Mouktabis v. Amarou

499 P.3d 881, 314 Or. App. 130

• Court: Court of Appeals of Oregon
• Decided: September 1, 2021
• Docket: A174698
• Status: Published

Opinion

On appellant’s motion to reconsider filed May 5, respondent’s response filed May 17, and appellant’s reply filed May 18; reconsideration allowed, order of Appellate Commissioner adhered to September 1, 2021

Fatima Mouktabis, a minor by and through her guardian ad litem, Nour Eddine MOUKTABIS, Plaintiff-Appellant, v. Malika AMAROU, Defendant-Respondent. Clackamas County Circuit Court 19CV13006; A174698 499 P3d 881

Plaintiff, a minor child over the age of 14, brought this action, seeking dam- ages for an alleged assault. Shortly after plaintiff’s attorney withdrew from the case, plaintiff’s father, Mouktabis, who is not a member of the Oregon State Bar, sought to be appointed as plaintiff’s guardian ad litem. The trial court appointed Mouktabis as plaintiff’s guardian ad litem with the instruction that Mouktabis obtain legal counsel for plaintiff. After Mouktabis failed to obtain legal coun- sel for plaintiff, the trial court granted defendant’s motion for summary judg- ment and dismissed plaintiff’s claims. Mouktabis then filed a notice of appeal on behalf of plaintiff. Defendant moved to dismiss the appeal on the ground that Mouktabis is neither an attorney nor “party in person,” as required by ORS 9.320 in order to prosecute “[a]ny action, suit, or proceeding,” and, therefore, Mouktabis lacked authority to file the notice of appeal. The Appellate Commissioner agreed with defendant but, rather than dismiss the appeal, the commissioner denied defendant’s motion, allowed Mouktabis 30 days to retain legal representation for plaintiff, and ordered that if no attorney appeared to represent plaintiff within 30 days, the appeal would be dismissed for lack of prosecution. Mouktabis seeks reconsideration of that order and argues that, as plaintiff’s guardian ad litem, he is “authorized to prosecute the case” and “has standing to appear pro se in the case.” Held: The commissioner properly ordered Mouktabis to obtain legal counsel to represent plaintiff on appeal. A guardian ad litem who is not a mem- ber of the Oregon State Bar is not authorized to appear as a pro se guardian ad litem. Such a person is not permitted to engage in the practice of law on behalf of a party, which includes making legal arguments, and filing pleadings and other legal documents, such as notices of appeal. Reconsideration allowed; order of Appellate Commissioner adhered to.

Henry C. Breithaupt, Judge. Nour Eddine Mouktabis pro se for motion and reply. Daniel L. Duyck for response. Cite as 314 Or App 130 (2021) 131

Before Tookey, Presiding Judge, and Egan, Chief Judge, and Mooney, Judge. TOOKEY, P. J. Reconsideration allowed; order of Appellate Commissioner adhered to. 132 Mouktabis v. Amarou

TOOKEY, P. J. This appeal arises from a minor plaintiff’s tort claims against her stepmother. Plaintiff’s father, Nour Mouktabis (Mouktabis), represents plaintiff as her guard- ian ad litem. Shortly after the notice of appeal was filed by Mouktabis, defendant filed a motion to dismiss the appeal on the ground that, as guardian ad litem, Mouktabis is neither a party, nor an attorney, and is therefore prohibited from filing a notice of appeal on behalf of plaintiff and from other- wise legally representing plaintiff on appeal.1 The Appellate Commissioner agreed with defendant’s argument; however, the commissioner did not dismiss the appeal but, instead, allowed Mouktabis 30 days to retain legal representation for plaintiff and ordered that, if an attorney did not appear on behalf of plaintiff within 30 days, the appeal would be dis- missed for lack of prosecution. Mouktabis seeks reconsideration of that order, asserting that, as plaintiff’s guardian ad litem, he is “autho- rized to prosecute the case,” and “has standing to appear pro se in the case.” On reconsideration, we conclude that a guardian ad litem who is not an attorney is not authorized, by way of his or her guardian ad litem status, to engage in conduct on behalf of the party that would constitute the practice of law. Accordingly, we adhere to the Appellate Commissioner’s prior order. I. FACTS AND PROCEDURAL HISTORY Plaintiff is a minor child over the age of 14. In March 2019, through an attorney, plaintiff brought an action against defendant seeking damages for an alleged assault. Plaintiff petitioned the trial court to appoint her mother, Clemens, as her guardian ad litem, and the trial court granted that motion. In January 2020, plaintiff’s attorney withdrew from the case. The following month, Clemens moved to be removed as guardian ad litem and for appointment of Mouktabis in her place. Clemens explained, 1 Defendant’s motion was entitled a motion to “strike the notice of appeal.” Throughout this opinion, we refer to the motion as a motion to dismiss because, in seeking to “strike” the notice of appeal, defendant effectively sought dismissal of the appeal. Cite as 314 Or App 130 (2021) 133

“[N]ow that I am without counsel, I am unable to act as [plaintiff’s guardian ad litem] and request that her father be appointed * * *. “* * * Mouktabis * * * is more capable of handling the stress of litigation, retaining a competent attorney, and act- ing in [plaintiff’s] best interest. I am indigent and unable to retain new counsel without first securing a refund from the departing attorney.”

Defendant opposed the appointment of Mouktabis as guard- ian ad litem, after which point Mouktabis filed his own motion seeking appointment as plaintiff’s guardian ad litem; he also submitted a reply to defendant’s opposition, in which he made a number of legal arguments regarding the issue of guardian ad litem appointment. At a hearing held on March 16, 2020, defen- dant noted that, in her view, “[Mouktabis] now wants to come in and be the guardian ad litem and effectively * * * act as attorney.” Defendant urged the court to disallow Mouktabis from serving as plaintiff’s guardian ad litem and to, instead, either appoint an independent guardian ad litem or allow plaintiff to find an independent guardian ad litem. The court declined to rule on the request at that time and, instead, scheduled an evidentiary hearing on the matter. On April 26, 2020, defendant filed a motion for sum- mary judgment. Plaintiff, purportedly through Clemens, filed a response to that motion. In reply, defendant argued that the response was untimely and, in any event, “should be stricken because it is not filed by an attorney and rep- resents the unauthorized practice of law.” On August 7, 2020, the trial court held an eviden- tiary hearing on the matter of whether to appoint Mouktabis as plaintiff’s guardian ad litem. At that hearing, the court expressed concern about the lack of legal representation for plaintiff, and Mouktabis testified that he intended to seek legal representation for plaintiff. The court appointed Mouktabis as plaintiff’s guardian ad litem and ordered Mouktabis to “immediately attempt to arrange for legal counsel to prosecute the claim.” 134 Mouktabis v. Amarou

On August 19, 2020, the court held a hearing on defendant’s motion for summary judgment. At that hearing, the trial court confirmed with Mouktabis that no member of the Oregon State Bar had submitted to the court the evidence in support of plaintiff’s response to the motion for summary judgment, and that Mouktabis had not spo- ken to any attorney in the time since being ordered to do so on August 7, 2020. Accordingly, the trial court granted defendant’s motion for summary judgment. The trial court entered a general judgment dismissing plaintiff’s claims on September 18, 2020.

Mouktabis filed a notice of appeal on behalf of plain- tiff on September 30, 2020. Defendant moved to dismiss the appeal on the ground that Mouktabis is neither an attorney nor “party in person,” as required by ORS 9.320 in order to prosecute “[a]ny action, suit, or proceeding.” Therefore, according to defendant, Mouktabis lacked authority to file the notice of appeal. Mouktabis opposed the motion to dis- miss and made a number of legal arguments as to why his guardian ad litem status authorizes him to “prosecute * * * an action,” on behalf of plaintiff, “without retaining coun- sel under Oregon law.” As noted, although the Appellate Commissioner agreed with defendant that Mouktabis’s sta- tus as guardian ad litem does not authorize him to repre- sent plaintiff in a legal capacity, the commissioner denied defendant’s motion and allowed Mouktabis 30 days to retain legal representation for plaintiff. The commissioner further ordered that if an attorney did not appear within 30 days, plaintiff’s appeal would be dismissed for lack of prosecution.

In the order, the commissioner explained: “ORS 9.160(1) provides that, ‘[e]xcept as provided in this section, a person may not practice law in this state, or rep- resent that the person is qualified to practice law in this state, unless the person is an active member of the Oregon State Bar.’ * * * ORS 9.160(2) provides that subsection (1) of that statute ‘does not affect the right to prosecute or defend a cause in person as provided in ORS 9.320.’ In turn, ORS 9.320 provides that ‘any action, suit, or proceeding may be prosecuted or defended by a party in person, or by an attor- ney * * *.’ Cite as 314 Or App 130 (2021) 135

“Read in conjunction with ORS 9.160(1), ORS 9.320 makes clear that only a party in person or an attorney may legally represent that party in court.” On reconsideration of the commissioner’s order, the ques- tions at issue are whether a guardian ad litem who is not a member of the Oregon State Bar is authorized to appear pro se on appeal and whether Mouktabis’s conduct here constituted engaging in the practice of law on behalf of the party to the action. II. ANALYSIS As the Oregon Supreme Court has explained, the two statutory provisions “that govern the representation of others before the state courts of Oregon” are ORS 9.160 and ORS 9.320. Oregon Peaceworks Green, PAC v. Sec. of State, 311 Or 267, 270, 810 P2d 836 (1991). ORS 9.160 provides, “Except for the right reserved to litigants by ORS 9.320 to prosecute or defend a cause in person, no person shall prac- tice law or represent that person as qualified to practice law unless that person is an active member of the Oregon State Bar.” ORS 9.320, in turn, provides that “[a]ny action, suit, or proceeding may be prosecuted or defended by a party in person, or by attorney * * *.” “Read together, ORS 9.160 and 9.320 state a general rule regarding legal representation and an exception to that rule. ORS 9.160 unequivocally prohibits a non- attorney from practicing law. ORS 9.320 states the key exception to the ORS 9.160 prohibition: representation of oneself. Neither statute empowers a nonattorney to repre- sent another in state court, a fundamental aspect of law practice.” Oregon Peaceworks Green, PAC, 311 Or at 270-71 (emphasis in original). Neither statute explicitly mentions guardians ad litem. However, the question of whether a nonattorney guardian ad litem may appear pro se on appeal is a question of statutory interpretation. When interpreting a statute, our paramount goal is to discern the legislature’s intent. State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009). We look first to the statute’s text, in context; “there is no more persuasive evidence of 136 Mouktabis v. Amarou

the intent of the legislature than ‘the words by which the legislature undertook to give expression to its wishes.’ ” Id. (internal citations omitted). We may also consider any per- tinent legislative history if it “appears useful to the court’s analysis”; however, our “consideration of that history, and the evaluative weight” that we give it, is at our discretion.2 Id. at 172. Finally, if necessary, “the court may resort to gen- eral maxims of statutory construction to aid in resolving the remaining uncertainty.” Id. The full text of ORS 9.320 reads, “Any action, suit, or proceeding may be prosecuted or defended by a party in person, or by attorney, except that the state or a party that is not a natural person appears by attorney in all cases, unless otherwise specifically provided by law. Where a party appears by attorney, the written pro- ceedings must be in the name of the attorney, who is the sole representative of the client of the attorney as between the client and the adverse party, except as provided in ORS 9.310.” “Party” is a legal term meaning “[o]ne by or against whom a lawsuit is brought; anyone who both is directly interested in a lawsuit and has a right to control the proceedings, make a defense, or appeal from an adverse judgment.” Black’s Law Dictionary 1350-51 (11th ed 2019); see Comcast Corp. v. Dept. of Rev., 356 Or 282, 296, 337 P3d 768 (2014) (“[W]hen a term is a legal one, we look to its ‘established legal meaning’ as revealed by * * * legal dictionaries.”); see also Oliver L. Barbour, A Summary of the Law of Parties to Actions at Law and Suits in Equity 18 (1864) (“Those persons who institute actions for the recovery of their rights, or the redress of their wrongs, and those against whom the actions are instituted, are the parties to the actions.” (Emphasis in original.)). Under ORS 9.310, an “attorney” is “a person authorized to represent a party in the written proceedings in any action, suit or proceeding, in any stage thereof. An attorney, other than the one who represents the party in the written proceedings, may also represent a party in court, or before a judicial officer, in which case 2 We have reviewed the pertinent legislative history and it is not useful to our analysis. Cite as 314 Or App 130 (2021) 137

the attorney is known as counsel, and the authority of the attorney is limited to the matters that transpire in the court or before such officer at the time.” “[R]emarkably,” no Oregon statute “defines the term ‘guardian ad litem.’ ” State ex rel Juv. Dept. v. Cooper, 188 Or App 588, 597, 72 P3d 674 (2003) (footnote omitted). Nevertheless, it is a legal term meaning a “ ‘guardian, usu. a lawyer, appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party.’ ” Id. (quoting Black’s 713 (7th ed 1999)). As described in Benson v. Birch, 139 Or 459, 461, 10 P2d 1050 (1932): “A guardian ad litem is a special guardian appointed by the court to prosecute or defend in behalf of an infant a suit to which such infant is a party. His office is to repre- sent the interests of the infant in the litigation. Although the infant is capable of suing or being sued, his incapacity requires that he be protected and to that end the statute requires that the infant litigant should be properly repre- sented by some one who may adequately enforce or protect his rights.” Thus, the guardian ad litem may be but is not required to be an attorney, and the guardian ad litem rep- resents the “interests” of the minor party. However, the guardian ad litem does not “ ‘step[ ] into the shoes’ of the represented person for all purposes.” Cooper, 188 Or App at 598 (emphasis in original) (citing Christman v. Scott, 183 Or 113, 117-18, 191 P2d 389 (1948) (“The action was properly prosecuted in the name of the [mentally incompetent] per- son. The cause of action was his; and he was not divested of it when he became incompetent. The cause did not belong to the guardian ad litem.”)). In other words, the guardian ad litem does not become a party to the action by virtue of serving as the guardian ad litem. Nor does the guardian ad litem become an attor- ney by way of serving as the guardian ad litem. However, the statutes and case law, when read together, may have caused some confusion on the matter of what the guardian ad litem is authorized or expected to do. For example, ORS 9.320 states that any “action, suit or proceeding may be 138 Mouktabis v. Amarou

prosecuted or defended by a party in person, or by attorney,” and in Benson, 139 Or at 461, the Supreme Court stated that a guardian ad litem is appointed “to prosecute or defend in behalf of an infant a suit to which such infant is a party.” As professors Homer Clark Jr. and Ann Estin have noted, “Courts have struggled to clarify the[ ] roles [of guardian ad litem and legal advocate], and define how children’s rep- resentatives may participate in different types of proceed- ings.” Homer H. Clark Jr. & Ann Laquer Estin, Domestic Relations: Cases and Problems 1078 (6th ed 2000). Indeed, in his motion for reconsideration, Mouktabis asserts that his intention was never to “appear as appellant’s attorney,” but rather to only “represent[ ] himself as a [guardian ad litem] who is authorized to prosecute the case”; he further asserts that he “neither counsels nor advises the minor plaintiff on legal issues as an attorney would.”

We first observe that “appearing as an attorney,” or, in other words, “the practice of law,” encompasses more than “counsel[ing]” or “advis[ing]” a party on legal issues. As noted above, the statutory definition of “attorney” includes the representation of a party “in the written proceedings in any action, suit or proceeding, in any stage thereof.” ORS 9.310; see also Black’s 1419 (11th ed 2019) (defining “practice of law” as “[t]he professional work of a lawyer, encompassing a broad range of services such as conducting cases in court, preparing papers necessary to bring about various trans- actions * * *, preparing legal opinions on various points of law, drafting wills and other estate-planning documents, and advising clients on legal questions”). Therefore, when a person files legal documents on behalf of another—such as pleadings or notices of appeal—that person engages in the practice of law.

ORS 9.160(1) explicitly provides that the only per- sons authorized to practice law in the state of Oregon are those who are active members of the Oregon State Bar— in other words, attorneys. ORS 9.160(2) provides that the rule from ORS 9.160(1) “does not affect the right to prose- cute or defend a cause in person as provided in ORS 9.320,” and ORS 9.320 provides that a cause “may be prosecuted or defended by a party in person.” In other words, as the Cite as 314 Or App 130 (2021) 139

Oregon Supreme Court noted in Oregon Peaceworks Green, PAC, there is an exception to the rule that nonattorneys are prohibited from practicing law, found in ORS 9.320: repre- sentation of oneself. Accordingly, the text of ORS 9.320, in context, is clear: only a party or attorney may “prosecute or defend” in any action, suit, or proceeding, and only an attor- ney may engage in legal practice on behalf of another in any action, suit, or proceeding. As explained above, a guardian ad litem who is not an active member of the Oregon State Bar is neither a party nor an attorney; thus, when that guard- ian ad litem files legal documents on behalf of the minor (or incapacitated) party to the action, suit, or proceeding, that guardian ad litem is engaging in the unauthorized practice of law, which is prohibited.

The use of the words “prosecute” and “defend” in Benson, when describing the role of the guardian ad litem, does not undermine the clarity provided by the text and context of the applicable statutes. Context matters not just in interpreting statutes, but also in understanding our precedent. As noted above, in Benson, the Supreme Court explained, “[The guardian ad litem’s] office is to represent the interests of the infant in the litigation.” 139 Or at 461. Further elucidation on the guardian ad litem’s represen- tation of the party’s interests is provided by Corpus Juris Secundum: “[T]he guardian ad litem * * * has the duty to determine the best interest of the ward, and he fully represents the rights and interests of his ward in the particular case, and his rights and powers generally extend to all matters in the particular litigation affecting the interest of his ward, in every stage of the action.”

57 CJS 173-74, Mental Health, § 271 (1992). In Cooper, we explained the difference between “the obligations of counsel” (legal representation) and “of the guardian ad litem” (repre- sentation of one’s interests) in the context of appointment of a guardian ad litem for an incapacitated parent: “ ‘While it is the lawyer’s duty to provide the parent with legal advice on such decisions as whether to contest the termination motion and whether to present particular 140 Mouktabis v. Amarou

defenses to the motion, it is the role and responsibility of the parent to make those decisions. If the parent is men- tally impaired so as to be incapable of understanding the nature and significance of the proceeding or incapable of making those critical decisions that are the parent’s right to make, then a court would clearly abuse its discretion in not appointing a guardian ad litem to act for and in the interest of the parent.’ ” 188 Or App at 598 n 7 (quoting People in Interest of M.M., 726 P2d 1108, 1120 (Colo. 1986)). The same is true when a guardian ad litem is appointed to represent a minor party: Because we consider minor parties to be “incapable of understanding the nature and significance” of legal pro- ceedings and “incapable of making those critical decisions” that are the minor party’s to make, a guardian is appointed to help the minor party make those decisions. That is the role of representing the interests of the minor party; that role does not encompass the practice of law on behalf of the minor party. Parties may “prosecute” or “defend” actions on behalf of themselves, but minors may not do so with- out the aid of guardians; thus, a guardian ad litem may prosecute or defend an action on behalf of the minor party in the sense that they may make decisions regarding the litigation—but they may not convert those decisions to the practice of law, as an attorney is authorized to do. Because filing legal documents and making legal arguments on behalf of a minor party constitutes the practice of law, the commissioner correctly ordered Mouktabis to obtain legal counsel to legally represent—i.e., practice law—on behalf of plaintiff on appeal. Mouktabis nevertheless argues that he is “autho- rized to prosecute the case pursuant to ORCP 27 and ORS 20.150,” and asserts that “[t]he commissioner relied solely on ORS 9.160(1) and ORS 9.320 while ignoring ORCP 27 and ORS 20.150 which control.” However, neither ORCP 27 nor ORS 20.150 is helpful in resolving the questions at issue. ORCP 27, which sets forth procedures for when a minor is a named party in a civil action, provides, “When a minor * * * is a party to an action and does not have a guardian or conservator, the person shall appear by Cite as 314 Or App 130 (2021) 141

a guardian ad litem appointed by the court in which the action is brought and pursuant to this rule as follows: * * * if the minor is 14 years of age or older, upon application of the minor.”

ORCP 27 B(1)(a); see also ORS 125.005 (defining “minor” as “any person who has not attained 18 years of age”). The rule addresses the requisite method for seeking appointment of a guardian ad litem, ORCP 27 D, notice requirements of the motion seeking appointment of the guardian ad litem, ORCP 27 E, and the contents of that notice, ORCP 27 F. The rule also mandates that upon objection to the motion, the trial court must hold a hearing on the matter, ORCP 27 G, explains that the court may waive the notice require- ments, ORCP 27 H, and addresses settlement of actions in cases in which the party for whom a guardian ad litem was appointed under section B prevails, ORCP 27 I. At no point, however, does ORCP 27 address the abilities, permissions, or authorities of a guardian ad litem appointed pursuant to the rule. Rather, ORCP 27 simply mandates and provides for the appointment of a guardian ad litem under various circumstances. ORS 20.150 addresses the recovery of costs and dis- bursements when a party is represented by another. As rel- evant here, the statute states, “In an action, suit or proceeding * * * in which a party appears by * * * guardian ad litem, costs and disburse- ments shall be recovered or not as in ordinary cases, but if recovered shall be chargeable only upon or collected from * * * the party represented or for whom appearance is made, unless the court or judge thereof shall order such costs and disbursements to be recovered from the * * * guardian * * * personally for mismanagement or bad faith in the com- mencement, prosecution, or defense of the action, suit or proceeding.”

Thus, ORS 20.150 also does not address the abilities, per- missions, or authorities of a guardian ad litem who has been appointed pursuant to ORCP 27; it simply provides for the manner in which costs and disbursements may be charged or collected in cases in which a guardian ad litem has been appointed. Accordingly, we reject Mouktabis’s argument 142 Mouktabis v. Amarou

that, under those statutes, he may proceed on appeal with- out an attorney to legally represent the minor party.3 In this case, Mouktabis is not a member of the Oregon State Bar, nor is he a party to the case; his minor daughter is the party—the person on whose behalf this action was insti- tuted in order to address the alleged wrongs done unto her. Mouktabis is not permitted to engage in the practice of law on behalf of plaintiff in this appeal, which includes making legal arguments, and filing pleadings and other legal doc- uments, such as the notice of appeal. Accordingly, we con- clude that the commissioner properly ordered Mouktabis to obtain legal counsel to represent plaintiff on appeal, and we adhere to that order. Reconsideration allowed; order of Appellate Com- missioner adhered to.

3 We note that in the trial court proceedings underlying this appeal, in a supplemental judgment entered on December 10, 2020, costs and disbursements were awarded to defendant against not only plaintiff, but also against Mouktabis personally, pursuant to ORS 20.150. It does not appear that Mouktabis has filed a notice of appeal on his own behalf, and this opinion does not address the circumstance in which a guardian ad litem appears pro se for the purpose of challenging the trial court’s award of costs and disbursements against the guardian ad litem personally.