Summary
In Whitehead v. Town House Equities Ltd., 8 A.D.3d 369, 777 N.Y.S.2d 917, the Appellate Division, Second Department held “(a) person not licensed to practice law in the State of New York pursuant to the Judiciary Law may not appear pro se in court on behalf of a litigant as an attorney-in-fact pursuant to a power of attorney.
Summary of this case from Parkchester Pres. Co. v. FeldeineOpinion
2003-00445, 2003-02382.
Decided June 7, 2004.
Motion by the appellants on appeals from two orders of the Supreme Court, Kings County, both dated November 21, 2002, inter alia, to strike the respondent's brief on the ground that Arona J. Petersen, as attorney-in-fact for the respondent, Lillian Whitehead, cannot appear pro se for her. By decision and order of this court dated July 23, 2003, that branch of the motion which was to strike the respondent's brief on the ground that Arona J. Petersen, as attorney-in-fact for the respondent, Lillian Whitehead, cannot appear pro se for her, was referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.
Meyers Meyers, Brooklyn, N.Y. (Allan S. Meyers and Glenn R. Meyers of counsel), for appellant Thomas Hansard, and Herrick, Feinstein, LLP, New York, N.Y. (Stacy Kellner Rosenberg, Richard Y. Im, and Jacqueline Shapiro of counsel), for appellant The Money Store (one brief filed).
Before: A. GAIL PRUDENTI, P.J., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, ROBERT A. SPOLZINO, JJ.
DECISION ORDER ON MOTION
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the branch of the motion which is to strike the respondent's brief is granted, and the respondent's brief is stricken.
A person not licensed to practice law in the State of New York pursuant to the Judiciary Law may not appear pro se in court on behalf of a litigant as an attorney-in-fact pursuant to a power of attorney. A person who does so has unlawfully engaged in the unauthorized practice of law.
General Obligations Law § 5-1502A(10), which permits an attorney-in-fact to prosecute or defend an action arising from a real estate transaction on behalf of his or her principal, only applies to the decision to prosecute or defend, not to representation as an attorney-at-law. Thus, it cannot be read to displace the provisions of Judiciary Law § 478, which, with certain exceptions not relevant here, make it unlawful for anyone other than a person who has been admitted to practice law in New York and has taken the requisite oath, to appear in the courts of record of this state as an attorney-at-law ( see Richstone v. Bell Atl., 2001 WL 1637394, 2001 N.Y. Misc. Lexis 517; Gilman v. Kipp, 136 Misc.2d 860, 862; Matter of Friedman, 126 Misc.2d 344; Matter of Stokes v. Village of Wurtsboro, 123 Misc.2d 694; cf. Matter of Schulz v. New York State Dept. of Envtl. Conservation, 186 A.D.2d 941, 942 n; Blunt v. Northern Oneida County Landfill [NOCO], 145 A.D.2d 913, 914; Dick v. Citibank, 145 Misc.2d 563; Matter of Maldonado v. New York State Bd. of Parole, 102 Misc.2d 880). To permit otherwise would compromise the integrity of the practice of law in New York by permitting persons to evade the training, examination, licensing, ethical, and disciplinary requirements applicable to attorneys-at-law ( see Judiciary Law §§ 460, 466, 467; 22 NYCRR 691.1, et seq).
Moreover, General Obligations Law § 5-1502A(10) does not remove from the judicial branch the right to determine who may appear and practice before the courts, and under what conditions, since it would unconstitutionally violate the separation of powers between the legislature and the judiciary ( see N.Y. Const article VI, §§ 1[a], 28; McKoan v. Devries, 3 Barb 196, 200; see also Hagan Van Camp v. Kassler Escrow, Inc., 96 Wn.2d 443, 451-453, 635 P.2d 730 [Wash]).
The appropriate sanction for the unauthorized practice of law committed in this instance is the striking of the respondent's brief ( see Gilman v. Kipp, supra; Matter of Friedman, supra; Matter of Stokes v. Village of Wurtsboro, supra).
PRUDENTI, P.J., KRAUSMAN, TOWNES and SPOLZINO, JJ., concur.