By Willard J. Stievater, Esq.
"A strange thing happened when I got to Court..." began the lament of a confused and embarrassed officer of a small Boston cooperative. He was there to evict a resident who did not pay his carrying charges in violation of his Occupancy Agreement. The cooperative did not want to hire an attorney because of the expense. He had followed the instructions of a friend who was an attorney. When the case was called the officer answered. When the judge was told that the officer was not an attorney, the judge said that he could not represent the cooperative. The case was continued to allow the cooperative time to hire an attorney.
This courtroom experience is not easy to explain to the layman. We will assume that the case was in order, the defendant did not appear and, if the case went forward, the court would have entered judgement for the cooperative.
So why can't a cooperative be represented in Court by a Board member? It is not uncommon for a natural person to represent himself or herself-- often referred to as a "pro se" party. So, we must again ponder --why can't a corporation be represented by its officer-- at least where the legal fees could exceed the amount in dispute?
In Massachusetts, a corporation cannot be represented in court by its officer who is not an attorney because there is a statute (MGL c. 221 §46) that was construed to prohibit such an officer from representing the corporation in court, Varney Enterprises, Inc v. WMF, Inc. (1988) 402 Mass 79, 81-82. This proposition has found "universal acceptance" in other State and Federal courts, Ibid., p. 81 and it is also a well-established common law principle, Ibid., p. 82. And the Court went on to say that a "natural person" appearing pro se does not represent another as does a corporate officer appearing for a corporation, Ibid., p. 82.
Although it is not explicit in the decision, this writer opines that the underlying rationale for the decision is what the phrase "represent another" legally connotes between a corporation and its corporate officer. In this regard, a lawyer or judge would have in mind a fiduciary relation, one of trust, loyalty, a high degree of care. Lacking legal expertise, a corporate officer attempting to represent his corporation in court would be violating that fiduciary relationship.
Willard J. Stievater is a senior partner in the Law Firm of McCullough, Stievater & Polvere, located at 121 Main Street, Charlestown, MA 02129. The firm has represented cooperatives since it was established in 1972
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1999 ARCH. All rights reserved.