Prof. Hatfield Explains Why Attorney Cannot Be Required to Probate Will

Following up on an earlier post, Michael Hatfield (Associate Professor of Law, Texas Tech University), explains that a court may not mandate that a lawyer be employed by a person attempting to probate a will as follows:

The judge can hold a pro se litigant to the same standards of practice (100+ cases to that effect) but cannot require her to hire a lawyer.  I don’t blame the probate court judges:  I wouldn’t want to hand-hold pro se litigants either.   But the judge’s remedy is to rule against them when they make mistakes, not deny them access to the judicial system because they find them annoying.  This is not mythical Judge Roy Bean libertarian Texas justice; quite its opposite.

Texas Supreme Court:  In 1983, the Supreme Court of Texas voided an order of Dallas County Probate Court No. 3. The probate court had ordered an executor held in contempt for not hiring an attorney.  The Supreme Court said “ordering a party to be represented by an attorney abridges that person's right to be heard by himself.”  Shaffer, 649 S.W.2d 300.  This is hardly an obscure case; its been cited 58 times since then.

Statute:  Texas Rules of Civil Procedure Rule 7:  “Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court.” 

U.S. Constitution and Texas Constitution:  The U.S. Supreme Court says pro se representation is a federal Constitutional right (see, e.g., Faretta 422 U.S. 806).  Article I, Section 13 of the Texas Constitution has generally been understood to do the same.

Gross Negligence and Texas Probate Code Section 36.   Remember that that in Texas, “should damage or loss result to estates” through the “gross negligence of the judge,” then he or she may be liable to those damaged by the neglect.  If I were a probate court judge, I’d worry that this position is so unreasonable in light of the above, that some plaintiff’s lawyer would scoop up a class of estates in which the executors would have proceeded pro se but had to hire a lawyer instead --- and recover the lawyers’ fees as a class action.  It might be hard to find the specific facts that would fit clearly under TPC Section 36, but the risk of that would worry me if I were a probate court judge.   

Professional Responsibility Concerns.  As to the implications for attorney’s professional responsibility, remember that the unauthorized practice of law requires more than the 1 person (the pretend “attorney” and the “client”).  Alleging that an executor could be engaged in the unauthorized practice of law by appearing pro se alleges that there is more than “1 person” involved.  I infer that the executor is in the “attorney” role and the beneficiaries of the estate are in the “client” role and that is how “unauthorized practice” is argued to arise here. 

However, if that is the correct legal analysis (and its clearly not, see Shaffer above), any lawyer representing the executor would then, by definition, also be representing the beneficiaries of the estate.  The distinction between representing a fiduciary and representing the beneficiaries would be destroyed conceptually.  But, we don’t need to go there because the Texas Supreme Court has already told us probate court judges can’t do this.

If a fiduciary can’t appear pro se because the fiduciary, by definition, represents the beneficiaries as well, then we as lawyers ought to have even more ulcers.  Anyone who thinks its theoretical to fret about attacks on the idea of the fiduciary as a distinct legal person doesn’t worry enough about being sued by non-clients.