NONATTORNEY TO REPRESENT PARTY IN COURT VIA POWER OF ATTORNEY The parties are divorced and have one child in common, Angelo F. (hereinafter “Angelo” or “subject child”). On October 21, 2020, Michael F. (hereinafter “Mr. F.”) filed an enforcement petition against Nicole F. (hereinafter “Ms. F.”). He sought to enforce the child support terms and conditions of the parties’ Judgment of Divorce, dated July 10, 2013, issued by the Honorable Norman Janowitz, under Nassau County Supreme Court Index Number 202443/2012 and the parties’ attendant Stipulation of Settlement agreement, dated January 29, 2013. See Petition for Violation of Support Order of Another Court (F., 10/13/20), Nassau County Family Court Docket Number F-6093-20/20A. On that same date, Mr. F. filed a modification petition against Ms. F. He sought an upward modification due to Ms. F.’s alleged increased income, and an order directing that the child support provisions of the parties’ divorce documents be administrated through the Support Collection Unit. See Petition for Modification of an Order Made by Another Court of this State (F., 09/30/2020), Nassau County Family Court Docket Number F-6093-20/20B. On November 19, 2020, in advance of the parties’ November 20, 2020 virtual preliminary conference date, the Court received a facsimile in which Mr. F. granted his father, Joseph F. (hereinafter “Paternal Grandfather”), power of attorney to proceed on his behalf with respect to his Family Court matters. See Fax (F., 11/19/2020), Nassau County Family Court Docket Number F 6093-20/20A, 20B. On November 20, 2020, Mr. F. appeared with the Paternal Grandfather and Ms. F. appeared with her retained attorney, David Schnall, Esq. (hereinafter “Mr. Schnall”). The Paternal Grandfather announced that he would be handling his son’s court matters for him. A discussion ensued about whether Mr. F.’s power of attorney granted the Paternal Grandfather the authority to do so. The Paternal Grandfather acknowledged that he is not an attorney. The Court explained that it would be inappropriate for the Paternal Grandfather to represent his son since the Paternal Grandfather might be a witness in the matter. The Court further explained that more importantly, in court matters, a litigant has only two choices — he or she may represent themself or hire an attorney to represent their interests. The Court cautioned the Paternal Grandfather that by representing his son in court, the Paternal Grandfather would be committing the unauthorized practice of law. Mr. Schnall agreed with the Court’s assessment. Notwithstanding, the Paternal Grandfather was steadfast in his position. He argued that he had gotten legal advice from several attorneys who told him that it was perfectly acceptable for him to appear on his son’s behalf in Family Court. The Paternal Grandfather further argued that he has utilized powers of attorney in his business dealings without issue. The Court adjourned the matter for a decision on the issue. Under New York State General Obligations Law §5-1501 et seq., a principal may authorize an agent to act on his or her behalf by executing a power of attorney. See N.Y. Gen. Oblig. Law §5-1501 et seq. (McKinney’s 2020). A power of attorney may be granted for an agent to perform a variety of functions in place of the principal. See e.g. N.Y. Gen. Oblig. Law §5-1502A (McKinney’s 2020) (real estate transactions); N.Y. Gen. Oblig. Law §5-1502B (McKinney’s 2020) (chattel and goods transactions); N.Y. Gen. Oblig. Law §5-1502C (McKinney’s 2020) (bond, share and commodity transactions); N.Y. Gen. Oblig. Law §5-1502D (McKinney’s 2020) (banking transactions); N.Y. Gen. Oblig. Law §5-1502E (McKinney’s 2020) (business operating transactions). New York State General Obligations Law §5-1502H permits a principal to confer power of attorney upon an agent for claims and litigation. See N.Y. Gen. Oblig. Law §5-1502H (McKinney’s 2020). With respect to powers of attorney, an agent is considered an attorney-in-fact, but not an attorney duly licensed to practice law. See N.Y. Gen. Oblig. Law §5-1501(2)(a) (McKinney’s 2020) (“‘Agent’ means a person granted authority to act as an attorney-in-fact for the principal under a power of attorney.”). Only individuals duly licensed to practice law in New York State may represent a party in a legal action. See Thomas v. U.S., 2020 U.S. Dist. LEXIS 66737, at *1 (S.D.N.Y. Apr. 15, 2020) (court unable to consider motion signed by agent of party to legal proceedings where agent not lawyer); see also In re Pennicott, 2018 U.S. Dist. LEXIS 121950, at *3 (S.D.N.Y. July 19, 2018) (power of attorney found insufficient to confer authority to non-lawyer to file documents on behalf of party to litigation); Megna v. U.S. Dep’t of the Navy, 317 F. Supp. 2d 191, 192 (E.D.N.Y. May 8, 2004) (finding non-lawyer agent with power of attorney over party to lawsuit unable to commence action on party’s behalf). Whereas an agent appointed for claims and litigation may retain counsel on behalf of the principal, that agent may not represent the principal in court unless that agent is an attorney. See Marchese v. Nassau Cty. Jail, 2020 U.S. Dist. LEXIS 85535, at *5 (E.D.N.Y., May 13, 2020); see also Megna, 317 F. Supp. 2d at 192; In re Khoubesserian, 264 A.D.2d 599, 600 (1st Dep’t 1999). New York State Judiciary Law §478 and §484 prohibit parties, who are not admitted attorneys, from appearing in the state and federal courts of New York unless they are representing themselves. See N.Y. Jud. Law §478 (McKinney’s 2020); see also N.Y. Jud. Law §484 (McKinney’s 2020). Moreover, the unauthorized practice of law constitutes a crime in New York. See N.Y. Jud. Law §485 (McKinney’s 2020) (guilty of misdemeanor for unauthorized practice of law); see also In re Pennicott, 2018 U.S. Dist. LEXIS 121950, at *2-*3; Megna, 317 F. Supp. 2d at 192. Such statutes exist to protect the interests of persons who may suffer potentially disastrous consequences as a result of advice or representation provided by an individual with no legal education, training or experience. See N.Y. ex rel. Stephen B. Diamond v. My Pillow, 180 A.D.3d 419, 419 (1st Dep’t 2020) ( “The prohibition of the unauthorized practice of law ‘is intended to protect citizens against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work.’”); see also Jemzura v. McCue, 357 N.Y.S.2d 167, 168 (3d Dep’t 1974) (same). Under the law, Mr. F. may choose to proceed as a self-represented party or he may choose to hire an attorney. However, the Paternal Grandfather may not represent Mr. F. in these actions as he is not an attorney admitted to practice law. See In re Pennicott, 2018 U.S. Dist. LEXIS 121950, at *2 (person, including parent, not licensed attorney, may not proceed pro se on another’s behalf); see also Blunt v. Northern Oneida Cty. Landfill, 145 A.D.2d 913, 914 (4th Dep’t 1988) (finding court erred in allowing husband, not duly licensed to practice New York law, to appear on wife’s behalf). The Court can not, and will not, be complicit in allowing Mr. F. and his father to circumvent statutory proscriptions, public policy, and New York State accreditation, licensing, and registration requirements established for the legal profession. ORDERED, that Mr. F.’s application to have his father represent him in his Family Court matters is hereby denied; and it is further, ORDERED, that the parties are directed to appear for a conference on December 23, 2020 at 11:00 A.M. Mr. F. may represent himself, or retain an attorney to represent him, in his Family Court matters. This constitutes the decision, opinion and order of the Court. Dated: December 4, 2020
