On several occasions over the last few years, I have seen pleadings prepared by pro se litigants where the pro se litigant makes a mistake or becomes confused about the person's rights as to preparation of pleadings on behalf of another person.It is axiomatic that IF an attorney could delegate the authority conferred by his or her law license to OTHERS by a POA, we would no doubt see a lot of paralegals in courtrooms practicing on these lawyer's behalf. Similarly, if all it took to practice law was a POA, WHY would anyone waste time attending law school and sitting for the bar exam, when they could be out practicing law through the simple expedient of obtaining a POA rather than a signed retainer agreement?
The classic case has arisen where a married couple are co-owners of a subject property and one of the couple is more proactive about legal research, etc., and prepares a pleading on behalf of both spouses.
While a single pleading or response signed by both spouses as pro se litigants may pass muster in many places, a single pleading signed by one spouse, purporting to act on behalf of both probably will NOT.
Most jurisdictions have express laws prohibiting the unauthorizaed practice of law. And these laws usually preclude a person who is NOT A LAWYER from preparing, presenting or arguing pleadings, motions or responses on behalf of another person. This would often include the preparation of a pleading or the signing of a pleading on behalf of a spouse.
In many jurisdictions, the courts can simply IGNORE the pleading purportedly presented on the spouse (or other person's) behalf when prepared and signed by a non-attory.
In most places, it is probably a BETTER PRACTICE for each spouse to file a separate copy of a given pleading or response, even if it exactly mirrors the response of the other defendant. While this seems to be a waste of paper, it is still probably cleaner, particularly if one spouse later wants to amend pleadings.
Some are similarly confused by the authority conferred by a power of attorney (POA). A POA usually confers ONLY the right to act as an attorney in fact, NOT as an attorney at law. Under a valid POA, a person can usually do those things that the principal expressly authorizes and which the principal has authority to do himself or herself. But the principal CANNOT lawfully represent others in court as an attorney, and even if that person COULD, the principal cannot delegate the authority to act as an attorney at law any more than a licensed barber could delegate his license to cut hair by a POA.
While the laws against unauthorized practice of law serve to close the shop and practice, protecting the lawyer's lucrative trade, these laws have as an arguable foundation the protection of the public and the legal rights of persons from loss through practice by the unschooled and unskilled.
Here at the Forum, we enjoy our Constitutionally protected First Amendment right to an exchange of ideas. While we can discuss, suggest and critique cases and fact situations, we must not stray into the unauthorized practice of law. ANYONE here at the Forum who comes to understand the better defensive arguments should use extreme caution in trying to put that knowledge to use by actual preparation of pleadings for others!
Instead, use the information to help others find a capable attorney who is legally permitted to represent them!