even though without this law that would be UPL" then
that's the case. Whether or not you want to consider that a "license
to practice law" is irrelevant.
They are free to pass such laws and then they will be invalidated as a
matter of course, if the judiciary, in its sole discretion, chooses to
do so in its plenary authority.
And it will then apply precisely what penalty? What law permits it to
do so?
Seth
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Seth <sethb@panix.com> wrote:
Suppose the legislature specifies that any penalty for UPL in such a
case is limited to a fine of $.01 with no add-ons.
Then the perpetrator would be out one cent and would have a permanent
criminal record. The latter can mean he loses his job, security
clearance, and professional licenses, and can't get a good job or
into a good school. If he's renting an apartment, he may be evicted.
If he travels internationally, the foreign county may turn him back
at the border. He may also be charged more for insurance.
For many crimes, the sentence on the books is a very small part of the
total effects of a conviction.
--
Keith F. Lynch - http://keithlynch.net/
Please see http://keithlynch.net/email.html before emailing me.
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Keith F. Lynch wrote:
Seth <sethb@panix.com> wrote:
Then the perpetrator would be out one cent and would have a permanent
criminal record. The latter can mean he loses his job, security
clearance, and professional licenses, and can't get a good job or
into a good school. If he's renting an apartment, he may be evicted.
If he travels internationally, the foreign county may turn him back
at the border. He may also be charged more for insurance.
For many crimes, the sentence on the books is a very small part of the
total effects of a conviction.
They could word the penalty part of it so that it carries no more weight
than a parking ticket. The societal penalties that you gave as examples
would (usually) only apply to a felony conviction.
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On Thu, 20 Mar 2008 07:23:50 -0400, sethb@panix.com (Seth) wrote:
No, they most certainly do not. The practice of law is a matter within
the power of the judiciary branch and no other, except to the extent
the judiciary may occasionally tolerate such encroachment.
Suppose the legislature passes a law that says "Anybody can write a
will for somebody else and charge for doing so." Can a court convict
a person who does that? Of what? Suppose the legislature specifies
that any penalty for UPL in such a case is limited to a fine of $.01
with no add-ons.
Then it's declared unconstitutional under the separation of powers doctrine,
and the Court proceeds to use its inherent powers to set rules for
unauthorized practice of law.
"In California, the power to regulate the practice of law, including the power
to admit and to discipline attorneys, has long been recognized to be among the
inherent powers of the article VI courts. Indeed, every state in the United
States recognizes that the power to admit and to discipline attorneys rests in
the judiciary. (Martyn, Lawyer Competence and Lawyer Discipline: Beyond the Bar?
(1981) 69 Geo. L.J. 705, 707, fn. 4.) 'This is necessarily so. An attorney is an
officer of the court and whether a person shall be admitted [or disciplined] is
a judicial, and not a legislative, question.'" (In re Lavine, supra, 2 Cal.2d
324, 328; see also Stratmore v. State Bar, supra, 14 Cal.3d 887, 889-890.)
Hustedt v. Workers' Comp. Appeals Bd., 30 Cal. 3d 329, 337 (Cal. 1981).
"The standard for assessing whether the Legislature has overstepped its
authority and thereby violated the separation of powers principle has been
summarized as follows. '[The] legislature may put reasonable restrictions upon
constitutional functions of the courts provided they do not defeat or materially
impair the exercise of those functions." (Brydonjack v. State Bar, supra, 208
Cal. at p. 444; accord In re Lavine, supra, 2 Cal.2d at p. 328.)'" Id. at
338.
Clearly, functionally eliminating all penalties for the unauthorized practice of
law impairs the ability of the courts to exercise their unambigously plenary
authority. This isn't a bizarre outcome or finding. As I've pointed out
before, I could string cite all day if I felt like it.
"In the case at bar, the legislature has authorized nonattorneys in the
Department to act as legal representatives in workers' compensation cases. This
is not within its purview. The legislature has no power to make rules relating
to the practice of law or create exceptions to the settled rules of this Court.
Thus KRS 342.320(9) is unconstitutional." Turner v. Kentucky Bar Ass'n, 980
S.W.2d 560, 563 (Ky. 1998).
The courts can penalize the unauthorized practice of law with or without
an authorizing statute. Any attempt to diminish their power to do so is
flatly unconstitutional.
"The Code of Professional Responsibility, which regulates attorneys' practice,
has been recognized as having the force and effect of substantive law. Saucier
v. Hayes, supra; Louisiana State Bar Association v. Connolly, supra; Ex parte
Steckler, supra. This court will uphold legislative acts passed in aid of its
inherent power, but will strike down statutes which tend to impede or frustrate
its authority. Saucier v. Hayes, supra; Louisiana State Bar Association v.
Connolly, supra; Meunier v. Bernich, supra." Singer Hutner Levine Seeman &
Stuart v. Louisiana State Bar Asso., 378 So. 2d 423, 426 (La. 1979).
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In article <99fcu39ionpa0babm005ec9s5mfrltsahd@4ax.com>,
henri <henri@nowhere.com> wrote:
On Thu, 20 Mar 2008 07:23:50 -0400, sethb@panix.com (Seth) wrote:
No, they most certainly do not. The practice of law is a matter within
the power of the judiciary branch and no other, except to the extent
the judiciary may occasionally tolerate such encroachment.
Then it's declared unconstitutional under the separation of powers doctrine,
and the Court proceeds to use its inherent powers to set rules for
unauthorized practice of law.
So Joe Smartguy opens an office and writes wills for people for pay.
What happens?
Can a judge force him into court? The police, being agents of the
executive branch, will obey the law as written by the legislature and
signed by the governor, that says Joe Smartguy isn't doing anything
illegal.
"In California, the power to regulate the practice of law, including the power
to admit and to discipline attorneys,
Making wills is specifically defined not to be practicing law,
according to the legislature.
Clearly, functionally eliminating all penalties for the unauthorized
practice of law impairs the ability of the courts to exercise their
unambigously plenary authority.
But that isn't eliminating all penalties for UPL, it's defining one
specific categories of act as "not practicing law". It says nothing
about who can represent others in court.
This isn't a bizarre outcome or finding. As I've pointed out
before, I could string cite all day if I felt like it.
Can you find a cite that has nothing to do with representing others?
"In the case at bar, the legislature has authorized nonattorneys in the
Department to act as legal representatives in workers' compensation cases.
That isn't one.
The courts can penalize the unauthorized practice of law with or without
an authorizing statute. Any attempt to diminish their power to do so is
flatly unconstitutional.
"The Code of Professional Responsibility, which regulates attorneys' practice,
does not apply to non-attorneys.
Seth
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n Sat, 29 Mar 2008 08:44:16 -0400, sethb@panix.com (Seth) wrote:
In article <99fcu39ionpa0babm005ec9s5mfrltsahd@4ax.com>,
henri <henri@nowhere.com> wrote:
So Joe Smartguy opens an office and writes wills for people for pay.
What happens?
Probably nothing, as the appropriate authorities, the bar association and/or
courts of the states, do not generally classify writing wills as being
inherently the practice of law. Whether writing a will or some similar
instrument is the practice of law would be judged on a case by case
basis and depend largely on to what extent the activity in question
required the expert weighing of the legal effect of the document.
Simply because an activity is characterized as writing a will and one of the
results of it is the production of a will does not mean the practice of law
has not occurred.
Can a judge force him into court? The police, being agents of the
executive branch, will obey the law as written by the legislature and
signed by the governor, that says Joe Smartguy isn't doing anything
illegal.
The police are not who a court would use in any case, as the police are
agents, as you point out, of the executive branch. If Joe Smartguy were
doing something classified as the practice of law by the courts, and
the legislature had not aided the inherent powers of the courts by passing
a law themselves, he would, should the courts choose to do so, be
haled into court. This would be enforced by the appropriate officers.
In most jurisdictions, there is a sheriff's department. The sheriff acts as
an agent of the judiciary, and acts to execute court orders. The police have
nothing to do with it.
"In California, the power to regulate the practice of law, including the power
to admit and to discipline attorneys,
Making wills is specifically defined not to be practicing law,
according to the legislature.
Then the issue would come to a judicial determination. If, as in all states,
both the judiciary and the legislature agree that the mere writing of wills is
not the practice of law, then the courts do nothing.
However, when the courts define something as practice of law, and the
legislature disagrees, the legislature has no power to diminish the inherent
powers of the courts. They may still act, with or without authorizing
statute.
I should also note that most legislatures have tailored their statutes on
unauthorized practice of law specifically not to step on the toes of the
judiciary. For example, the Texas statute on UPL reads:
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Tex. Gov't Code 81.101 Definition
(a) In this chapter the "practice of law" means the preparation of a pleading
or other document incident to an action or special proceeding or the management
of the action or proceeding on behalf of a client before a judge in court as
well as a service rendered out of court, including the giving of advice or the
rendering of any service requiring the use of legal skill or knowledge, such as
preparing a will, contract, or other instrument, the legal effect of which under
the facts and conclusions involved must be carefully determined.
---
Note that it, in this case, it specifically does include writing wills or
contracts. However. . .
---
(b) The definition in this section is not exclusive and does not deprive the
judicial branch of the power and authority under both this chapter and the
adjudicated cases to determine whether other services and acts not enumerated
may constitute the practice of law.
---
Precisely to retain constitutionality while assisting the judiciary, the statute
contains a carve-out to respect the inherent powers of the courts. The next
section of the law is a reaction to overreaching by the courts in the exercise
of these inherent powers. You may be familiar with prosecutions in Texas of
various self-help legal materials, activities which most people would view as
protected by the First Amendment, as unauthorized practice of law.
---
(c) In this chapter, the "practice of law" does not include the design,
creation, publication, distribution, display, or sale, including publication,
distribution, display, or sale by means of an Internet web site, of written
materials, books, forms, computer software, or similar products if the products
clearly and conspicuously state that the products are not a substitute for the
advice of an attorney. This subsection does not authorize the use of the
products or similar media in violation of Chapter 83 and does not affect the
applicability or enforceability of that chapter.
---
Here is an example of where the judiciary went too far, in my opinio | | |
