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Housing Authority v. Tonsul

OPINION FILED JUNE 14, 1983.

HOUSING AUTHORITY OF THE COUNTY OF COOK, PLAINTIFF-APPELLEE,

v.

MARGARITA R. TONSUL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. James McCourt, Judge, presiding.

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Defendant Margarita Tonsul appeals from the judgment entered by the trial court in favor of plaintiff Cook County Housing Authority (CCHA) in this forcible entry and detainer action, contending that the judgment is void because CCHA's complaint was prepared, signed, and filed by a non-attorney agent.

The complaint which commenced this action was filed on May 17, 1982. The complaint was signed by James A. Floyd in the space reserved for the attorney's signature. Floyd was not licensed to practice law in Illinois at that time. Next to the signature the word "attorney" was scratched out and the word "agent" put in its place, so that the signature line read "James A. Floyd, agent for plaintiff." A hearing was held on July 28, 1982, at which plaintiff's attorney requested and was allowed leave to file his appearance. Defendant filed a special appearance and moved to quash the service of summons on the grounds that plaintiff, as a municipal corporation, is not empowered to initiate litigation on its own behalf except through a licensed attorney, and that the signing of the complaint by a non-attorney rendered all subsequent proceedings in the case a nullity. The trial court denied the motion, and defendant elected not to contest the merits of the case. Judgment was entered for the plaintiff, with execution stayed under a use and occupancy bond during the pendency of this appeal.

• 1-3 It is well settled that section 11 of the attorneys and counselors act (Ill. Rev. Stat. 1981, ch. 13, par. 11), which allows parties litigant to prosecute and defend their actions "in their proper persons," in no way authorizes a corporation to appear in any proceeding in any court through an agent who is not a licensed attorney. (See Aarrow Ambulance v. Davis (1974), 16 Ill. App.3d 318, 319, 306 N.E.2d 363; Leonard v. Walsh (1966), 73 Ill. App.2d 45, 47, 220 N.E.2d 57; see, e.g., Remole Soil Service, Inc. v. Benson (1966), 68 Ill. App.2d 234, 238-39, 215 N.E.2d 678.) Where a cause is prosecuted by a layman acting on behalf of a corporation, any proceedings in the case are a nullity and any judgment rendered therein is void. (See Aarrow Ambulance; Remole.) This strict rule operates to void the judgment even where the lay agent merely files the complaint over his own signature, and all subsequent court appearances are made by a duly licensed attorney. See Marken Real Estate & Management Corp. v. Adams (1977), 56 Ill. App.3d 426, 428, 371 N.E.2d 1192.

Plaintiff advances several arguments as to why the judgment in the instant case is not rendered void by the fact the complaint was signed by a layman. The first is that Floyd, by filling out and signing the simple, two-paragraph form complaint for forcible entry and detainer was performing a simple ministerial task which required no legal knowledge or skill and which can not be considered to be practicing law. Our supreme court has defined the practice of law as "`"the giving of advice or rendition of any sort of service * * * when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill."'" (People ex rel. Chicago Bar Association v. Barasch (1950), 406 Ill. 253, 256, 94 N.E.2d 148.) The court has expressly stated that that definition "embraces the preparation of pleadings and other papers incident to actions and special proceedings." (People ex rel. Courtney v. Association of Real Estate Taxpayers (1933), 354 Ill. 102, 110, 187 N.E. 823.) In Marken Real Estate & Management Corp. v. Adams (1977), 56 Ill. App.3d 426, 371 N.E.2d 1192, a layman agent of the plaintiff corporation filed a complaint for distress for rent, a distress warrant, and an inventory with his name entered in the space for the attorney's name. The court expressly did not decide whether the filing of the inventory and warrant constituted the unauthorized practice of law. The court held that the signing of the complaint by the non-attorney agent constituted the unauthorized practice of law and rendered the judgment entered in the plaintiff's favor void. 56 Ill. App.3d 426, 429.

Plaintiff relies on Chicago Bar Association v. Quinlan & Tyson, Inc. (1966), 34 Ill.2d 116, 214 N.E.2d 771, for the proposition that the simplicity of the complaint involved in this case takes the preparation of the complaint out of the realm of the practice of law. In that case, our supreme court held that a real estate broker is not engaged in the practice of law when he fills in the blanks on a standard form earnest money contract or offer to purchase form with information provided by the parties to the transaction, because the preparation of such a preliminary form is incidental to the broker's function and operates as his entitlement to his commission. (34 Ill.2d 116, 121.) That holding, however, represents only a narrow exception to the broad rule enunciated in that case that real estate brokers are engaged in the unauthorized practice of law when they fill in the blanks on deeds, mortgages, and other legal instruments. (34 Ill.2d 116, 122.) As to the defendant's argument that such instruments are so standardized that only ordinary business knowledge is required to complete them, the court stated:

"Many aspects of law practice are conducted through the use of forms, and not all of the matters handled require extensive investigation of the law. But by his training the lawyer is equipped to recognize when this is and when it is not the case. Neither counsel nor amici have suggested any practicable way in which an exception to the general rule can be made where only the use of forms is involved, or where the transaction is a `simple' one. Mere simplicity cannot be the basis for drawing boundaries to the practice of a profession." 34 Ill.2d 116, 123.

Likewise, we reject plaintiff's argument that the simplicity of the forcible entry and detainer complaint exempts Floyd's actions from the prohibition against the unauthorized practice of law.

The briefs of the parties contain extensive references and arguments concerning the application of the Practice of Law by Corporations Act (Ill. Rev. Stat. 1981, ch. 32, par. 411 et seq.) to this case. The cases cited above, however, construed the provisions of the attorneys and counselors act (Ill. Rev. Stat. 1981, ch. 13, par. 1 et seq.), and the holdings in those cases are dispositive of the issues in this case. The court in Remole Soil Service, Inc. v. Benson (1966), 68 Ill. App.2d 234, 215 N.E.2d 678, noted that section 1 of the Practice of Law by Corporations Act (Ill. Rev. Stat. 1981, ch. 32, par. 411), which forbids the practice of law by corporations, and section 5 of the act (Ill. Rev. Stat. 1981, ch. 32, par. 415), which authorizes corporations to employ attorneys to conduct litigation and other matters incidental to the corporation's business, evidences a strong legislative intent that corporations may not practice law except through a licensed attorney. (68 Ill. App.2d 234, 238.) Plaintiff argues that the Practice of Law by Corporations Act should not be applied to municipal corporations, because although such corporations are not specifically exempted from the provisions of the Act (see Ill. Rev. Stat. 1981, ch. 32, par. 415), the distinctions between municipal corporations and business corporations are so great that a statutory provision which specifically applies to business corporations should not be construed to apply to municipal corporations absent a clear legislative intent.

Without addressing the question of whether the Practice of Law by Corporations Act applies to municipal corporations, we note that municipal corporations, like business corporations, can not be said to have the ability to appear in court "in their proper persons" as provided in section 11 of the attorneys and counselors act, and thus they can not be exempted from the provision of section 1 of that act that no person shall practice law in this State unless he is a duly licensed attorney. The issue in this case is not whether a municipal corporation may hold itself out as being entitled to practice law or whether it may practice law on its own behalf; the issue is whether such an entity may conduct legal proceedings through a layman agent. In this regard, the court in Remole Soil Service, Inc. v. Benson (1966), 68 Ill. App.2d 234, 215 N.E.2d 678, remarked that "[i]t is more than a play on words to say that soulless corporations function only through living souls." (68 Ill. App.2d 234, 238.) Municipal corporations, like their business counterparts, are soulless and inanimate, and when an agent undertakes to practice law on behalf of such a principal, he must be licensed to do so.

For the reasons expressed herein, the judgment of the circuit court is reversed.

PERLIN, J., concurs.

PRESIDING JUSTICE DOWNING, dissenting:

As stated by the majority, "the issue is whether such an entity may conduct legal proceedings through a layman agent." I differ with the majority in the interpretation of "conduct legal proceedings." To reverse this case solely because the forcible detainer complaint was prepared, signed and filed by a non-attorney agent is an example where, in the administration of justice, we can be imprisoned in a straight jacket of archaic formalism. Defendant does not challenge the finding of the trial court. ...


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