Thursday, April 5, 2012

Can an entity file a pro se claim? Should the entity suffer the consequences because a complaint is filed by a non-lawyer?

The Illinois Supreme Court recently heard oral arguments in an interesting case that raises some interesting questions as to what constitutes the practice (and unauthorized practice) of law and as to what is the proper consequence in a case where a party is represented by someone who is not authorized to practice law.

The facts of the case are relatively simple.  The City of Chicago Department of Administrative Hearings entered four default judgments against a corporation, for certain ordinance violations.  Upon hearing about this, the president of that corporation filed four motions to set aside the default judgments, alleging that the City did not properly notify the corporation of the hearings regarding the violations. After a hearing to discuss the matter, an administrative law officer denied relief and instructed the president of the corporation that he had a right to appeal.  The officer told him that he could go to a certain office and file the necessary paperwork.  The president immediately went to the office, completed a form and filed it.  The form was a pro se complaint for review by a trial court under the Administrative Review Law.  Approximately six months after the complaints were filed, an attorney filed an appearance on behalf of the corporation at which point the City moved to dismiss the complaint on the basis that the corporation’s president who had filed the complaint in the first place was not a licensed attorney and, thus, was unauthorized to file complaints on behalf of a corporation. The trial court granted the City's motion and denied the corporation's motion to amend the complaint to include the signature of its attorney.

On appeal, the City is requesting the Supreme Court to recognize that an entity can never file a pro se claim and to impose an absolute rule that a complaint filed by a non attorney other than in a pro se case must be considered void ab initio.

The corporation is arguing that a better policy is to consider the circumstances and to decide cases on a case by case basis.  In this case, either because the filling out of a form at the direction of the administrative law office was not the practice of law to begin with or because, if it was, there was no harm to the corporation, the corporation should not lose its rights to appeal.  According to this view, the main thing is to consider the reasons why we have a rule against the unauthorized practice of law to begin with.

It seems to me this second view is more sound, and, if nothing else, more fair.  I understand we need to protect the public from inadequate representation by people who are not qualified to practice law, but that is not what happened in this case. 

The case is called Downtown Disposal Services v City of Chicago and the lower court opinion is available at 943 NE2d 185 (Ill App 2011).  You can watch the oral argument here.  If you prefer just the audio, you can listen to it here.

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