|
|
|
|
 |
Last Updated 06/01/2006 SUITS BROUGHT BY PRO SE PLAINTIFFS ACTING IN A REPRESENTATIVE CAPACITY MAY BE VOID AND SUBJECT TO DISMISSAL By: Aaron P. Ryan, J.D. Any attorney who devotes a substantial portion of his or her practice to the defense of professional liability suits will inevitably encounter pro se plaintiffs who are not and have never been licensed attorneys. While such litigation may be “interesting,” to say the least, it may also be short-lived if the pro se plaintiff is deemed to be engaged in the unauthorized practice of law. All natural persons, whether or not they are attorneys, have standing to seek redress of their grievances on their own behalf. See Blue v. People, 223 Ill.App.3d 594, 596 (2nd Dist. 1992) (“Lay people may appear only in their ‘proper persons,’ i.e. only on their own behalf.”). For example, a patient claiming injury as a result of medical malpractice has every right to file his or her own lawsuit and act without legal representation. But what of the situation when a pro se plaintiff purports to file a cause of action for injuries incurred by another, for example a special administrator acting pro se to file suit under the Wrongful Death Act or the Survival Act? The Illinois Appellate Court for the First District addressed precisely this factual scenario in Ratcliffe v. Apantaku, 318 Ill.App.3d 621 (1st Dist. 2000). The non-attorney plaintiff in Ratcliffe filed a medical malpractice complaint in her capacity as the administrator of her mother’s estate under the Wrongful Death Act and the Survival Act. The circuit court dismissed the action and the First District affirmed that ruling, holding that the unlicensed plaintiff had no standing to represent the estate’s interests. The Court explained that only one duly authorized to practice law in Illinois may represent the legal interests of another, such as an estate. Since claims under the Wrongful Death Act and Survival Act are necessarily brought in a representative capacity, an unlicensed pro se plaintiff may not bring such a cause of action. Id. at 625-627. Thus, when a pro se plaintiff files a complaint in a representative capacity, the pleading is considered a nullity, i.e., as if it had never been filed, a view that can have important implications for statute of limitations purposes. These suits are subject to dismissal and, if the matter has proceeded to judgment, the judgment must be vacated. Even the subsequent retention of an attorney will not cure this fatal defect. Id. at 626. See also Blue, supra, 223 Ill. App. 3d at 596; Fruin v. Northwestern Medical Facility Foundation, Inc., 194 Ill. App. 3d 1061 (1st Dist. 1990). The only recourse is to have an attorney file the action anew, assuming that the applicable statute of limitations or repose has not expired in the interim. The Illinois appellate courts have carved out a few exceptions to this general rule, all in situations where the plaintiffs believed themselves to be properly represented by licensed attorneys. In Janiczek v. Dover Management Co., 134 Ill.App.3d 543 (1st Dist. 1985), for example, the complaint was filed by an attorney who, unbeknownst to the plaintiff, had been disbarred. In McEvers v. Stout, 218 Ill.App.3d 469 (4th Dist. 1991), the attorney who filed the suit neglected to inform his clients that he was licensed to practice law in Wisconsin, but not in Illinois. In Pratt-Holdampf v. Trinity Medical Center, 338 Ill.App.3d 1079 (3d Dist. 2003), the plaintiff’s attorney was out of town when the suit was filed and told her that it was permissible to file a Wrongful Death action herself, as representative of her father’s estate, and he would take over when he returned. In each of these cases, the courts declined to “punish” the litigant for the attorney’s mistake or misconduct. So how should the defense attorney proceed when a pro se plaintiff has brought a suit in a representative capacity? This is a proper time to serve Requests to Admit. Through short, simple requests, the defendant should be able to obtain admissions that the plaintiff is not and never has been an attorney licensed to practice in Illinois as support for a motion to dismiss. On those occasions where a plaintiff’s attorney has withdrawn and left the plaintiff acting pro se, but in a representative capacity, the case may be subject to dismissal for want of prosecution if the plaintiff fails to secure other counsel despite a reasonable opportunity to do so. -------------------------------------------------------------------------------------------------------------------- Return to Previous Page |
|
