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Christiansen v. Melinda and Alaska Court System (8/13/93), 857 P 2d 345
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Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
RAY CHRISTIANSEN, )
) Supreme Court No. S-5007
Appellant, )
) Superior Court No.
v. ) 3AN-91-9135 CIVIL
)
LESTER MELINDA, and ) O P I N I O N
ALASKA STATE COURT SYSTEM, )
)
Appellees. ) [No. 3994 - August 13, 1993]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
J. Justin Ripley, Judge.
Appearances: Ray Christiansen, pro se,
Anchorage. Gail T. Voigtlander, Assistant
Attorney General, Anchorage, Charles E. Cole,
Attorney General, Juneau, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews, and Compton,
Justices.
MATTHEWS, Justice.
In this case we must decide whether an agent authorized
to act on his principal's behalf under a power of attorney may
file and prosecute a civil action pro se in his principal's
stead. We hold that he may not.
I
James C. Sanders executed a statutory form power of
attorney that appointed Ray Christiansen attorney-in-fact
authorized to act on Sanders' behalf in all matters relating to
an apartment complex owned by Sanders.1 On March 26, 1991,
pursuant to his authority as attorney-in-fact, Christiansen
attempted to file a small claims action on behalf of Sanders.
Lester Melinda, Deputy Clerk of the Court, refused Christiansen's
filing on the ground that a power of attorney does not authorize
an agent to bring suit pro se on behalf of the principal. Albert
Szal, the Area Court Administrator, later informed Christiansen
that the court system will not accept small claims suits filed on
the authority of a power of attorney.
On October 25, 1991, Christiansen filed suit against
Melinda and the Alaska Court System under AS 13.26.353(c) to
recover damages for their wrongful failure "to honor a properly
executed statutory form power of attorney." Melinda and the
court system moved to dismiss Christiansen's action for failure
to state a claim upon which relief can be granted. See Alaska R.
Civ. P. 12(b)(6). The superior court granted the motion and
dismissed Christiansen's complaint with prejudice. Christiansen
appeals.
II
Christiansen brought suit against Melinda and the court
system under AS 13.26.353(c):
A third party shall honor the terms
of a properly executed statutory form power
of attorney. A third party who fails to
honor a properly executed statutory form
power of attorney may be liable in a civil
action to the principal, the attorney-in-
fact, or the principal's heirs, assigns, or
estate for a civil penalty not to exceed
$1,000, plus the actual damages, costs, and
fees associated with the failure to comply
with the statutory form power of attorney.
The civil action shall be the exclusive
remedy at law for damages.
For Christiansen to have stated a claim under AS 13.26.353(c),
the power of attorney must have entitled him to litigate pro se
in Sanders' place. If not, Melinda was justified in refusing to
file Christiansen's small claims action and, consequently,
Christiansen did not state a claim upon which relief can be
granted under AS 13.26.353(c).2
This case, then, reduces to a single issue of law:
whether an agent authorized to act for a principal under a
statutory form power of attorney may bring suit as a pro se
litigant in the principal's stead. We address this issue in two
parts. First, is the unlicensed, in-court representation of
another considered "engag[ing] in the practice of law"and, thus,
prohibited by Alaska's statute proscribing the unlicensed
"practice of law"? Second, if so, does the statutory power of
attorney overcome that prohibition?
A
Alaska Statute 08.08.210(a) provides: "A person may not
engage in the practice of law in the state unless the person is
licensed to practice law in Alaska and is an active member of the
Alaska Bar." (Emphasis added.) Subsection (b) states that the
"practice of law shall be defined in the Alaska Bar Rules." The
Bar Rules, however, only define "practice of law"for purposes of
the criminal offense of unlicensed practice. Alaska Bar R. 63.3
Thus, the definition of "practice of law" for non-criminal
purposes is currently left to case law.4
We have twice addressed the definition of "practice of
law" in deciding whether a suspended attorney had impermissibly
practiced law while on suspension. Burrell v. Disciplinary Bd.
of the Alaska Bar Ass'n, 777 P.2d 1140, 1142-43 (Alaska 1989); In
re Robson, 575 P.2d 771, 779-81 (Alaska 1978). In each case we
refused "to give a specific definition of the term 'practice of
law'" because "[t]he practice of law may well be used in a
different sense for various purposes." Robson, 575 P.2d at 781.5
Whatever the precise nuances of that definition may be for
different "purposes,"in-court representation of another -- a
paradigmatic function of the attorney-at-law -- falls within that
definition. See State, ex rel. Stephan v. Williams, 793 P.2d
234, 242 (Kan. 1990); Oregon Peaceworks Green v. Secretary of
State, 810 P.2d 836, 837 (Or. 1991); Washington State Bar Ass'n
v. Great Western Union Fed. Sav. & Loan Ass'n, 586 P.2d 870, 875
(Wash. 1978); see also 7 Am. Jur. 2d Attorneys at Law 1 (1980)
("practice of law . . . embraces the preparation of pleadings and
other papers incident to actions and special proceedings, the
management of such actions and proceedings on behalf of clients
before judges and courts"); see also Alaska R. Civ. P. 81(a)(1)
("only attorneys who are members of the Alaska Bar Association
shall be entitled to practice in the courts of this state").
B
Since we hold that unlicensed, in-court representation
of another falls within the prohibition of AS 08.08.210(a), we
turn to the question whether a statutory power of attorney
removes the agent from the operation of the statute.
Christiansen argues as follows: (1) the durable power of attorney
authorizes the agent to act for his principal as if the agent was
the principal; (2) the principal could represent himself pro se;
and therefore (3) the agent can litigate pro se for the
principal.
Christiansen's argument draws support from AS
13.26.344, which gives detailed meaning to the powers granted in
the statutory form. Relevant to the "claims and litigation"
power, subsection (i) provides:
In a statutory form power of
attorney, the language conferring general
authority with respect to claims and
litigation shall be construed to mean that
. . . the principal authorizes the agent to
(1) assert and prosecute before any
court . . . a cause of action, claim,
counterclaim, offset, or defense that the
principal has . . .;
(2) bring an action to determine
adverse claims, intervene or interplead in an
action or proceeding, and act in litigation
as amicus curiae;
(3) in connection with any legal
action, apply for and, if possible, procure
preliminary, provisional, or intermediate
relief, and resort to and use any available
procedure to obtain and satisfy a judgment,
order, or decree;
(4) in connection with any legal
action, perform an act that the principal
might perform, including by way of
illustration and not of restriction,
acceptance of tender, offer of judgment,
admission of facts, submission of a
controversy on an agreed statement of facts,
consent to examination before trial, and
generally bind the principal in the conduct
of any litigation or controversy that the
agent considers desirable;
(5) submit to arbitration, settle,
and propose or accept a compromise with
respect to a claim . . . or litigation . . .;
(6) waive the issuance and service
of process upon the principal, accept service
of process, appear for the principal,
designate persons upon whom process directed
to the principal may be served, execute and
file or deliver stipulations on the
principal's behalf, verify pleadings, [and
proceed on appeal];
(7) appear for, represent, and act
for the principal with respect to bankruptcy
or insolvency proceedings whether of the
principal or of some other person . . .;
(8) hire, discharge, and compensate
an attorney, accountant, expert witness, or
assistant when the agent reasonably believes
the action to be desirable for the proper
execution of any of the powers described in
this subsection;
(9) [pay and receive judgments or
settlements achieved as a result of
exercising a power under this subsection];
and
(10) do any other act or acts that
the principal can do through an agent in
connection with a claim by or against the
principal or with litigation to which the
principal is or may become or be designated a
party.
AS 13.26.344(i). Several of these powers -- especially those in
subsections (1) and (4) -- can be construed to confer on the
agent the authority to litigate pro se in the principal's place.
It is on these provisions that Christiansen must rely to support
his claim against Melinda and the court system.
The state points out the flaw in Christiansen's
argument. Subsection (i)(10) authorizes the agent to "do any
other act or acts that the principal can do through an agent in
connection with a claim by or against the principal or with
litigation to which the principal is or may become or be
designated a party." AS 13.26.344(i)(10) (emphasis added). Use
of the word "other" suggests that the acts enumerated in
subsections (1) through (9) are similarly limited by the phrase
"that the principal can do through an agent." For this reason,
we read the entirety of AS 13.26.344(i) as authorizing only those
actions, enumerated or otherwise, that "the principal can do
through an agent."
Under our reading of AS 13.26.344(i), that provision
defines the agent's authority against the backdrop of existing
law. The relevant background law in this case is AS
08.08.210(a). Under that provision, a principal can engage "an
agent" to practice law on his behalf only if that agent is a
licensed attorney and a member of the state bar. Thus, the
practice of law is not something "that the principal can do
through an agent"unless that agent is an attorney-at-law. A New
York court reached the same conclusion in interpreting virtually
identical language in the New York power of attorney statute. In
Estate of Friedman, 482 N.Y.S.2d 686 (Sur. Ct. 1984), the court
concluded that:
notwithstanding the broad sweep of the[]
powers [granted the agent under the statutory
power of attorney], no authority has been
presented which would permit a lay person by
virtue of his capacity as attorney-in-fact
for his principal to appear on his
principal's behalf and act as legal counsel
in a court of law unless admitted to so
practice. Under the applicable statutes of
this state, only those persons duly admitted
to practice before the courts of this state
may act as a legal representative of another
person in a court proceeding or in the
further capacity of a practicing attorney.
Id. at 687 (citations omitted); see also Gilman v. Kipp, 519
N.Y.S.2d 314 (Civ. 1987); Stokes v. Village of Wurstboro, 474
N.Y.S.2d 660, 661 (Sup. 1984) ("attorney in fact may not
represent the principal as legal counsel in a court of record").
Furthermore, under Christiansen's argument, a mere
power of attorney would enable any person to practice law in
Alaska. This interpretation would effectively abrogate AS
08.08.210(a)'s prohibition against the unlicensed practice of
law.6 As Friedman recognized:
[T]he potential problems created by the
use of [the power of attorney] as a means of
encouraging the unauthorized practice of law
are obvious. Of course, if [the] principal
wishes to proceed pro se, she may do so.
However, she cannot use a power of attorney
as a device to license a layman to act as her
attorney in a court of record. To sanction
this course would effectively circumvent the
stringent licensing requirements of attorneys
by conferring upon lay persons the same right
to represent others by the use of powers of
attorney.
Friedman, 482 N.Y.S.2d at 687 (citations omitted).
In rejecting Christiansen's interpretation of section
.344(i), we necessarily limit the scope of the powers enumerated
in that section. Restricted by the prohibition on the unlicensed
practice of law, the section .344(i) powers are best
characterized as authorizing the agent to act as the client in an
attorney-client relationship. Section .344(i) authorizes the
agent to make decisions and undertake acts that are the
traditional province of a client. For example, the decisions
whether to prosecute, defend, settle, or arbitrate a claim belong
to the client, not the attorney. Similarly, the decision whether
to waive service of process or admit disputed facts lie within
the control of the client. The agent, then, while lacking
authority to litigate pro se in his principal's place, creates
and controls the attorney-client relationship as fully as if he
were the principal.7
Reading AS 13.26.344(i) to incorporate background law
achieves the additional benefit of harmonizing the various
statutes involved. Cf. In re Estate of Hutchinson, 577 P.2d
1074, 1075 (Alaska 1978). Specifically, we avoid a conflict
between the enumerated powers in section .344(i) and the
prohibition on the unlicensed practice of law in AS 08.08.210(a).
While this goal should not be pursued in the face of plain
statutory meaning to the contrary, it is an appropriate
consideration in cases, such as this, where reasonable competing
interpretations exist.
III
A statutory power of attorney does not entitle an agent
to appear pro se in his principal's place. For this reason,
Melinda and the court system were justified in their refusal to
file Christiansen's small claims action and, thus, did not
violate AS 13.26.353(c). We AFFIRM the superior court's
dismissal for failure to state a claim.
_______________________________
1 The statutory form is set forth in AS 13.26.332. The
power of attorney signed by Sanders in favor of Christiansen is
not in the record. We assume that it granted Christiansen
"claims and litigation"powers as set forth in provision (I) in
the statutory form.
2 This court reviews de novo an order dismissing a complaint
for failure to state a claim. Kollodge v. State, 757 P.2d 1024,
1026 n.4 (Alaska 1988). In doing so we
only consider the material contained in
the pleadings in a motion to dismiss for
failure to state a claim. "If, within the
framework of the complaint, evidence may be
introduced which will sustain a grant of
relief to the plaintiff, the complaint is
sufficient." [We] "must presume all factual
allegations of the complaint to be true and
[make] all reasonable inferences . . . in
favor of the non-moving party."
Id. at 1026 (quoting Linck v. Barokas & Martin, 667 P.2d 171, 173
(Alaska 1983) and 2A J. Moore & J. Lucas, Moore's Federal
Practice 12.07, at 12-63 (1986)) (citations omitted)
(alterations in original).
3 AS 08.08.230(a) makes the unlicensed practice of law a
misdemeanor.
4 Although the definition in Bar Rule 63 literally applies
only to the criminal offense of the unlicensed practice of law,
that rule also necessarily defines the conduct that, at a
minimum, constitutes the unlicensed practice of law for non-
criminal purposes. In other words, the "unlicensed practice of
law" in the civil context at least encompasses the conduct
proscribed in Bar Rule 63. This is necessarily so because the
civil law may not permit conduct which the criminal law
prohibits.
5 For example, Robson states that "practice of law"should
be defined more broadly for a suspended attorney "because of
prior recognition as an attorney, such a person must be
particularly prudent in avoiding the appearance of holding
himself out as a lawyer." Robson, 575 P.2d at 781.
6 Christiansen's argument would also effectively abrogate
Alaska Civil Rule 81(a) which limits "practice"in Alaska courts
to licensed attorneys.
7 The agent, of course, may personally engage in all
activities authorized under section .344(i) that do not
constitute the unauthorized practice of law.
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