Monday, December 10, 2007
Three individuals and the "association in whose name they do business" were the subject of an original quo warranto action by the Kansas Attorney General alleging unauthorized practice of law. They twice sought without success to remove the action to federal court. While an appeal of the denial of the notice of removal was pending, a "hearing" was held before a commissioner which the Respondents did not attend or otherwise participate in. The commissioner entered what in effect was a default judgment. The Respondents appealed to the Kansas Supreme Court, which held that the hearing "should not have proceeded because the state action was required to be stayed while [the Respondents] second removal petition was still in effect." The matter was remanded for further proceedings.
Except as to the one Respondent who had argued the case before the court. The oral argument was taken as proof that he had "engaged in the unauthorized practice of law before us in our courtroom during his oral argument on behalf of his fellow Respondents." The court entered a permanent injunction against that person.
Two dissents find this conclusion unfair and would remand as to all of the Respondents. A key passage from one of the dissents:
" I am not convinced, however, that Janice Lynn King and Rosemary Denise Price were the clients of David Martin Price when he read their collective statement and responded to questions from the court. They were parties–as was he–and the fact that Price was the party designated to read what all the individual Respondents wanted to say does not constitute, in my estimation, the unauthorized practice of law. As David Martin Price said, he was appearing 'pro se,' and I would rather apply the liberal construction traditionally afforded such litigants."
I find the dissent's point well taken. It hardly seems fair to have a pro se litigant present oral argument and decide that the non-lawyer crossed the line into unauthorized practice. There was no concern that the court was misled into thinking the advocate was a lawyer. If it was unauthorized practice, the court should not so conclude sua sponte. Rather, the accused should have the right to notice and an opportunity to respond before a permanent injunction is issued.(Mike Frisch)