CADDNAR

[CITE: Edwards v. Pressler & Tomei (Attorney Representation), 12 CADDNAR 325 (2011)]

 

 

[VOLUME 12, PAGE 325]

 

 

Cause #: 10-162W

Caption: Edwards v. Pressler & Tomei (Attorney Representation)

Administrative Law Judge: Lucas

Attorneys: pro se (Edwards); pro se (Pressler); Benson (Tomei); Wyndham (DNR)

Date: August 3, 2011

 

 

FINAL ORDER OF DISMISSAL WITHOUT PREJUDICE

 

The parties having had a full opportunity to present their positions, a final order of dismissal without prejudice is entered.   Mark C. Edwards must take one of the following actions before pursuing further administrative review before the Commission:

 

(A)  Appear and participate in person.

 

(B)  Arrange to be represented by an attorney licensed to practice in Indiana.

 

(C)  Obtain authorization from the Indiana Supreme Court, through a petition similar to what is required for representation by a foreign attorney, to be represented by George Edwards (or to approve layperson representation in AOPA proceedings generally).

 

A person who wishes to seek judicial review of this final order must file a petition in an appropriate court within 30 days and must otherwise comply with IC 4-21.5-5.  Service of a petition for judicial review is also governed by 312 IAC 3-1-18.

 

 

Findings

 

1. This proceeding is governed by IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Natural Resources Commission (the “Commission”) at 312 IAC 3-1 to assist with its implementation of AOPA.

 

2. On May 25, 2011, a “Motion to Dismiss George Edwards as a Claimant and Claimant’s Claim” (the “Motion to Dismiss”) was filed by the attorney for Nicole L. Tomei and Michael A. Tomei (collectively the “Tomeis”).

 

3. On June 9, 2011, the Commission entered a “Notice of Final Order to Dismiss George Edwards as a Party”.  The Commission has not received a petition for judicial review of the June 9 final order.  Pursuant to IC 4-21.5-5-5, the period to seek judicial review has expired.

 

4. A prehearing conference was conducted on June 3, 2011 during which George Edwards filed a “General Durable Power of Attorney of Mark Chamberlain Edwards (Grantor) to George C. Edwards (Attorney-in-Fact)” (the “General Durable Power of Attorney”).  The parties agreed and were then ordered to comply with the following schedule as to the legal significance of the General Durable Power of Attorney:

(1) George Edwards and Mark C. Edwards were provided until June 17, 2011 to file any motion or brief by which either or both could assert the legal significance of the General Durable Power of Attorney.[1]

 

(2) Scott Pressler, William M. Houghton, Nicole L. Tomei, and Michael A. Tomei[2] (collectively the “Respondents”) and the Department of Natural Resources (the “DNR”) were provided until July 15, 2011 to file any response to a motion or brief filed under (1).

 

(3) George Edwards and Mark C. Edwards were provided until July 29, 2011 to file any reply to a response under (2).

 

5. On June 7, 2011, George Edwards filed a letter that had been supplied to him by J. Philip Burt, an attorney.  J. Philip Burt did not enter an appearance for George Edwards or Mark C. Edwards.  The letter asserted that, through the General Durable Power of Attorney, Mark Edwards authorized George Edwards to “have wide, broad powers over his affairs”, including “representation of George on his behalf before the Natural Resources Commission”

 

6. On July 1, 2011, the Department of Natural Resources filed the “Third Party Respondent Department of Natural Resources’ Statement of Position Regarding Power of Attorney”.

 

7. Also, on July 1, 2011, the Tomeis filed their “Brief Concerning Unauthorized Practice of Law by Attorney in Fact” (the “Tomeis’ POL Brief”).

 

8. Mark C. Edwards (and George Edwards) opted not to file a reply to the responses referenced in Finding 6 and Finding 7.

 

9.  The Commission has authorized its administrative law judges to act upon dismissal motions if a person does not qualify for administrative review or if a dismissal could be entered in a civil action.  312 IAC 3-1-9(b).

 

10. With completion of the briefing schedule referenced in Finding 4, the Motion to Dismiss is ripe for disposition as to whether George Edwards may represent Mark C. Edwards in this proceeding based upon the General Durable Power of Attorney.   

 

[VOLUME 12, PAGE 326]

 

11. Representation of another person in an AOPA proceeding is addressed at IC 4-21.5-3-15:

 

Sec. 15. (a) Any party may participate in a proceeding in person or, if the party is not an individual or is incompetent to participate, by a duly authorized representative.

 

(b) Whether or not participating in person, any party may be advised and represented at the party’s own expense by counsel or, unless prohibited by law, by another representative.

 

12. Tomeis’ POL Brief urged:

 

George Edwards is not himself a party in this proceeding and is no admitted to practice law in Indiana or in any other state.  As a consequence, he is essentially arguing that he should be permitted, “unless prohibited by law,” to represent Mark Edwards as “another representative.”  The letter J. Philip Burt, submitted on behalf of George Edwards, suggests that the [General Durable Power of Attorney] provides George Edwards with such authorization to act as “another representative”.

 

13.Tomeis’ POL Brief concedes IC 30-5-5-11 permits a power of attorney to authorize an attorney in fact to “[a]ssert and prosecute before a court, an administrative board, a department, a commissioner, or other tribunal, a cause of action, a claim, a counterclaim, an offset, or a defense that the principal has or claims to have against an individual.”  The General Durable Power of Attorney seeks to convey this authority.  But the Tomeis’ assert the scope of authority for a power of attorney, under IC 30-5-5, does not extend to an individual appearance and representation constituting the unauthorized practice of law.

 

14. The Indiana Supreme Court “has exclusive jurisdiction over matters involving the unauthorized practice of law.  See Ind. Const. art 7, § 4; see also Ind. Code § 33-24-1-2.” State ex rel. ISBA v. UPSC, 926 N.E.2d 8 (Ind. 2010).

 

15. The Indiana Supreme Court has held that every person is entitled to act as his or her own attorney, both in and out of court, and to assume the consequences of acts performed.  State v. Indiana Real Estate Association, Inc., 244 Ind. 214, 226 n. 2, 191 N.E.2d 711, 717 n. 2. (Ind. 1963).  But this right is possessed only by those who are parties to the transaction.  Id. at 226, 191 N.E.2d 717.  Only a qualified, licensed attorney may appear for another person.  Matter of Estate of Rondinelli, 692 N.E.2d 915, 918 (Ind. App. 1998) (“only persons duly admitted to practice law in this state may appear on behalf of other persons”) (citing Butler v. State, 668 N.E.2d 266, 268 (Ind. App. 1996).

 

16. Similarly, a litigant may bring his own claim in federal court without counsel, but not the claims of others, because the competence of a layman is clearly too limited to allow him to risk the rights of others.  Johnson-Bey v. Indiana Department of Corrections, 668 F. Supp.2d 1122 (N.D.Ind. 2009).

 

17. The Tomeis’ POL Brief points out that in Simmons v. Carter, 576 N.E.2d 1278 (Ind. App. 1991), the Indiana Appellate Court considered an action initiated by an attorney in fact under a power of attorney:

On February 20, 1990, a small claims action was instituted against Simmons on behalf of Carter by one Earlie Dixon who signed the Notice of Small Claim form on the signature line designated “Signature of Plaintiff or Plaintiff’s Attorney”.  Dixon is not an attorney admitted to practice law in Indiana or elsewhere.  Dixon, however, did hold a power of attorney from Cater.  Simmons did not appear and was defaulted.  On July 25, 1990, Carter appeared by his agent, Dixon, and judgment was entered against Simmons in the amount of $1,750.

 

….[W]hile any natural person may appear in court on his or her own behalf, only persons duly admitted to practice law may appear on behalf of other persons.  This rule is well recognized.  Thus, it has been held that while a person not an attorney may appear in court for himself, he may not do so for others.  McShane v. United States (9^th Cir. 1966), 366 F.2d 286.  That the Indiana Supreme Court and Attorney General of Indiana acted within their authority in an action which culminated in an order restraining a prison inmate from representing another inmate was upheld in Fair v. Givan (N.D. Ind. 1981), 509 F. Supp. 1086.

 

Except for the provision allowing corporations to appear by certain designated employees in small claims of $750 or less, it is clear that a person may not appear in court by one who is not a lawyer.  The issue for our determination then becomes that of the effect of a judgment rendered in an action filed for another by a person not a lawyer, who appears in court for the named plaintiff and pursues the matter to judgment.  We believe the judgment to be a nullity and so hold.

 

Id. at 1279-80.

 

18. A similar result was reached in Matter of Contempt of Mittower, 693 N.E.2d 555, 558 (Ind. 1998).  An individual who was not admitted to practice law but who held a power of attorney was held to have engaged in the unauthorized practice of law when he attempted to negotiate a settlement.  “[T]he respondent responded to the attorney’s legal claims on behalf of Estate Administrators and attempted to negotiate with the attorney toward resolution of the proposed legal claims.  When the representation later matured into formal legal action, the respondent in effect represented not only his own interests as a party defendant (as he is entitled to do), but also the interests of Motolo and Estate Administrators as well by preparing and causing to be filed the ‘pro se’ pleadings on behalf of all the defendants in the Noble County Court.  As such, he again acted in a representative legal capacity.”

 

 

[VOLUME 12, PAGE 327]

 

19. The Tomeis’ POL Brief cites Simmons v. Carter, 576 N.E.2d 1278 (1991 Ind. App.).  “[W]here a legal proceeding has been instituted on behalf of another in a court of record by one not licensed to practice law, the action should be dismissed, and if the suit has proceeded to judgment, the judgment is void.”  Although Simmons involved a non-lawyer representing a civil client, the Indiana Courts have seen “no reason to apply a different standard where…an attorney not licensed to practice law in Indiana, although licensed elsewhere, appears and purports to represent” a party.  Butler v. State, 668 N.E.2d 266, 268 (Ind. App. 1996).

 

20. The Tomei’s POL Brief urges that the “holding in Simmons v. Carter is equally applicable to administrative proceedings.”  Reference is made to a January 21, 2001 letter from the Clerk of the Indiana Supreme Court to agencies subject to AOPA.  The letter requires administrative law judges, who receive a foreign attorney’s petition for temporary admission, to redirect the petition to the Indiana Supreme Court.

 

21. The Tomei’s POL Brief concludes: 

 

Clearly, if even an attorney licensed to practice law in another state may not serve as “another representative” in [an] administrative proceeding without admission by the Indiana Supreme Court, an individual such as George Edwards, who is not admitted to practice law in any state, cannot be permitted to appear and serve as such a representative under a general power of attorney.  Although the [General Durable Power of Attorney] may authorize George Edwards to initiate an administrative proceeding and assert a claim on behalf of Mark Edwards with the assistance of legal counsel (as opposed to initiating it pro se), he apparently elected not to retain such counsel to appear on his behalf.  Under Simmons v. Carter, this matter should therefore be dismissed.

 

22. The letter from J. Philip Burt, which George Edwards filed, identifies a statutory remedy for damages for failure to implement a general power of attorney.

Under Indiana law, specifically the Indiana Code section 30-5, if a [power of attorney] is not honored for any reason, and the principal suffers damage in that process then the principal is entitled to recovery against the person, individual, or entity that has failed to honor the [power of attorney].  I [sic. In?] several cases the damages that have resulted have been substantial.

 

23. The letter from J. Philip Burt, which George Edwards filed, overstates the legal significance of a power of attorney.  There are reasons for which a power of attorney should not be honored.  As demonstrated by the Tomei’s POL Brief, a power of attorney does not authorize the otherwise unauthorized practice of law.

 

24. Only the Indiana Supreme Court can determine what constitutes the unauthorized practice of law.  But the decisions cited by the Tomeis, coupled with the Clerk of the Indiana Supreme Court’s January 21, 2011 letter to state agencies, reflect the Commission must be sensitive to the consequences of representation by one person of another in an AOPA proceeding.

 

25. Reported decisions from other states support the possibility that a person who represents another before a state agency is engaged in the practice of law.  Reference is made to recent decisions from Pennsylvania and Ohio.

 

26. When an individual engages in cross-examination, argument, or other acts of advocacy before a state agency, the individual is engaged in the practice of law.  Plunti v. Corn, 900 A.2d 1017 (Pen. 2006).  Cross-examination of witnesses, argument, and other acts of advocacy (such as summary motions, discovery, and separation of witnesses) are typical of AOPA proceedings.

 

27. A layperson generally may not represent another person or take any legal action on behalf of another person before an administrative agency.  Cleveland Bar Assn. v. Comp-Management, Inc., 857 N.E.2d 95, 111 Ohio St.3^rd 444 (Ohio 2006).

 

28. This proceeding should be dismissed without prejudice.  Mark C. Edwards has not demonstrated that he is entitled to administrative review through representation by George Edwards.  In addition, as urged by the Tomeis, a dismissal without prejudice could be entered against Mark C. Edwards in a civil action.  Mark C. Edwards should be required to take one of the following actions before pursuing further administrative review:

(A) Appear and participate in person.

 

(B) Arrange to be represented by an attorney licensed to practice in Indiana.

 

(C) Obtain authorization from the Indiana Supreme Court, through a petition similar to what is required for representation by a foreign attorney, for representation by George Edwards (or to approve layperson representation in AOPA proceedings generally).