22 Jan Federal Wrongful Death Suit Appearances – a Lawyer’s Retainer
An estate representative filing a federal suit for wrongful death pro se is not impermissible per se and does not constitute unauthorized practice of law. 28 U.S.C. §1654 expressly provides for pro se representation in Federal Court. Moreover, even assumingarguendo that such a temporary practice is disallowed, it is not just grounds for dismissal where the litigant subsequently retains legal counsel. See, e.g., Witherspoon v. Jeffords Agency, Inc., 120 Fed. Appx. 999 (4th Cir. 2005); Webb v. Stevens, No. 5:05-CV-33-BO(1) Decision and Order (E.D.N.C. Mar. 17, 2008) and 2008 U.S. Dist. LEXIS 61480 (E.D.N.C. Aug. 11, 2008); Gallo v. United States, 331 F.Supp.2d 446 (E.D. Va. 2004); Brown v. Ortho Diagnostic Sys., Inc., 868 F.Supp. 168, 172 (E.D. Va. 1994); and Wolford v. The Budd Co., 149 F.R.D. 127, 129-131 (W.D. Va. 1993)(North Carolina lawyer filing in Virginia federal court “mere technical defect” cured by retaining Virginia “to do substantial justice” versus “lock the courthouse door”).
The Fourth Circuit addressed an estate representative appearing pro se in a wrongful death suit. It found “no reversible error” in dismissal, but only after plaintiff was given opportunity to retain counsel of record and failed to do so. See, e.g., Witherspoon.
More recently in Webb, a §1983 civil rights suit for wrongful death, the court denied summary dismissal of the pro se complaint where the estate representative retained counsel of record. Avery T. Waterman, Jr., Esq. of Newport News and Williamsburg, Virginia, appeared, briefed and argued in Webb in North Carolina.
Earlier, in Gallo, a parent filed a personal injury action pro se in a representative capacity for a child. The Gallo court concurred with other courts that dismissal would be “unwarranted” because “appointment retention of counsel would solve the defect”; and also “would be a particularly harsh result in this case because any subsequent claim filed…after dismissal of this action would be effectively barred by the statues of limitation”. 331 F.Supp.2d at 448. Thus, Gallo concluded “the proper course is not to dismiss [the] case, but rather to allow Ms. Gallo to take measures to retain an attorney for her daughter.” Id. at 449. Brown, which likewise involved a parent appearing pro se for a child, holds the same. “And dismissal of [plaintiff’s] claim on this ground is certainly unwarranted. Rather, all that is required is for the Court to appoint counsel for [plaintiff], which now has been done.” 868 F.Supp. at 172.