Estate of Robert Snelgrove v. Herman LeBlanc , 2023 VT 58 ( 2023 )

ENTRY ORDER
2023 VT 58SUPREME COURT DOCKET NO. 23-AP-309
OCTOBER TERM, 2023
Estate of Robert Snelgrove } APPEALED FROM:
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}
v. } Superior Court, Orleans Unit
} Civil Division
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Herman LeBlanc } CASE NO. 161-7-17-Oscv
Trial Judge: Daniel Richardson
In the above-entitled cause, the Clerk will enter:
¶ 1. Plaintiff moves to dismiss the above-captioned appeal filed by defendant’s guardian
as invalidly filed, arguing that a non-attorney guardian cannot represent a ward “pro se.” We agree
that defendant’s guardian cannot represent him in court without an attorney, and therefore order
him to obtain counsel within sixty days or face dismissal of the appeal.
¶ 2. Plaintiff Robert Snelgrove filed this civil action for trespass and unlawful mischief
against defendant Herman LeBlanc in 2017 after defendant inflicted substantial damage to
plaintiff’s boathouse. In 2019, in a separate proceeding, the probate court granted defendant’s
request to have his son David LeBlanc (referred to herein as “LeBlanc”) appointed to be
defendant’s voluntary guardian with general and litigation powers. Plaintiff died in 2021 and his
estate was eventually opened and substituted as the party plaintiff in the case. In August 2023, the
trial court granted the estate’s unopposed motion for summary judgment. LeBlanc, who is not an
attorney, then filed a pro se notice of appeal on behalf of defendant.
¶ 3. Plaintiff now asks the Court to either dismiss the appeal or order LeBlanc to hire
an attorney. Plaintiff argues that a guardian may not act in a pro se capacity on behalf of an
incompetent person without retaining the services of a licensed attorney. LeBlanc responds that
he spent two years trying to hire an attorney but numerous attorneys declined to represent his father
and that his father will likely be unable to pursue an appeal if LeBlanc is not allowed to represent
him.
¶ 4. Whether a guardian can act pro se on behalf of a ward is a matter of first impression
for this Court. The relevant probate order states that LeBlanc was appointed guardian of defendant
with “[t]he power to obtain legal advice and to commence or defend against court actions in the
name of the person under guardianship.” 14 V.S.A. § 3069(c)(6). Vermont Rule of Civil
Procedure 17(b) states that “[w]henever an infant or incompetent person has a representative, such
as a general guardian, conservator, or other like fiduciary, the representative may sue or defend on
behalf of the infant or incompetent person.”
¶ 5. Neither § 3069(c)(6) nor Rule 17(b) expressly authorizes a guardian to act pro se
on behalf of a ward, and we conclude that interpreting the statute and rule to allow such action
would conflict with this Court’s authority to regulate the practice of law. See Vt. Const. ch. II,
§ 30 (providing that Supreme Court has “disciplinary authority concerning all . . . attorneys at law
in the State”); 4 V.S.A. § 901 (“Justices of the Supreme Court shall make, adopt, and publish and
may alter or amend rules regulating the admission of attorneys to the practice of law before the
courts of the State.”). This Court’s rules prohibit the practice of law without a license. See A.O.
41, § 1 (“Unless otherwise authorized by Rule 5.5 of the Vermont Rules of Professional Conduct,
the practice of law without a license is prohibited and may be punished as contempt.”). The reason
for the rule is primarily to protect the public because lay persons are not bound by the ethical
obligations of attorneys and are not subject to the disciplinary control of the courts. See Vt.
Agency of Nat. Res. v. Upper Valley Reg’l Landfill Corp., 159 Vt. 454, 455-56, 621 A.2d 225,
227 (1992) (explaining why non-attorneys generally may not represent organizations). The
practice of law “includes all advice to clients, and all actions taken for them in matters connected
with the law.” In re Morales, 2016 VT 85, ¶ 11, 202 Vt. 549, 151 A.3d 333 (quotation omitted).
We conclude that a non-attorney guardian may not represent a ward in court proceedings without
an attorney because it would violate the prohibition against the unauthorized practice of law and
possibly lead to abuse.
¶ 6. Our decision is consistent with the majority of jurisdictions that have considered
this type of issue. Particularly pertinent is In re Marriage of Kanefsky, in which the Colorado
Court of Appeals held that a woman’s conservators, who held the power to “prosecute or defend
actions, claims, or proceedings” to defend her assets but were not licensed attorneys, could not file
a pro se appeal on her behalf. 260 P.3d 327, 329-330 (Colo. App. 2010). The court explained
“that a nonlawyer conservator or guardian in Colorado is a statutory legal representative only, the
same as a representative payee, a trustee or custodian of a trust or custodianship, or an agent
designated under a power of attorney.” Id. at 330. Accordingly, the statutory powers granted to
conservators or guardians did not establish an exception to Colorado’s statute prohibiting the
unauthorized practice of law, even if the conservator or guardian was suing or defending for a
person under Colorado’s version of Civil Rule 17. Id.
¶ 7. Other courts have reached similar conclusions. See Luck v. Rohel, 518 P.3d 350,
355 (Idaho 2022) (holding that non-attorney guardian could not act in a pro se capacity for ward
under Idaho’s version of Civil Rule 17); Brown v. Wright, 2006-Ohio-38, ¶¶ 13-14, 2006 WL
38267 (Ct. App.) (concluding that plaintiff’s non-attorney conservator could not prosecute his
claims pro se). For similar reasons, most courts have concluded that a parent cannot represent a
child pro se. See, e.g., Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61 (2d
Cir. 1990) (“[A] non-attorney parent must be represented by counsel in bringing an action on
behalf of his or her child.”); D.K. ex rel. Kumetz-Coleman v. Huntington Beach Union High Sch.
Dist., 428 F. Supp. 2d 1088, 1090 (C.D. Cal. 2006) (“A guardian ad litem, however, may not
represent a minor without retaining a lawyer. This rule is based on the common-law doctrine that
a non-lawyer has no authority to appear as an attorney for others than himself.” (quotation and
citation omitted)); Chisholm v. Rueckhaus, 1997-NMCA-112, ¶ 6, 948 P.2d 707 (N.M. Ct. App.)
(“We join an overwhelming majority of jurisdictions and hold that a non-attorney parent must be
represented by counsel in bringing an action on behalf of a child.”).
¶ 8. LeBlanc argues that he should be allowed to represent his father for the reasons
identified in In re Morales, our most recent case discussing the unauthorized practice of law. We
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need not reach the question of whether there may be narrow exceptions to the lawyer-
representation rule because this case does not present that situation. This case does not involve
any of the compelling factors of Morales. In Morales, this Court dismissed a contempt action filed
against an inmate in a Vermont prison who was alleged to have engaged in the unauthorized
practice of law by helping fellow inmates with their cases through legal research and drafting
motions. 2016 VT 85, ¶ 30. The inmate’s actions were limited to drafting and research assistance
and she did not attempt to represent other inmates in court. We concluded that “jailhouse lawyers”
were a longstanding fixture in the State’s justice system and that incarcerated individuals faced
particular challenges accessing legal advice, and that for these reasons, there was not probable
cause to charge the defendant with criminal contempt for unauthorized practice of law. Id. ¶¶ 19-
25. We explicitly stated that we were not deciding “whether an individual who is not incarcerated
may be charged with the unauthorized practice of law for providing similar unpaid legal assistance.
Our holding today applies only to legal services provided between inmates in a correctional
facility.” Id. ¶ 27 (emphasis omitted). Morales is explicitly limited to the unique circumstances
faced by incarcerated individuals, and we do not find it to be applicable here. Here, LeBlanc is
seeking to represent his father in court, not just provide assistance; neither LeBlanc nor defendant
are incarcerated; and the record shows that defendant is not indigent and has been able to secure
counsel in the past.
¶ 9. We therefore conclude that LeBlanc cannot represent defendant in court
proceedings pro se. The appeal is stayed for sixty days to allow LeBlanc, in his capacity as
guardian, to obtain an attorney. If an attorney does not enter an appearance for defendant within
that time, the appeal will be dismissed without further notice.
BY THE COURT:
Paul L. Reiber, Chief Justice
Harold E. Eaton, Jr., Associate Justice
Karen R. Carroll, Associate Justice
William D. Cohen, Associate Justice
Nancy J. Waples, Associate Justice
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