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Non-Lawyer Parent May Not Proceed Pro Se for Child, but Sole Beneficiary May Proceed Pro Se for Estate that Has No Creditors

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From McCurdy v. Cambridge School Dist. No. 432, 2010 U.S. Dist. LEXIS 119464 (D. Idaho Nov. 8, 2010):

2. Motion to Dismiss for Unauthorized Practice of Law

Defendant argues that Mr. McCurdy is engaged in the unauthorized practice of law by bringing claims on behalf of Mrs. McCurdy's Estate in a pro se capacity. This is a matter of first impression for this Court as applied to Mr. McCurdy's claims.

A litigant in federal court has a statutory right to self-representation. See 28 U.S.C. § 1654. However, "while a non-attorney may appear pro se on his own behalf, he has no authority to appear as an attorney for others than himself." Johns v. County of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (citing C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987).

While pro se representation in this particular context has not been addressed by this Court or the Ninth Circuit, the Ninth Circuit has addressed the somewhat similar issue of whether a pro se parent can bring a lawsuit on behalf of their child and held that a parent cannot bring their child's claims without retaining a lawyer. See Johns, 114 F.3d at 876-77. The Ninth Circuit reasoned that the right to proceed pro se respected the notion of individual choice, which could not be a true choice for a minor, and that children had an important interest in having their rights protected by trained legal assistance. ***

However, what if the claims belonged to a decedent's estate? Although the question has not been addressed by the Ninth Circuit, other circuit courts have addressed whether an estate can be represented by a pro se administrator or executor. The Second Circuit recently held that an administrator may proceed pro se when the estate has no other beneficiaries or creditors other than the litigant. See Guest v. Hansen, 603 F.3d 15, 20 (2d Cir. 2010). *** The court noted that it was only legal fiction that assigned a sole beneficiary's claims to the estate rather than to the beneficiary himself. ***

[Footnote 2] The Third and Seventh Circuits have left the question open as to whether pro se representation of an estate is appropriate. The Fourth, Sixth, and Eighth Circuits have implied that pro se representation is only appropriate when an estate has no other beneficiaries or creditors, but have not held that point expressly. See Guest, 603 F.3d at 20 n.4.

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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