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William A. Roper, Jr.

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.

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.

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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.

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?

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. 

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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!

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I got it big guy. I can not believe that I had forgotten something so basic. So sir for all the world to see. I really really almost screwed up and Mr. Roper here saved my tail bone if he says it will rain Jello on Tuesday the 5th of June 2011 at 11:27 I suggest showing up with a spoon.

Thanks again sir you pulled me from the fire as I had not even looked, a bad habit to get into you are never conversant in law enough to not check before you answer.....they just might have changed things or you are erroneous in your memory.

I almost committed an E felony because I had the rules on a POA screwed up I should have known Attorneys would not allow anyone not a member of the club that close to the Chicken Coop lol.

I take responsibility when I screw up and so I give Mr. Roper his due and a very very heartfelt thank you. (seriously wipes tear from eye) I know the difference between an Attorney in fact and an Attorney at law but apparently the connection I should have made there I seriously failed at doing.

I don't screw up often but as my old boss asked me one time, Al could you screw up only half way please? You don't have to do everything 120% you are allowed to screw up at a lesser degree than the percentage you achieve at succeeding lol please son" I had screwed the pooch on that one I can say for sure I think it was 12 gross of some mugs printed with the wrong city for one of our customers correct picture wrong name lol .....lets just say it was a very expensive mistake.

Thanks again sir I owe you.

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Mr.Roper is correct as usual,  however, Arizona recently changed its eFiling rules.  A link is below.  Here is a pertinent excerpt (in the past signatures of ALL self represented parties would have been required):

http://www.azcourts.gov/Portals/22/admorder/Orders10/2010-117.pdf

c. Multiple-Party Signatures Not Required. A document being filed by more than one self-represented litigant need only be signed by one of the self-represented litigants.  The signer of the document shall ensure that all parties named in the document agree with the contents of the document. The standing of all parties is subject to judicial determination during the proceedings.



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William A. Roper, Jr.
I was not seeking to single out any particular Forum participant, but I have seen this situation arise several times before.

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Brindy's point reinforces the extent to which one should ALWAYS check the law of YOUR jurisdiction as to all matters.
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William A. Roper, Jr.
The Importance of Separate Documents In Respect of Discovery

It is particularly important to think about segregating the actions of more than one defendant when serving discovery on a plaintiff.

In many jurisdictions, there are LIMITS on the number of interrogatories or requests for admission each party may ask.  If one puts the names of BOTH defendants on the SAME discovery request, the questions MIGHT just count against EACH party.

By contrast, if Mr. SMITH get 35 interrogatories and Mrs. SMITH gets 35 interrogatories, this adds up to 70 interrogatories in all.  This may seem unimportant until you start to run out of questions!
 
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Admittedly, the foreclosure mill law firms will almost ALWAYS engage in discovery abuse and refuse to answer even the most basic questions.  They will also OBJECT to everything and give false and evasive answers.

But this makes having LOTS of questions particularly important.

Also, if Mr. SMITH and Mrs. SMITH each have separate and DIFFERENT questions, this (a) gives the plaintiff twice as many opportunities to screw up and (b) better assures that there are outstanding overlapping discovery requests which need to be properly answered before the plaintiff can move for summary judgment.

BE SURE TO READ AND UNDERSTAND THE RULES AND CASES RELATING TO DISCOVERY FOR YOUR JURISDICTION!
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Sandy
Mr. Roper, does your brain hurt from carrying around all you know about this stuff?

I believe you are a man of passion, who has found his calling!

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I have found, as Mr. Roper suggests, that bifurcating discovery requests and other motions, etc., drives the other side completely nuts - and there isn't a damn thing they can do about it.

Husband files a motion of some type (starting the AZ 20 day rule to respond) and 10 days later wife files a motion on a different topic.  Or, better yet, dad files a motion for judgment and mom follows with hers two weeks later.

The attorneys for the other side can't run into court and argue that the husband and wife should be required to file their motions jointly - you can't have it both ways.



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Angelo
Bill

If you are represented by an attorney, do you still have the luxuary of sending 2 sets of discovery requests, or is it the attorney who gets to send only one set?


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William A. Roper, Jr.
Quote:
Brindy said:
I have found, as Mr. Roper suggests, that bifurcating discovery requests and other motions, etc., drives the other side completely nuts - and there isn't a damn thing they can do about it.

. . .


The attorneys for the other side can't run into court and argue that the husband and wife should be required to file their motions jointly - you can't have it both ways.



; )


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Mr. Roper. I know but I, personally, like to give a person their due and publicly, particularly when said individual saved my butt from a brain fart on my part that would have ended up ruining this, so far, non criminal lifestyle I so enjoy due to the lack of incarceration time involved with it. lol sooo you're just gonna have to take this compliment......and like it...ok take it as you will it's really not polite of me to be so demanding.  ; - )>  lol Again thanks
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William A. Roper, Jr.
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Angelo said:
If you are represented by an attorney, do you still have the luxuary of sending 2 sets of discovery requests, or is it the attorney who gets to send only one set?


Angelo:

If a single attorney represents both parties, the attorney can and usually would file pleadings, motions, responses, etc., on behalf of BOTH parties.

This is inherently more efficient and more economic. 

Of course, the attorney should affirmatively SHOW that he is answering on behalf of both.

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With discovery, as discussed above, it is HARDER for the single attorney representing BOTH to explain and justify to the court WHY he segregated discovery into sets on behalf of the husband and the wife.  As Brindy correctly surmises, there is a certain inherent justification when the parties appear and answer separately pro se OR when the parties are represented by DIFFERENT ATTORNEYS in one party saying, in essence, well THESE are the questions I WANT ANSWERED.

It is much harder for the attorney to make this argument with a straight face.

Hiring separate his and her attorneys will tend to double the defensive cost and should be undertaken with extreme caution as to the financial burden.  Many attorneys would also balk at sending out separate his and her requests when conducting discovery, which is also going to be more costly and time consuming for the defendant's attorney.

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This strategy is probably most effective when defendants are representing themselves pro se.

Another approach would be for one spouse to be represented by the attorney and for the other spouse to appear pro se.

There are both advantages and disadvantages to this latter approach.  More often, it introduces risks and hazards that could be REDUCED by both parties being represented.  I am NOT recommending it for ordinary borrowers.  It should probably ONLY be undertaken by a fairly sophisticated defendant of high intelligence, dilligence, and discipline with abundant FREE TIME.  The unrepresented spouse is going to be committing to attending all court appearances, etc.

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Those defendants who are represented by attorneys are usually going to find that the attorney is going to have his or her own predisposition to how the case should be litigated.  Unfortunately, one of the other challenges the defendant faces is that their attorney often cares MORE for the attorneys reputation, congeniality and ongoing relationship with the opposing counsel and the Judges than the outcome of the defendant's case!

On the other hand, the attorney has the knowledge, experience and training to better assess various alternative strategies and tactics.

This cuts both ways! 
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t

ka recently began a new thread on a similar theme:

 

A Quick Note About the Limits of Representation Pro [sic] and UPL

http://ssgoldstar.websitetoolbox.com/post/A-Quick-Note-About-the-Limits-of-Representation-Pro-and-UPL-5660873

 

His thread mentions a recent Kentucky appellate decision Miller v. Republic Bank and Trust Company in which only one spouse signed the appellant's brief:

http://opinions.kycourts.net/coa/2010-CA-001625.pdf

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