Attorney: Stick to the question. You can’t write pleadings for a pro se litigant because that would be "practicing law without a license" which is against the law. 

Non-Attorney: Actually it’s not. I’ll explain in a minute. If JUSTICE was really the issue – you wouldn’t have said that. People’s freedom, livelihood, life savings, are at stake here. Why shouldn’t they have access to my legal training? Why shouldn’t a pro se litigant have the right to select their legal assistant – since everyone is required to know the law (not medicine – so skip that "but doctors have to be licensed" excuse – more on that later) – why shouldn’t the pro se litigant have the right to seek out the assistance of a paralegal or non-licensed JD – or anyone else they want for assistance? It would merely level the playing field, so to speak – since many pro se litigants just need knowledge of rules, procedures and legal research – or have someone mouth-y enough to speak at the podium for them. It would merely make it a fair fight. What’s so wrong with that?

Attorney: Non-lawyers are not trained sufficiently to advise people competently. They can do much damage through ignorance. Licensing weeds out incompetence.

Non-Attorney: Excuse me, but the hundreds of complaints filed against attorneys each year contradict that statement. But, besides that, I must point out that – based on your statement – it would appear that the Colorado Supreme Court doesn’t care about competence if the litigant is injured. The Colorado Supreme Court has provided for non-attorneys to appear and represent litigants in administrative court for workers’ comp actions. See UPL Committee v. Employers Unity, 716 P. 2d 460. Are injured people just trash who don’t deserve "competent" assistance? Of course not. This "exception" from the State Supreme Court simply shows that non-attorneys are recognized as competent. So are law students who can represent indigent defendants pursuant to Rule 226.

Attorney: Well – the Bar disciplines incompetent lawyers. What protection or remedy would the public have if they were mislead by a non-attorney?

Non-attorney: First – don’t pretend that all incompetent attorneys are punished. More often than not, if a litigant complains about an incompetent attorney, it is called "harmless error" because there’s always the remedy of appeal (as if the litigant can afford to pay MORE for legal fees). However, if a non-lawyer makes a mistake that is due to gross incompetence or neglect, they can be sued under tort law for misrepresentation, or a breach of fiduciary duty or unjust enrichment. Secondly, a litigant using a non-attorney can’t really blame the non-attorney for the outcome – since the litigant is responsible for all the final decisions made with the tools provided by the non-attorney. When a litigant wants to use a non-attorney it is because they already decided that some help is better than no help AND - if there really was a basis for suing a non-attorney for the outcome, I am sure the courts would LOVE to rule against an incompetent non-lawyer – so there’s the remedy. However, I suggest that many pro se litigants who have surreptitiously used paralegals have not been disappointed. If they received an adverse ruling, they could see it was biased, and not faithful to the law, and favored the opponent only because the court was favoring the opponent who hired a member of the Bar. Or, they accepted responsibility for pursuing an argument that was obviously futile and made only to make a public record of their grievance. 

Attorney: If it says, that, then you are misinterpreting it. Shall we look it up?

Non-Attorney: C.R.S. 15-1-1301 – 1302 – 1304 - 1313. [They look it up].

C.R.S. 15-1-1304 states that the agent may "Demand, receive and obtain by litigation . . . " [anything the principal is entitled to].

C.R.S. 15-1-1313, states,

"In a statutory power of attorney, the language with respect to claims

and litigation empowers the agent to:

(a) Assert and prosecute before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, and defend against an individual, a legal entity, or government, including suits to recover property or other thing of value, to recover damages sustained by the principal, to eliminate or modify tax liability, or to seek an injunction, specific performance, or other relief;

(b) Bring an action to determine adverse claims, intervene in litigation, and act as amicus curiae;

(c) In connection with litigation, procure an attachment, garnishment, libel, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree;

(d) In connection with litigation, perform any lawful act, including acceptance of tender, offer of judgment, admission of facts, submission of a controversy on an agreed statement of facts, consent to examination before trial, and binding the principal in litigation;

Attorney: You are misinterpreting the term "agent" – when the statute refers to litigation – the agent can only be a licensed attorney. Otherwise, the statute would allow something that is illegal – and statutes cannot violate law.

Non-Attorney: First – the statute does not define "agent" and thereby limit the term "agent" to only a licensed attorney. Because attorneys do not need a Power of Attorney to represent someone, it is evident that the statute is intended for non-lawyers. Secondly, because a pro se litigant is not guilty of Unauthorized Practice of Law, then a person acting pro se in another’s stead under the Power of Attorney Act, is also not guilty of Unauthorized Practice of Law. The statute (C.R.S. 15-1-1302) warns the grantor that they will be liable for whatever their agent does in their name – just like a litigant suffers the consequence of their lawyer’s performance. And lastly, you say a statute cannot violate the law. With all due respect – new statutes supercede or amend the old statutes – as here. C.R.S 2-4-206. If new statutes do not make something legal – that was once illegal – then African Americans would still be sitting at the back of the bus and women would not be voting. That is progress. So I am asserting that you are ignoring the plain language of the statute. There is nothing to "interpret" incorrectly -- it says what it says. Why do you insist that the naked emperor is wearing clothes?

Attorney: So let me get this straight, you are asserting that the Power of Attorney Act allows a non-attorney to go in to court and represent someone simply because that "someone" authorized them rather than the Supreme Court?

Non-Attorney: Yes. It says that. It’s not ME saying that. The Act creates a contract between a litigant and the counsel of their choice. And the right to contract "shall not be impaired" -- Article 1 Sec 10 of the U.S. Constitution and Article 2 Sec. 11 of the State Constitution. In fact, the state constitution forbids the making of any law that creates "privileges or franchises" which the Bar undoubtedly has done when it comes to assistance of counsel and the business of law.

Attorney: The constitution does not protect illegal contracts. Since this statute creates an illegal contract it cannot be enforced.

Non-Attorney: How does it create an illegal contract? The Power of Attorney Act makes it legal. Perhaps it was illegal for non-attorneys to represent litigants prior to 1992 without a Power of Attorney, but now it is legal for a non-attorney to represent a litigant as long as the Power of Attorney Act is employed. It’s the evolving nature of law. If you want to say the Power of Attorney Act conflicts with the UPL statute (C.R.S. 12-5-101) then the Power of Attorney Act prevails because it is more recent. 

Attorney: You are forgetting – the state  constitution (at Art. 6 § 21) gives ONLY the state supreme court the power to qualify and determine who may represent a party in the courts. If the Power of Attorney Act does the same thing – then it is unconstitutional – and therefore void. There is a separation of powers issue here that you cannot overcome -- the legislature cannot enact a statute that interferes with the Supreme Court’s exclusive power to regulate the practice of law and prosecute those who are guilty of "practicing law without a license."

Non-Attorney: First, you are misquoting Article 6 § 21 of the state constitution. The People merely gave the State Supreme Court the power to "make and promulgate rules governing the practice and procedure in civil and criminal cases". Non-attorneys are subject to court rules just like every litigant. (Actually, I have seen pro se litigants held to a stricter standard than attorneys – but that’s another argument for another day). There is nothing in the constitution that says the State Supreme Court can control access to justice by creating a monopoly, or interfere with lawful contracts as provided by the Power of Attorney Act. The Power of Attorney Act does not violate of the constitution’s provision that grants the state Supreme Court the power to make the rules for proceeding in court. Everyone who goes to court must follow the rules. And since the ACT does not provide for any individual to go – willy nilly – into court representing any and everyone without authorization – it does not interfere with the separation of powers. It is an INDIVIDUAL (not the legislature) who does the authorizing – who selects their representative – so there’s no over-stepping between the branches. In fact, the Power of Attorney Act is in complete harmony with the U.S. Constitution’s Article 6 – to have "assistance of counsel" – of their CHOICE.

Attorney: I believe you are misinterpreting the constitution and the statute.

Non-Attorney: It says what it says! It’s plain language! You can’t just take a big stick and whack me and say "YOU MUST BELIEVE 1 + 1 equals 4 if the Bar says so"! Can you?

Attorney: I’ve had the Office of Attorney Regulation Counsel serve you with a complaint and subpoena for production of documents and a notice of deposition. You are going to be prosecuted for practicing law without a license and will be paying a fine between $2,000 to $5,000 for every person for whom you have written pleadings – and YOU are required to tell me who those people are. It doesn’t matter if you performed with a power of attorney from a litigant, you broke the law.

Non-attorney: I broke what law?

Attorney: C.R.C.P. 228.

Non-Attorney: That’s a Rule. A rule for disciplining attorneys. Since when did I come under the jurisdiction of rules created for attorneys who have entered that jurisdiction through acquisition of a license? You have no jurisdiction over non-attorneys. I will not attend your administrative proceeding absent you identifying the nexus whereby I waived my right to be prosecuted without due process in a biased jurisdiction. If you want to prosecute me, you must cite the law I broke and prosecute me in an impartial forum – in a judicial-branch court, with an executive-branch prosecutor and a jury of my peers. If you say I broke C.R.S. 12-5-101 which states that no one may act as an attorney or counselor at law without a license from the supreme court, then I assert I never held myself out as "an attorney or counselor at law". And you know that. You always acknowledged my paralegal status. Under the authority of the Power of Attorney Act, I was a temporary "attorney-in-fact" which is not "an attorney or counselor at law" so I did not violate C.R.S. 12-5-101. Besides, even if C.R.S. 12-5-101 is violated – it does not provide for punishment– and the supreme court cannot amend the statute to correct that omission. The Colorado Supreme Court has admitted, in People v. M.B., 90 P. 2d 880, at 822 that the "power under the constitution to criminalize conduct and set the punishment for a crime resides within the legislative branch; absent a constitutional infirmity, we have no basis to interfere with the exercise of that power." And exercising a right cannot be turned into a crime. "Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them." Miranda v. Arizona, 384 U.S. 436 (1966).

Attorney: You entered the jurisdiction of the court rules and the procedures by which the Office of Attorney Regulation Counsel operate, by allowing yourself to be served with a pleading filed by me for an order to show cause why you shouldn’t be prosecuted.

Non-Attorney: What! The courts belong to the people – how did I waive my rights by defending myself? How can one stop service of process? Everyone knows that process is served by refusal when the defendant doesn’t cooperate. So I cooperated. Besides, when I responded, I appeared specially and challenged jurisdiction. You have served me a subpoena demanding that I produce books and records as evidence against myself – and demanded that I appear and give testimony against myself at a deposition (since you have no complaints against me except from a disgruntled member of the Bar). How is that in compliance with due process? If I was licensed, I could understand this unconstitutional process – because acquiring a privilege – through a license – means foregoing certain rights. Like a driver’s license. I understand that for the privilege of driving, as opposed to walking, riding the bus or a horse, one must waive certain rights to privacy and be willing to give evidence against themselves when asked – such as through a breathelizer test – but I have waived no rights for the "privilege" of helping another use the courts in a meaningful manner, under the authority given to me by statute and an individual. Using the courts is a right – and there is no lawful reason for "licensing" one to use the courts.

Attorney: This issue has been raised by several states and all those jurisdictions have interpreted the Power of Attorney Act to preclude lay people from representing others.

Non-Attorney: I’m not surprised that the members of the Bar in other states deprive the middle-income segment of society meaningful access to the courts, but does that mean Coloradoans should also be deprived of due process? And if you want to quote foreign jurisdictions, why not mention Canada – who has given paralegals the right to represent litigants in court since May, 2007?

Attorney: We’ll let the Court decide what to do with you. It could be jail, fines or both.

Non-Attorney. Well, I guess that’ll teach me for relying on published law and being delusional enough to think that the Colorado Courts care for the middle-income members of society who can’t pay Bar members for access to justice.

END OF CONVERSATION

Appendix of Legal Arguments

1. Colorado Constitution at Article II Section 11 states, "No ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges, franchises1 or immunities, shall be passed by the general assembly".

2. When two statutes conflict, the more recent prevails, C.R.S. § 2-4-206; City & County Denver v. Bd. of County Comm’rs, 782 P. 2d 753 (Colo. 1989). "We have held that where two statutes attempt to regulate the same conduct, the more specific statute does preempt the general one." Showpiece Homes Corp. v. Assurance Co. of Am. 38 P. 3d 47, 53 (Colo. 2002); Les Normadin v. Respondent People of Town Parachute, 91 P. 3d 383 (Colo. 2004). "The court is not to substitute its own public policy determinations for those of the General Assembly." Concerned Parents of Pueblo, Inc., v. Respondents Michael & Sheila Gilmore, 47 P. 3d 311 (Colo. 2002). Walker v. People, 932 P. 2d 303, 309 (Colo. 1997).

In Farmers Ins. v. Bill Bloom, Inc. 961 P. 2d 465, 469 (Colo. 1998), the Colorado Supreme Court stated that they must determine the intent of a statute by looking at the problem it addresses. Here the "problem addressed" is the public’s need for affordable legal assistance and the right to assign their appearance in court to "counsel of choice" even if not an attorney.

3. "Since a disciplinary rule is promulgated for the purpose of guiding lawyers in their professional conduct, and is not directed to the public at large, the central consideration in resolving a vagueness challenge should be whether the nature of the proscribed conduct encompassed by the rule is readily understandable to a licensed lawyer." People v. Morley, 725 P. 2d 510, 516 (Colo. 1986). [Emphasis added.] Rule 81 of Colorado’s Rules of Civil Procedure provides that rules do not supercede statutes. See Theobald v. Dist. Court, 148 Colo. 466; 366 P. 2d 563 (1961), whereby the court stated, "The rule expressly provides that, where a matter is specifically covered by statute, the rules of civil procedure are inapplicable." See also, Brown v. Hansen, 177 Colo. 39, 493 P. 2d 1086 (1972). People ex rel. Orcutt v. Dist. Court, 164 Colo. 385, 435 P. 2d 374 (1967).