Powers of Attorney and the Unauthorized Practice of Law

I received some emails recently from someone who was very unhappy that a court was not allowing him to represent a family member in court, even though he had a power of attorney authorizing him to “pursue claims and litigation” in accordance with 20 Pa.C.S. §§ 5602(a)(20) and 5603(s).

I think that most lawyers would know instinctively that the Probate, Estates and Fiduciaries Code is not going to allow for the circumvention of bar admission rules, and is not going to authorize an agent to appear in court to represent the principal, but it might be useful to know why that is going to be the result.

Section 10(c) of Article V of the Pennsylvania Constitution provides that the Supreme Court shall have the power to prescribe general rules “for admission to the bar and to practice law…” And the Supreme Court has exercised that power by adopting the Pennsylvania Bar Admission Rules, 204 Pa.Code. Ch. 71.

The Probate, Estates and Fiduciaries Code provides in Chapter 56, “Powers of Attorney,” that a principal may empower an agent to “pursue claims and litigation.” 20 Pa.C.S. § 5602(a)(20). That power is defined in 20 Pa.C.S.
§ 5603(s) as:

Power to pursue claims and litigation.–A power to “pursue claims and litigation” shall mean that the agent may:
(1)  Institute, prosecute, defend, abandon, arbitrate, compromise, settle or otherwise dispose of, and appear for the principal in, any legal proceedings before any tribunal regarding any claim relating to the principal or to any property interest of the principal.
(2)  Collect and receipt for any claim or settlement proceeds; waive or release rights of the principal; employ and discharge attorneys and others on such terms (including contingent fee arrangements) as the agent deems appropriate.
(3)  In general, exercise all powers with respect to claims and litigation that the principal could if present.

The words “appear for the principal” in subsection (1) might make it sound like the agent can appear as a lawyer might appear. Also, that the agent may “exercise all powers with respect to claims and litigation that principal could if present” in subsection (3) would, if taken to its most extreme interpretation, mean that the agent could appear for the principal “pro se” and without a lawyer, just like the principal could appear pro se and represent himself or herself without a lawyer. But those interpretations would be contrary to the principle that the Supreme Court regulates who can represent other people in court.

The possible conflict between the Constitution and 20 Pa.C.S. § 5603(s) was addressed by the Superior Court in Kohlman v. Western Pennsylvania Hospital, 438 Pa.Super. 352, 652 A.2d 849 (1994), and the Constitution won, the court noting that “To construe the Probate Code so as to permit a non-attorney to appear and represent a principal in a court of record would be to permit the licensing and admission requirements to be circumvented,” and “the power of attorney cannot be used as a device to license laypersons to act as an attorney-at-law.” 438 Pa.Super. at 359.

My one criticism of the Kohlman decision is that it conflates what are two somewhat different issues: the power of the courts to regulate who practices before them, and the power of the legislature to punish those who hold themselves out as lawyers. The Supreme Court can regulate who practices law within the courts regardless of what laws are enacted by the legislature, but it is doubtful that they can regulate the behavior of people who never attempt to represent anyone in a courtroom.

What is (or is not) the “unauthorized practice of law” outside of a courtroom is an interesting question, particularly as it relates to estate planning and estate administration, and those are issues I hope to address in a future article.

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