November 20, 2007
Unlicensed Pleading Not A Nullity
After her husband had died at a hospital, the wife was appointed administrator of her husband's estate. She retained counsel to bring a wrongful death action against the hospital. The lawyer relocated and withdrew from the representation. The wife then filed a pro se complaint, which the defendants moved to dismiss as it was filed by one not authorized to practice and thus a "legal nullity."
The North Carolina Court of Appeals held that "the fact that plaintiff was not licensed to practice law in this state does not render the complaint a legal nullity...the defect in plaintiff's complaint was cured by the subsequebt appearence of a properly licensed and admitted counsel." Nice that substance prevailed here over form. (Mike Frisch)
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Mike, I agree with your view that this should not affect the client's right, by some "agency" theory that the lawyer had no legal right to file the paper. Yet it is at odds with a Virginia case we reported last year that treated an appeal as a nullity since filed by a lawyer who, unbeknownst to him, was suspended for a few days and exactly when he signed the appeal notice.
Posted by: Childress | Nov 20, 2007 10:50:34 AM