Mouktabis v. Amarou ( 2021 )

130
On appellant’s motion to reconsider filed May 5, respondent’s response filed
May 17, and appellant’s reply filed May 18; reconsideration allowed, order of
Appellate Commissioner adhered to September 1, 2021
Fatima Mouktabis, a minor
by and through her guardian ad litem,
Nour Eddine MOUKTABIS,
Plaintiff-Appellant,
v.
Malika AMAROU,
Defendant-Respondent.
Clackamas County Circuit Court
19CV13006; A174698
499 P3d 881
Plaintiff, a minor child over the age of 14, brought this action, seeking dam-
ages for an alleged assault. Shortly after plaintiff’s attorney withdrew from the
case, plaintiff’s father, Mouktabis, who is not a member of the Oregon State Bar,
sought to be appointed as plaintiff’s guardian ad litem. The trial court appointed
Mouktabis as plaintiff’s guardian ad litem with the instruction that Mouktabis
obtain legal counsel for plaintiff. After Mouktabis failed to obtain legal coun-
sel for plaintiff, the trial court granted defendant’s motion for summary judg-
ment and dismissed plaintiff’s claims. Mouktabis then filed a notice of appeal
on behalf of plaintiff. Defendant moved to dismiss the appeal on the ground that
Mouktabis is neither an attorney nor “party in person,” as required by ORS 9.320
in order to prosecute “[a]ny action, suit, or proceeding,” and, therefore, Mouktabis
lacked authority to file the notice of appeal. The Appellate Commissioner agreed
with defendant but, rather than dismiss the appeal, the commissioner denied
defendant’s motion, allowed Mouktabis 30 days to retain legal representation for
plaintiff, and ordered that if no attorney appeared to represent plaintiff within
30 days, the appeal would be dismissed for lack of prosecution. Mouktabis seeks
reconsideration of that order and argues that, as plaintiff’s guardian ad litem,
he is “authorized to prosecute the case” and “has standing to appear pro se in
the case.” Held: The commissioner properly ordered Mouktabis to obtain legal
counsel to represent plaintiff on appeal. A guardian ad litem who is not a mem-
ber of the Oregon State Bar is not authorized to appear as a pro se guardian ad
litem. Such a person is not permitted to engage in the practice of law on behalf of
a party, which includes making legal arguments, and filing pleadings and other
legal documents, such as notices of appeal.
Reconsideration allowed; order of Appellate Commissioner adhered to.
Henry C. Breithaupt, Judge.
Nour Eddine Mouktabis pro se for motion and reply.
Daniel L. Duyck for response.
Cite as 314 Or App 130 (2021) 131
Before Tookey, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.
TOOKEY, P. J.
Reconsideration allowed; order of Appellate Commissioner
adhered to.
132 Mouktabis v. Amarou
TOOKEY, P. J.
This appeal arises from a minor plaintiff’s tort
claims against her stepmother. Plaintiff’s father, Nour
Mouktabis (Mouktabis), represents plaintiff as her guard-
ian ad litem. Shortly after the notice of appeal was filed by
Mouktabis, defendant filed a motion to dismiss the appeal on
the ground that, as guardian ad litem, Mouktabis is neither
a party, nor an attorney, and is therefore prohibited from
filing a notice of appeal on behalf of plaintiff and from other-
wise legally representing plaintiff on appeal.1 The Appellate
Commissioner agreed with defendant’s argument; however,
the commissioner did not dismiss the appeal but, instead,
allowed Mouktabis 30 days to retain legal representation for
plaintiff and ordered that, if an attorney did not appear on
behalf of plaintiff within 30 days, the appeal would be dis-
missed for lack of prosecution.
Mouktabis seeks reconsideration of that order,
asserting that, as plaintiff’s guardian ad litem, he is “autho-
rized to prosecute the case,” and “has standing to appear
pro se in the case.” On reconsideration, we conclude that a
guardian ad litem who is not an attorney is not authorized,
by way of his or her guardian ad litem status, to engage
in conduct on behalf of the party that would constitute the
practice of law. Accordingly, we adhere to the Appellate
Commissioner’s prior order.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff is a minor child over the age of 14. In
March 2019, through an attorney, plaintiff brought an
action against defendant seeking damages for an alleged
assault. Plaintiff petitioned the trial court to appoint her
mother, Clemens, as her guardian ad litem, and the trial
court granted that motion. In January 2020, plaintiff’s
attorney withdrew from the case. The following month,
Clemens moved to be removed as guardian ad litem and for
appointment of Mouktabis in her place. Clemens explained,
1
Defendant’s motion was entitled a motion to “strike the notice of appeal.”
Throughout this opinion, we refer to the motion as a motion to dismiss because,
in seeking to “strike” the notice of appeal, defendant effectively sought dismissal
of the appeal.
Cite as 314 Or App 130 (2021) 133
“[N]ow that I am without counsel, I am unable to act as
[plaintiff’s guardian ad litem] and request that her father
be appointed * * *.
“* * * Mouktabis * * * is more capable of handling the
stress of litigation, retaining a competent attorney, and act-
ing in [plaintiff’s] best interest. I am indigent and unable
to retain new counsel without first securing a refund from
the departing attorney.”
Defendant opposed the appointment of Mouktabis as guard-
ian ad litem, after which point Mouktabis filed his own
motion seeking appointment as plaintiff’s guardian ad
litem; he also submitted a reply to defendant’s opposition, in
which he made a number of legal arguments regarding the
issue of guardian ad litem appointment.
At a hearing held on March 16, 2020, defen-
dant noted that, in her view, “[Mouktabis] now wants to
come in and be the guardian ad litem and effectively * * *
act as attorney.” Defendant urged the court to disallow
Mouktabis from serving as plaintiff’s guardian ad litem
and to, instead, either appoint an independent guardian
ad litem or allow plaintiff to find an independent guardian
ad litem. The court declined to rule on the request at that
time and, instead, scheduled an evidentiary hearing on the
matter.
On April 26, 2020, defendant filed a motion for sum-
mary judgment. Plaintiff, purportedly through Clemens,
filed a response to that motion. In reply, defendant argued
that the response was untimely and, in any event, “should
be stricken because it is not filed by an attorney and rep-
resents the unauthorized practice of law.”
On August 7, 2020, the trial court held an eviden-
tiary hearing on the matter of whether to appoint Mouktabis
as plaintiff’s guardian ad litem. At that hearing, the court
expressed concern about the lack of legal representation
for plaintiff, and Mouktabis testified that he intended to
seek legal representation for plaintiff. The court appointed
Mouktabis as plaintiff’s guardian ad litem and ordered
Mouktabis to “immediately attempt to arrange for legal
counsel to prosecute the claim.”
134 Mouktabis v. Amarou
On August 19, 2020, the court held a hearing on
defendant’s motion for summary judgment. At that hearing,
the trial court confirmed with Mouktabis that no member
of the Oregon State Bar had submitted to the court the
evidence in support of plaintiff’s response to the motion
for summary judgment, and that Mouktabis had not spo-
ken to any attorney in the time since being ordered to do
so on August 7, 2020. Accordingly, the trial court granted
defendant’s motion for summary judgment. The trial court
entered a general judgment dismissing plaintiff’s claims on
September 18, 2020.
Mouktabis filed a notice of appeal on behalf of plain-
tiff on September 30, 2020. Defendant moved to dismiss the
appeal on the ground that Mouktabis is neither an attorney
nor “party in person,” as required by ORS 9.320 in order
to prosecute “[a]ny action, suit, or proceeding.” Therefore,
according to defendant, Mouktabis lacked authority to file
the notice of appeal. Mouktabis opposed the motion to dis-
miss and made a number of legal arguments as to why his
guardian ad litem status authorizes him to “prosecute * * *
an action,” on behalf of plaintiff, “without retaining coun-
sel under Oregon law.” As noted, although the Appellate
Commissioner agreed with defendant that Mouktabis’s sta-
tus as guardian ad litem does not authorize him to repre-
sent plaintiff in a legal capacity, the commissioner denied
defendant’s motion and allowed Mouktabis 30 days to retain
legal representation for plaintiff. The commissioner further
ordered that if an attorney did not appear within 30 days,
plaintiff’s appeal would be dismissed for lack of prosecution.
In the order, the commissioner explained:
“ORS 9.160(1) provides that, ‘[e]xcept as provided in this
section, a person may not practice law in this state, or rep-
resent that the person is qualified to practice law in this
state, unless the person is an active member of the Oregon
State Bar.’ * * * ORS 9.160(2) provides that subsection (1) of
that statute ‘does not affect the right to prosecute or defend
a cause in person as provided in ORS 9.320.’ In turn, ORS
9.320 provides that ‘any action, suit, or proceeding may be
prosecuted or defended by a party in person, or by an attor-
ney * * *.’
Cite as 314 Or App 130 (2021) 135
“Read in conjunction with ORS 9.160(1), ORS 9.320
makes clear that only a party in person or an attorney may
legally represent that party in court.”
On reconsideration of the commissioner’s order, the ques-
tions at issue are whether a guardian ad litem who is not
a member of the Oregon State Bar is authorized to appear
pro se on appeal and whether Mouktabis’s conduct here
constituted engaging in the practice of law on behalf of the
party to the action.
II. ANALYSIS
As the Oregon Supreme Court has explained, the
two statutory provisions “that govern the representation of
others before the state courts of Oregon” are ORS 9.160 and
ORS 9.320. Oregon Peaceworks Green, PAC v. Sec. of State,
311 Or 267, 270, 810 P2d 836 (1991). ORS 9.160 provides,
“Except for the right reserved to litigants by ORS 9.320 to
prosecute or defend a cause in person, no person shall prac-
tice law or represent that person as qualified to practice law
unless that person is an active member of the Oregon State
Bar.” ORS 9.320, in turn, provides that “[a]ny action, suit,
or proceeding may be prosecuted or defended by a party in
person, or by attorney * * *.”
“Read together, ORS 9.160 and 9.320 state a general
rule regarding legal representation and an exception
to that rule. ORS 9.160 unequivocally prohibits a non-
attorney from practicing law. ORS 9.320 states the key
exception to the ORS 9.160 prohibition: representation of
oneself. Neither statute empowers a nonattorney to repre-
sent another in state court, a fundamental aspect of law
practice.”
Oregon Peaceworks Green, PAC, 311 Or at 270-71 (emphasis
in original). Neither statute explicitly mentions guardians
ad litem. However, the question of whether a nonattorney
guardian ad litem may appear pro se on appeal is a question
of statutory interpretation.
When interpreting a statute, our paramount goal
is to discern the legislature’s intent. State v. Gaines, 346 Or
160, 171, 206 P3d 1042 (2009). We look first to the statute’s
text, in context; “there is no more persuasive evidence of
136 Mouktabis v. Amarou
the intent of the legislature than ‘the words by which the
legislature undertook to give expression to its wishes.’ ” Id.(internal citations omitted). We may also consider any per-
tinent legislative history if it “appears useful to the court’s
analysis”; however, our “consideration of that history, and
the evaluative weight” that we give it, is at our discretion.2
Id. at 172. Finally, if necessary, “the court may resort to gen-
eral maxims of statutory construction to aid in resolving the
remaining uncertainty.” Id.The full text of ORS 9.320 reads,
“Any action, suit, or proceeding may be prosecuted or
defended by a party in person, or by attorney, except that
the state or a party that is not a natural person appears by
attorney in all cases, unless otherwise specifically provided
by law. Where a party appears by attorney, the written pro-
ceedings must be in the name of the attorney, who is the
sole representative of the client of the attorney as between
the client and the adverse party, except as provided in ORS
9.310.”
“Party” is a legal term meaning “[o]ne by or against whom a
lawsuit is brought; anyone who both is directly interested in
a lawsuit and has a right to control the proceedings, make
a defense, or appeal from an adverse judgment.” Black’s
Law Dictionary 1350-51 (11th ed 2019); see Comcast Corp. v.
Dept. of Rev., 356 Or 282, 296, 337 P3d 768 (2014) (“[W]hen a
term is a legal one, we look to its ‘established legal meaning’
as revealed by * * * legal dictionaries.”); see also Oliver L.
Barbour, A Summary of the Law of Parties to Actions at Law
and Suits in Equity 18 (1864) (“Those persons who institute
actions for the recovery of their rights, or the redress of their
wrongs, and those against whom the actions are instituted,
are the parties to the actions.” (Emphasis in original.)).
Under ORS 9.310, an “attorney” is
“a person authorized to represent a party in the written
proceedings in any action, suit or proceeding, in any stage
thereof. An attorney, other than the one who represents
the party in the written proceedings, may also represent
a party in court, or before a judicial officer, in which case
2
We have reviewed the pertinent legislative history and it is not useful to
our analysis.
Cite as 314 Or App 130 (2021) 137
the attorney is known as counsel, and the authority of the
attorney is limited to the matters that transpire in the
court or before such officer at the time.”
“[R]emarkably,” no Oregon statute “defines the
term ‘guardian ad litem.’ ” State ex rel Juv. Dept. v. Cooper,
188 Or App 588, 597, 72 P3d 674 (2003) (footnote omitted).
Nevertheless, it is a legal term meaning a “ ‘guardian, usu.
a lawyer, appointed by the court to appear in a lawsuit
on behalf of an incompetent or minor party.’ ” Id. (quoting
Black’s 713 (7th ed 1999)).
As described in Benson v. Birch, 139 Or 459, 461, 10
P2d 1050 (1932):
“A guardian ad litem is a special guardian appointed
by the court to prosecute or defend in behalf of an infant a
suit to which such infant is a party. His office is to repre-
sent the interests of the infant in the litigation. Although
the infant is capable of suing or being sued, his incapacity
requires that he be protected and to that end the statute
requires that the infant litigant should be properly repre-
sented by some one who may adequately enforce or protect
his rights.”
Thus, the guardian ad litem may be but is not
required to be an attorney, and the guardian ad litem rep-
resents the “interests” of the minor party. However, the
guardian ad litem does not “ ‘step[ ] into the shoes’ of the
represented person for all purposes.” Cooper, 188 Or App at
598 (emphasis in original) (citing Christman v. Scott, 183 Or
113, 117-18, 191 P2d 389 (1948) (“The action was properly
prosecuted in the name of the [mentally incompetent] per-
son. The cause of action was his; and he was not divested of
it when he became incompetent. The cause did not belong
to the guardian ad litem.”)). In other words, the guardian
ad litem does not become a party to the action by virtue of
serving as the guardian ad litem.
Nor does the guardian ad litem become an attor-
ney by way of serving as the guardian ad litem. However,
the statutes and case law, when read together, may have
caused some confusion on the matter of what the guardian
ad litem is authorized or expected to do. For example, ORS
9.320 states that any “action, suit or proceeding may be
138 Mouktabis v. Amarou
prosecuted or defended by a party in person, or by attorney,”
and in Benson, 139 Or at 461, the Supreme Court stated that
a guardian ad litem is appointed “to prosecute or defend in
behalf of an infant a suit to which such infant is a party.”
As professors Homer Clark Jr. and Ann Estin have noted,
“Courts have struggled to clarify the[ ] roles [of guardian
ad litem and legal advocate], and define how children’s rep-
resentatives may participate in different types of proceed-
ings.” Homer H. Clark Jr. & Ann Laquer Estin, Domestic
Relations: Cases and Problems 1078 (6th ed 2000). Indeed,
in his motion for reconsideration, Mouktabis asserts that his
intention was never to “appear as appellant’s attorney,” but
rather to only “represent[ ] himself as a [guardian ad litem]
who is authorized to prosecute the case”; he further asserts
that he “neither counsels nor advises the minor plaintiff on
legal issues as an attorney would.”
We first observe that “appearing as an attorney,”
or, in other words, “the practice of law,” encompasses more
than “counsel[ing]” or “advis[ing]” a party on legal issues. As
noted above, the statutory definition of “attorney” includes
the representation of a party “in the written proceedings in
any action, suit or proceeding, in any stage thereof.” ORS
9.310; see also Black’s 1419 (11th ed 2019) (defining “practice
of law” as “[t]he professional work of a lawyer, encompassing
a broad range of services such as conducting cases in court,
preparing papers necessary to bring about various trans-
actions * * *, preparing legal opinions on various points of
law, drafting wills and other estate-planning documents,
and advising clients on legal questions”). Therefore, when a
person files legal documents on behalf of another—such as
pleadings or notices of appeal—that person engages in the
practice of law.
ORS 9.160(1) explicitly provides that the only per-
sons authorized to practice law in the state of Oregon are
those who are active members of the Oregon State Bar—
in other words, attorneys. ORS 9.160(2) provides that the
rule from ORS 9.160(1) “does not affect the right to prose-
cute or defend a cause in person as provided in ORS 9.320,”
and ORS 9.320 provides that a cause “may be prosecuted
or defended by a party in person.” In other words, as the
Cite as 314 Or App 130 (2021) 139
Oregon Supreme Court noted in Oregon Peaceworks Green,
PAC, there is an exception to the rule that nonattorneys are
prohibited from practicing law, found in ORS 9.320: repre-
sentation of oneself. Accordingly, the text of ORS 9.320, in
context, is clear: only a party or attorney may “prosecute or
defend” in any action, suit, or proceeding, and only an attor-
ney may engage in legal practice on behalf of another in any
action, suit, or proceeding. As explained above, a guardian
ad litem who is not an active member of the Oregon State Bar
is neither a party nor an attorney; thus, when that guard-
ian ad litem files legal documents on behalf of the minor (or
incapacitated) party to the action, suit, or proceeding, that
guardian ad litem is engaging in the unauthorized practice
of law, which is prohibited.
The use of the words “prosecute” and “defend” in
Benson, when describing the role of the guardian ad litem,
does not undermine the clarity provided by the text and
context of the applicable statutes. Context matters not just
in interpreting statutes, but also in understanding our
precedent. As noted above, in Benson, the Supreme Court
explained, “[The guardian ad litem’s] office is to represent
the interests of the infant in the litigation.” 139 Or at 461.
Further elucidation on the guardian ad litem’s represen-
tation of the party’s interests is provided by Corpus Juris
Secundum:
“[T]he guardian ad litem * * * has the duty to determine
the best interest of the ward, and he fully represents the
rights and interests of his ward in the particular case, and
his rights and powers generally extend to all matters in the
particular litigation affecting the interest of his ward, in
every stage of the action.”
57 CJS 173-74, Mental Health, § 271 (1992). In Cooper, we
explained the difference between “the obligations of counsel”
(legal representation) and “of the guardian ad litem” (repre-
sentation of one’s interests) in the context of appointment of
a guardian ad litem for an incapacitated parent:
“ ‘While it is the lawyer’s duty to provide the parent
with legal advice on such decisions as whether to contest
the termination motion and whether to present particular
140 Mouktabis v. Amarou
defenses to the motion, it is the role and responsibility of
the parent to make those decisions. If the parent is men-
tally impaired so as to be incapable of understanding the
nature and significance of the proceeding or incapable of
making those critical decisions that are the parent’s right
to make, then a court would clearly abuse its discretion in
not appointing a guardian ad litem to act for and in the
interest of the parent.’ ”
188 Or App at 598 n 7 (quoting People in Interest of M.M.,
726 P2d 1108, 1120 (Colo. 1986)). The same is true when
a guardian ad litem is appointed to represent a minor
party: Because we consider minor parties to be “incapable
of understanding the nature and significance” of legal pro-
ceedings and “incapable of making those critical decisions”
that are the minor party’s to make, a guardian is appointed
to help the minor party make those decisions. That is the
role of representing the interests of the minor party; that
role does not encompass the practice of law on behalf of the
minor party. Parties may “prosecute” or “defend” actions
on behalf of themselves, but minors may not do so with-
out the aid of guardians; thus, a guardian ad litem may
prosecute or defend an action on behalf of the minor party
in the sense that they may make decisions regarding the
litigation—but they may not convert those decisions to the
practice of law, as an attorney is authorized to do. Because
filing legal documents and making legal arguments on
behalf of a minor party constitutes the practice of law, the
commissioner correctly ordered Mouktabis to obtain legal
counsel to legally represent—i.e., practice law—on behalf of
plaintiff on appeal.
Mouktabis nevertheless argues that he is “autho-
rized to prosecute the case pursuant to ORCP 27 and ORS
20.150,” and asserts that “[t]he commissioner relied solely on
ORS 9.160(1) and ORS 9.320 while ignoring ORCP 27 and
ORS 20.150 which control.” However, neither ORCP 27 nor
ORS 20.150 is helpful in resolving the questions at issue.
ORCP 27, which sets forth procedures for when a
minor is a named party in a civil action, provides,
“When a minor * * * is a party to an action and does not
have a guardian or conservator, the person shall appear by
Cite as 314 Or App 130 (2021) 141
a guardian ad litem appointed by the court in which the
action is brought and pursuant to this rule as follows: * * *
if the minor is 14 years of age or older, upon application of
the minor.”
ORCP 27 B(1)(a); see also ORS 125.005 (defining “minor” as
“any person who has not attained 18 years of age”). The rule
addresses the requisite method for seeking appointment of
a guardian ad litem, ORCP 27 D, notice requirements of
the motion seeking appointment of the guardian ad litem,
ORCP 27 E, and the contents of that notice, ORCP 27 F.
The rule also mandates that upon objection to the motion,
the trial court must hold a hearing on the matter, ORCP
27 G, explains that the court may waive the notice require-
ments, ORCP 27 H, and addresses settlement of actions in
cases in which the party for whom a guardian ad litem was
appointed under section B prevails, ORCP 27 I. At no point,
however, does ORCP 27 address the abilities, permissions,
or authorities of a guardian ad litem appointed pursuant to
the rule. Rather, ORCP 27 simply mandates and provides
for the appointment of a guardian ad litem under various
circumstances.
ORS 20.150 addresses the recovery of costs and dis-
bursements when a party is represented by another. As rel-
evant here, the statute states,
“In an action, suit or proceeding * * * in which a party
appears by * * * guardian ad litem, costs and disburse-
ments shall be recovered or not as in ordinary cases, but if
recovered shall be chargeable only upon or collected from
* * * the party represented or for whom appearance is made,
unless the court or judge thereof shall order such costs and
disbursements to be recovered from the * * * guardian * * *
personally for mismanagement or bad faith in the com-
mencement, prosecution, or defense of the action, suit or
proceeding.”
Thus, ORS 20.150 also does not address the abilities, per-
missions, or authorities of a guardian ad litem who has been
appointed pursuant to ORCP 27; it simply provides for the
manner in which costs and disbursements may be charged
or collected in cases in which a guardian ad litem has been
appointed. Accordingly, we reject Mouktabis’s argument
142 Mouktabis v. Amarou
that, under those statutes, he may proceed on appeal with-
out an attorney to legally represent the minor party.3
In this case, Mouktabis is not a member of the Oregon
State Bar, nor is he a party to the case; his minor daughter is
the party—the person on whose behalf this action was insti-
tuted in order to address the alleged wrongs done unto her.
Mouktabis is not permitted to engage in the practice of law
on behalf of plaintiff in this appeal, which includes making
legal arguments, and filing pleadings and other legal doc-
uments, such as the notice of appeal. Accordingly, we con-
clude that the commissioner properly ordered Mouktabis to
obtain legal counsel to represent plaintiff on appeal, and we
adhere to that order.
Reconsideration allowed; order of Appellate Com-
missioner adhered to.
3
We note that in the trial court proceedings underlying this appeal, in a
supplemental judgment entered on December 10, 2020, costs and disbursements
were awarded to defendant against not only plaintiff, but also against Mouktabis
personally, pursuant to ORS 20.150.
It does not appear that Mouktabis has filed a notice of appeal on his own
behalf, and this opinion does not address the circumstance in which a guardian
ad litem appears pro se for the purpose of challenging the trial court’s award of
costs and disbursements against the guardian ad litem personally.