Burgess v. Vitola, 2008 NCBC 7 (N.C. Super. Ct. March 26, 2006)(Diaz)

Bueche v. Noel, March 25, 2008 (Diaz)(unpublished)

The Business Court decided two cases this week involving what it found to be the unauthorized practice of law.  In the first, Bueche v. Noel, the Court held that a pro se defendant could not file an Answer on behalf of a corporation, because "a corporation must be represented by counsel and cannot appear pro se."  The Court struck the Answer filed by the defendant.

In the second case, Burgess v. Vitola, the issue was whether an out-of-state attorney who had apparently ghost written an Answer for a defendant had engaged in the unauthorized practice of law.

The defendant involved was Dr. Entezam, a California dentist sued by the plaintiff for allegedly trespassing on his computer through an unwanted advertisement.  (Whether those advertisements subjected the defendants to jurisdiction in North Carolina was the subject of an earlier post).  Dr. Entezam filed an Answer under her own pro se signature which had clearly been drafted by a lawyer.   

Burgess, a prolific pro se litigant in the Business Court (search this blog for "Burgess" if you are interested in Mr.Burgess’ cases in the Business Court), moved to strike the Answer on the ground that it was prepared by a person not licensed to practice law in North Carolina.  Burgess pointed out a header on the supposed pro se Answer which referenced the name of a California lawyer.  The Court noted that the Answer was filed on ruled and number paper required by the federal courts in the district where the lawyer resided.  It also noted that the Answer raised legal defenses which "are not normally part of the dental school curriculum."

The Court observed that N.C. Gen. Stat. Sec. 84-2.1, which defines the "practice of law," includes "preparing or aiding in the preparation of any petitions or orders in any probate or court proceeding" and "assisting in any legal work."  It also observed that the unauthorized practice of law is a Class 1 Misdemeanor.

Judge Diaz concluded that the out-of-state attorney had engaged in the unauthorized practice of law.  Judge Diaz declined to sanction the attorney, because he had not appeared in the action, but the Court referred the matter to both the North Carolina and California State Bars.

The Court also declined to strike the Answer, since doing so would "unfairly penalize the [defendant] for the conduct of [her] attorney."  But the Court ruled that the defendant could not file further papers in the case unless she agree to proceed on a true pro se basis or she retained a licensed attorney to represent her. 

On the merits of the case, the Court deferred ruling on the defendant’s motion to dismiss, finding that the Affidavit in support of her motion was not in proper form.  The Court held that North Carolina law requires "strict compliance with the requirement that an affidavit be properly sworn."  Compliance with the federal statute permitting a declaration to be signed "under penalty of perjury" (under 29 U.S.C. §1746) was not sufficient.