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Hill v. McKenzie

United States District Court, N.D. Texas, Abilene Division

March 2, 2017

JIM MCKENZIE, et al., Defendants



         On February 13, 2017, and through a purported Power of Attorney, James W. Myart, Jr., signed and filed this action for pro se Plaintiff Christopher Lynn Hill against various officials of Sweetwater, Texas. See Compl. at 1, 11. Attached as an exhibit to the Complaint is the agreement purporting to appoint Mr. Myart as "Attorney-in-fact" for Mr. Hill and to grant Mr. Myart power of attorney to take various actions on Plaintiff s behalf, including litigation matters. See Ex. 1 ¶¶ 2, 6f. That agreement purports to provide for compensation to Mr. Myart as a "consultant, " permit co-owning and mingling of assets, and permit Mr. Myart to personally gain from management of Mr. Hill's affairs. See Id. ¶¶ 7-9. Through the Power of Attorney, Mr. Myart also signed an Application to Proceed in District Court Without Prepaying Fees or Costs (doc. 3) (hereinafter "IFP Motion") on behalf of Plaintiff.

         For purposes of this order, the Court will assume without deciding that Plaintiff has entered into a valid agreement granting Mr. Myart power of attorney. Even with that assumption, however, Mr. Myart is not authorized to represent Plaintiff or any other pro se party in federal court. By statute, a federal litigant "may plead and conduct their own cases personally or by counsel." See 28 U.S.C. § 1654. Based on all information before the Court, Mr. Myart is no longer an attorney authorized to practice law in Texas or elsewhere. "Mr. Myart was a practicing attorney for many years before surrendering his bar card in lieu of disbarment in 2008." Myartv. Taylor, -No. 5:16-CV- 736-DAE, 2016 WL 5376227, at *1 n.l (W.D. Tex. Sept. 26, 2016); accord Myart v. Glosson, No. 5:16-CV-865-XR, 2016 WL 5389248, at *1 n.l (W.D. Tex. Sept. 26, 2016) ("Myart used to be a licensed attorney, but has since resigned in lieu of disciplinary action.").

         Indeed, on June 17, 2008, the Supreme Court of Texas accepted Mr. Myart's resignation as attorney and counselor at law as "in the best interest of the public and the profession." See In re Myart, Misc. Docket No. 08-9072, at 1 (Tex. June 17, 2008). In addition to cancelling Mr. Myart's law licence and deleting him

"from the list of persons licensed to practice law in Texas, " the Texas Supreme Court permanently enjoined him from practicing law in the State of Texas, holding himself out as an attorney at law, performing legal services for others, giving legal advice to others, accepting any fee directly or indirectly for legal services, appearing as counsel or in any representative capacity in any proceeding in any Texas court or before any Texas administrative body (whether state, county, municipal, or other), or holding himself out to others or using his name in any manner in conjunction with the words "Attorney at Law, " "Counselor at Law, " "Lawyer, " or "Attorney."

Id. at 1-2.

         As an unlicensed, former attorney, Mr. Myart may not represent Plaintiff in this action. Section 1654 does not permit a non-attorney to represent a litigant in federal court and even a valid power of attorney does not permit it. Williams v. United States, 477App'x 9, 11 (3d Cir. 2012) (per curiam). While a power of attorney "may confer certain decision-making authority under state law, " it does not change the requirements of § 1654. See id.; accord Speed v. Bank of N. Y., No. 3:14-CV-3425-L-BN, 2014 WL 6473420, at *2 (N.D. Tex. Nov. 18, 2014) (recommendation of Mag. J.), case dismissed without addressing recommendation, 2014 WL 6487291 (N.D. Tex. Nov. 19, 2014) (declining to address recommendation while recognizing its correctness). "[T]he holder of a power of attorney is not authorized to appear pro se on behalf of the grantor." Estate of Keatinge v. Biddle, 316 F.3d 7, 14 (1st Cir. 2002) (recognizing such principle under the laws of Maine). To proceed "pro se means to appear for one's self, " therefore, "a person may not appear on another person's behalf in the other's cause." Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) (cited with approval in Martin v. City of Alexandria, 198 F.App'x 344, 346 (5th Cir. 2006) (per curiam)). "A power of attorney relationship between a pro se plaintiff and the individual appearing on [his or] her behalf does not alter this principle." Leyfert v. Commw. of Pa. House of Reps., -Ho. Civ. A. 05-4700, 2005 WL 3433995, at *3 (E.D. Pa. 2005). Similarly, an "attorney-in-fact" may not litigate a pro se action on behalf of another. Powerserve Int'l, Inc. v. Lavi, 239 F.3d 508, 514 (2d Cir. 2001).

         Although some circumstances may warrant filing on another's behalf as a "next friend, " "individuals not licensed to practice law by the state may not use the 'next friend' device as an artifice for the unauthorized practice of law." Weber v. Garza, 570 F.2d 511, 514 (5th Cir. 1978). Nothing before the Court indicates that use of the "next friend" device is proper in this case. When a non-attorney is not qualified to act as a "next friend, " the non-attorney "may not participate in the unauthorized practice of law by preparing legal papers, filing petitions and briefs, and generally acting as an attorney in violation of state and federal provisions governing the unauthorized practice of law." Id. Even a valid power of attorney executed by the pro se Plaintiff does not invest the non-attorney with such authority. Id.

         As a non-attorney, Mr. Myart "lacks standing to file this action on behalf of Plaintiff. See Leyfert, 2005 WL 3433995, at *3. Accordingly, this Court lacks jurisdiction over this case and it is subject to dismissal. See Id. However, from the information before the Court, it appears that Mr. Hill has simply placed his trust in Mr Myart. Nothing indicates that Mr. Hill recognizes Mr. Myart's inability to act as anyone's legal attorney or that the granted Power of Attorney - even assuming its legal validity - does not grant Mr. Myart the ability to proceed with this case on behalf of a pro se litigant. The Court thus finds that an outright dismissal at this stage of the litigation is not warranted without providing Mr. Hill an opportunity to cure the deficiencies of his complaint and the submitted IFP Motion.

         In light of the facts and circumstances of this case, the Court considers whether Plaintiff or Mr. Myart have engaged in sanctionable conduct. The federal courts possess the inherent power "to protect the efficient and orderly administration of justice and... to command respect for the court's orders, judgments, procedures, and authority." In re Stone, 986 F.2d 898, 902 (5th Cir.1993). Within this inherent power is "the power to levy sanctions in response to abusive litigation practices." Id. The Supreme Court, furthermore, has recognized "that a federal court has the power to control admission to its bar and to discipline attorneys who appear before it." Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991). This power naturally extends to sanctioning parties who proceed without counsel as well as a former attorney who purports to act pursuant to a power of attorney.

         At this point, the Court finds no potentially sanctionable conduct by the pro se litigant in this matter, Christopher Hill, but is greatly disturbed by the actions of Mr. Myart. It is not unreasonable to expect a former attorney to know and understand the law regarding filing a civil action and practicing law before this Court. Mr. Myart's actions are particularly troubling given the injunction imposed against him by the Supreme Court of Texas. Among other things, that injunction specifically forbids Mr. Myart from practicing law in Texas, providing legal services for others, giving legal advice to others, accepting any fee for legal services, or appearing in a representative capacity in any proceeding in any Texas court. At least arguably, his actions in this case violate that injunction and he cannot sidestep the injunction by claiming he acts only as a consultant. [1]

         In Texas, an individual can be criminally prosecuted for the unauthorized practice of law.

         See Tex. Penal Code Ann. § 38.123. Texas law, furthermore, defines "practice of law" as

the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the ...

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