Munger Chadwick P.L.C. v. Farwest Development (CA2 5/7/14)

The rule has long been that if you represent yourself you can’t get a fee award. This case holds that the rule applies to law firms.

Munger Chadwick, a Tucson firm represented by its own members, sued Farwest and won; it then moved for and was granted fees. This opinion reverses the award.

The court first addresses a jurisdictional argument. It had no choice but we do; the argument was too useless and silly to bother with.

Substantively, Munger argued that a PLC can’t represent itself, relying on Hunt (1987), which suggested that only a natural person could represent himself and therefore, by Munger’s logic, that an entity can’t, isn’t, and should thus get fees. This court explains that the lesson of Hunt (which let a lawyer-partner get fees for representing the partnership) is that  “a partnership, or a corporation, may not be represented by someone who is not.authorized to practice law.“ The court says that if the Munger firm couldn’t represent itself then it couldn’t represent anyone else, either. “But that conclusion would be contrary to the common practice of clients hiring law firms for legal representation.” A Supreme Court rule implies that an “entity” can be engaged in the practice of law. And the Restatement of the Law Governing Lawyers says that it’s the law firm that represents the client. (Well, maybe, though the concept that the firm rather than the lawyer is doing the representing, and the wording of the signature lines of pleadings, etc., to reflect this, is more the result of law-firm marketing and P.R. than of of inherent legal theory. Restatement drafters are the last people who would know such things.). “We . . . find no logical reason to draw any distinction between a law firm that represents itself and a sole practitioner that [sic] does so.” And it would be unfair to allow a firm to get fees in a situation where an individual lawyer or a pro se couldn’t.

Early in the opinion, however, the court, in a long footnote, does us the honor of suggesting its own theory. It tells us that Munger did not make this argument; Farwest surely didn’t, either, which means that no party did and that it is included as a lagniappe for we dimwits who still practice law. We’re grateful when courts do this;  the deep wisdom and long professional experience of the people who write these things surely puts them in a position to expound their views on issues unbriefed, and which they may have barely heard of before, but on which they’ve recently spent a bit of time reading a few cases. In any event, the court points out that some jurisdictions don’t apply the no-fee-if-you-represent-yourself rule to lawyers. But our Supreme Court has said that “one who acts only for himself in legal matters . . . is not practicing law.” Though that “doesn’t’ squarely address” the issue, “to the extent” that it does indeed do so CA1 is bound to accept it. The opinion doesn’t mention that the principle has been cited in cases other than the Supreme Court case it cites from 1942 (which the author of the opinion may consider the dark days before the invention of the wheel) though in fact it has been, including the Hunt case (where the court presumably found it). Hunt, rather than go out of its way to question the idea, called it “undisputed in Arizona.” The evident purpose of the footnote is that it not remain so despite the failure of these lawyers to dispute it.

(link to opinion)