IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
November 10, 2003
E.R., INDIVIDUALLY AND ON BEHALF OF HER SON, C.D., PLAINTIFFS,
VINELAND BOARD OF EDUCATION, DEFENDANT.
The opinion of the court was delivered by: Jerome B. Simandle United States District Judge
On March 13, 2003, Ms. Tracée Edmondson, identifying herself as "Consultant/Advocate for Plaintiff," filed a "Motion for Fees and Costs" with this Court, asserting that "Plaintiff E.R. by way of Complaint" seeks $21,500 payment from defendant Vineland Board of Education for Ms. Edmondson's efforts as "consultant and advocate" in "securing an appropriate [special education] placement" for C.D. [Docket Item 1-1.] Ms. Edmondson has since filed a motion for summary judgment, seeking payment of her fees, [Docket Item 5-1], and defendant has filed a cross-motion for summary judgment, arguing that the Complaint must be dismissed because Ms. Edmondson is not an attorney licensed to practice law, [Docket Item 7-1]. Moreover, in an astonishing turn of events, her supposed client, E.R., has subscribed an affidavit that she never authorized this filing by Edmondson on her behalf and that she in fact disagrees that Edmondson is entitled to recover any fee from Vineland Board of Education, adding that she had not even spoken with Edmondson about this matter for more than two years.
This Court provided Ms. Edmondson an opportunity to explain whether she is engaged in the unauthorized practice of law. [Docket Item 10-1.] In reply, she certified that "[i]t is not -- nor has it ever been -- my intention to be engaged in the unauthorized practice of law. Although I did sit for the LSATs, I have never possessed the desire to practice law." [Docket Item 11-1.] She reemphasized that she is seeking payment of fees here for her efforts as advocate and consultant for E.R. and C.D. (Id.)
This Court finds that Ms. Edmondson, by filing and pursuing this lawsuit, has engaged in the unauthorized practice of law. The Court will grant defendant's motion for summary judgment, and will dismiss this case. Further, the Court will refer this matter to the attention of the New Jersey Supreme Court's Committee on Unauthorized Practice of Law for such action, if any, as the Committee sees fit.
Tracée Edmondson filed a Complaint with this Court on March 13, 2003, asserting that plaintiff E.R. (Elizabeth Reyes) had authorized her to file this action to seek payment for fees that Ms. Edmondson incurred between January and April 2001 as an "advocate and consultant" for Ms. Reyes who needed to secure an appropriate educational placement for her special needs child, C.D., after they had moved to Vineland, New Jersey in November, 2000. (Complaint ¶¶1-5, 12.) She certified that Ms. Reyes "filed a request for an Emergent Relief Hearing with Ms. Barbara Gantwerk, Director, Office of Special Education, New Jersey Department of Education, requesting a change of placement and a new IEP" in February 2001, that the matter was transferred to the Office of Administrative Law, and that the matter was heard on February 27, 2001. (Complaint ¶¶6-7.) The Administrative Law Judge ordered the Vineland Board of Education to provide C.D. an alternate and immediate placement. (Complaint ¶¶8-9.)
The Complaint provides that "Tracée Edmondson, President and Founder of Total Envolvement -- a Consulting Service Provider and a consultant in the area of civil rights and in the area of education of children with special needs, successfully represented the parent at the emergent relief hearing before the OAL. . . . WHEREFORE, the plaintiff demands judgment against defendant Vineland Board of Education [for] reasonable fees and related costs incurred by E.R. in the administrative hearing" and for "[s]uch other relief as the Court deems just." (Complaint ¶¶11, 12.) Ms. Edmondson certified that between the months of January and March 2001, her time spent on the C.D. matter "totaled 86 hours at my billing rate of $250 per hour, which equals $21,500." (Complaint, Ex. B, Aff. of Services.)
On July 28, 2003, again labeling herself as "Consultant/Advocate for Plaintiff," Ms. Edmondson filed "Plaintiffs' Brief in Support of Motion for Fees and Expenses," again arguing that "plaintiffs are the prevailing part and entitled to reasonable fees and expenses." [Docket Item 5-1.]
Defendant filed opposition to plaintiff's motion and filed a cross-motion for summary judgment on August 22, 2003. [Docket Item 7-1.] In its papers, defendant informed the Court of two issues with Ms. Edmondson's submissions. First, it did not believe that Ms. Edmondson was an attorney, so was engaged in the unauthorized practice of law. Second, it did not think that Ms. Edmondson had her client's permission to file the lawsuit. Defendant attached to its cross-motion the affidavit of Elizabeth Reyes, who certified that she never gave permission to Ms. Edmondson to file this suit. (Def. Ex. F.) According to Ms. Reyes, when she and her children moved from Newark, New Jersey to Vineland, New Jersey in December 2000, she thought that Ms. Edmondson, her brother's girlfriend of two years, volunteered to "help me in arranging for my children to attend Vineland Public Schools." (Id. ¶2.) She certified that "[n]either at the time when she first offered to help nor at any time since then has she ever told me that she was charging for her help." (Id. ¶3.)
Ms. Reyes further certified that she has "not spoken to Tracee Edmondson since March 2001." (Id. ¶6.) She says that they had a disagreement in March 2001 when she learned that Ms. Edmondson had "informed the Child Study Team to deal directly with her [Ms. Edmondson], but I wanted to be involved in all of the discussions involving my children." (Id. ¶5.) Ms. Reyes then certified that she never gave Ms. Edmondson any permission to file this suit for fees, stating:
I have reviewed the court papers filed by her where she is
claiming money for work that she says she did for me. I never
authorized her to use my name or my son's name in this court
suit and I am not looking for any money from the Vineland
Board of Education for her work. I do not give her permission
to keep this lawsuit going in my name and my son's name.
Tracée Edmondson filed a "Brief in Response to Opposition and In Opposition of Cross Motion" on September 2, 2003, again identifying herself as "Consultant/Advocate for Plaintiff." [Docket Item 9-1.] She did not respond to the defendant's charge that she was engaged in the unauthorized practice of law, but she did respond to the charge that she did not have her client's permission to file this suit. According to Ms. Edmondson, defendant's counsel "coerced [Ms. Reyes] to sign an Affidavit under false pretenses" which "was filled with inconsistencies and untruths," (Statement of Facts ¶1), because she says that in 2001, "E.R. understood and agreed that the only source of compensation for services rendered would come (a) if we prevailed in securing appropriate placements and related services for her children and (b) only through a request to the State or Federal Court," (id. ¶3).
This Court then sent a letter to Ms. Edmondson on September 5, 2003 to clarify whether she was engaged in the unauthorized practice of law and whether she had evidence that Ms. Reyes authorized this suit. [Docket Item 10-1.] The Court explained its concern that:
You are not a member of the bar and no court rule permits
anyone other than an attorney to represent someone else.
Nonetheless, you have filed a motion for attorney's fees, as
well as a motion for summary judgment, purporting to represent
"E.R., individually and on behalf of her son, C.D."
(Id.) The Court then noted that New Jersey Court Rules, under certain circumstances, authorize non-lawyers with knowledge or training with respect to handicapped pupils and their educational needs to represent parents or children in special education proceedings before New Jersey's Office of Administrative Law, but explained that:
I am unaware of any such rule that carves out an exception to
the requirement in federal court that a party be represented
by an attorney or that a party represent himself or herself
individually. See 28 U.S.C. § 1654 which provides:
In all courts of the United States the parties may
plead and conduct their own cases personally or by
counsel as, by the rules of such courts,
respectively, are permitted to manage and conduct
Under the Local Civil Rules of the District of New Jersey, any
appearance on behalf of a client must be through an attorney
licensed to practice by the Supreme Court of New Jersey. See
L. Civ. R. 101.1.
The Court then provided Ms. Edmondson an opportunity to respond, in writing and under oath, to the following four questions geared toward the two issues relating to her submissions:
1. Are you engaged in the unauthorized practice of law,
contrary to the rules of this court? If not, state all
reasons why you believe that you may appear and represent
E.R. and C.D. in this court.
2. Do you have any written agreement with Elizabeth Reyes
permitting you to charge for your services before the New
Jersey Office of Administrative Law and before this
federal court? If so, please attach copies of each such
agreement to your responding affidavit.
3. Have you spoken to Elizabeth Reyes about these matters
since March, 2001? If so, please indicate the date and
subject of each conversation.
4. Did Elizabeth Reyes authorize you to file this federal
court suit on her behalf? If yes, attach a copy of such
authorization to your responding affidavit.
(Id.) The Court provided a procedure should Ms. Edmondson wish to object to the Court's questions and refrain from answering them. (Id.) Ms. Edmondson in fact answered.
Ms. Edmondson responded in a "written response under oath" which was filed on September 18, 2003. [Docket Item 11-1.] For question number one regarding whether she was engaged in the unauthorized practice of law, she explained that it has never been her "intention to be engaged in the unauthorized practice of law." (Id. ¶1.) She certified that "[a]s an advocate and consultant in the administrative setting," she is "merely seeking costs and fees for the services provided." (Id.)
For question number two regarding whether she has a written agreement with Elizabeth Reyes permitting her to charge for her services before the New Jersey Office of Administrative Law and before this Court, she stated that Ms. Reyes understood in 2001 that "the award of my fees for services rendered would only come through a court order if her requests were met" and so "[t]he necessity of a written agreement was not warranted -- as the parameters surrounding fees and costs were contained in the PRISE, IDEA and NJAC and were a matter of law." (Id. ¶2.)
For question number three regarding communications with Ms. Reyes since March 2001, Ms. Edmondson certified that "E.R.'s recollection that our last conversation took place in March 2001 is only true in reference to C.D." as the "last conversation engaged in with E.R. in reference to fees and related costs occurred in the summer of 2001 when I completed the final IEP meeting securing the appropriate placements and related services for her children." (Id. ¶3.) She certified that "having successfully secured placements and related services for her four (4) children [at that time], there was no need to engage in additional discussion with E.R." (Id.)
For question number four regarding whether Ms. Reyes authorized Ms. Edmondson to file this suit on her behalf, Ms. Edmondson certified that "[i]n 2001 I had E.R.'s authorization to file on her behalf." (Id. ¶4.) She asserts that:
My decision and personal choice not to engage in any
meaningful dialog with her after the fall of 2001 -- due to
the fact that I did not believe in raping the system at the
expense and on the backs of children -- has caused her to
rescind her authorization. Her rescission, however, does not
rescind the facts that services were provided, that those
services and advice made E.R. the prevailing party and that I
should not be hindered from receiving compensation.
Defendant was given an opportunity to respond, which it did on September 30, 2003. Defendant again asserted that Ms. Edmondson's filings were inappropriate, argued that she "is entitled to no compensation," and asked the Court to report her to the Committee on the Unauthorized Practice of Law. (DeSanto 9/30/03 Letter.)
The Court is now prepared to rule on the underlying motions in this case. Defendant's motion for summary judgment will be granted because there is no question that Ms. Edmondson's filing of this lawsuit constitutes the unauthorized practice of law, and because Ms. Edmondson has also sought to assert these claims on behalf of a client with whom she had no fee agreement and no authorization to act in this forum on her behalf.
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. *fn1
Here, there is one material fact that is not disputed by defendant, Ms. Reyes, or Ms. Edmondson, and that is that Tracée Edmondson is not, and has never been, authorized to practice law. She has never attended law school; she has never been admitted to practice by the Supreme Court of New Jersey; indeed, she has "never possessed the desire to practice law." (Edmondson 9/18/03 Aff. ¶1.) Regardless of whether or not Ms. Reyes understood, or agreed, in 2001 that Ms. Edmondson could seek fees for her consultation services, it is clear that in federal court, parties must "conduct their own cases personally or by counsel." 28 U.S.C. § 1654. *fn2
It is a "well established principle that while a layman may represent himself with respect to his individual claims, he is not entitled to act as an attorney for others in a federal court." Lutz v. Lavelle, 809 F. Supp. 323, 325 (M.D. Pa. 1991) (citing United States v. Wilhelm, 570 F.2d 461, 465 (3d Cir. 1978); People ex rel. Snead v. Kirkland, 462 F. Supp. 914, 918 (E.D. Pa. 1978)). Rule 11 of the Federal Rules of Civil Procedure requires that "[e]very pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party." The Local Civil Rules of the District of New Jersey, with a few exceptions not pertinent here, also require that a plaintiff either appear pro se or through an attorney licensed to practice law by the Supreme Court of New Jersey. See L. Civ. R. 101.1. If the pleading is not signed by the party or the party's attorney, the "paper shall be stricken." Fed. R. Civ. P. 11. *fn3
Here, Tracée Edmondson admits that she is not the plaintiff in this lawsuit and that she is not an attorney licensed to practice law by the Supreme Court of New Jersey. Still, she has signed papers on behalf of Ms. Reyes seeking an award of fees pursuant to Arons v. New Jersey State Board of Education, 842 F.2d 58 (3d Cir. 1988). She cannot do so. Her pleadings will be stricken and this lawsuit will be dismissed.
In Arons, the Third Circuit found that a lay advocate may not charge fees for services that constitute the practice of law. Id. at 63. The Arons case involved a claim by a lay advocate, who challenged a New Jersey regulation which permitted lay advocates to act on behalf of parents at administrative hearings determining the children's appropriate educational placement, but prohibited them from receiving fees for their legal representation at the proceedings. Id. at 59. The Third Circuit considered the regulation's text and history, determined that Congress did intend that a "distinction be drawn between lawyers and lay advocates," and affirmed the district court's conclusion that the lay advocate cannot charge fees for services that constitute the practice of law. Id. at 62. In explaining its ruling, the Third Circuit included the following language, which Ms. Edmonson has quoted:
That is not to say that plaintiff here may not perform
traditional representation functions during administrative
hearings. New Jersey Office of Administrative Law regulations
authorize her to do so. As presently drawn, however, those
regulations do not allow her to collect a fee for such
services. We emphasize, as did the district court, that
nothing prevents her from receiving compensation for work done
as an expert consultant or witness. Although we appreciate
the difficulty of trying to allocate between compensable time
spent in consultation and non-compensable time spent in legal
representation, the task is not insurmountable. The receipt
of consultation fees should eliminate the financial losses
[the advocate] claims to have sustained in the course of
providing assistance to parents of handicapped children. . . .
nothing hinders plaintiff from charging for her expert
services in giving testimony, preparing technical reports,
consulting with parents, attending hearings, or advising
parents about educational decisions.
Id. at 62-63. Courts have thus interpreted Arons as giving plaintiffs the right, when seeking payment of attorneys fees and costs as the prevailing party, to include as a "cost" the fees charged by expert lay advocate for consultation. See, e.g. P.G. v. Brick Twp. Bd. of Education, 124 F. Supp. 2d 251
, 267 (D.N.J. 2000); B.K. v. Toms River Bd. of Education, 998 F. Supp. 462, 473 n.14 (D.N.J. 1998); S.D. v. Manville Bd. of Education, 989 F. Supp. 649, 654, n.1 (D.N.J. 1998).
Ms. Edmondson asserts that here, she "merely seek[s] costs and fees for the services provided" in "assist[ing] the parent in prevailing on behalf of her child." Ms. Edmondson cannot do so.
First, nothing authorizes Ms. Edmondson, who is neither a party nor an attorney, to file papers with this Court. The Arons decision did not in any way affect the longstanding rule that a party in federal court must proceed either pro se or through an attorney. The lay advocate was able to proceed in federal court in Arons only because she was the plaintiff in a case in which she had standing to challenge a regulation prohibiting her collection of attorney's fees. Neither the Arons court nor any court interpreting Arons has departed in anyway from the "well established principle" that a lay advocate may not file papers in federal court on behalf of a party.
Second, Ms. Edmondson cannot file the papers on her own as it is clear that she is not the "parent of a child with a disability who is the prevailing party" here. 20 U.S.C. § 1415(i)(3)(B) provides that:
In any action or proceeding brought under this section, the
court, in its discretion, may award reasonable attorneys' fees
as part of the costs to the parents of a child with a
disability who is the prevailing party.
(emphasis added). If E.R. and C.D. prevailed in the administrative process, an issue that this Court does not reach here other than to note Vineland's vigorous disagreement, E.R. would be the one entitled to seek fees as C.D.'s parent. Regardless of the effort that Ms. Edmondson may or may not have placed into the case, the statute does not allow her to seek fees and costs in the parent's stead, pretending the parent has requested her to do so.
Therefore, this Court will grant defendant's motion for summary judgment and will strike the motions that Tracée Edmondson sought to file on behalf of plaintiffs. She was not authorized to file such papers with this Court, and this suit will be dismissed.
This Court finds that this case must be dismissed because Ms. Edmondson's filings have constituted the unauthorized practice of law. The Court will grant defendant's motion for summary judgment and will strike the motions filed by Ms. Edmondson. The Court is referring this matter to the Committee on Unauthorized Practice of Law, under a separate mailing today.
The accompanying order is entered.
This matter having come before the Court on two documents filed by non-attorney, non-party Tracée Edmondson, entitled the "Motion for Fees and Costs," [Docket Item 1-1], and "Motion for Summary Judgment in Support of Motion for Fees and Expenses," [Docket Item 5-1], and on the Cross-motion for Summary Judgment of defendant Vineland Board of Education, [Docket Item 7-1]; and the Court having considered all submissions and having provided Ms. Edmondson an opportunity to correct or clarify whether her filing of this lawsuit constituted an unauthorized practice of law; for good cause:
IT IS on this 10th day of November, 2003, hereby
ORDERED that the submissions of Tracée Edmondson, [Docket Items 1-1, 5-1] be, and hereby are, STRICKEN as their filing constitutes the unauthorized practice of law; and
IT IS FURTHER ORDERED that defendant's cross-motion for summary judgment, [Docket Item 7-1], be, and hereby is, GRANTED; and
IT IS FURTHER ORDERED that this case is DISMISSED and that the Clerk of Court close this case upon its docket.