Tuesday, October 30, 2012

Fink v. Shemtof (Cal. Ct. App. - Oct. 24, 2012)

I'm glad that Justice Fybel decided to publish this opinion.  I think it meets the definitely meets the standards for publication.

Despite the fact that I'm tentatively of the view that the Court of Appeal got it wrong.

I'm not sure that the statutes relevant to the issue are particularly controlling.  Instead, I think we're dealing with a classic common law issue:

Is it okay for an individual who is not an attorney (1) to buy a claim from someone, and (2) then litigate that claim in pro per?

Clearly step (1) is okay.  My students are often surprised when I tell them that most rights under a lawsuit can be bought and sold.  But it's true.  We commonly sell intangible rights -- contractual and otherwise -- so that we permit individuals to do the same as regards rights against a third party seems fine.

But step (2) is troubling, at least when combined with (1).  What you essentially have there -- and what, in truth, you have here -- is someone who's a nonattorney acting as an attorney.  X has a right, but doesn't want to (or can't afford to) enforce it in court.  Similarly, X doesn't want to (or can't afford to) hire an attorney, on contingency or otherwise, to enforce those rights.  So along comes Y.  Y's not an attorney, so can't enforce X's rights on X's own behalf.  So X and Y (in truth, Y, who's motivating all of this) come up with a practical expedient.  X sells his rights to Y, who then enforces them in pro per.  Bingo.  Problem solved.  Y gets to in essence act as X's attorney, but since Y's now acting on his "own" behalf, it's okay.  At least according to the Court of Appeal.

Again, I'm not sure that Justice Fybel reads the statutes the wrong way, but I think there's an easy solution to this problem, and one that the Court of Appeal decides not to follow.  Courts have an inherent power -- one that's embodied in the separation of powers -- to control litigants before them, including but not limited to the inherent power to control representative and pro per litigation.  I think it's a bad idea to allow litigants to get around the unauthorized practice of law statutes by permitting devices such as those employed here.  So I'd be inclined to hold -- contrary to what Justice Fybel does -- that even though an individual is entitled to buy intangible legal claims, that doesn't necessarily create a right to litigate those claims in pro per.  Get a lawyer and we'll allow you to litigate them.  Otherwise, even though the assignment is valid (and I'd so hold, for the same reasons that Justice Fybel does), that doesn't mean that you're inherently authorized to litigate by yourself.  The two are related issues, but subject to differential control.  We have inherent power to regulate participation before the judiciary.  And I'd utilize that power to deny the validity of pro per litigation over claims obtained in such a fashion.  Precisely for the reasons identified by the trial court.  Because we don't want nonattorneys -- e.g., disbarred attorneys, suspended attorneys, people who failed out of law school or who couldn't pass the bar -- getting around their disability through precisely the machinations demonstrated here.

Which is exactly what the Court of Appeal allows.  And that, after this opinion, should only be expected to increase exponentially.

So I'm glad Justice Fybel publishes the opinion.  The opinion indeed makes relevant -- and important -- law.

But if I were on the California Supreme Court, I'd grant review.  And reverse.