Mark McCown: Power of attorney does not make you a lawyer
Published 12:00 am Tuesday, March 29, 2022
Dear Lawyer Mark: I have a question for you. I want to sue somebody, but it’s not for enough money to go hire a lawyer.
My son is pretty smart, and said that if I give him a power of attorney, he can go to court and sue for me.
Can he do that? — Proud Mama
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Dear Proud: A power of attorney does not allow someone to represent you in court.
Only two groups of people in Ohio can argue before courts: Attorneys admitted to the bar and the parties themselves.
A power of attorney allows an individual to act on the grantor’s behalf, as an “attorney in fact.”
It is a civil provision and cannot be used to get around the statutory and regulatory conditions on attorney at law.
Although the power of attorney has been around for hundreds of years, it has never in this state been allowed to get around the requirements of a legal background.
In fact, as early as 1402, attorneys at law were considered completely separate from attorneys in fact in England (where we get many of our laws).
A person who is not admitted to the bar in Ohio holds himself out as an attorney and practices law is engaging in the unauthorized practice of law in violation of RC 4705.01.
A violation of this section is a first-degree misdemeanor, punishable by up to six months in jail and a fine.
Dear Lawyer Mark: My son has had a lot of problems over the last few years, but has started putting his life back together recently.
He was in and out of jobs for awhile, and then started to go back to school.
He has now joined the Army, and is going through boot camp.
While he is gone, all of his mail comes to my house, and today I received a notice that he is being sued.
Apparently, when he signed his rent agreement for his apartment after Christmas, he did it for a whole year.
Well, he clearly doesn’t need the apartment since he joined the Army, and told them when he moved out that he was sorry, but didn’t know where he was going after boot camp.
I was going to answer the lawsuit for him, and let the court know why he had to break the agreement. Is that OK? — Soldier’s Mama
Dear Mama: Do not file an answer on behalf of your son.
First, you are not allowed to do it, even if he gave you a power of attorney, because you would be practicing law without a license, and it could be considered a criminal violation.
Second, your son has a valid defense to the lawsuit, and you could potentially cause problems for it if you file an answer.
Instead, have your son notify his commanding officer and JAG representative of the suit, and also contact a lawyer if he doesn’t receive a timely response from them.
There is a federal law, now called the Servicemembers Civil Relief Act (SCRA), that protects active duty military members and reserve and National Guard members called to active duty from certain financial and judicial proceedings. In general, the law permits certain debts and obligations to be waived or reduced if they were entered into before a member was on active duty and the ability to repay or honor the obligation has been materially impacted by the member becoming active.
Also, a servicemember may be able to pause legal proceedings against him or her if the member cannot appear due to their military service.
The lease agreement your son is being sued over is protected by the SCRA.
In addition to the suit being able to be paused (or “stayed” in legalese) while your son is in boot camp after the court is notified by his CO, your son’s lease was legally terminated after he gave them written notice of his active duty and copies of his orders.
Your son would still owe the following month’s rent after notification, as well as any unpaid rent from before the notice being provided to the landlord, but he is not liable for the balance of the lease payments.
Thought for the Week: “Soldiers generally win battles; generals get credit for them.” Napoleon Bonaparte
It’s The Law is written by attorney Mark K. McCown in response to legal questions received by him. If you have a question, forward it to Mark K. McCown, 311 Park Avenue, Ironton, Ohio 45638, or e-mail it to him at LawyerMark@yahoo.com. The right to condense and/or edit all questions is reserved.