You Need A Lawyer

The Vermont Supreme Court – in a question of first impression – has held that a non-attorney guardian cannot initiate a “pro se” appeal

Plaintiff moves to dismiss the above-captioned appeal filed by defendant’s guardian as invalidly filed, arguing that a non-attorney guardian cannot represent a ward “pro se.” We agree that defendant’s guardian cannot represent him in court without an attorney, and therefore order him to obtain counsel within sixty days or face dismissal of the appeal.

The case

Plaintiff Robert Snelgrove filed this civil action for trespass and unlawful mischief against defendant Herman LeBlanc in 2017 after defendant inflicted substantial damage to plaintiff’s boathouse. In 2019, in a separate proceeding, the probate court granted defendant’s request to have his son David LeBlanc (referred to herein as “LeBlanc”) appointed to be defendant’s voluntary guardian with general and litigation powers. Plaintiff died in 2021 and his estate was eventually opened and substituted as the party plaintiff in the case. In August 2023, the trial court granted the estate’s unopposed motion for summary judgment. LeBlanc, who is not an attorney, then filed a pro se notice of appeal on behalf of defendant.

Held

We conclude that a non-attorney guardian may not represent a ward in court proceedings without an attorney because it would violate the prohibition against the unauthorized practice of law and possibly lead to abuse.

No comfort in the court’s “jailhouse lawyer” exception

In Morales, this Court dismissed a contempt action filed against an inmate in a Vermont prison who was alleged to have engaged in the unauthorized practice of law by helping fellow inmates with their cases through legal research and drafting motions. 2016 VT 85, ¶ 30. The inmate’s actions were limited to drafting and research assistance and she did not attempt to represent other inmates in court. We concluded that “jailhouse lawyers” were a longstanding fixture in the State’s justice system and that incarcerated individuals faced particular challenges accessing legal advice, and that for these reasons, there was not probable cause to charge the defendant with criminal contempt for unauthorized practice of law. Id. ¶¶ 19-25. We explicitly stated that we were not deciding “whether an individual who is not incarcerated may be charged with the unauthorized practice of law for providing similar unpaid legal assistance. Our holding today applies only to legal services provided between inmates in a correctional facility.” Id. ¶ 27 (emphasis omitted). Morales is explicitly limited to the unique circumstances faced by incarcerated individuals, and we do not find it to be applicable here. Here, LeBlanc is seeking to represent his father in court, not just provide assistance; neither LeBlanc nor defendant are incarcerated; and the record shows that defendant is not indigent and has been able to secure counsel in the past.

(Mike Frisch)