Opinion
No. CV 03-0824213-S
April 21, 2008
MEMORANDUM OF DECISION ON THE PRO SE APPEARANCE OF MICHAEL HUBERMAN FOR THE PLAINTIFF
This case is a medical malpractice case concerning the treatment of the late Jane Huberman by the defendants. The plaintiff is Sophie Ellis executrix of the estate of Jane Huberman. Michael Huberman is the co-executor of the estate of Jane Huberman.
Following the granting by the Court of motions to withdraw by two law firms which had previously represented the estate, the only appearance for the plaintiff is the appearance of Michael Huberman pro se.
The defendants move to strike the pro se appearance of Michael Huberman. The motion was denied on record on February 11, 2008 (Bentivegna, J.). The case is scheduled to start jury selection April 24, 2008. The undersigned was assigned the case for trial. The Court is of the opinion that Michael Huberman pro se as co-executor of the estate of Jane Huberman may not represent the plaintiff in this case.
"A Judge is not bound to follow the decisions of another Judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision . . . this principle has frequently applied to an earlier ruling during the pleading state of a case . . . according to the general accepted view, one Judge may, in a proper case, vacate, modify or depart from a interlocutory order or ruling of another Judge in the same case, upon a question of law." (Citations omitted, internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 99 (1982). Johnson v. Atkinson, 283 Conn. 243 (2007).
Our law prohibits a person not admitted as an attorney from practicing law or appearing as an attorney-at-law for another in Court. Connecticut General Statute § 51-88. An exception to the rule exists for a person "practicing law or pleading at the bar . . . in his own cause." (51-88) d(2).
Referring to the exception for representation in one's own cause (§ 51-88)d(2) the Appellate Court has held: "the authorization to appear pro se is limited to representing one's own cause, and does not permit individuals to appear pro se in a representative capacity." Expressway Associates II v. Friendly's Ice Cream Corp., of Connecticut, 34 Conn.App. 543, 546 cert. denied 230 Conn. 915 (1994). Accordingly the Court concluded: "we therefore hold that an individual who is not an attorney and who was a general partner of a partnership may not appear and participate, pro se, in an appeal on behalf of a general partnership." Id. at 551.
The Appellate Court in refusing to allow the general partner to appear pro se for the partnership specifically rejected the ninth circuit decision in United States v. Reeves, 431 F.2d 1187 (ninth cir. 1970). Reeves allowed a partner to appear pro se because each partner having under state law (Alaska) a specific right to partnership property, was pleading his own case, 431 F.2d at 1188.
Reeves was overruled by the United States Supreme Court in Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993). The Supreme Court in Rowland reviewed the history of the law on pro se representation. "It has been the law for the better part of two centuries, for example, that a corporation may appear in the Federal Courts only though licensed counsel . . . as the Courts have recognized, the rational of that rule applies equally to all artificial entities. Thus, saving a few aberrant cases (footnote five citing Reeves) the lower Courts have held uniformly that 28 U.S.C. § 1654 providing that `parties may plead and conduct their own cases personally or by counsel,' does not allow corporations, partnerships, or associations to appear in Federal Court otherwise than through a licensed attorney."
The Federal exception for persons pursuing "their own cases" is essentially the same as the Connecticut exception for his "own cause." § 51-88(b)2 and 28 U.S.C. § 1654. This was clearly recognized by the Appellate Court reliance on Federal Court authority as guidance in supra.
The decision in O'Brien v. Wilson-Coker, 36 Conn. L. Rptr., 614 (1-12 2000 Levine, J.) focuses on the executor or administrator as a fiduciary being the proper party in an action involving a decedent's estate. In allowing the administrative appeal to proceed with a pro se representative the Court concluded in O'Brien that "a fiduciary's the only proper party in action involving a decedent's estate, and that an estate cannot be a party to such an action. Applying that principle to the facts of this case, it is clear that the plaintiff did not bring this appeal as a representative of the decedent's estate. Rather, this appeal is a chose-in-action which is personal to the plaintiff. Therefore, the plaintiff's under no disability which inhibits his right to maintain this appeal pro se." Thus, like the Reeves decision the Court focused on the interests of the pro se party rather than the representational role.
The cases relied on in the O'Brien decision only established that an estate may only be represented by a fiduciary executor/administrator. Issac v. Mount Sinai Hospital, 3 Conn.App. 598 (1985) dealt with a suit by an estate through an administratrix who had not been duly appointed by the Probate Court. The estate was not a legal entity which could sue without the appointment of the administrator. Connecticut General Statute § 52-555 specifically provides that standing to bring a wrongful death action is conferred only upon an executor or an administrator. It is only by statute that a death action is maintainable in Connecticut. Issac v. Mount Sinai Hospital, supra at page 601. In estate of Schoeller v. Becker, 33 Conn.Sup. 79 (1975) the case was brought by an estate rather than an administrator or executor. Thus, the claim was a nullity as an estate was not a legal entity. These cases have nothing to do with the issue of whether a pro se party may represent the interest of an estate.
A number of Superior Court decisions have specifically addressed such issue and found that a pro se administrator or executor may not represent an estate. Sedich, Administrator v. Waynik, Superior Court Judicial District of Fairfield at Bridgeport, docket no., 339019 (June 15, 1998 Skolnik, J.) 22 Conn. L. Rptr., 279; Sedich, Administrator v. Waynik, Superior Court Judicial District of Fairfield at Bridgeport, docket no., 348505 (April 13, 1998 Mottolese, J.) 22 Conn. L. Rptr., 279; Weiner v. D'Acunto, 22 Conn. L. Rptr., 561; Long v. DeLarosa, 13 Conn. L. Rptr., 309 and Stawrowski v. Maselek, 2004 wl 61503, 1-2 (2004).
In Weiner v. D'Acunto the Court granted the motion to strike the co-administrator's pro se appearance. The Court noted that a co-administrator (like the co-executor in this case) is by statute a fiduciary Connecticut General Statutes § 45a-199. Judge Lewis went on to note that the duties of a fiduciary, citing Hall v. Schoanwelter, 239 Conn. 553, 558-59 (1996): "similarly, an executrix must remain loyal to the estate that she is administrating and must not act out of self-interest or for the interests of parties other than the heirs, distributes and creditors of the estate." Thus, Dr. Huberman the pro se co-executor of his late mothers' estate is also a fiduciary with the fiduciary's obligation to maintain undivided loyalty to the estate. His actions must not be for his self-interest but only for the interest of the heirs, distributes and creditors of the estate.
At the trial management conference before this Court where the issue of his pro se appearance was raised by the Court, Dr. Huberman indicated that he was really representing himself as a beneficiary of the estate. This perfectly illustrates the problem which cannot be avoided. Who is representing the named plaintiff the co-executor Sophie Ellis? Who is representing other potential heirs, distributes and creditors of the estate? Certainly there is not a member of the bar representing these interests. Yet those interests of unrepresented parties will be determined in this litigation. This illustrates the fallacy with focusing narrowly on the interest of the pro se party and ignoring the representational function.
If the lawsuit is unsuccessful the plaintiff, Sophie Ellis, executrix of the estate of Jane Huberman faces potential substantial liability with respect to cost for the defendant's experts. With the resolution of the case would clearly affect the interest of the co-executrix, the estate, the potential heirs, distributes and creditors of the estate. The creditors could include the defendants in this action.
Other jurisdictions seem to unanimously agree with the majority of Connecticut Superior Court decisions that an executor may not appear pro se for the estate. In Diamantis v. Judd, Falk, Inc., 125 F.R.D. 396 (1989) (District Court Southern District of New York). The Court ruled that an executrix of an estate could not represent the estate pro se. The Court concluded that the pro se executrix was not representing herself but the estate of the deceased plaintiff. In two cases from the United States District Court for the Western District of North Carolina, Judge Cogburn the United States Magistrate Judge see Beyer v. North Carolina, 2001 U.S.Dist.LEXIS 16968 (October 16, 2001) and Penland Olvera v. Randal Thomas Edmundson et al., 2001 U.S.Dist.LEXIS 15284 (September 21, 2001). The Judge recognized that the estates cannot represent themselves and act through an agent in this case an administrator. It must be represented by a licensed attorney. In Penland Olvera the administrator was the widow of the deceased. In the Beyer case the Judge noted that pursuant to North Carolina law the real party and interest is the beneficiary under the statute for whom recovery is sought and not the administrator. Accordingly the action cannot be described as litigating his own case because the interest of others will be affected by the outcome of the proceedings. The Judge also noted the same party could place in jeopardy substantial legal rights of the estate and that the estate might be subject to charge for the defendant's costs if the suit was unsuccessful. The Court further noted: "finally, plaintiff must understand that the Courts are concerned not just with her legal interest, but with the legal interest of all parties in the public's overriding interest in continued confidence in the judicial process. In addition to the rights of the estate and its beneficiary or the rights of the defendants, who would be subject to multiple suits and undue defense if this case were permitted to proceed."
The United States Court of Appeals for the Second Circuit has specifically held in Pridgen v. Anderson, 113 F.3d 391 (2nd Cir. 1997) "we now hold that an administratrix or executrix of an estate may not proceed pro se when the estate has beneficiaries or creditors other than the litigant." 113 F.3d at 393. Also see Eleventh Circuit Court of Appeals Decision in Reshard v. Britt, 839 F.2d 1499 (11 cir. 1988). In the instant case Sophie Ellis is a co-executor and the plaintiff Sophie Ellis would have fiduciary obligations and interests which are unrepresented in this proceeding.
The Connecticut Appellate recently in Gibbs v. Spinner, Conn.App. 502 (2007) noted with respect to a sole defendant who was an attorney representing himself in a fiduciary capacity. "It is not clear whether the fiduciary of an estate properly may file a pro se appearance." Id. at 508 F.2. The Court further noted that a fiduciary had appeared before that Court without objection by the Court or opposing parties, citing Cantor v. Department of Income Maintenance, 12 Conn.App. 435, 43 (1987). At best the Cantor decision allowing the estate fiduciary to appear in a decision against the State of Connecticut Department of Income Maintenance for [welfare] benefits, would be consistent with the line of authority allowing fiduciaries who are the sole beneficiaries [and also in the absence of any estate creditors] to pursue benefit claims [social security disability claim of estate deceased] pro se. Iannocone v. Law, 142 F.3d 553 (1998).
The case cannot proceed without legal counsel representing the plaintiff, Sophie Ellis, executrix of the estate of Jane Huberman. The defendants understandably oppose any continuance and that the case has been pending since 2003. However the Court will grant the plaintiff a final continuance until June 25, 2008 to obtain counsel. The case is scheduled for a trial management conference on June 25, 2008. At such conference a licensed attorney must appear to represent the plaintiff. The attorney must be prepared to commence trial of the case in September 2008.