It is a scene certain to show up at least once a season in any TV crime series: the accused, unhappy with his or her attorney, stands up and demands the right to appear “in pro per” – to act on their own behalf. While it may make for great on-screen drama, in real life, litigants who represent themselves usually don’t fare much better than do-it-yourself surgeons.
But what about in the arcane, complex field of probate law? Can a representative of an estate (executor or administrator) appear in pro per?
That was the issue presented to the California Court of Appeal in the recent case of Peralta v Sanchez.
Frank Sanchez died in April of 2016. His eldest daughter, Leslie Ann Peralta, filed a petition with the Santa Clara County Court to be appointed his executor and probate his will.
In his will, Frank confirmed the interest of his wife, Caroline, in their community and quasi-community property. He bequeathed all of his separate property as well as his one-half interest in the couple’s community and quasi-community property to his three children by a prior marriage: Leslie, Frank Jr., and Julie. He explicitly disinherited Caroline as to that portion of his estate.
A dispute arose regarding a home Frank and Caroline had purchased in San Jose. Leslie claimed that Caroline had improperly withdrawn funds from a reverse mortgage on the home and she sought an Order forcing the sale of the home “for the common benefit of the estate beneficiaries.”
Leslie also sued Caroline, alleging, inter alia, breach of fiduciary duty, fraudulent concealment, elder abuse, and financial elder abuse.
Caroline asked the court to reject the lawsuit on various legal grounds, including that Leslie, as the personal representative of Frank’s estate, “could not appear in propria persona in that representative capacity.” A bank also involved in the litigation made the same arguments.
Leslie testified that she had attended law school, and on some documents she identified herself with a “State Bar Associate” number but admitted that she was never licensed to practice law.
Leslie acknowledged that the case law cited by Caroline and the bank precludes a person appearing in pro per from representing other litigants in most litigation, however, she argued that this exclusion applies only in matters outside of the probate context. Because she filed her complaint in probate court, she contended, she was allowed to proceed without an attorney.
On May 31, 2017, the court rejected her argument. As the court stated, because Leslie's “pleading primarily consists of civil claims typically raised in a civil action, [she], a non-attorney, cannot properly prosecute those claims in propria persona in any venue,” it said.
The court gave Leslie 20 days to hire an attorney and amend her complaint.
Instead, on June 12, 2017, Leslie filed a notice of appeal, but failed to identify the order she was appealing. She corrected that in a filing on July 19, 2017.
Caroline and the bank filed motions to dismiss Leslie’s appeal. In her capacity as executor and personal representative of the estate, they noted, she was representing not just herself – which is what “in pro per” means – but beneficiaries and others. By law, they said, these parties must be represented by licensed attorneys.
Leslie opposed their motions, contending that the appellate court lacked jurisdiction to hear them, and that the motions violated her constitutional rights.
The appellate court noted that “the parties do not dispute that outside of the probate context a personal representative must have counsel to prosecute or defend claims on behalf of an estate.
They disagree about whether those holdings preclude an executor and personal representative from proceeding in pro per within a probate case on claims that could have been raised in a separate civil action.”
After considering provisions of the Probate Code and relevant case law, the justices concluded that Leslie’s complaint made claims against third parties for the benefit of the estate’s beneficiaries.
Because she was acting not just on her own behalf but for the benefit of others, they said, Leslie could not prosecute her claim in propria persona. By extension, they concluded, Leslie could not prosecute her appeal without counsel.
California law, they noted, says “no person shall practice law in California unless the person is an active licensee of the State Bar.” A person who is not a licensed attorney cannot appear in court representing another person.
Leslie filed the appeal as the representative of Frank’s estate. She had authority to file the notice of appeal without an attorney. But her additional steps of filing briefs and other pleadings as a representative of the estate constituted the unlicensed practice of law, the justices concluded, so those pleadings must be stricken.
The justices dismissed Leslie’s appeal.
By Lynda I. Chung