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May 07, 2009

Letters

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Third Option for Dealing with Unrepresented LLCs

I have several comments regarding the March article “When Nonlawyers ‘Represent’ LLCs,” by Renee M. Mehl.

First, the author gives only two options for a lawyer faced with a nonlawyer LLC litigant, both of which have serious problems that the author points out. Regarding the first option, I submit that it is unethical, and perhaps even unlawful, for an attorney to essentially order a nonlawyer to hire a lawyer and set a deadline for doing so when, as the author admits, the law is not settled in this regard.

The author’s second option, filing a motion for a default judgment after waiting for the filing deadline to pass, has the problem that the party will probably be given more time even if the judge does rule that the party cannot represent itself, which wastes both time and money, as the author also points out.

The author does not discuss a third option, however, which is to advise the LLC that, although this area of the law is not settled, the court may issue a default judgment against the LLC if it is not represented, and then proceed to litigate the case as against any other party, letting the judge determine sua sponte whether the LLC needs to obtain representation.

I submit that the two options given by the author are designed primarily to further the lawyer monopoly and possibly generate more fees, rather than taking the professional approach of the third option, which treats both the client and the LLC fairly. This self-interest is particularly evident from the author’s statement that “… as the economy worsens, companies are more likely to try to represent themselves rather than pay large retainers.” I submit that if an LLC is able to successfully defend itself, it does not need a lawyer and, if it cannot, that is the price it pays for not hiring a good lawyer – which is to the advantage of the opposing lawyer. I submit that a lawyer opposing an LLC should not care whether the LLC has a lawyer or not, as long as a lack of knowledge is not causing a delay or additional work for the lawyer. If it is, then the lawyer actually has good reason to bring a motion in this regard.

Also, the author’s flat statement that “nonlawyers do not know the rules” is grossly overbroad. While this may be true in many cases, some nonlawyers know the rules as well as many attorneys do, and in some cases even better. In any case, nonlawyers are on their own and are given no special treatment by the court. If anything, they are treated with less respect, which is an advantage that a lawyer should be thankful for.

Owen S. Durigan, Brookfield

Wisconsin Lawyer